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HomeMy WebLinkAboutC01-128 GMCO contract for Mag Chloridet L f AGREEMENT FOR MAGNESIUM CHLORIDE THIS AGREEMENT is dated as of the 17th day of April , 2001, by and between Eagle County, Colorado, a body corporate and politic, acting by and through its Board of County Commissioners (hereinafter called "Owner "), and GMCO (hereinafter called "Contractor "). Owner and Contractor, in consideration of the mutual covenants set forth, agree as follows: ARTICLE 1 - WORK Contractor shall complete all work as specified or indicated in the Contract Documents ( "Work "). The Work is generally described as: CONTRACTOR SHALL DELIVER AND APPLY DUST STABILIZING AND CONTROL AGENT, MAGNESIUM CHLORIDE ONLY, IN LIQUID FORM WITH MINIMUM OF 30 % MAGNESIUM CHLORIDE TO EAGLE COUNTY ROADWAYS AS SPECIFIED IN EXHIBIT "A" which is attached hereto and incorporated by this reference. CONTRACTOR SHALL PROVIDE A CHEMICAL ANALYSIS OF THE AGENT AND PROVIDE AN INDEPENDENT LABORATORY ANALYSIS OF EACH TANKER DELIVERY. ARTICLE 2 - OWNER'S REPRESENTATIVE The Project is under the authority of the Eagle County Road & Bridge Department, the Director of which, or his designee, shall be Owner's liaison with Contractor with respect to the performance of the Work. ARTICLE 3 - CONTRACT TIME 3.1 The Work will be completed and ready for final payment in accordance with the Contract Documents on or before October 31 , 2001. 3.2 LIQUIDATED DAMAGES: Owner and Contractor recognize that time is of the essence of this Agreement and that Owner will suffer financial loss if the Work is not substantially complete within the time specified in paragraph 3.1 above, plus any extensions thereof allowed in accordance with the General Conditions. They also recognize the delays, expense, and difficulties involved in proving a legal or arbitration proceeding the actual loss suffered by Owner if the Work is not substantially complete on time. Accordingly, instead of requiring such proof, Owner and Contractor agree that as liquidated damages for delay (but not as a penalty) Contractor shall pay Owner Three Hundred dollars ($300.00) for each day that expires after the time specified in paragraph 3.1 for completion until the Work is complete. Agreement Page 1 C-1 ARTICLE 4 - CONTRACT PRICE C, 4.1 The funds appropriated for this project are equal to or in excess of the contract amount. 4.2 Owner shall pay Contractor for performance of the Work in accordance with the Contract Documents in current funds as follows: $.2554 per gallon, for total bid price of $156,524.19 (One hundred fifty -six thousand', five hundred twenty -four dollars and Nineteen cents. ( +, -). 4.2 Pursuant to the provisions §24- 91- 103.6, C.R.S., and notwithstanding anything to the contrary contained elsewhere in the Contract Documents, no change order or other form of order or directive by Owner, and no amendment to this Agreement, requiring additional compensable work to be performed which work causes the aggregate amount payable under the Agreement to exceed the amount appropriated for the original Agreement, shall be of any force or effect unless accompanied by a written assurance by Owner that lawful appropriations to cover the costs of the additional work have been made or unless such work is covered under a remedy - granting provision in the Agreement. ARTICLE 5 - PAYMENT PROCEDURES Contractor shall submit Applications for Payment in accordance with the General Conditions. Applications for Payment will be processed as provided in the General Conditions. 5.1 PROGRESS PAYMENTS: Owner shall make monthly progress payments on account of the Contract Price on the basis of Contractor's Applications for Payments, as provided below. All progress payments will be on the basis of the progress of the Work. 5.1.1 Prior to Completion, progress payments will be in an amount equal to: 90% of the Work completed until fifty percent (50 %) of the Work is performed, after which no additional retainer fee shall be withheld, and 90% of materials and equipment not incorporated in the Work but delivered and suitably stored, less in each case the aggregate of payments previously made. Agreement Page 2 5.2 FINAL PAYMENT: Upon final completion and acceptance in accordance with the General Conditions, Owner shall pay the remainder of the Contract Price. The final payment shall not be made until after final settlement of this contract has been duly advertised at least ten days prior to such final payment by publication of notice thereof at least twice in a public newspaper of general circulation published in Eagle County, and the Board of County Commissioners has held a public hearing, thereupon and complied with the C.R.S. §38 -26 -107. Final payment shall be made in accordance with the requirements of the aforesaid statute. ARTICLE 6 - Contractor'S REPRESENTATIONS In order to induce Owner to enter into this