Form_of_Contract_126DE001.pdf

RFP 126DE001

East Metro Solar Inverter Replacement

Regional Transportation District

Contracting and Procurement

1660 Blake St.

Denver, CO 80202

Regional Transportation District

I. CONTRACT AWARD

II. STATEMENT OF CONTRACT COST

III. SCOPE OF WORK

IV. CONSTRUCTION TERMS AND CONDITIONS

V. CONTRACTORS KEY PERSONNEL

VI. INSURANCE & BOND REQUIREMENTS

VII. SPECIAL PROVISIONS/ALTERATIONS SPECIAL TERMS

VIII. COMPLETED CERTIFICATIONS

Exhibits:

A - SOW_EM Solar Inverter Replacement 26.05.04

B - Exhibit A Drawings EM Solar Inverter Replacement_26.04.26

C - Exhibit B Reference Pictures_EM Solar Inverter Replacement

1. CONTRACT AWARD

FORM OF THE CONTRACT

RTD Contract Number RFP 126DE001

ISSUED BY

Regional Transportation District

1660 Blake St., Denver, Colorado 80202 - 1399

Notices to: Patrick Naulty, Contract Administrator

CONTRACTOR

TBD

TBD

Notices to: TBD, Contract Representative

Invoices: Submit invoices as stated in the Section entitled, "Statement of Contract

Cost," Invoicing.

Products/Services: East Metro Solar Inverter Replacement

Contract Cost: TBD

Type: Fixed Price

Effective Date: The Effective Date of this Contract is TBD, or the last date of execution by

RTD of the Signature Page, whichever is later.

Period of Performance: Subject to the Termination provision of the Contract, performance shall commence as of the Effective Date (or in the event that RTD provides a

Notice to Proceed to the Contractor, the Period of Performance shall commence on the date of the Notice to Proceed) and shall continue for 6 Months (subject to the exercise of any option periods).

This Contract consists of: (1) Contract Award and Signature Page(s); (2) Statement of

Contract Cost; (3) Scope of Work (provided in Solicitation); (4) Terms and Conditions;

(5) Contract-Specific Documents and Requirements; and (6) Attachments. These

Contract Documents constitute the entire Contract between the parties.

2. STATEMENT OF CONTRACT COST

2.1. Term

Subject to the Termination provision of the Contract, Period of Performance shall commence as of the Effective Date (or in the event that RTD provides a Notice to

Proceed to the Contractor, the Period of Performance shall commence on the date of the Notice to Proceed) and shall continue for 6 Months.

2.2. Additional Option to Extend

RTD has the unilateral right and option to extend the Period of Performance beyond the expiration of the Period of Performance described above, including all available option periods. This option may be exercised more than once, but the extensions may not exceed a total of 6 calendar months. During such extensions, pricing for services and/or supplies will be based on the pricing established for the Period of Performance immediately preceding the extension. RTD may exercise this option to extend by written notice to the Contractor.

2.3. Compensation

A. This is a fixed-price Contract with a maximum price not to exceed TBD, within which price Contractor agrees to complete the Work as per the Contract

Documents. Compensation for Work shall be on a fixed price per unit of supplies ordered and for installation of such equipment, if required, and/or on a fixed price per hour for services in accordance with the negotiated pricing schedule included with this Statement of Contract Cost. Payments shall be made in accordance with the Invoicing terms included with this Statement of Contract

Cost.

B. All prices, rates and costs shall be inclusive of all fees associated with the

Contractor's efforts, including but not limited to salaries, benefits, expenses, overhead, administration, profits, and outside consultant fees. No hourly charges shall exceed any hourly rates identified in this Statement of Contract Cost or

Contract amendment. Contractor shall not invoice separately for mileage, travel time, parking expenses or any other miscellaneous charges.

C. RTD shall not pay the Contractor for any Work performed or for any cost incurred by the Contractor or subcontractors prior to the Period of Performance, unless those costs are incurred pursuant to RTD written notice to proceed and the costs are directly related to deliverable items set forth in the Scope of Work.

RTD shall not be required to pay any amount in excess of the Contract Cost, unless the Contractor has secured a written amendment to this Contract providing for such increase.

2.4. Discounts

If a prompt-payment discount is negotiated, its terms will be specifically identified in this Statement of Contract Cost. For purposes of earning such discount, payment shall be deemed tendered as of the date such payment is placed in the U.S. Mail.

2.5. Invoicing (Monthly)

A. Not later than ten days following the end of each calendar month within the

Period of Performance, the Contractor shall submit an invoice covering Work performed over the preceding month.

1. Invoices shall include:

a. The Contractor’s legal name;

b. The Contract number;

c. The Purchase Order number;

d. The period covered by the invoice;

e. The work order(s), if any, covered by the invoice;

f. The total Contract Cost;

g. The total amount due on the invoice, specifying amount of supplies and services, respectively, due under the invoice, and all documentation; and

h. All other information specifically required by the Scope of Work.

