HomeMy WebLinkAboutC03-076 J.P. Trucking
AGREEMENT FOR SUPPLYING, LOADING AND HAULING ROAD BASE
MATERIALS PROJECT
THIS AGREEMENT is dated as of the 07th day of March , 2003,by
and between Eagle County, Colorado, a body corporate and politic, acting by and
through its Board of County Commissioners (hereinafter called "Owner"), and J. P.
Trucking. Inc. (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: SUPPLYING, LOADING AND HAULING
OF APPROXIMATELY 38,642 (+,-) OF 3/4" ROAD BASE MATERIAL TO VARIOUS
EAGLE COUNTY ROADS AS SPECIFIED IN EXHIBIT "A" which is attached hereto
and incorporated by this reference.
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 SEPTEMBER 30.2003.
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
ARTICLE 4 -CONTRACT PRICE
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: PROGRESSIVE PAYMENTS
UPON COMPLETION OF EACH AREA AS SPECIFIED IN EXHIBIT "A".
4.3 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 aremedy-granting provision in the
Agreement.
4.4 The Board of County Commissioners for Eagle County is a governmental entity.
All obligations beyond the current fiscal year are subject to funds being
budgeted and appropriated.
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 retaining 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
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5.1.2 Progress payments and retained funds shall occur in compliance with
Paragraph 19 of the General Conditions attached hereto and C.R.S. §24-91-
103. The Owner shall authorize partial payments of properly requested
amounts of at least ninety percent of the calculated value of the work
completed until fifty percent of the work required under the Agreement has
been performed. Thereafter, the Owner shall authorize partial payments of any
other properly requested amounts without retaining additional funds if, in the
opinion of the Owner, satisfactory progress is being made in the work. The
withheld amounts of the contract price will be retained by the Owner until the
contract is completed satisfactorily and accepted by the Owner.
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
6.5 In performing the work under this Agreement, the Contractor acts as an
independent contractor and is solely responsible for necessary and adequate
worker's compensation insurance, personal injury and property damage
insurance, as well as errors and omissions insurance. The Contractor, as an
independent contractor, is obligated to pay federal and state income tax on
moneys earned. The personnel employed by the Contractor are not and shall
not become employees, agents or servants of the Owner because of the
performance of any work by this Agreement.
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.
7.8 The parties acknowledge and agree that the terms and conditions of this
Agreement (7.1) and the General Conditions (7.5) attached hereto, shall
supersede and control over any inconsistent or contrary provision in any other
attachment or 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.
ARTICLE 8 -BONDS
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.
Agreement Page 4
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.
9.2 Owner and Contractor each binds himself, his partners, .successors, assigns
and legal representatives to the other parry 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 (i) 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:
J. P. Trucking, Inc.
P. O. Box 854
Avon, CO 81620
Agreement Page 5
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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
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
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on
the date first above written.
ATTEST
COMMISSIONERS
By
erk of the Board of
County Commissioners
STATE OF COLORADO
County of Eagle
ss:
On this ° ~ day of ~ , 2003, came before me, a notary
public, ~ ~ known to me to be the ~~
o ,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: ~ - / / ~~ ~
~:~~~~'; `~' J~~y~ Notary Public
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"Owner":
COUNTY OF EAGLE, STATE OF
COLORADO, By and Through Its
BOARD OF COUNTY
By:
Michael Ga ag er
Chairman
"Contractor":
-~
--
Agreement Page 7
EXIIIBIT "A"
Contractor shall supply and deliver 3/4" Road Base (Forest Service Design Mix 12% to 15%) to
the following Eagle County Roads:
PRICF./TON TOTAL TONS AMOUNT
Dagget Lane $ , (~ 2,503 (+,-) $ a
Gypsum Creek Road $ q , ~ ~ 2,581 (+,-) $3~3.i~1 ~. a 5
Cabin. Creek Road $ / D . '-~ 5,937 (+,-) $,.p(~
Trough Road $ 9 . ~ ~ 5,679 (+,-) $
OL3
Frying Pan River Road $ "1. 5 a 18,586 (+,-) $ I.39~-~ [3U
Red Table Acres $ 5 . ?, c~ 3,356(+,-) $, pv
Elk Range
Deer Trail
Fawn Drive
TOTALS $~ f `j ~ 3, ~~
TOTAL CONTRACT $ ~ ~ ~,'jQ
TOTAL CONTRACT TONS :~ loh -.~~-,.~~
Contractor shall complete work with a minimum of 6 each Bottom Dump
Trucks and Trailers, all work is to be completed on or before July 30, 2003.
