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HomeMy WebLinkAbout7471RESOLUTION NO. 7471 A RESOLUTION AWARDING A CONSTRUCTION CONTRACT FOR THE MAIN STREET BRIDGE REPLACEMENT PROJECT, AND AUTHORIZING THE PURCHASING AGENT TO EXECUTE THE SAME WHEREAS, proposals for the Main Street Bridge Replacement Project have been received and examined; and WHEREAS, the proposal of Lawrence Construction Company of Littleton, Colorado, was the lowest of those bids determined to be responsible; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: CFrTTnN 1 A contract for the Main Street Bridge Replacement Project be, and the same is hereby awarded to said bidder in the amount of $6,106,554.90. The awarding of the contract for the project set forth herein shall be subject to the filing of sufficient sureties to be approved by the Purchasing Agent of said City, and proper execution of all contract documents. CGrTTnM 9 The Purchasing Agent be, and he is hereby authorized to execute said contract on behalf of Pueblo, a Municipal Corporation, and the City Clerk shall affix the seal of the City thereto and attest the same. cGrTTnN I In addition to the amount of the bid set forth, as aforementioned, an additional amount as stipulated in this section is hereby established for contingencies and additional work. Contingencies and Additional Work- - - $610,655.00 CFrTTnN a Funds for said project shall be from 005 - 1994 - 413 - 000 - 040 -2163. INTRODUCED September 26 ,1994 By FAY KASTELIC Councilperson APPROVED: Yefident of City Council ATTEST: City Clerk -2- COMMITTEE OF AWARDS CITY OF PUEBLO IN RE: MAIN STREET BRIDGE REPLACEMENT, PROJECT NO. 94 -042 FINDINGS AND RECOMMENDATIONS Pursuant to Section 7 -32 of the Charter, a Committee of Awards ( "Committee ") consisting of Dave Galli, Acting City Manager, Tom Cvar, Director of Public Works, and Rick Morgan, Engineering Division, having received the bid results from the Purchasing Agent, met on September 21, 1994 and reviewed the bid results in the above matter. Having done so, the Committee accepts the bid of Lawrence Construction Company as the lowest and best bid and recommends to the City Council that it authorize the work to be performed by said bidder. This is based upon the following findings of fact and conclusions of law hereby entered by the Committee. 1. Bids were duly solicited for Project 94 -042 in accordance with an Advertisement for Bids dated August 11, 1994 and accompanying Project Manuals consisting of two volumes of specifications and drawings. The Advertisement for Bids, Article I.A, contained this statement: "The City of Pueblo reserves the right to reject any and all bids and to waive any informality." 2. Section 3.112(d) of Article 3, General Provisions, also advised that: (d) The City reserves the right to waive any informality in bids. 3. Pursuant to the terms of the bid solicitation, bidders were required to be prequalified. Seven construction contracting firms, including Lawrence Construction Company ( "Lawrence "), requested prequalification. Pursuant to Addendum No. 2, Specification Item No. 3, all seven firms were notified that they were prequalified. 4. Addenda No. 1, 2 and 3 each contained cover sheets stating that bidders "must acknowledge receipt" of the addendum and a statement that "A copy of [the] addendum shall be signed by the Contractor and included with the sealed bid." Bids were opened on September 20, 1994. A tabulation of the bids is attached hereto as Exhibit "A" 6. The bid submitted by Lawrence Construction Company was the low bid, in the amount of $6,106,554. The next low bid was submitted by SEMA Construction, Inc. ( "SEMA ") in the amount of $6,130,390. 7. SEMA has submitted a letter dated September 21, 1994 to Tom Cvar, Director of Public Works, a copy of which is attached as Exhibit "B" which protests acceptance of the bid submitted by Lawrence. Two principal points are raised by SEMA: First, SEMA contends that the Lawrence bid was not responsive because Lawrence did not include a signed copy of each addendum with the bid; Secondly, SEMA complains that the Lawrence bid was irregular because it contained "loose papers." 