2. Contractor shall submit the following with its invoices:

a. A Monthly Progress Report detailing all Work accomplished during that month. Monthly Progress Reports shall be in narrative form, brief and informal in content, but shall include:

i. A quantitative description detailing all Work performed and percentage of completion by phases of the Scope of Work and required deliverable items;

ii. Identification of any current or anticipated problems which may impede Contractor’s performance and the proposed corrective action;

and

iii. A brief discussion of the Work to be performed during the next monthly reporting period.

3. Submit invoices to:

AP.Department@RTD-Denver.com mailto:AP.Department@RTD-Denver.com

2.6. Payment

A. Payment to the Contractor shall be made upon RTD’s determination that all Work submitted for payment has been performed and all information and documentation required under the invoice and work order, if any, has been submitted. Payment will be made to the Contractor within 30 days after RTD approval of submitted invoices.

1. Prompt Payment of Subcontractors. The Contractor agrees that:

a. It shall pay its subcontractor(s) any undisputed amounts for the satisfactory performance of their Work within seven days of the

Contractor’s receipt of payment from RTD for such Work;

b. Within 30 days after a subcontractor’s Work has been satisfactorily completed and accepted by RTD’s Project Manager or by the Contractor, whichever is earlier, the Contractor shall make full payment to the subcontractor of any retainage the Contractor has kept related to such subcontractor’s Work, unless a claim is filed against the subcontractor related to such Work;

c. Failure to comply with the above may give RTD just cause to impose one or more of the following penalties, until the required payment(s) to the

Contractor’s subcontractor(s) is satisfied, unless RTD has given prior written approval to the Contractor for the delay or postponement of payment(s): (1) withhold payments to the Contractor; (2) assess sanctions against the Contractor; (3) assess the subcontractor’s indirect or consequential damages against the Contractor; (4) disqualify the

Contractor from future bidding on RTD contracts as non-responsible; (5) enforce the payment bond against the Contractor; (6) pay the subcontractor(s) directly and deduct this amount from any retainage owed to the Contractor; (7) provide notice of default to the Contractor, stating the potential for termination or suspension of the Contract, in whole or in part; (8) issue a stop-work order until the subcontractor(s) is paid, which order shall constitute an unauthorized delay under the Contract that could result in liquidated damages against the Contractor. Unless approved by

RTD, the Contractor’s failure to comply with this Section is a material breach of the Contract; and

d. It shall ensure that tiered subcontractors comply with this Section and that they insert provisions (a) and (b) of this Section into all lower-tiered subcontractor agreements.

2. For contracts with an SBE goal, see the SBE Contract Requirements’ provisions on prompt payment of SBE subcontractors, which include monthly reporting requirements. The SBE Contract Requirements shall control in the event of a conflict with this Section.

2.7. Cost Detail

Pricing Details are TBD

Quantity Unit of Measure Unit Price Total

Solar Inverter Replacement 1 LS

3. SCOPE OF WORK

Please refer to the Attachments.

4. CONSTRUCTION TERMS AND CONDITIONS

4.1. DEFINITIONS

A. AS-BUILT DRAWINGS: A required submittal at the end of the Work from the

Contractor showing the actual quantities, dimensions, and locations of the Work performed under the Contract. As-Built Drawings must be stamped and signed by a Colorado Professional Engineer.

B. BASELINE SCHEDULE: The Contractor’s schedule to be provided to the

Contracting Officer before starting Work, which may differ from the Contract

Schedule provided by RTD in the Invitation for Bids or Request for Proposals. It shall be used as the basis to establish the Monthly Progress Schedule. A

Contractor’s Baseline Schedule is not the Term of Performance or the Contract

Schedule unless made so by a Contract Amendment.

C. BID or PROPOSAL: The Bid or offer or Proposal of the Bidder or Proposer for the Work when made out and submitted on the prescribed Bid or Proposal form, as directed by the Invitation for Bids or Request for Proposals, and properly signed and guaranteed and including the schedule of bid or proposed items. The

Bid or Proposal will be incorporated as an essential part of the Contract.

D. BIDDER or PROPOSER: Any individual, firm, partnership, corporation, or combination thereof submitting a Bid or Proposal for the Work contemplated, acting directly or through a duly authorized representative.

E. CONSTRUCTION DRAWINGS: The graphic and pictorial representation of the

Work to be performed, including the design, location and dimensions of the

Work, and generally including plans, elevations, sections, details, schedules, and diagrams.

F. CONTRACT: The executed document that controls the rights and duties of the parties and consists of the Contract Documents.

G. CONTRACT COST: The total amount payable by RTD to the Contractor for the performance of the Work under the Contract, which is stated in the Statement of

Contract Cost.

H. CONTRACT DOCUMENTS: Documents that are made part of the Contract and any amendments, change notices or change orders that result in an amendment to the Contract, including:

1. the Invitation for Bids or Request for Proposals and any addenda,

2. the Bid or Proposal,

3. the Construction Drawings,

4. the Technical Specifications,

5. the Scope of Work (which may be included in the Technical Specifications),

6. the Record Documents,

7. the Contract Award and Signature Page(s);

8. the Statement of Contract Cost;

9. Terms and Conditions, including:

a. the Construction Terms and Conditions,

b. Terms and Conditions that supplement the Construction Terms and

Conditions, if any,

c. Special Provisions/Alterations, if any, and

d. Federally Required Terms and Conditions, if applicable;

10. The following Contract-Specific Documents and Requirements:

a. Insurance and Bond Requirements,

b. Key Personnel Document,

c. Completed Certifications, and

d. SBE Contract Requirements, if applicable; and

11. any Exhibits (other than those documents already listed above).