Agreement Contractor makes the following representations: 6.1 Contractor has familiarized himself with the nature and extent of the Contract Documents, Work, locality, and with all local conditions, and federal, state, and local laws, ordinances, rules and regulations that in any manner may affect cost, progress, or performance of the Work. 6.2 Contractor has made, or caused to be made, examinations, investigations, and tests and studies of such reports and related data as he deems necessary for the performance of the Work at the Contract Price, within the Contract Time, and in accordance with other terms and conditions of the Contract Documents; and no additional examinations, investigations, tests, reports, or similar data are, or will be required by Contractor for such purposes. 6.3 Contractor has correlated the results of all such observations, examinations, investigations, tests, reports, and data with the terms and conditions of the Contract Documents. 6.4 Contractor has given Owner written notice of all conflicts, errors, or discrepancies that he has discovered in the Contract Documents and the written resolution thereof by Owner is acceptable to Contractor. Agreement Page 3 C Cl ARTICLE 7 - CONTRACT DOCUMENTS The Contract Documents which comprise the entire Agreement are made a part hereof, and consist of the following: 7.1 This Agreement. 7.2 Contractor's Bid. 7.3 Performance and other Bonds. 7.4 Notice of Award and, if any, Notice to Proceed. 7.5 General Conditions (Pages 1 to 10, inclusive). 7.6 Specifications and Drawings. 7.7 Any modification, including Change Orders, duly delivered after execution of Agreement. There are no Contract Documents other than those listed above in this Article 7. The Contract Documents may only be altered, amended, or repealed by an executed, written amendment to this Agreement. Not later than five business days following the execution of this Agreement, Contractor shall deliver to the Owner the bonds required by the Contract Documents, and, notwithstanding anything to the contrary contained in the Contract Documents, Owner shall have no liability or obligation hereunder unless and until the bonds have been so delivered. ARTICLE 9 - MISCELLANEOUS 9.1 No assignment by a party hereto of any rights under, or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound; and specifically, but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. Agreement Page 4 G C 9.2 Owner and Contractor each binds himself, his partners, successors, assigns and legal representatives to the other party hereto, in respect to all covenants, agreements, and obligations contained in the Contract Documents. 9.3 ATTORNEY'S FEES: In the event of litigation between the parties hereto regarding the interpretation of this Agreement, or the obligations, duties or rights of the parties hereunder, or if suit otherwise is brought to recover damages for breach of this Agreement, or an action be brought for injunction or specific performance, then and in such events, the prevailing party shall recover all reasonable costs incurred with regard to such litigation, including reasonable attorney's fees. 9.4 APPLICABLE LAW: This Agreement shall be governed by the laws of the State of Colorado. Jurisdiction and venue of any suit, right, or cause of action arising under, or in connection with this Agreement shall be exclusive in Eagle County, Colorado. 9.5 INTEGRATION: This Agreement supersedes all previous communications, negotiations and /or contracts between the respective parties hereto, either verbal or written, and the same not expressly contained herein are hereby withdrawn and annulled. This is an integrated agreement and there are no representations about any of the subject matter hereof except as expressly set forth in the Contract Documents. 9.6 NOTICE: Any notice and all written communications required under this Agreement shall be (1) personally delivered, (II) mailed in the United States mails, first class postage prepaid, or (III) transmitted by facsimile machine together with a hard copy conveyed by delivery or mail, to the appropriate party at the following addresses: To Contractor: GMCO P. O. Box 1220 Carbondale, CO 81623 Agreement Page 5 To Owner: Brad Higgins - Director Road & Bridge Department Eagle County P.O. Box 250 Eagle, CO 81631 telephone: 970 - 328 -3540 telefax: 970 - 328 -3546 r Mailed notices will be deemed given three business days after the date of deposit in a regular depository of the United States Postal Service, and FAX notices will be deemed given upon transmission, if during business hours, or the next business day. Either party can change its address for notice by notice to the other in accordance with this paragraph. [signature page next page] Agreement Page 6 C cz IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on the date first above written. ATTEST COMMISSIONERS By: Clerk of the Board 6f County