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ROAD & BRIDGE DEPARTMENT
GENERAL CONDITIONS
1. Contractor shall provide and pay for labor, materials, equipment, tools, utilities,
permits, licenses, transportation, and other facilities and services necessary for
proper execution and completion of the Work.
2. If Contractor fails to obtain the tax exemption(s) applicable to public works
projects from sales, consumer, use and similar taxes, Contractor shall pay the
same. Owner will cooperate with Contractor to obtain tax exemption for this
project.
3. Contractor shall be responsible for having taken steps reasonably necessary to
ascertain the nature -and location of the Work, and the general and local
conditions which can affect the Work or the cost thereof. Any failure by
Contractor to do so will not relieve him from responsibility for successfully
performing the Work without additional expense to the Owner. Owner assumes
no responsibility for any understanding or representations concerning conditions
made by any of its officers, employees or agents prior to the execution of this
Agreement, unless such understanding or representations are expressly stated
in the Agreement. .
4. Before commencing activities, Contractor shall: (1) take field measurements and
verify field conditions; (2) carefully compare this and other information known to
Contractor with the Agreement; and (3) promptly report errors, inconsistencies or
omissions discovered to Owner.
5. Contractor shall supervise and direct the Work, using Contractor's best skill and
attention. Contractor shall be solely responsible for and have control over
construction means, methods, techniques, sequences and procedures, and for
coordinating all portions of the Work.
6. Contractor, as soon as practicable, shall furnish in writing to the Owner the
names of subcontractors and suppliers for each portion of the Work.
7. No charge shall be made by Contractor for hindrances or delays from any cause
whatever during the progress of any portion of the Work, unless such hindrance
or delay is caused in whole or in part by acts or omissions within the control of
Owner. In. any event, Owner may grant an extension of time for the completion
of the Work, provided it is satisfied that delays or hindrances were due to causes
outside Contractor's control, e.g., weather, or to acts of omission or commission
by the Owner, provided that such extensions of time shall in no instance exceed
the time actually lost to Contractor by reason of such causes, and provided
further that Contractor shall have given Owner immediate (as determined by the
circumstances, but not exceeding 48 hours) notice in writing of the cause of the
detention or delay..
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8. Contractor shall deliver, handle, store and install materials in accordance with
manufacturers' instructions.
9. Contractor shall comply with and give notices required by all federal, state and
local laws, statutes, ordinances, building codes, rules and regulations applicable
to the Work. If the Contractor performs Work knowing it to be contrary to laws,
statutes, ordinances, building codes, rules or regulations without notice to
Owner, Contractor shall assume full responsibility for such Work and shall bear
the attributable costs. Contractor shall promptly notify Owner in writing of any
conflicts between the specifications for the Work and such governmental laws,
rules and regulations.
10. The Contractor shall be responsible for initiating, maintaining and supervising all
safety precautions and programs, including all those required by law in
connection with performance of the Agreement. The Contractor shall promptly
remedy damage and loss to property caused in whole or in part by the
Contractor, or by anyone for whose acfs the Contractor may be liable.
11. Contractor shall keep the premises/work site and surrounding area free from
accumulation of debris and trash related to the Work.
12. Contractor shall furnish performance and payment bonds, each in an amount at
least equal to the contract price as security for the faithful performance and
payment of all Contractor's obligations under the contract documents. These
bonds shall remain in effect at least until two years after the date of final
payment, except as otherwise provided by law. Contractor shall also furnish
other bonds as are required by the supplementary conditions. All bonds shall be
in forms satisfactory to Owner, and be executed by such sureties as (a) are
licensed to conduct business in the state where the project is located, and (b) are
named in the current list of "Companies Holding Certificates of Authority as
Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring
Companies" as published in Circular 570 (amended) by the Audit Staff Bureau of
Accounts, U.S. Treasury Department. All bonds signed by an agent must be
accompanied by a certified copy of the authority to acf.
