ISP VCMP New Trail Construction Agreement _ Scope of Service_Phase 4.docx

New Trail Construction Agreement & Scope of Service Virginia Canyon Mountain Park New Trail Construction: Phase 4

City of Idaho Springs, Colorado March 24, 2025

New Trail Construction Agreement for Virginia Canyon Mountain Park Page 3

New Trail Construction Agreement for Virginia Canyon Mountain Park Page 1

NEW TRAIL CONSTRUCTION AGREEMENT

This new trail construction agreement sets forth the terms for the construction of new trails at the Virginia Canyon Mountain Park (the “New Trails”) by the ___contractor name _____(“CONTRACTOR”), and any Qualified Subcontractors (pursuant to: SECTION III.2.2 SUBCONTRACTOR APPROVAL, of this Agreement, of CONTRACTOR, where such New Trails are contemplated by the City of Idaho Springs (the “New Trail Construction Agreement”).

WHEREAS: The City has hired the Colorado Mountain Bike Association (“COMBA”) to provide professional services to design, layout and construction manage the additional New Trails system at the Site, and WHEREAS: The City desires to allow CONTRACTOR to provide construction services including labor, materials, tools and equipment (Including motorized) (the “Construction Services”) to construct additional New Trail(s) utilizing a combination of CONTRACTOR employees, CONTRACTOR volunteers (“Volunteers”) and Qualified Subcontractors, and WHEREAS: CONTRACTOR agrees to furnish such additional Construction Services including all labor, materials, tools and equipment required for the complete and prompt execution and performance of all duties, obligations, and responsibilities which are described or reasonably implied from this New Trail Construction Agreement and as may be described and agreed to by the parties, in the future, by additional written change orders, along with a New Trail Segment Form, hereto , NOW THEREFORE: for the consideration, hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

NEW TRAIL CONSTRUCTION AGREEMENT

THIS NEW TRAILCONSTRUCTION AGREEMENT (the “New Trail Construction Agreement” or “Agreement”) is made and entered into this _____th day of _________ 2025 (“Effective Date”) by and between the CITY OF IDAHO SPRINGS, a Colorado statutory municipal corporation with an address of 1711 Miner Street, Idaho Springs, CO 80452 (the “City”), and _____________________________("CONTRACTOR or Contractor") (collectively the "Parties").

For the consideration described herein, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

Scope of Services.

CONTRACTOR shall furnish all labor, materials, tools and equipment required for the complete and prompt execution and performance of all duties, obligations, and responsibilities which are required to construct New Trails as contemplated herein.

CONTRACTOR may also subcontract the furnishing of labor, materials, tools and equipment for New Trails to Qualified Subcontractors, which Qualified Subcontractors must agree in writing to be bound by all provisions of this Agreement.

CONTRACTOR and Qualified Subcontractors may also provide services to construct New Trails together utilizing a combination of resources from both parties if it is deemed to be more efficient than working individually.

Scope of Work.

GENERAL:

The existing trail system is expected to be augmented by constructing additional new trails going forward (the “New Trails”).

The New Trails contemplated will each be broken down into segments, designed by COMBA. Each New Trail segment (“New Trail Segment”) will be defined as to starting and ending points and the designed path identified by a map, trail number and segment letter as well as a flag line.

In all cases it is contemplated that one or more New Trail Segments will form a New Trail. Each New Trail will be identified by a New Trail number and eventually a New Trail name. For clarity, a New Trail will have a connection to the VCMP trail system at both ends and be capable of being opened to the public.

COMBA shall provide Project Management services to manage the Contractor’s construction of each New Trail and report progress to the City.

Contractor shall perform the work described herein (the “Work”). Each New Trail will be considered a project (the "Project"), in accordance with this New Trail Construction Agreement and the Contract Documents, attached hereto and incorporated herein by this reference.

Specific Work elements:

This specific New Trail Construction Agreement is intended to be used only for Hybrid Build Trail Segments. A hybrid build consists of a combination of Contractor supervision, tooling, working foreman and materials and a significant amount of Volunteer labor (the “Hybrid Build”). Contractor is responsible for the Work, as further described in this Agreement, Bonds.

See: II. ARTICLE 9 PERFORMANCE BOND, II. ARTICLE 10 PAYMENT BOND.

Commencement and Completion of Work.

Contractor shall commence the Project within ten (10) days of date of the Notice to Proceed. Substantial Completion of each Project shall be accomplished by the Date specified in the New Trail Segment Form making up the Project, unless the period for completion is extended otherwise in accordance with the Contract Documents.