8. The Committee finds that the "loose papers" submitted with the Lawrence bid consisted of the required bid bond which every bidder was required to submit, and proposed girder erection procedures which bidders were permitted, but not required, to submit in accordance with Addendum No. 2, General Item 7, on page three of that addendum. This section read, in pertinent part, "The Contractor shall submit, with his bid, his detailed method statement of how he intends to alter the proposed procedure, what elements it affects and what the anticipated changes are." The Committee finds that these papers were properly submitted in accordance with the stated bid procedure. 9. Lawrence did not enclose in its bid a signed copy of each addendum. However, the Committee finds that the Lawrence bid itself reflected these addenda. This is evident because the Addenda were transmitted to Lawrence (and all other bidders) by the Engineer, the Lawrence bid was submitted on the proposal form included with Addendum No. 2, and the proposal form was modified in accordance with the instructions given in Addendum No. 3 and initialed. (See Exhibit "C" attached) A signed acknowledgement of Addendum No. 3 was faxed to Lonco, Inc. (the Engineer) on September 15, 1994. Moreover, Lawrence acknowledged after bid opening that all of the addenda were intended to be part of the bid submitted. (Exhibit "D ") 10. Lawrence's failure to include with its bid signed copies of the addenda is a technical irregularity of form which did not affect Lawrence's bid price nor the integrity of the bid process. See, for example, DAR 2 -405 recognizing that such minor informalities may be waived. Cf. AABCO, Inc. y. United States 3 C1.Ct. 109,116 (U.S.C.C. 1983). 11. The Committee believes that the decision in KNC, Inc. v. New Mexico Department of Finance 103 N.M. 167, 704 P.2d 79 (1985), which held that a failure to acknowledge receipt of addenda in a bid submittal was an irregularity which could be waived, is persuasive. 12. The Committee finds and determines that Lawrence considered the Addenda and its failure to acknowledge receipt of same in its bid submittal was an oversight. These facts establish the matter as a minor irregularity which should be waived by the City. 13. The Committee rejects the bid protest made by SEMA for the foregoing reasons. The Committee finds that the other arguments made by SEMA in its protest are without merit. 14. The bid submitted by Lawrence is determined to be the lowest and best bid and is responsive to the bid solicitation. -2- Dated this 9/ day of September, 1994. COMMITTEE OF AWARDS: Acting City Manager Director of Public Works (2�� F 44�0�- Engineering Division Hea Ay,.,V- 40.�, Purchasing Agent -3- BID SUMMARY BIDDERS TOTALS FOR BRIDGE 94 -042 iewit Western Edward Kramer A.S. Horner Flat iron Century -Jones Sema Lawrence Construction Structures. Construction Construction' DATE:09 /20/94 TIME: 2:00 P.M. & Sons Co. Inc Co COMMODITY: MAIN STREET BRIDGE - GRAND TOTAL ITEM _. ............ - - 6429106.00 _ - ---- 8236294 25 - 6384322 70 ----�-----• • 6433585.78 -- 6130390 32 _ _ T 6106554.90 - QUANTITY 1 Bridge Work 94 -042 1 UP 7823420.80 6429106.00 8236294.25 6384322.70 6433585.78 6130390.32 6106554.90 AMT 7823420.80 6429106.00 8236294.25 6384322.70 6433585.78 6130390.32 6106554.90 GRAND TOTAL 7823420.80 6429106.00 8236294.25 6384322.70 6433585.78 6130390.32 6106554.90 � 3 w Y SEP -21 -94 WED 12: SEMA CONSTRUCTION FAX NO, 3036499269 P,02 September 21, 1994 Mr. Tom Cvar Director of Public Works Department of Public Works 211 Eatt D Street Pueblo, Colorado 81003 Re: Pueblo Maid Street Bridge Replacement Project No. 94-042 Dear Mr. Cvar: SEMA Construction, Inc. hereby notifies the City of Pueblo of a formal protest regarding the City's acceptance of the bid submitted by Lawrence Construction Company on the above referenced project. The reasons for this formal protest are as follows: I . Lawrence Construction Company did not acknowledge receipt of addendum numbers one, two and three. The front pages of the addenda clearly stipulate the.bidders' responsibility to acknowledge receipt of the addenda and Include a signed copy with the sealed bid, Lawrence Construction Company did not comply with this Heavy and Kohway requirement. General Contrsatum ' 6746 2. The City of Pueblo has no assurance that Lawrence R"V PX*1' Construction Company will build the project according SO# 140 to the Issued addenda since there was no p pkwow acknowledgement. 