If the surety on any bond famished by Contractor is declared bankrupt, or
becomes insolvent, or its right to do business is terminated in any state where
any part of the project is located, or it ceases to meet the requirements of
clauses (a) and (b) of the preceding paragraph, Contractor shall within five days
thereafter substitute another bond and surety, both of which shall be acceptable
to Owner.
13. Contractor shall be solely responsible for the protection of the Work until its final
acceptance by Owner. Contractor shall have no claim against Owner because of
any damage or loss to the Work, and shall be responsible for the complete
restoration of damaged Work to its original condition. In the event Contractor's
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Work.is damaged by another party, not under his supervision or control,
Contractor shall make his claim directly with the party involved. If a conflict or
disagreement develops between Contractor and another party concerning the
responsibility for damage or loss to Contractor's Work, such conflict shall not be
cause for delay in Contractor's restoration of the damaged Work.
14. Contractor's Insurance:
The Contractor shall purchase and maintain such insurance as will protect him
from claims set forth below which may arise out of or result from the Contractor's
operations under the contract, whether such operations be by himself, or by any
subcontractor, or by anyone directly or indirectly employed by any of them; or by
anyone for whose acts any of them may be liable. All, such insurance shall
remain in effect until final payment, and at all times thereafter when Contractor
may be correcting, removing, or replacing defective Work. In addition,
Contractor shall maintain such completed operations insurance for at least two
years after final payment, and furnish Owner with evidence of continuation of
such insurance at final payment and one year thereafter.
Insurance coverage shall be as follows:
Claims under Workmen's Compensation, disability benefits, and other similar
employee benefit acts, with coverage and in amounts as required by the laws of
the State of Colorado;
Claims for damage because of bodily injury, occupational sickness or disease, or
death of his employees, and claims insured by usual personal injury liability
coverage;
Claims for damage because of bodily injury, sickness, disease, or death of any
person other than his employees; and
Claims for damages because of injury to or destruction of tangible property,
including loss of use resulting therefrom;
Contractor's Liability Insurance issued to and covering the liability for damage
imposed by law upon the Contractor and each subcontractor with respect to all
Work performed by them under the Agreement; .
Contractor's Protective Liability Insurance issued to and covering the liability for
damages imposed by law upon the Contractor and each subcontractor with
respect to all Work under the Agreement performed for the Contractor by
subcontractors.
Completed Operations Liability Insurance issued~to and covering the liability for
damage imposed by law upon the Contractor and each subcontractor arising
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between the date of final cessation of the Work, and the date of final acceptance
thereof out of that part of the Work performed by each.
Comprehensive Automobile Insurance:
All liability and property damage insurance required hereunder shall be
Comprehensive General and Automobile Bodily Injury and Property Damage
forms of policies, as the case may be.
The Contractor shall in addition, and in the amounts required under the above,
obtain protective Liability Insurance issued to and covering the liability for
damages imposed by law upon the Owner with respect to all operations under
the construction contract by the Contractor or his subcontractors, including
omissions and supervisory acts by the Owner.
Builder's Risk Insurance: Insofar as the Work to be performed under this contract
consists entirely of new construction removed and separated from any existing
facility used by Owner, Contractor shall procure and maintain, for the duration of
the Work of this project, Builder's Risk Insurance, including the perils of fire,
extended coverage (loss due to vehicles, explosion, wind, flood, riot, etc.),
vandalism and malicious mischief, and special extended coverage (loss due to
falling objects, collapse, water damage from faulty or leaking systems, etc.) in
the full amount of the contracf price plus the cost of authorized extras. Said
amount of insurance coverage shall be considered to cover the insurable value
of the Work under this contract which is considered not to exceed one hundred
percent (100%) of the amount of this contract and authorized extras. Such
policy shall not insure any tools or equipment, or temporary structures erected at
the site and belonging to any person or persons, or their subcontractors who are
obliged by contract with~the Owner to do Work on the projects.