Compensation/ Construction Agreement Price.

The City agrees to pay Contractor, subject to all of the terms and conditions of this Agreement, for each Project, an amount not to exceed the Estimate defined in the sum of each New Trail Segment Form making up a Project (the “Construction Agreement Price”). The City shall pay Contractor in the manner and at such times as set forth in this Agreement. The City has appropriated funds equal to or in excess of the Agreement Price.

Governing Law and Venue.

This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Clear Creek County, Colorado.

No Waiver.

Delays in enforcement or the waiver of any one or more defaults or breaches of this Agreement by the City shall not constitute a waiver of any of the other terms or obligation of this Agreement.

Integration.

This Agreement and any attached exhibits constitute the entire agreement between the Contractor and the City, superseding all prior oral or written communications.

Third Parties.

There are no intended third-party beneficiaries to this Agreement.

Notice.

Any notice under this Agreement shall be in writing, and shall be deemed sufficient when directly presented, emailed, or sent pre-paid, first-class United States Mail, addressed to:

The City: Andrew Marsh, City Administrator City of Idaho Springs P.O. Box 907 1711 Miner St.

Idaho Springs, CO 80452 admin@idahospringsco.com 303-567-4421

Severability.

If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect.

Modification.

This Agreement may only be modified upon written agreement of the Parties.

Assignment.

Neither this Agreement nor any of the rights or obligations of the Parties hereto, shall be assigned by either party without the written consent of the other.

Governmental Immunity.

The City, its officers, and its employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the City and its officers or employees.

Rights and Remedies.

The rights and remedies of the City under this Agreement are in addition to any other rights and remedies provided by law. The expiration of this Agreement shall in no way limit the City's legal or equitable remedies, or the period in which such remedies may be asserted, for work negligently or defectively performed.

IN WITNESS WHEREOF, this Agreement has been executed by the Parties as of the Effective Date noted above whether or not the date of signing is some other date.

CITY OF IDAHO SPRINGS

Chuck Harmon, Mayor

ATTEST:

Diane Breece, City Clerk

CONTRACTOR

Officer Name:

Company Name: _______________________

STATE OF COLORADO )

) ss.

COUNTY OF ____________)

The foregoing instrument was subscribed, sworn to and acknowledged before me this day

, 20 , by

, as of

My commission expires:

(S E A L) Notary Public

GENERAL CONDITIONS

DEFINITIONS

0. CONTRACT DOCUMENTS:

The contract documents are as defined below (the “Contract Documents”)

NEW TRAIL CONSTRUCTION AGREEMENT;

GENERAL CONDITIONS;

PROJECT SPECIFIC REQUIREMENTS;

SCOPE OF WORK;

CHANGE ORDER:

A written order issued by the City after execution of the New Trail Construction Agreement authorizing an addition, deletion or revision in the Work, or an adjustment in the New Trail Construction Agreement Price or the New Trail Construction Agreement Time. Ref: SECTION II.2.3 CHANGES IN THE WORK:

CITY:

The City of Idaho Springs, Colorado.

CITY REPRESENTATIVE:

The City's duly authorized representative in connection with the Project.

DAY:

Calendar day, unless otherwise specified. When the last day for the occurrence of an event falls on a Saturday, Sunday or legal holiday as recognized by the City, the time for performance shall be automatically extended to the next business day.

FINAL COMPLETION:

The date as certified by the City Representative when all the Work on a Project is completed, the warranty periods are complete, and final payment may be made. SECTION III.7.3 Final Acceptance NEW TRAIL CONSTRUCTION AGREEMENT or AGreement:

The entire written agreement covering the performance of the Work described in the Contract Documents, including all supplemental agreements thereto and all general and special provisions pertaining to the Work and materials therefor.

new trail CONSTRUCTION AGREEMENT TIME:

The time for completion of the Project as set forth in: I. ARTICLE 4 Commencement and Completion of Work.

new trail CONSTRUCTION AGREEMENT PRICE:

The amount set forth in: I. ARTICLE 5 Compensation/ Construction Agreement Price.

new trail segment form:

A Document provided by Construction Manager, and approved by the City, which specifies:

SUBCONTRACTOR:

Any person, firm or corporation with a direct contract with Contractor who acts for or in behalf of Contractor in executing any part of the Construction Agreement, pursuant to: SECTION III.2.2 SUBCONTRACTOR APPROVAL (excluding one who merely furnishes material).