Commissioners in STATE OF COLORADO "Owner ": COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY Tom Stone Chairman "Contractor ": GMCO Corporation P.O. Box 1220 J ss: s R. I -Terry ; Vice President On this 20th day of April , 2001, came before me, a notary public, _ James R. Terry , known to me to be the vi rP PrPGi Aan+ of GMCO Corporation , who acknowledged to me that he executed the foregoing document, that he executed it in that capacity, and that the same was the act of the entity identified in the document as "Contractor ". My commission expires: - - ��G e 2 . • • 6 Agreement Page 7 BID BOND Conforms with The American Institute of Architects, A.I.A. Document No. A -310 KNOW ALL BY THESE PRESENTS, That we, G.M.C.O. Corp., P.O. Box 1220, Carbondale, CO 81623 as Principal, hereinafter called the Principal, and the Fidelity and Deposit Company of Maryland of P.O. Box 60130, Grand Junction, CO 81506 , a corporation duly organized under the laws of the State of Maryland , as Surety, hereinafter called the Surety, are held and firmly bound unto Board of Eagle County Commissioners, Eagle County 500 Broadway, Eagle, CO 81631 as Obligee, hereinafter called the Obligee, in the sum of 5% of Bid Amount------------------------------------------------------------ - - - - -- Dollars ($ 5% of Bid Amount ) , for the payment of which sum well and truly to be made, the said Principal and the said Surety, bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has submitted a bid for Supply and Distribution of Magnesium Chloride NOW, THEREFORE, if the Obligee shall accept the bid of the Principal and the Principal shall enter into a Contract with the Obligee in accordance with the terms of such bid, and give such bond or bonds as may be specified in the bidding or Contract Documents with good and sufficient surety for the faithful performance of such Contract and for the prompt payment of labor and material furnished in the prosecution thereof, or in the event of the failure of the Principal to enter such Contract and give such bond or bonds, if the Principal shall pay to the Obligee the difference not to exceed the penalty hereof between the amount specified in said bid and such larger amount for which the Obligee may in good faith contract with another party to perform the Work covered by said bid, then this obligation shall be null and void, otherwise to remain in full force and effect. Signed and sealed this 28th day of Febru 2001 G.M.C.O. Co (Seal) Principal Witness Fidelity and De Company of Maryland Witness By Sandra K. Pierc Attorney -in -Fact Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND HOME OFFICE: P.O. BOX 1227, BALTIMORE, MD 21203 -1227 Know ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a corporation of the State of Maryland, by W. B. WALBRECHER, Vice - President, and T. E. SMITH, Assistant Secretary, in pursuance of authority granted by Article V1, Section 2, of y -Law so) f Company, which are set forth on the reverse side hereof and are hereby certified to be in full f d effe a date hereof, does hereby nominate, constitute and appoint Barry N. BLANCHARD, Sandr IERC en A. BLANCHARD and Timothy J. BLANCHARD, all of Grand Junction, Colorado, E its true wful agent and Attorney -in -Fact, to make, execute, seal and deliver, for, and on its behalf as sur d as its deed: any and all bonds and undertakings and the execution of such bonds or undertakings in p ce of th sents, shall be as binding upon said Company, as fully and amply, to all intents and purposes, as if e d been ecuted and acknowledged by the regularly elected officers of the Company at its office in Baltim ; in the' proper persons. This power of attorney revokes that issued on behalf of Barry N. BLANCHARD, ted Octol, 1993. The said Assistant Secretary does here fY that e-Wrract set forth on the reverse side hereof is a true copy of Article VI, Section 2, of the By -Laws c d ompany s now in force. IN WITNESS WHEREOF, the s '�Presid Assistant Secretary have hereunto subscribed their names and affixed the Corporate Seal of the sail FIDBLI ND DEPOSIT COMPANY OF MARYLAND, this 27th day of August, A.D. 1998. v ATTEST: FIDELITY AN D OSIT COMPANY OF MARYLAND •,�., By: T. E. Smith Assistant Secretary W. B. Walbrecher Vice- President State of Maryland ss: County of Baltimore On this 27th day of August, A.D. 1998, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, came W. B. Walbrecher, Vice - President and T. E. Smith, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and they each acknowledged the execution of the same, and being by me duly sworn, severally and each for himself deposeth and saith, that they are the said officers of the Company aforesaid, and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said Corporate Seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above written. Carol J. Fa r Notary Public My Commissi Expires: August 1, 2000 L1428- 020 -5324