0~0 8012 3. With the exception of Lawrence Construction Company, (3w) 604M all bidders who submitted bids complied with the rac (303) 649.9269 requirements of the addenda and provided responsive bids. Lawrence Construction Company's bid was not a responsive bid. 4. When the bid was opened from Lawrence Construction Company, It was observed that there were loose papers included with the bid. The Information on the loose papers is unknown. Page 12 of the bid proposal clearly states that bidders shall not add any conditions or qualifying statements, 6 the bid may be declared Irregular or being unresponsive. SEP -21 - 94 WED 12:11 SENA UUNS1hUU11UN hHX NU. JUJU0y by V. UJ Lawrence Construction Company's bid proposal did not' comply with this requirement. three addenda became part of the proposal due to . .The the requirement that the bidder must sign and Include a copy of the addenda 'with the bid. Article three, General Provisions, Section 3.112 (C) states, "Only proposals which are made out upon the ,regular proposal forme attached hereto ivili be considered." Lawrence , Construction Company dill not comply with tliis : requirement, The City of Pueblo should riot have considered this bld.• This section further states that "The proposal forms thusi not be separated from the attgched : volume" Lawrence Construction *Company did not comply with this requimment. G. The Colorado Department of Highways Standard Specifications for Road and Bridge Construction 1991 are incorporated by reference on this project. Section 102.07 states that proposals will be considered Irregular and may be rejeeied' if the bidder fails to acknowledge in the proposal the receipt of all revisions. Lawrence Constriutloin Company's bid is irregular and should have been rejected, Had tltls been a CLOT project, Lawrence Construction Company's bid would not have been read and would have been rejected. 7. In conversations with Tom Cvar, it Seemed tiie CIty of Pueblo felt that tawreace adinowledged the Addendum Number 1 by signing a Certified Mall receipt. As of September 21, 1994, SEMA Construction, Inc. verified -with Lonco that the addenda were not mailed out by Certified thall, bud. by Priority mail, Priority mail does ' not use return rcexfpts, therefore SLMA Construction, Inc. feels the trutli Is not being revealed. Ethical biddirig practices dictate: that all bidders shall follow the rules aria tl ectloris as specifled In the contr ict documents. If any binder ; does not comply with the directions bf'the proposal, standard practice is to reject the bid. Failure by an ovin to re ject irregular bids c1rcua0ent3 the competitive bidding process'nnd is a disservice to all bidder's who took the afforts,'time and expense of submitting a 'awarded responsive bid, If th project is' to be to Lawrence Coristnk-tion Company, future City of Pueblo bids will always have a question of what items bidclera'may lntentioiiallly or unintentionally : leave out of bid proposals. This quuld lead'to a situation where a bidder could submit a low bid, but leave'out a' portion of the bld proposal with the Intent of deciding whether or not to accept the project after �^� ••' ,; 4: revlewing the pricers of the other bidders. , +'� ��' ' •' ; :.. SEP -21_y4 Whu le: 11 6LM UUNa1KUU11UN tHA NU. JUJb4yyCby r... U4 The City of Pueblo should abide by the contract documents and award the job to the lowest responsible bidder. Lawrence Construction Company does not meet botli of,these requirements, SEMA, Construction,. Inc. Is available to discuss this at any time with the-City of Pueblo Representatives"' SEMA Construction, Inc; requests an official response to this fornikl protest prior to' any award of this bid. , p rion de ager ZETA Im, cc: Mr. Don Marturano, Esquire Attoucney at Law `Mr. Don Broyles; The Linden Company . , ITEM NO. 604 -19840 604 -19850 604 - 30005 604 -30010 604 -30015 604 -30020 i i 604 -30025 Cu ' DESCRIPTION CURB INLET TYPE W(H =5, L=15) CURB INLET TYPE W(H =5, L=45) MANHOLE SLAB BASE (5') MANHOLE SLAB BASE (10') MANHOLE SLAB BASE (15') MANHOLE SLAB BASE (20') MANHOLE SLAB BASE (25') GUARD RAIL TYPE 4 (MODIFIED) 606 -10400 BRIDGE RAIL TYPE 4 (MODIFIED) (7Z 11J) 607 -53161 FENCE CHAIN LINK (SPECIAL) t 607 -60266 16 FOOT GATE DOUBLE (CHAIN LINK) 608 - 00004 CONCRETE SIDEWALK (4 INCH) 609 -21020 CURB & GUTTER TYPE 2 (SECTION II -B) QUANTITY/ UNITS UNIT PRICE (Fig