SUBSTANTIAL COMPLETION:

It is intended that Substantial Completion occurs when the City Representative issues the Notice of Final Acceptance pursuant to SECTION III.7.3 Final Acceptance. This date as certified by the City Representative is when the City occupies, takes title to the New Trail, or takes possession of all or substantially all of the Project, or when the City may occupy or take possession of all or substantially all of the Project and put it to beneficial use for its intended purposes.

WORK:

All the work specified, indicated, shown or contemplated in the Contract Documents to construct the Project, including all alterations, amendments or extensions thereto made by supplemental written agreements or written orders of the City also (the “Work”).

TIME

TIME OF THE ESSENCE:

All times stated in the New Trail Construction Agreement are of the essence.

FINAL ACCEPTANCE:

Final Acceptance will be pursuant to: SECTION III.7.3 Final Acceptance.

CHANGES IN THE WORK:

The City reserves the right to order changes in the Work, in the nature of additions, deletions or modifications, without invalidating the New Trail Construction Agreement, and to make corresponding adjustments in the New Trail Construction Agreement Price and the New Trail Construction Agreement Time. All changes shall be authorized by a written Change Order signed by the the City Representative. The Change Order shall include appropriate changes in the Contract Documents and the New Trail Construction Agreement Time. The Work shall be changed, and the New Trail Construction Agreement Price and New Trail Construction Agreement Time modified only as set forth in the written Change Order. Any adjustment in the New Trail Construction Agreement Price resulting in a credit or a charge to the City shall be determined by mutual agreement of the parties before the Work set forth in the Change Order is commenced. If a Change Order results in an increase in the New Trail Construction Agreement Price, the City will need to gain approval of the City Council before the additional Work is started.

DELAYS:

1. If Contractor is delayed in the progress of the Work by fire, unusual delay in transportation, adverse weather conditions not reasonably to be anticipated, or other unavoidable casualties beyond Contractor's control, the New Trail Construction Agreement Time shall be extended for a reasonable period of time.

1. Any request for extension of the New Trail Construction Agreement Time shall be made in writing to the City Representative not more than seven (7) days after commencement of the delay; otherwise it shall be waived. Any such request shall contain an estimate of the probable effect of such delay on the progress of the Work.

1. Contractor shall not be entitled to any increase in the New Trail Construction Agreement Price, or to damages, or to additional compensation as a consequence of any such delays.

NO DAMAGES FOR DELAY:

The City shall not amend the New Trail Construction Agreement Price nor shall Contractor be entitled to additional compensation of any sort for costs or damages incurred as a result of any delays in performance unless such delay is the direct result of the acts or omissions of the City or persons acting on behalf of the City, in accordance with C.R.S. § 24-91-103.5.

CONTRACTOR'S RESPONSIBILITIES

COMPLETION/SUPERVISION OF WORK:

Contractor shall be responsible for completion of all Work in a timely and workmanlike manner in accordance with the terms and Specifications of the Contract Documents, including the techniques, sequences, procedures and means. Contractor shall be responsible for the coordination of all Work. Contractor shall supervise and direct the Work and give it all attention necessary for proper supervision and direction. Contractor shall maintain a supervisor on site at all times when Contractor is performing Work.

DUTY TO INSPECT:

Contractor shall inspect all Contract Documents, tests and reports, including soil tests and engineering tests, if applicable, and shall conduct a site or field review prior to executing the New Trail Construction Agreement. Contractor assumes the risk of all conditions which are disclosed, or which are reasonably suggested by any such tests or reports, or which would be disclosed by a field or site review. Contractor shall have the affirmative duty to advise the City of any concerns which Contractor may have regarding construction conditions prior to executing the New Trail Construction Agreement.

FURNISHING OF LABOR AND MATERIALS:

1. Unless specifically stated otherwise herein, Contractor shall provide and pay for all labor, materials and equipment, including: tools; construction equipment and machinery; utilities, including water; transportation; and all other facilities and services necessary for the proper completion of the Work.

1. In all purchases of supplies, materials and provisions to be incorporated or otherwise used by Contractor in the Project, Contractor shall use supplies, materials and provisions produced, manufactured or grown in Colorado if such supplies, materials and provisions are not of inferior quality to those offered by competitors outside of Colorado.

1. While engaged in the performance of the Work, Contractor shall maintain employment practices that do not violate the provisions of the Colorado Antidiscrimination Act of 1957, C.R.S. § 24-34-301, et seq., as amended.

EMPLOYEES AND SAFETY:

1. Contractor shall maintain at all times strict discipline of its employees, and Contractor shall not employee on the Project any person unfit or without sufficient knowledge, skill, and experience to safely perform the job for which the employee was hired.