I. CONTRACT SCHEDULE or TERM OF PERFORMANCE: The period of time allowed in the Contract Documents for completion of the Work. The Work is required to be done by the end of this period of time. The Term of Performance and all milestones constitute the Contract Schedule, which is established by RTD in the Contract (usually the Technical Specifications) and does not change unless changed by a Contract Amendment.

J. CONTRACTING OFFICER: The General Manager of RTD or such person(s) as he/she shall designate to act on his/her behalf in writing. Whenever the term

“Contracting Officer” shall appear in the Contract, the term shall also include his/her duly authorized representative(s), which may include the RTD Project

Manager, Contract Administrator, Purchasing Agent, Buyer, or the like. At the

Work site, the Contracting Officer’s duly authorized representative is generally the RTD Project Manager.

K. CONTRACTOR: The person or organization identified as the Contractor in the

Contract Documents and referred to throughout the Contract Documents as if singular in number. The term “Contractor” includes the Contractor’s authorized representative, employees, agents, and subcontractors.

L. DAY: A calendar day, unless otherwise specified in the Contract Documents.

M. DUE DILIGENCE: The measure of diligence and skill required of a good and competent contractor in bidding or proposing and performing the Work as contemplated by peers in the industry and measured by standard contracting practices commensurate with the duty to be performed and the individual circumstances of the situation.

N. FINAL ACCEPTANCE: Final Acceptance of the Work occurs when the Work is fully, completely, and finally accomplished in full, absolute, and strict compliance with the Contract Documents, including As-Built Drawings.

O. GENERAL FLOAT TIME: The time period differences between the milestones and the completion date established by RTD (according to the Contract Schedule contained in the Invitation for Bids, Request for Proposals, Technical

Specifications or the Scope of Work) and any earlier milestones and/or completion date in the Baseline Schedule or Monthly Progress Schedule. General

Float Time is also the time period that the Contractor has put into its schedule and noted in some form as “float.”

P. PROJECT: The intended end product (facility, parking lot, road, building, equipment, etc.) of the Contract in full compliance with the Technical

Specifications including the Scope of Work.

Q. PROJECT MANAGER (PM): At the Work site, the Project Manager is the duly authorized representative of both the Contracting Officer and the RTD

Representative and has the authority to act for and on behalf of RTD in all matters connected with this Contract, unless the Contractor is otherwise notified in writing by either the Contracting Officer or the RTD Representative. [The level of authority flows from the Contracting Officer to the RTD Representative to the

Project Manager.] The Project Manager or PM includes the PM’s duly authorized agents or representatives.

R. RECORD DOCUMENTS: All drawings, including As-Built Drawings and Shop

Drawings, Technical Specifications, and related documents marked to record all changes made during construction to reflect actual conditions; all submitted schedules including all updated Monthly Progress Schedules; and daily logs or diaries signed by the superintendent of record.

S. REGIONAL TRANSPORTATION DISTRICT, RTD, and DISTRICT: The

Regional Transportation District, a political subdivision of the State of Colorado, and its authorized representatives including the Contracting Officer.

T. RTD REPRESENTATIVE or ENGINEER: RTD’s Assistant General Manager for

Capital Programs or his/her delegate who has the authority to act for and on behalf of RTD in all matters connected with this Contract. At the Work site, the

RTD Representative is generally the RTD Project Manager.

U. SCOPE OF WORK: The general description of the Work to be performed and the responsibilities of Contractor in connection with the Work.

V. SHOP DRAWINGS: Items such as detail drawings, calculations, and catalog cuts, which are prepared by the Contractor to supplement or detail Construction

Drawings or Technical Specifications, and which are contractual requirements or are prepared at the Contractor’s option to detail its Work. Shop Drawings shall include those drawings, plans, lists, schedules, diagrams, catalogs, and other details, charts, calculations, and data necessary to control the Work adequately.

W. SUBSTANTIAL COMPLETION: Substantial Completion occurs when all Work is sufficiently complete to allow RTD full use of the Work for its intended purpose, and such items of Work that remain to be done are minor in nature and can be accomplished without significant interference with RTD operations.

X. TECHNICAL SPECIFICATIONS: All written material specifications, written equipment specifications, drawings, designs, terms, conditions, criteria, Scope of

Work details (including all Work requirements and restrictions), directives, etc., for the materials and equipment to be installed or constructed and the Work to be performed.

Y. WORK: The Work is comprised of the completed Work including the construction required by the Contract Documents performed to the complete satisfaction of RTD, and includes all labor necessary to produce such construction, all materials and equipment incorporated or to be incorporated in such construction, and final clean-up.