UNIT PRICE ( Wri tte n) z„� Aph 'w �l.L EXTENDED TOTAL ( Figu r es) 7 Each $� j�G $ PV E lT fcvs�+� &t= A dtgm $ � 7 � 1 Each $ b ST /}t1T fa;&" b c c-LA-� I Each Ga $ $ _St fG - o ' J i m /,� �� 'Jim h f o e A i o►! Do, -LALRS $ q tc 35 $ 2;' G 65 R+Nb �z [.ASS $ 1� $ ��/� 5 Each $_� � � LcrC $ � $ l�vaak� s D N&bm 5 Each $ $ 10o $ q /l ao 1 Each 40 t4/ - lap boa -44S 2 Each $ 1 Each $ 626 L.F. Al'b *ero ?S = t -"'VeS AND Ne i Qo D ac -L&Eu Z �?OD 1,677 L.F. $ A l f c' $ Sx' - Y' z„� Aph 'w �l.L 185 L.F. $ 23 `� $ / ✓may— lffy�L .tN� c�'tro $ 7, Z �5 � az- -Rf� 1 Each $ b ST $ �r'z+t t� � � 'T ."L et b T ny $ 75 d "° 2,142 Sq.Yd. t v $ $ E - 7m1J f o e A i o►! Do, -LALRS $ 1,759 L.F. 35 $ 2;' G 65 R+Nb �z [.ASS $ 1� $ ��/� Addendum No. 2 6 September 8, 1994 CM $ xry- /- D-,.Lap.s $ 38 y a - ITEM NO. DESCRIPTION QUANTITY/ IJNI RIC tJNI i 4CE (Figu ) (JNITS (Figures) (Written) �ya 2ao 40 Cu.Yd. $ �b •� $ �fiJ -!!� l;Nl� Boa la6VLi4� $ 3 507 -00000 CONCRETE SLOPE AND DITCH PAVING (4 ") va b5O Each 512 -00102 BEARING DEVICE (TYPE II) 40 Ea 2,252 L.F. $ / 514 -00200 PEDESTRIAN RAILING A IMal t60 "bof a2-5 0 515-()0120 WATERPROOFING (MEMBRANE) 5,475 Sq.Yd. $ L- $ S/� nc� 'ja.�►QS $ 7 /i 118 L.F. $ z 3� $ T � - If Y � J � 518 -01004 BRIDGE EXPANSION DEVICE (0-2 INCH) P Rr y Fi,f� $ ,27 7 � — f4"iA l a trft b-oLL �3 $ 156 L.F. �3 6 518 -01009 BRIDGE EXPANSION DEVICE (0-6 INCH) �D (Sb'16a AM 518 -04000 INSTALL EXPANSION DEVICE BOLTS 15 Each � 80 601- 01040 CONCRETE CLASS B (BRIDGE) 3,227 Cu. Yd. $ rrr 2�5. 2,202 Cu .Yd. �DiL �tP.S 601 -03040 CONCRETE CLASS D (BRIDGE) ELI �, Cu.Yd . 2' $ $ �b 601 -03050 CONCRETE D (WALL) r . - � 153 Cu.Yd. $ $ :�� vtattrtb TW— 601 -05054 CONCRETE CLASS S (BRIDGE) A•r•Nb ab 4,126 S Yd. $ � --- T 601 - 25735 PRECAST CONC DECK PANEL (3 1/2 INCH) q September 8, 1994 4 Addendum No. 2 09/21/94 11:17 '$503 791 5647 LAWRENCE CONST. 10 0uz 0 LAWRENCE CONSTRUCTION COMPANY (b 9002 NORTH MOORE ROAD LITTLETON, CO 80125 September 21, 1994 Mr. Tone Cvar, P.E. Director of Public Works Public Works Department 211 East "D" Street Pueblo, Colorado $1003 • ;AN EQUAL OPPORTUNITY EMPLOYER" PHONE NO.: (303) 791 FAX (303) 791 -5647 Re: Project No: 94 -042, Main Street Bridge Replacement Dear Sir: This letter is to confirm that all 3 addendum were received on this project. Lawrence Construction Company acknowledges all three addendum and havc included all cost and impacts associated with these three addendum in our bid price of $6,106,554.90. We arc looking forward to working together on this project. Sincerely Yours, Richard J: Lawren e, Secretary Notary Public: my-Comitfission ire$: MYMwW E7iPIRF5 MIIRCH2, w r 1 � 1 z az� 1"rave�� Earl R Lawrenm President r� PROJECT NO. 94-042 MAIN STREET BRIDGE REPLACEMENT, CITY OF PUEBLO THIS ESCROW CONTRACT AND SECURITY AGREEMENT (the "Agreement "), made this 17th day of November , 19 , by and between the City of Pueblo, a Municipal Corporation (the "City ") and Lawrence Construction Company, 9002 North Moore Road, Littleton, Colorado, 80125, a corporation, doing business by virtue of the laws of the State of Colorado (the "Contractor "), and Bank of Denver, 1534 California Street, Denver, Colorado 80202 (a national bank) located in Colorado (the "Escrow Agent "). WHEREAS, required approval clearance and coordination has been accomplished from and with appropriate agencies; and WHEREAS, the City and Contractor have heretofore entered into a construction contract identified as Project No. 94 -042 and dated October 7 , 1994, exceeding the amount of $80,000, for the construction, alteration, or repair of one or more public buildings, works, improvements, structures or systems (the "Contract "); and WHEREAS, pursuant to Colorado Revised Statutes, Article 91, of Title 24, as amended, (the "Statute ") the City has already retained or shall retain payments otherwise due to said Contractor in accordance with the terms and conditions of the Contract; and WHEREAS, the Statute authorizes withdrawal by the Contractor of sums retained by the City if the Contractor deposits acceptable securities with the City; and WHEREAS, pursuant to the Statute, the City and the Contractor may enter into an escrow contract with an Escrow Agent designated by mutual agreement of the City and the Contractor, after notice to the Surety, to provide for the custodial care