1. Contractor shall be fully responsible to the City for the acts, negligence and omissions of all direct and indirect employees and Qualified Subcontractors. The Contract Documents shall not be construed as creating any contractual relation between any subcontractor and the City.

1. Contractor shall provide for and oversee all safety orders and precautions necessary for the safe performance of the Work. Contractor shall take reasonable precautions for the safety of all employees and others whom the Work might affect, all Work and materials incorporated into the Work, and all property and improvements on the Project Site and adjacent property.

Volunteers and safety

1. Contractor shall always maintain strict discipline of any Volunteers utilized on site and Contractor shall oversee and /or assign Volunteers to tasks that can be safely performed by any Volunteer.

1. Contractor shall manage all Volunteers while on site and maintain strict discipline of such Volunteers. Contractor shall dismiss any unruly Volunteers and shall only assign tasks to Volunteers within their reasonable skill and experience level in order to safely progress the Work.

CLEANUP:

1. Contractor shall keep the Project Site and adjoining ways free of waste material and rubbish caused by its employees, Volunteers or Qualified Subcontractors. Contractor shall remove all such waste material and rubbish daily during construction, together with all tools, equipment, machinery and surplus materials. Contractor shall, upon termination of its Work, conduct general cleanup operations on the Project Site, including the cleaning of all surfaces, paved streets and walks, and steps. Contractor shall also conduct such general cleanup operations on adjacent properties which were disturbed by the Work.

If Contractor fails to perform the cleanup required by this Article, after written notice, the City may cause the cleanup to be performed at Contractor's expense. Upon receipt of a statement for such cleanup, Contractor shall pay to the City the costs incurred by the City for such cleanup, or the City shall have the right to withhold said amount from any final payment due to Contractor.

PAYMENT OF ROYALTIES AND LICENSE FEES:

Contractor agrees to pay all royalties and license fees necessary for the Project, and to defend against all actions for infringement of copyright or patent rights, and to save and hold the City and COMBA harmless from such actions.

TAXES, LICENSES AND PERMITS:

Contractor shall pay all taxes imposed by law in connection with the Project, except the City of Idaho Springs Sales Tax, for purchases within the City, and shall procure all permits and licenses necessary for the prosecution of the Work. Contractor shall obtain a City tax-exempt number for the sales tax exemption.

SAMPLES AND SHOP DRAWINGS:

Contractor shall furnish, upon the request of Construction Manager or the City, samples and shop drawings to the City, who shall review them, possibly along with Construction Manager, for conformance with the Contract Documents. All Work shall comply with approved samples and drawings.

COMPLIANCE WITH LAWS AND REGULATIONS:

Contractor shall comply with all federal, state and local laws, ordinances, rules, regulations and orders in any manner relating to the Project. If any provision of the Contract Documents is at variance therewith, Contractor shall notify the City promptly.

CORRECTIVE WORK:

When any Work does not conform to the Contract Documents, Contractor shall make the necessary corrections so that the Work will so conform. Such corrections shall be accomplished within the time period approved by the City. Failure to complete such required corrections within the time period required shall constitute a breach of the New Trail Construction Agreement.

OTHER CONTRACTS:

The City reserves the right to let other contracts in connection with the Project Site. Contractor shall cooperate with all other contractors so that their work is not impeded by the Work, and Contractor shall give other contractors access to the Project Site necessary to perform their contracts.

COMMUNICATION:

Contractor shall direct all communications to the City with a copy to Construction Manager regarding the Project.

TERMINATION

0. LABOR DISPUTES:

Notwithstanding any other provision contained in this New Trail Construction Agreement, in the event of any picket or other form of labor dispute at the construction site, Contractor shall continue to perform the Work without interruption or delay. If Contractor ceases performance of the Work because of such picket or other form of labor dispute, the City may terminate the services of Contractor after giving forty-eight (48) hours' written notice of its intent to do so.

DEFAULT:

The City may terminate this New Trail Construction Agreement upon seven (7) days' written notice to Contractor if Contractor defaults in the timely performance of any provision of the Contract Documents, or otherwise fails to perform the Work, or any part thereof, in accordance with the Contract Documents. Termination of the New Trail Construction Agreement by the City shall not be the City's exclusive remedy, and the City may pursue such other remedies and actions lawfully available to the City including, but not limited to, an action at law for damages against Contractor or any bonding agency issuing a bond hereunder, or an action in equity for injunctive relief.