4.2. LEGAL REQUIREMENTS

A. INTENTIONALLY DELETED:

B. NONDISCRIMINATION: In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, Section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, Section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and federal transit law at 49 U.S.C. § 5332, Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, national origin, sex, age, or disability. In addition, Contractor agrees to comply with applicable federal implementing regulations.

C. NONCOMPLIANCE: In the event of the Contractor’s noncompliance with the nondiscrimination provision of the Contract or noncompliance with RTD’s SBE program, RTD shall impose such Contract sanctions as it may determine to be appropriate, including but not limited to:

1. Withholding of payments under the Contract until the Contractor complies;

2. Cancellation, termination, or suspension of the Contract, in whole or in part;

and/or

3. Determination by RTD that the Contractor is not a responsible contractor for the purposes of doing future RTD work.

D. ENVIRONMENTAL PROTECTION: The Contractor shall be responsible for the protection and preservation of the general environment along and adjacent to construction sites from its activities, and shall use every precaution necessary to prevent damage or injury to such environment, unless the removal, alteration, or destruction of such property is provided for under the Contract. At all times, the

Contractor shall comply with all applicable federal, state, and local governments’ and agencies’ laws, rules, ordinances and regulations, and those of any other entities or authorities under whose control or direction the Work is performed, all

Contract Documents including all Technical Specifications, Construction

Drawings, footnotes, etc., and all supplier and product manufacturer specifications.

1. DRAINAGE, EROSION, AND SILTING: The Contractor shall take all necessary measures to control erosion and silting of rivers, streams, and impoundments

(ponds, lakes, and reservoirs). Construction of drainage facilities as well as performance of other Work which will contribute to the control of erosion and siltation shall be carried out in conjunction with clearing and grubbing and earthwork operations. The Contractor shall refer to the Technical

Specifications for detailed requirements on erosion and sediment control.

2. WATER POLLUTION: The Contractor shall exercise every reasonable precaution to prevent pollution of rivers, streams, or impoundments.

Pollutants such as chemicals, fuels, lubricants, bitumens, raw sewage and other harmful wastes shall not be discharged into or alongside rivers, streams, and impoundments, or into the natural or man-made channels leading to them.

3. AIR POLLUTION: The Contractor must submit evidence to RTD that the governing air pollution criteria will be met. In complying with this Section, the

Contractor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Air Pollution Control Act, 42 USC 7401, et seq., and any other laws, rules and regulations of the entities or authorities under whose control or direction the Work is performed.

4. DUST CONTROL: Contractor shall be responsible for control of dust related to its construction activities during performance of this Contract. Between the

Contractor and RTD, the RTD PM is the sole judge in determining the sufficiency of the Contractor’s dust-control measures. Contractor shall use non-toxic substances to control dust and shall comply with all applicable laws, rules, regulations, etc.; Construction Drawings; and supplier/manufacturer specifications.

5. NOISE/VIBRATIONS: In performance of this Contract, Contractor shall comply with all applicable noise and vibration laws, rules, ordinances and regulations.

Contractor shall maintain its equipment in good working order to minimize noise and shall use its best efforts to ensure that significant vibration and noise-generating activities occur only during the daylight hours.

6. ASBESTOS: Contractor is advised that RTD properties may have building materials that contain asbestos. The asbestos may be (1) confirmed asbestos-containing material (ACM) (verified to be greater than 1% by laboratory analysis); (2) presumed to be asbestos-containing material

(PACM); or (3) material with the presence of asbestos (materials containing trace-1% asbestos). Prior to disturbing any building material, Contractor shall provide to the RTD Safety and Environmental Division a summary of the scope of Work planned at that building, including specific Work area/location and specific Work practices. The RTD Safety and Environmental Division will review the scope of Work in conjunction with asbestos inspection information to determine if any asbestos material will be impacted and what steps are necessary (if any) prior to disturbing the building material. In addition, Contractor shall obtain written clearance to conduct Work from the RTD

Safety and Environmental Division prior to disturbing any building material.

Contractor shall obtain this clearance by contacting RTD’s Environmental

Compliance Manager.

Contractor shall comply with all applicable federal, state and local asbestos regulations. The application or installation of any material or product with the presence of asbestos is prohibited by RTD. Contractor shall be responsible for all costs associated with removal of any installation or application of material with the presence of asbestos (detectable levels of asbestos). Contractor shall provide RTD with manufacturer certifications that products used do not contain the presence of asbestos (detectable levels of asbestos) or provide

RTD with product-testing data that demonstrates the products do not contain the presence of asbestos fibers.

E. PROHIBITED INTERESTS: No employee of RTD or any member of its governing body shall have any personal or financial interest, direct or indirect, in this Contract or any contract executed subsequently in connection with this

Contract during his or her tenure or for one year thereafter. No director, officer, employee, or agent of RTD shall be interested in any contract or transaction with the District except in his or her official representative capacity.

F. ANTI-KICKBACK PROVISION: The Contractor is prohibited from inducing, by any means, any person employed under this Contract to give up any part of the compensation to which he/she is otherwise entitled.

G. CONTRACT HEADINGS: The headings of the Articles and Sections of this

Contract are inserted for reference purposes and are not restrictive as to content.