and servicing of acceptable securities deposited by the Contractor in substitution for the retained payments; and WHEREAS, the Escrow Agent and Contractor have agreed and understand that the City shall be protected under this Agreement to the same extent it would have been had the withdrawal not been made by the Contractor or had the acceptable securities been deposited with the City; and WHEREAS, the Escrow Agent and Contractor have agreed that any expenses incurred for the services of the Escrow Agent shall be paid by Contractor and not be charged to the City. NOW, THEREFORE, it is hereby agreed that: 1. In order to assure full and complete performance by the Contractor under the Contract, and to allow withdrawal of amounts retained by the City to assure such performance of the Contract, the Contractor and Escrow Agent hereby certify that the Contractor has deposited "acceptable securities" with the Escrow Agent as collateral security for satisfactory performance of the Contract, and that the Contractor has assigned and transferred, in accordance with paragraph 4 of this Agreement, unto the City all of its right, title and interest in and to the acceptable securities deposited with the Escrow Agent pursuant to this Agreement, and the contractor does hereby irrevocably constitute and appoint the Escrow Agent its attorney to transfer said acceptable securities at any time unto the City upon demand of the City and without any showing by the City other than this Agreement. Each acceptable security initially deposited by the Contractor with the Escrow Agent hereunder is itemized in Exhibit A attached hereto and by this reference made a part hereof. From time to time as may be necessary said Exhibit A shall be modified, in accordance with paragraph 6 of this Agreement by the Contractor and the Escrow Agent to identify any and all additional or substituted acceptable securities and to certify that the acceptable securities have been deposited and assigned or transferred in accordance with this paragraph 1. Any such modification of Exhibit A shall, upon execution by the Escrow Agent and Contractor and delivery to the City, be incorporated herein by reference. .2. "Acceptable securities" may be in any form permitted by the Statute, except as noted herein, to -wit: United States Bonds, United States Treasury Notes, United States Treasury Bills, General Obligation or Revenue Bonds of the State of Colorado, General Obligation or Revenue Bonds of any political subdivision of the State of Colorado having a rating of "AA" or better, or Certificates of Deposit from a state or national bank or a savings and loan association insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation and having its principal office in the State of Colorado, whether in existence or hereafter arising, presently owned or hereafter acquired, and the proceeds thereof, and any additions or substitutions thereof. 3. Contractor hereby warrants that it is the owner of each acceptable security deposited with the Escrow Agent pursuant to this Agreement, and has full power and authority to assign, transfer, pledge, encumber, or otherwise deal with the acceptable securities, free of any claim by any entity other than the City. 4. Contractor has executed documents necessary to further the purposes of this Agreement, authorizing the City to negotiate each of the acceptable securities and receive any payments due the City pursuant to law or the terms of this Agreement upon the City's demand, and including but not limited to the following: (a) For all securities, the Contractor has executed and attached to each security an Assignment in the form approved by the City (Attachment 1), specifically setting forth the type, number, amount, date of issuance, maturity date and other information necessary to identify such acceptable securities and effectively and lawfully assigning each security to City. 5. The City at any time may exercise its rights under this Agreement to make demand upon the Escrow Agent for presentment or for negotiation of the acceptable securities or for delivery -2- of the acceptable securities and assignments to the City; or the City may retain payments due to the Contractor, deemed necessary by the City to protect the City's interests. The City shall not be responsible or liable for any loss or damages to the Contractor arising from or related to City exercising its rights under this Agreement, including but not limited to, any loss or damage resulting from the maturity of any of the acceptable securities, depreciation in the market value thereof, penalties for early withdrawal or negotiation, or in failing to exercise any rights in connection therewith. 