WARRANTIES:

0. GENERAL WARRANTY:

Contractor shall warrant and guarantee all material furnished and Work performed by Contractor for a period of one year from the Notice of Substantial Completion by the City. Under this warranty, Contractor agrees to repair or replace, at its own expense and under the direction of Construction Manager or the City, any portion of the Project which fails or is defective, unsound, unsatisfactory because of materials or workmanship, or which is not in conformity with the provisions of the New Trail Construction Agreement. Should Contractor fail to perform any such Work within the warranty period after a request by the City, the City may withhold payment of any retained amounts (the “Retainage”). The expiration of the warranty period shall in no way limit the City's legal or equitable remedies, or the period in which such remedies may be asserted, for Work negligently or defectively performed.

WARRANTY OF FITNESS OF EQUIPMENT AND MATERIALS:

Contractor represents and warrants to the City that all equipment and materials furnished for the Project and made a part of the Project, or placed permanently in the Project, shall be new unless otherwise specified in the Contract Documents. All equipment and materials used shall be of good quality, free of defects and in conformity with the Contract Documents. All equipment and materials not in conformity with the Contract Documents shall be considered defective.

Indemnification and INSURANCE Risks, Hazards:

The Project takes place in an outdoor environment, where numerous hazards and risks may be present. Hazards and risks include, but not limited to, weather, steep terrain, uneven ground, loose/unstable footing, falling trees, sun exposure and wildlife. Participation in trail-based activities - including but not limited to walking, hiking, running, mountain biking, and trail construction and maintenance -carries inherent risks of injury or even death.

Contractors acknowledge such risks and assume all risk for itself, employees, Qualified Subcontractors, and Volunteers.

INDEMNIFICATION:

Contractor agrees to indemnify and hold harmless the City and its officers, insurers, volunteers, representative, agents, employees, heirs and assigns, COMBA, COMBA’s partners: Argo Mine, GOCO, TREK Foundation, and Colorado Parks & Wildlife from and against all claims, liability, damages, losses, expenses and demands, including attorney fees, on account of injury, loss, or damage, including, without limitation, claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this New Trail Construction Agreement, the Work or the Project, if such injury, loss, or damage is caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of Contractor, or any officer, employee, Volunteer, representative, or agent of Contractor, or which arise out of any worker's compensation claim of any employee of Contractor.

NOTICE OF CLAIM:

If Contractor receives any claim arising from the performance of the Work, Contractor shall notify the City in writing of the nature of the claim within twenty-four (24) hours of receipt of the claim by Contractor. In this notice, Contractor shall provide evidence that Contractor has notified Contractor's insurer of the claim. Contractor shall keep the City apprised of the disposition of the claim, and Contractor shall take all necessary action to resolve the claim and make restitution, if required, as quickly as possible.

INSURANCE:

1. Contractor agrees to procure and maintain, at its own cost, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by Contractor pursuant to this New Trail Construction Agreement. Such insurance shall be in addition to any other insurance requirements imposed by law.

Contractor shall procure and maintain, and shall cause any subcontractor of Contractor to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurers acceptable to the City. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage.

Worker's compensation insurance to cover obligations imposed by applicable law for any employee engaged in the performance of Work under this New Trail Construction Agreement, and Employer's Liability insurance with minimum limits of five hundred thousand dollars ($500,000) each accident, one million dollars ($1,000,000) disease – policy limit, and one million dollars ($1,000,000) disease – each employee. Evidence of qualified self-insured status may be substituted for the worker's compensation requirements of this paragraph.

Commercial general liability insurance with minimum combined single limits of at least six hundred thousand ($600,000) each occurrence and two million dollars ($2,000,000) general aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, products, and completed operations. The policy shall contain a severability of interests provision, and shall be endorsed to include COMBA and the City and their officers, employees, and consultants as additional named insureds. No additional insured endorsement shall contain any exclusion for bodily injury or property damage arising from completed operations.

Automobile liability insurance including non-owned and hired autos with the following limits:

Bodily injury - $500,000 each person/$500,000 each occurrence, Property damage - $100,000 each occurrence.

All such coverages shall be procured and maintained with forms and insurers acceptable to the City. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage.

Any insurance carried by COMBA or the City, or their officers, employees, or its consultants shall be excess and not contributory insurance to that provided by Contractor. The Contractor shall be solely responsible for any deductible losses under any policy.

Within 10 Days of the Notice to Proceed, and Prior to Contractor Mobilization, Contractor shall provide to the City a certificate of insurance as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect. The certificate shall identify this New Trail Construction Agreement and shall provide that the coverages afforded under the policies shall not be cancelled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. Changes in coverage may result in the Contractor being terminated from the Project. the City reserves the right to request and receive a certified copy of any policy and any endorsement thereto.