H. LAWS GOVERNING: The laws (statutes, ordinances, rules, regulations, guidelines, codes, building codes, RTD requirements, etc. and the common law) of the State of Colorado and the municipality, county and/or district where the

Work, or any portion of it, is performed or supplied and applicable federal laws, rules, regulations, and Executive Orders shall govern this Contract.

I. COVENANT AGAINST CONTINGENT FEES: The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this

Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, RTD shall have the right to annul this Contract without liability or, at its discretion, to deduct from the Contract Cost or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee.

J. ORDER OF PRECEDENCE: Any inconsistency in this Contract shall be resolved by giving precedence in the following order:

1. Amendments to the Contract, if any;

2. Special Provisions/Alterations, if any;

3. Federally Required Terms and Conditions, if any;

4. The following Contract-Specific Documents and Requirements:

(i) Insurance and Bond Requirements,

(ii) Key Personnel Document,

(iii) Completed Certifications, and

(iv) SBE Contract Requirements, if any;

5. The Contract Award and Signature Page(s);

6. Terms and Conditions that supplement the Construction Terms and

Conditions, if any;

7. the Construction Terms and Conditions;

8. Statement of Contract Cost;

9. Change Notices, Change Orders, representations and other instructions from the Contracting Officer that amend, or will lead to amendments of, the

Contract;

10. the Technical Specifications, provided that (i) if, and to the extent that, the

Technical Specifications provide for a higher standard or more stringent requirement than the Terms and Conditions (including the Construction

Terms and Conditions, supplemental Terms and Conditions, and Federally

Required Terms and Conditions), the Technical Specifications shall be given precedence in such respects; and (ii) in the event of conflict or inconsistency between provisions of the Technical Specifications, the more stringent shall be given precedence over the less stringent;

11. the Construction Drawings - Larger-scale Construction Drawings shall be given precedence over smaller-scale Construction Drawings (for example: 1”

= 1’ is larger scale than 1” = 40’ and 1” = 1’ is larger than 1/8”=1’). Where appearing on drawings, computed dimensions shall govern over scaled dimensions;

12. the Scope of Work;

13. Exhibits (other than those documents already listed above); and

14. the Record Documents. Unless expressly agreed by RTD in the form of a

Special Provision/Alteration or Contract amendment, any agreement, license, provision, or other document not listed above but made a part of this

Contract shall be deemed an Exhibit for purposes of determining Contract order of precedence.Notwithstanding the above, discrepancies between

Construction Drawings and Technical Specifications will be reviewed in accordance with PRE-CONSTRUCTION RIGHTS AND DUTIES, AND USE OF

DOCUMENTS - TECHNICAL SPECFICATIONS.

K. PROTECTING RTD’S INTEREST WHEN SUBCONTRACTING WITH

CONTRACTORS DEBARRED, SUSPENDED, OR PROPOSED FOR

DEBARMENT: Any contractor or subcontractor that has been determined by

RTD to be non-responsible or incompetent is automatically suspended and debarred from doing Work on this Project. The Contractor shall not enter into any subcontract with a contractor or subcontractor that has been debarred, suspended, or proposed for debarment unless there is a compelling reason to do

so. If the Contractor intends to subcontract with a party that is debarred, suspended or proposed for debarment, a corporate officer or designee of the

Contractor shall notify the Contracting Officer, in writing, before entering into such subcontract. The notice must include the following:

1. The name of the subcontractor;

2. The Contractor’s knowledge of the reasons for the subcontractor being on the list of parties excluded from procurement programs;

3. The compelling reason(s) for doing business with the subcontractor, notwithstanding its inclusion on the list of parties excluded from procurement programs; and

4. The systems and procedures the Contractor has established to ensure that it is fully protecting RTD’s interests when dealing with such subcontractor in view of the specific basis for the party’s debarment, suspension, or proposed debarment.

L. HOLD HARMLESS: The Contractor agrees to defend, indemnify, and hold harmless RTD, its directors, managers, employees, agents and assigns, from and against any and all claims, suits, demands, liabilities, and court awards including costs, expenses, and reasonable attorneys’ fees, to the extent such claims are caused, in whole or in part, by:

1. any act or omission of, or breach of contract by, the Contractor, its employees, agents, subcontractors, or assignees arising from, related to, in connection with, or in any way involving Work performed or equipment and materials provided under this Contract;

2. any alleged infringement of any patent rights resulting from Work done by the Contractor; and

3. the use of any patented material, process, device, or article that may enter into the Work covered by this Contract;

but not to the extent such claims are caused solely by any act or omission by

RTD, its directors, managers, employees, agents, or other contractors or assignees. The Contractor, at its own expense, will be associated with RTD in the settlement or defense of any claims or litigation arising out of the performance of this Contract.The Contractor agrees to fully cooperate with and assist RTD in all suits, claims, and demands arising from, related to, in connection with, or in any way involving Work performed or equipment and materials provided under the Contract or that are based upon evidence

(including observations) that the Contractor or its employees may have obtained while performing the Work. Failure to cooperate and assist RTD when requested may be a breach of the Contract and/or result in a determination that the Contractor is ineligible for future RTD work. To the extent this section is more expansive than permitted by law, it shall not be null and void, but, rather, shall be conformed to be consistent with and to follow the applicable law. To the extent inconsistent, shall be modified to conform to existing law.