6. At any time the Contractor wishes to add or substitute other acceptable securities, including those circumstances where acceptable securities have matured, such addition or substitution shall be made in accordance with Paragraph 1 of this Agreement. After any such substitution is made and determined to be acceptable by the City, the City by its designated representative, shall instruct the Escrow Agent as to the disposition of such security for which the substitution is proposed. 7. The Escrow Agent shall retain each of the acceptable securities until such time as the City, by its designated representative, shall instruct the Escrow Agent as to the disposition of such acceptable securities. 8. The Escrow Agent shall collect all interest and income when due on the acceptable securities so deposited and shall pay such interest and income when and as collected, to the Contractor unless otherwise instructed by the City. If the deposit is in the form of coupon bonds, the Escrow Agent shall deliver each coupon, as it matures, to the Contractor subject to any demand by the City in accordance with this Agreement. 9. The Escrow Agent shall maintain the acceptable securities so deposited, under this Agreement, in a separate custody account and shall estimate, on a reasonable basis consistent with its normal procedures, the market value of such securities not less than once each month, and report such value to the designated representative of the City and to the Contractor. 10. Once each quarter the Escrow Agent shall furnish the City and the Contractor a statement showing any transactions for the preceding quarter and identifying acceptable securities being held by the Escrow Agent as of the last day of the previous quarter. From time to time at the request of the City or the Contractor, the Escrow Agent will furnish to the City and to the Contractor an interim statement showing the acceptable securities currently being held as of the 25th day of each month, or if the 25th day is a non - business day, then the following business day. 11. Any expense incurred by the Escrow Agent or fees, costs and charges by the Escrow Agent in connection with any aspect of the holding in escrow of the acceptable securities pursuant to the provisions of this Agreement shall be the obligation of the Contractor and shall not be charged to the City. The acceptable securities shall be free of any claim or charge for such expenses, fees, costs or charges except as provided in this Agreement. The Escrow Agent may pay itself for such accrued fees, costs and charges out of interest or income received from the acceptable securities -3- which otherwise would be payable hereunder to the Contractor. 12. The City shall have the right to have its designated representative inspect the acceptable securities from time to time and as frequently as City may desire to determine their authenticity and to determine compliance with this Agreement. If such inspection shall determine that any of the securities are not authentic or collectible, or this Agreement is not being complied with, the City shall have the right, but not the obligation, to forthwith notify the Contractor and the Escrow Agent of such deficiency. If such deficiency is not corrected or resolved to the satisfaction of the City within two working days of such notification being provided, the City may immediately terminate this Agreement or require the Contractor to cure the deficiency. If this Agreement is terminated, Escrow Agent will immediately transfer and deliver all securities then on deposit to City and the security interest hereby created shall remain in full force and effect. 