The certificate(s) of insurance described herein shall name COMBA and the City, and their officers, employees, and consultants as additional named insureds.

In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage.

INVOICING AND PAYMENT

Progress Invoices:

1. Contractor may, but is not required to, issue progress invoices as frequently as monthly. Each invoice will be accompanied by an itemized and detailed accounting of Work completed as related to payment requested. All payments are subject to such completed Work and punch-list items passing inspection by the City’s Construction Manager and being accepted by the City of Idaho Springs and, if requested by the City Representative, Contractor shall submit copies of invoices from Qualified Subcontractors or supplies and partial waivers executed by each.

1. A progress payment shall be made only after Contractor has applied for a progress payment on a form approved by the City Representative, Acceptance of Work is at the sole and final discretion of the City’s Construction Manager, and the City of Idaho Springs as outlined above.

Progress Payments

1. The City of Idaho Springs will pay Contractor within 30 days of acceptance of progress payment invoice for Work completed and itemized in the progress payment request. Payments may need to be approved by City Council at their regular meetings on the second and fourth Mondays of the month.

The City of Idaho Springs may hold back up to five percent (5%) of all payments until Provisional Acceptance of each Trail Segment pursuant to:

SECTION III.7.1 Provisional Acceptance:

If Contractor fails to complete any required Work within the time period agreed between Contractor and the City Representative, or within any time period set forth in the Contract Documents, as modified or extended, the City is expressly authorized to withhold any progress payment for such Work until such Work is completed.

Lien waivers will not be required.

NEW TRAIL SEGMENT PAYMENTS:

1. Upon completion of a New Trail Segment, including any New Trail Segment Punch List Items as described herein, Contractor may submit a New Trail Segment completion invoice on a form approved by the City Representative. Progress payments may be in an amount equal to ninety five percent (95%) of the Work actually completed. The five percent (5%) Retainage may be retained by the City until Final Completion of the Project pursuant to SECTION III.7.3 Final Acceptance

1. The City of Idaho Springs will pay Contractor within 30 days of acceptance of a New Trail Segment completion invoice for Work completed and itemized in the New Trail Segment Completion payment request. Payments are approved by City Council at their regular meetings on the second and fourth Mondays of the month.

If Contractor fails to complete any required Work within the time period agreed between Contractor and the City Representative, or within any time period set forth in the Contract Documents, as modified or extended, the City is expressly authorized to withhold any progress payment for such Work until such Work is completed.

Lien waivers will not be required.

ATTN: City Administrator, 1711 Miner Street, PO BOX 907 Email: admin@Idahospringsco.com City of Idaho Springs Idaho Springs, CO 80452-0907 With a copy to:

Construction Manager Attn: Gary Moore gary.moore@comba.org PO Box 280415 Lakewood, CO 80228

FINAL PAYMENT:

Upon Final Acceptance of the Project (Ref: SECTION III.7.3 Final Acceptance), the City shall pay the Contractor the remainder of the New Trail Construction Agreement Price due but theretofore unpaid. Notwithstanding any other part of this Section, the Contractor agrees that the City shall, when required by C.R.S. § 38-26-107(1), publish a “notice of final payment” prior to making final payment to Contractor. This notice of final payment advertises the date, time, and place when final payment will be made and is intended to alert Contractor’s suppliers so they can present any claims for unpaid amounts to the City. The final payment procedure typically delays the final payment made to the Contractor of the Retainage amount.

Regardless of whether “notice of final payment” is required by state statute, final payment shall not be made to Contractor until the City has complied with all applicable requirements of C.R.S. § 38-26-107 and all claims, if any, have been resolved to the satisfaction of the City.

LIQUIDATED DAMAGES:

Because time is of the essence and delayed performance constitutes a compensable inconvenience to the City and its residents, the liquidated damages established in this Article shall be enforced. Such damages are not a penalty. For each day Substantial Completion is delayed after the Substantial Completion Date stated in the New Trail Construction Agreement, as modified through approved change orders, Contractor shall be assessed the following amounts:

$0 - $49,999 $50,000 - $99,999

$TBD

$TBD

$250,000 - $499,999 $500,000 - $999,999 $TBD Comment by Robert Gaston: Determine amount per day.