M. NOTICE OF CLAIM OR ACTION FILED: The Contractor shall give RTD through the Contracting Officer immediate written notice of any suit or action filed or any claim or demand made against the Contractor, its employees, agents, subcontractors or assignees arising from, related to, in connection with or in any way involving Work performed or equipment and materials provide under this Contract. The Contractor shall furnish immediately to the Contracting

Officer copies of all pertinent papers received by the Contractor. If the amount of the liability claimed exceeds the amount of coverage of the Contractor’s insurance against such claim, the Contractor shall authorize and direct the

Contractor’s counsel and the Contractor’s insurer(s), if any, to collaborate and cooperate with RTD representatives in settling or defending such claim.

N. COLORADO GOVERNMENTAL IMMUNITY ACT: Notwithstanding any other provision of this Contract to the contrary, 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, C.R.S. § 24-10-101, et seq., as amended.

O. APPROPRIATIONS: All obligations of RTD under this Contract that require funding are subject to prior annual appropriations of monies expressly made by the Board of Directors of RTD for the purposes of this Contract. Nothing in this

Contract shall be construed by either the Contractor or RTD as a multiple fiscal year obligation as described by Article X, Section 20 of the Colorado Constitution.

If funding is not appropriated by the Board of Directors, RTD may terminate or modify the Contract as required. Additional funding to the Contract will be accomplished by a Contract amendment. No legal liability on the part of RTD for any payment may arise for performance under this Contract beyond the current funding year, until funds are made available to the Contracting Officer for performance and until the Contractor receives notice of availability.

4.3. PRE-CONSTRUCTION RIGHTS AND DUTIES, AND USE OF DOCUMENTS

A. PURPOSE OF THE CONTRACT: The purpose of the Contract is to provide the requirements, duties and rights of the parties for the pre-construction work/requirements, construction, and completion of every detail of the Project as defined in the Scope of Work and the Technical Specifications. Unless otherwise specified, the Contractor shall furnish all labor, supervision, materials, tools, equipment, and incidentals necessary to complete the Project in a proper, thorough, skillful, and workmanlike manner using Due Diligence and in accordance with the Technical Specifications (including the Construction

Drawings), Scope of Work, and all schedule requirements.

B. BID OR PROPOSAL DOCUMENTS: In the Invitation for Bids or Request for

Proposals, RTD will include some form of a schedule of values or a Work breakdown structure that the Bidder or Proposer must complete when it bids the

Project. The Bid or Proposal documents are an essential part of the Contract and will be used as an aid to determine:

1. The amount of progress payments.

2. The proper amount of equitable adjustments based on Change Orders and

Change Notices.

3. The proper amount of Claims or equitable adjustments based on Claims.

4. The proper amount of equitable adjustments based on the termination of the

Work in whole or in part, whether or not there are Claims.

The Bid or Proposal documents are admissible evidence at trial, arbitration or any other proceedings and could become public records at that time. If the

Contractor requests in writing at the time of submitting its Bid or Proposal that its Bid or Proposal documents remain confidential, until the Bid or

Proposal documents become evidence at such a proceeding, the documents will be held by RTD in escrow as the Contractor’s confidential work product. If such documents are requested under the Colorado Open Records Act, RTD will continue to hold the documents confidential subject to the Contractor defending that position should the matter proceed to court. If the Contractor does not defend the action, RTD will release the documents.

C. TECHNICAL SPECIFICATIONS:

1. The Contractor is expected to have thoroughly read and understood all of the

Technical Specifications, including the Scope of Work. The Contractor will be expected to strictly adhere to the Technical Specifications, including the

Scope of Work, throughout the course of the Project. The Contractor shall keep on the Work site a full-size copy of the Construction Drawings and

Technical Specifications and shall at all times give any subcontractor, the

Contracting Officer or RTD PM access to the Technical Specifications.

2. Anything mentioned in the Technical Specifications and not shown on the

Construction Drawings, or shown on the Construction Drawings and not mentioned in the Technical Specifications, shall be of like effect as if shown or mentioned in both. In case of discrepancy either in the figures, in the

Construction Drawings, or in the Technical Specifications, written specifically as specifications (often in the form of standardized divisions), that comes to the attention of the Contractor, the matter shall be submitted within five Days to the Contracting Officer or the RTD PM, who shall, in writing, make a determination resolving the discrepancy. At any time before Work has actually begun on the portion of the Work where the discrepancy exists, the

Contracting Officer or PM can issue a written determination resolving the discrepancy.

3. Any adjustment by the Contractor without such a determination as to the priority of the drawings versus written specifications shall be at its own risk and expense.

4. The Contracting Officer or RTD PM shall furnish from time to time such detail drawings, written specifications and other information as he or she may consider necessary, which then become part of the Technical Specifications, possibly allowing the Contractor to seek a Change Order.

5. All Technical Specifications are and shall remain RTD property. They are not to be used on any other project, and, with the exception of one set of

Contract Documents for each party to the Contract, they are to be returned to RTD at the completion of the Work.