13. The Escrow Agent shall not be deemed liable or responsible for the collectability of any acceptable security it holds pursuant to this Agreement. The Escrow Agent agrees to pay on demand of the City, and to indemnify and hold harmless the City, from and against all other costs, damages, judgments, attorney's fees, expenses, obligations and liabilities of any kind or nature which, in good faith, the City may incur or sustain in connection with, or arising out of this Agreement. The City shall not be responsible or liable for damages to the Escrow Agent in exercising its rights under this Agreement or in failing to exercise its rights in connection therewith. 14. Notwithstanding anything to the contrary herein appearing, the City shall have no duty to know or determine the performance or non - performance of any term or condition of this Agreement as between the Escrow Agent and the Contractor, and the Escrow Agent shall have no duty to know or determine the performance or non - performance of any Contract between the City and the Contractor, and the duties and responsibilities of the parties hereto are limited to those specifically stated herein. 15. In the event that the Escrow Agent receives demand from the City, the Escrow Agent shall cease any payments or delivery of coupons to the Contractor for acceptable securities deposited pursuant to this Agreement, and shall retain such acceptable securities, payments and coupons until it receives instructions from the City regarding disposition of such acceptable securities. In the event the City makes demand verbally, it shall confirm the demand in writing within three working days. 16. The Contractor agrees to pay on demand to the Escrow Agent, and to indemnify and hold harmless the Escrow Agent and the City, from and against all costs, damages, judgments, attorneys' fees, expenses, obligations and liabilities of any kind or nature which, in good faith, the Escrow Agent may incur or sustain in connection with, or arising out of this Agreement, and the Escrow Agent is hereby given a lien upon all right, title and interest the Contractor has in the interest which may accrue on the acceptable securities and in that portion of the acceptable securities to which the Contractor is entitled under the statute. The Escrow Agent shall not be responsible or liable for damages to the Contractor if it acts upon the instructions of the City in the handling of acceptable securities or for the City's failure to exercise any right in connection therewith. -4- 17. The Escrow Agent shall waive and hereby does waive, any right or power of set -off against the City or against the Contractor arising out of any obligation of Contractor other than under this Agreement in relation to the acceptable securities or their proceeds. 18. The Contractor represents and warrants that it has taken all actions that are necessary or that are required by its procedures, bylaws or applicable law, to legally authorize the undersigned signatory to execute this Contract on behalf of the Contractor and to bind the Contractor to its terms. 19. The Escrow Agent represents and warrants that it has taken all actions that are necessary or that are required by its procedures, bylaws, or applicable law, to legally authorize the undersigned signatory to execute this Contract on behalf of the Escrow Agent and to bind the Escrow Agent to its terms. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first above written. ATTEST: By CITY OF PUEBLO, a Municipal Corporation ' 1 I� ATTEST: CONTRACTOR: LAWRENCE CON,, S COMPANY B B l���i oSLG lG f rGC� y Secretary President [SEAL] EV0 101.31 By Title: ESCROW AGENT - BANK OF DENVER By (2-0&111 Title: -5- (Attachment 1) ASSIGNMENT OF ACCEPTABLE SECURITY The undersigned Contractor represents that he (it) is the Owner of the acceptable security identified as follows: BANK OF DENVER CERTIFICATE OF DEPOSIT #669 IN THE AMOUNT OF $285,000; MATURES 11 -5 -94 BANK OF DENVER CERTIFICATE OF DEPOSIT 16707 IN THE AMOUNT OF $100,000; MATURES 11 -23 -94 Contractor hereby sells, assigns and transfers unto the City of Pueblo, Colorado, a municipal corporation, all of his (its) rights, title and interest in and to said security and does hereby irrevocably constitute and appoint BANK OF DENVER (Escrow Agent) attorney to transfer said security at any time unto the City of Pueblo, a municipal corporation upon its demand. Dated at DENVER , Colorado this 26TH day of OCTOBER , 19 94. PROJECT #94 -042: $21,000 OF C.D. #6707 LAWRENCE :-CONSTRUCTION CO. ALLOCATED Contractor - Owner Title: Note: A separate form of this assignment shall be executed and attached to each separate security. Q