$TBD

Allowing Contractor to continue and finish the Work or any part thereof after the Substantial Completion Date shall not operate as a waiver on the part of the City of any of its rights under the Contract Documents. Any liquidated damages assessed shall not relieve Contractor from liability for any damages or costs of other contractors caused by a failure of Contractor to complete the Work in the New Trail Construction Agreement Time. Liquidated damages may be deducted from any payment due Contractor or the Retainage. If the liquidated damages exceed the amount owed to Contractor, Contractor shall reimburse the City within ten (10) Days.

ORAL AGREEMENTS PROHIBITED:

All agreements between the Parties must be in writing. This New Trail Construction Agreement is expressly subject to the provisions of C.R.S. § 29-1-110(1), and Contractor acknowledges that neither the City nor any employee or agent thereof is authorized to expend or contract for the expenditure of any monies in excess of those appropriated by the City Council. The City acknowledges and agrees that sufficient funds have been appropriated to pay the New Trail Construction Agreement Price, but Contractor shall not rely upon the appropriation of any monies or other funds in addition to those already appropriated unless and until the same are lawfully appropriated by the City Council.

ITEMS NOT INCLUDED IN BID:

No additional compensation shall be paid for any costs or services listed in the Contract Documents but not specifically listed in the Bid Schedules as Pay Items. Reference: III. ARTICLE 9 PHASE 4 PAY ITEMS:.

CHANGES IN QUANTITY:

1. Except as provided in: SECTION II.7.10 BID PRICE ADJUSTMENTS:, the unit Bid price shown in the Bid Schedule shall be used to determine the payment owed Contractor for any changes in quantity.

1. The actual quantity placed, as determined by Construction Manager shall be used to calculate the payment due to Contractor.

1. Prior to any Work being performed in excess of any of the Bid Schedule quantities, Contractor shall notify the City and Construction Manager, in writing, of every quantity that will exceed one hundred five percent (105%) of the quantity listed on the Bid Schedule.

1. Except as provided in: SECTION II.7.10BID PRICE ADJUSTMENTS:, Contractor shall not be entitled to compensation for any increased expense, loss of expected reimbursement or loss of anticipated profits, directly or indirectly caused by any changes in quantity.

BID PRICE ADJUSTMENTS:

1. When a major item is increased to more than one hundred twenty five percent (125%) or decreased below seventy five percent (75%) of the original quantity stated on the Bid Schedule, the unit Bid price may be modified by written change order. Payment for major items shall be calculated by multiplying the actual quantity placed by the modified Bid price.

For purposes of this Section, a major item is any item having a Bid value, determined by multiplying the Bid quantity by the unit Bid price, that exceeds ten percent (10%) of the original New Trail Construction Agreement Price.

ELIMINATED ITEMS:

Should any items contained in the Bid Schedule be found unnecessary for completion of the Work, the items shall be eliminated. The New Trail Construction Agreement Price shall be modified through written change order, and the amount of the change order shall be the eliminated quantity multiplied by the unit Bid price stated in the Bid Schedule, minus any reasonable costs incurred by Contractor for the eliminated items. Reasonable costs shall be determined by the City based on information provided by Contractor, and may include mobilization of eliminated materials and equipment mobilization costs, if the sole purpose of the equipment was to place the eliminated material. In no case shall the costs exceed the amount of the eliminated items.

MATERIALS STORED BUT NOT INCORPORATED:

Payments may be made to Contractor for materials stored on the Project Site but not incorporated into the Work as evidenced by invoices or cost analyses of material produced, if the material has been fabricated or processed and is ready for installation into the Project and conforms with the Contract Documents. Payments shall not exceed eighty-five percent (85%) of the price shown in the Bid Schedule or one hundred percent (100%) of the certified invoice cost of the stockpiled material, whichever is less. Payment for stockpiled materials shall not relieve Contractor of responsibility for loss or damage to the material. Payment for living plant materials or perishable materials shall not be made until the living or perishable material is made an integral part of the finished Work.

COST RECORDS:

Contractor shall make cost records available to the City if the Construction Manager or the City deems it necessary to determine the validity and amount of any item claimed.

MISCELLANEOUS

PUBLICATIONS:

Any and all publications relating to the Project and authored by Contractor, or any of its suppliers, shall be submitted to the City for its prior written approval of the content of the publication. If the City disapproves of the content of the publication, the author shall withdraw it from publication. The term "publication" as used herein shall include articles or letters to be published in any newspaper, magazine, trade journal or other periodical.