D. REVIEW OF CONTRACT DOCUMENTS AND LEGAL REQUIREMENTS:

1. The Contractor shall at once report to the Contracting Officer any error, inconsistency, or omission it may discover in the Contract Documents, including in the Technical Specifications. Failure to report such errors, inconsistencies or omissions immediately when the Contractor first discovers them, or should have discovered them if the Contractor had used Due

Diligence, will void any Claim by the Contractor for an equitable adjustment based on the errors, inconsistencies or omissions.

2. The Contractor is required to know the general and local codes, statutes, ordinances, rules, standards, guidelines and regulations of RTD, the railroads, governmental entities, and all other authorities or entities that control or affect the Work. Should the Contract Documents, including the Technical

Specifications, have specifications, drawings, figures, footnotes, etc. that violate any of the general or local codes, statutes, rules, etc., such Contract

Documents are considered to contain errors, inconsistencies or omissions requiring the Contractor, under this Section, to report them to RTD as soon as discovered, or as soon as they should have been discovered had the

Contractor used Due Diligence. Failure to report items in the Contract

Documents that violate general or local codes, rules, etc. voids any Claim the

Contractor may have based on the errors, and it subjects the Contractor to the liability aforementioned in this Section.

3. Any inconsistencies or errors in the Technical Specifications, including drawings, should be brought to the attention of RTD prior to the date when the Shop Drawings are due. Any Technical Specification that violates any code, rule, statute, etc. should also be brought to the attention of RTD prior to the date when the Shop Drawings are due. Additionally, if the failure to report such errors, inconsistencies or omissions results in damages to RTD, the Contractor will be responsible to compensate RTD for those damages to the extent that the damages could have been avoided had the Contractor reported the errors, inconsistencies or omissions when it first discovered them or should have discovered them had the Contractor used Due Diligence.

This includes errors, inconsistencies or omissions that the Contractor should have discovered in the Contract Documents had it used Due Diligence when bidding the Work.

E. INFORMATION FURNISHED BY RTD:

1. In the course of the planning of the Project and primarily for its own internal purposes, RTD may obtain data regarding engineering work, geological work, studies, rock or survey reports, soil boring reports, and any other matter whatsoever of an informational nature. RTD does not warrant, guarantee, or in any way or manner assume responsibility for the accuracy or uniformity of any statements, data assertions, analyses, evaluations or recommendations contained in any materials furnished. The Contractor is responsible for any conclusions drawn from such furnished data. If the Contractor does not wish to assume the risk of drawing conclusions from the same, it may employ, at no cost to RTD, its own experts to analyze the data presented or to make such additional explorations, tests, or studies as it may deem appropriate.

2. The Contractor acknowledges and agrees that it will not and cannot assume conditions affecting the Project or the Work based upon documents and information provided by RTD or representations and statements made by

RTD personnel. RTD assumes no responsibility for any conclusions or interpretations made by the Contractor based on the information made available by RTD. Nor does RTD assume responsibility for any understanding reached or representation made concerning conditions which can affect the

Work by any of its officers or agents before the execution of this Contract, unless that understanding or representation is expressly stated in this

Contract.

F. SITE INVESTIGATION AND CONDITIONS AFFECTING THE WORK:

1. The Contractor acknowledges and agrees that it has taken all steps reasonably necessary to ascertain the nature and location of the Work, and that it investigated and satisfied itself as to the general and local conditions which can affect the Work or its cost, including but not limited to: (1) conditions bearing upon transportation, disposal (including disposal of contaminated and hazardous material, if any), handling, and storage of materials including space availability; (2) the availability of labor, water, electric power, roads, site access, lane closures, and traffic control; (3) uncertainties of weather, river stages, tides, or similar physical conditions at the site; (4) the conformation and conditions of the site including ground material, soils, rock material, water, drainage, plants, bushes, trees, buildings, building materials, waste, trash and any other materials

(contaminated, hazardous or otherwise); (5) the character of equipment and facilities needed preliminary to and during Work performance; (6) all codes, statutes, ordinances, rules and regulations of RTD, railroads, governmental entities, and all other authorities or entities that control or affect the Work;

and (7) the historical use of the site (such as its use as a landfill or a building which could have had asbestos in it).

2. The Contractor also acknowledges that it has visited the Work site and has satisfied itself as to the character, quality, and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from an inspection of the site, including all exploratory work done by RTD, as well as from the Construction

Drawings and Technical Specifications made a part of this Contract. Any failure of the Contractor to take the actions described and acknowledged in this Section will not relieve the Contractor from responsibility for estimating properly the difficulty and cost of successfully performing the Work or for proceeding to successfully perform the Work without additional expense to

RTD.

G. DIFFERING SITE CONDITIONS:

1. The Section entitled ”Site Investigation And Conditions Affecting The Work” requires the Contractor to take all steps reasonably necessary to ascertain the nature and condition of the Work site which can affect the Work or costs.