CONFIDENTIALITY:

Any and all reports, information, date, statistics, forms, designs, plans, procedures, systems, studies and any other communication form of knowledge given to or prepared or assembled by Contractor under this New Trail Construction Agreement shall, to the extent required by law, be kept confidential and not be made available by Contractor to any individual, company or organization without the prior written consent of the City. Notwithstanding the foregoing, Contractor shall not be restricted from releasing information in response to a subpoena, court order, or legal process, but Contractor shall notify the City in writing before responding. Nothing herein shall affect the City’s duties and responsibilities to respond to public records requests made pursuant to the Colorado Open Records Act (“CORA”), Article 72, Title 24, C.R.S., as existing or as hereafter amended, and to comply with CORA in regards to any records related to this Agreement.

INDEPENDENT CONTRACTOR:

Contractor, for all purposes arising out of this New Trail Construction Agreement, is an independent contractor and not an employee of the City. It is expressly understood and agreed that Contractor shall not be entitled to any benefits to which Construction Manager or the City's employees are entitled, such as overtime, retirement benefits, worker's compensation, injury leave or other leave benefits.

CONFLICTS:

Should any conflict arise in the Contract Documents, the order of precedence is as follows:

0. New Trail Construction Agreement.

1. General Conditions.

2. Project Specific Requirements.

3. Scope of Work PERFORMANCE BOND Comment by Robert Gaston: Decide when Bonds are requires. Identify in RFP based on Bidders experience and balance sheet?

A Performance Bond may be required in this Agreement.

PAYMENT BOND

A Payment Bond may be required in this Agreement

NOTICE OF AWARD

[INSERT DATE]

Re: [INSERT PROJECT NAME]

Dear :

Thank you for submitting a bid for [INSERT PROJECT NAME].

Your firm has been selected as the successful bidder, and accordingly, this letter is your Notice of Award.

Enclosed please find an original and duplicate original New Trail Construction Agreement. Please review and sign both, then within ten (10) days return both to me along with your Certificate of Insurance in the amounts required by the New Trail Construction Agreement. When dating these documents, make sure all dates on all documents are the same. Return all the documents at the same time, in the same envelope.

Upon receipt of the two (2) executed copies of the New Trail Construction Agreement, the City will execute both. One fully executed original will be returned to you.

Sincerely, NOTICE TO PROCEED

Date: [INSERT DATE]

Re: Virginia Canyon Mountain Park

Dear :

This letter is your Notice to Proceed, effective as of the date of this letter. This notice is in reference to the Construction Agreement between you and the City of Idaho Springs concerning [INSERT PROJECT NAME].

Please note that the Work shall commence within ten (10) days from the date of this letter, and that the Work shall be Substantially Complete per the terms of this Agreement.

Should you have any questions, please call me at (303) 567-4421. Sincerely, Andrew Marsh City Administrator

PROJECT SPECIFIC REQUIREMENTS

CITY REPRESENTATIVE AND construction MANAGER

CITY REPRESENTATIVE

The City, as represented by the Assistant City Administrator, has ultimate decision-making authority including acceptance of Work and issuing payment. Comment by Robert Gaston: Still correct?

· City Representative: Andrew Marsh

· 1711 Miner Street

· P.O. Box 907

· Idaho Springs, CO 80452

· Email: @idahospringsco.com cONSTRUCTION MANAGEMENT As further described herein, the City of Idaho Springs has hired COMBA (the “Construction Manager”) to provide professional services to the City. These professional services include oversite of all contractors performing trail construction services including, but not limited to, trail design, specification, layout, mapping and contract administration. These services are defined as both “Project Management” and “Construction Management” services.

Obligation to Keep Contractors Team Intact Key Personnel Contractor will notify Construction Manager and the City in writing of any substantive changes to the Contractor’s team as described in their bid to the City. the City retains the right to amend or cancel the contract based on this change in key personnel.

SUBCONTRACTOR APPROVAL

Contractor shall furnish to the City Representative, from time to time, a list of names of subcontractors to whom Contractor proposes to award the portions of the Work to be subcontracted by Contractor.

Contractor shall not employ a subcontractor, whose employment the City reasonably objects, nor shall Contractor be required to hire a subcontractor to whose employment Contractor reasonably objects.

All contracts between Contractor and subcontractor shall conform to the provisions of the Contract Documents and shall incorporate the relevant provisions of the Contract Documents.

All subcontractors who meet the above approval requirements shall be defined herein as “Qualified Subcontractors”.

Contractor’s Point of Contact(s) Contractor will establish one primary point of contact for the entire Project and maintain one on-site foreman.

Upon Notice of Award, Contractor shall provide the City with contact information for the point of contact and on-site foreman.

PERMITTING AND ENGINEERING

U…