Within five business days of discovery of the conditions described below, and before such conditions are disturbed, the Contractor shall give notice to the

Contracting Officer or the RTD PM in writing of:

a. subsurface or latent physical conditions at the site differing materially from those indicated in this Contract or that the Contractor could not have ascertained under a thorough investigation of the site as required by the

Section entitled ”Site Investigation And Conditions Affecting The Work”, or

b. physical conditions at the site of an unusual nature, differing materially from those ordinarily encountered and generally recognized by prudent and experienced contractors as inherent in Work of the character provided for in this Contract.

The Contractor shall not disturb the differing site condition for at least seven business days after notice of the condition has been given to the

Contracting Officer or the RTD PM unless permission is granted by the

Contracting Officer or the RTD PM.

The notice given pursuant to this Section does not automatically become a

CO. If the Contractor believes it has a CR based on the differing site conditions, it must follow the procedures outlined in the Article entitled

“Changes, Claims, And Dispute Resolution” herein.

2. The RTD PM shall investigate the site conditions promptly after receiving the notice described in this Article. If the conditions materially differ so as to cause an increase or decrease in the Contractor’s cost of, or the time required for, performing any part of the Work, whether or not the Technical

Specifications are changed as a result of the conditions, an equitable adjustment shall be made under this Article and the Contract modified in writing accordingly. If the parties cannot agree that a differing site condition exists or cannot agree upon an equitable adjustment to the Contract and/or a change to the Term of Performance (Contract Schedule), the Contractor is still required to complete the Work in accordance with the Technical

Specifications. The parties must resort to the Article entitled “Changes, Claims, And Dispute Resolution” for resolution. However, the parties specifically acknowledge and agree that no Claim or request by the

Contractor for an equitable adjustment to the Contract under this Article shall be allowed unless the Contractor has given the required written notice and has left the differing site condition undisturbed as required by this Article.

3. No equitable adjustment to the Contract for differing site conditions shall be allowed after final payment under this Contract except as described in this

Article.

4. The Contractor must also report and give notice of all differing site conditions benefiting RTD. Such conditions may lead to an equitable adjustment that decreases the Contract Cost or shortens the term of the Contract. Failure to report and give notice of differing site conditions that benefit RTD will result in a Claim by RTD when it becomes aware of the condition (or a lawsuit if the

Contract is finalized) and the automatic determination that the Contractor is not a responsible contractor for future RTD work.

H. EQUIPMENT, MATERIAL, AND APPROVAL OF ALTERNATIVES:

1. MATERIAL: All equipment, material, and items incorporated into the Work shall be new and of the most suitable grade for the purpose intended, unless otherwise specifically provided in this Contract. References in the specifications to equipment, material, items, or patented processes by trade name, make, or catalog number shall be regarded as establishing a standard of quality and shall not be construed as limiting competition. The Contractor may use any equipment, material, article, or process that, in the sole judgment and approval of the Contracting Officer, is equal to that named in the specifications, unless otherwise specifically provided in this Contract.

2. APPROVAL OF ALTERNATIVES: Unless otherwise specifically provided in the

Technical Specifications, the following procedures shall be in effect for approval of alternatives after Contract award. For convenience in designation on the Construction Drawings or in the Technical Specifications, certain articles or materials to be incorporated in the Work may be designated under trade names or the names of manufacturers and their catalog information;

these references shall be regarded as establishing a standard of quality and shall not be construed as limiting competition. Except in those instances where the product is specifically designated as unique or without an approved equal in the sole opinion of RTD or designated to match others in use in a particular improvement, either completed or in the course of completion, the use of an alternative article or material which the Contractor represents to be of at least equal quality and of the required characteristics for the purpose intended will be permitted, subject to all of the following requirements:

a. The burden of proof as to the quality and suitability of alternatives shall be upon the Contractor, and it shall furnish all information required by

RTD at no additional cost to RTD. The Contracting Officer shall be the sole judge as to the quality and suitability of alternative materials and that decision shall be final.

b. No tests or action relating to the approval of substitute materials will be made until the request for substitution is made in writing by the

Contractor, accompanied by complete data as to the equality of materials proposed. The data submitted must be full and complete to the satisfaction of RTD; incomplete submittals will not be acted upon by RTD but will be returned to the Contractor. Submittal procedures for approval of alternatives shall follow the procedures set forth in the Section entitled

“Shop Drawings“ herein. Such request shall be made at least 20 Days prior to the commencement of Work using such equipment, material, or articles to permit approval without delaying the Work, unless otherwise listed in the Technical Specifications.

c. Whenever classification, rating, or other certification by a body such as

UL, NEMA, AREMA, or AREA, etc., is part of the Technical Specification for any material, proposals for use of alternative materials shall be accompanied by reports from the listed or equivalent independent testing laboratory indicating compliance with the Technical Specification.

d. The cost of all testing required to prove equality of the material proposed shall be borne by the Contractor.

e. Approval of an alternative material shall be only for the characteristics or use named in such approval and shall not be used to change or modify any Contract requirement or to establish approval for material to be used on any other phase of the Work.

3. The Contracting Officer will either approve or reject the request for alternatives within 21 Days of receipt of the request, unless the Contracting

Officer or the RTD PM informs the Contractor in writing of the need for an additional seven Days to review the request.

a. The application and…