Comprehensive Risk Policy Option: In lieu of the several policies specified for
Contractor's Liability Insurance, a comprehensive liability and property damage
insurance policy inclusive of afl the insurance and requirements herein set forth,
subject to the approval of the Owner, will be permissible.
Insurance covering claims for damages to persons or properly shall at a
minimum provide coverage of the larger of (i) $500,000 each person/$1,000,000
each occurrence, for bodily injury and $600,000 each occurrence~for properly
damage, (ii) the maximum liability of a local government provided in the Colorado
Governmental Immunity Act, 24-10-101, et seq., CRS (1973) as that may 6e
amended from time-to-time, or (iii) such greater amount(s) as may be required by
law.
Insurance shall be placed jointly in the names of the Owner, Contractor, and any
and all subcontractors, and any and all others obliged by contract with the Owner
to do Work on this project, and, at the Owner's option, any other person or
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persons whom the Owner deems to have an insurable interest in said property,
or any part thereof, payable as their several interests may appear. Any proceeds
obtained from insurance provided for by this paragraph shall be paid to and held
by the Owner as trustee. The Owner shall have the right to withhold payment of
such proceeds until such time as the Work destroyed or damaged and covered
by such insurance shall be reconstructed and shall pay such proceeds on an
installment basis similar to that provided for by progress payments covering the
original Work.
Certificates of Insurance: Certificates of Insurance acceptable to the Owner shall
be filed with the Owner prior to commencement of the Work. ~ These Certificates
shall contain provisions naming the Owner as an additional insured under
Contractor's insurance, as more fully required 6y the General Conditions herein,
and that coverage afforded under the policies will not be canceled until at least
thirty days prior written notice has been given the Owner. Contractor and his
subcontractors shall not permit any of his subcontractors to start Work until all
required insurance have been obtained and certificates with the proper
endorsements have been filed with the Owner. Failure of the Contractor to
comply with the foregoing insurance requirements shall in no way waive the
Owner's rights hereunder.
15. Owner, at its option, may purchase and maintain such liability insurance as will
protect him against claims which may arise from operations under this contract.
Purchasing and maintaining such insurance, however, will not relieve the
Contractor from purchasing and maintaining the insurance hereinbefore
specified.
16. Before permitting any of his subcontractors to pertorm any Work under this
contract, Contractor shall either (a) require each of his subcontractors to procure
and maintain during the life of his subcontracts, Subcontractor's Public Liability
and Property Damage Insurance of the types and in the amounts as may be
applicable to his Work, which type and amounts shall be subject to the approval
of the Owner, or (b) insure the activities of his subcontractors in his own policy.
17. To the fullest extent permitted by law, Contractor shall indemnify and hold
harmless Owner, its board, commissioners, employees and the agents of any of
them, from and against claims, damages, losses and expenses, including but not
limited to attorneys' fees, arising out of or resulting from performance of the
Work, provided that such claim, damage, loss or expense is attributable to bodily
injury, sickness, disease or death, or to injury to or destruction of tangible
property (other than the Work itself) including loss of use resulting therefrom, but
only to the extent caused in whole or in part by negligent acts or omissions of the
Contractor, a subcontractor, anyone directly or indirectly employed by them or
anyone for whose acts they may be liable, regardless of whether or not such
claim, damage, loss or expense is caused in part by a party indemnified
hereunder.
CJ
18. After execution of the Agreement, changes in the Work may be accomplished by
Change Order of by order for a minor change in the Work. Owner, without
invalidating the Agreement, may order changes in the Work within the general
scope of the Agreement consisting of additions, deletions or other revisions.
a. No Change Orders or other form of order or directive which requires
additional compensable work to be performed may be issued or be
effective unless accompanied by a written assurance to the Contractor
that lawful appropriations to cover the costs of the additional work have
been made.
b. A Change Order shall be a written order to the Contractor signed by
Owner to change the. Work.
c. Owner will have authority to order minor changes in the Work not involving
changes in the Contract Price or the Contract Time. Such changes shall
be written orders and shall be binding on the Contractor and Owner.
Contractor shall carry out such written orders promptly.
19, ~ Progress Payments:
If the project is subject to progress payments, not more often than once a month,
Contractor shall submit to Owner an application for payment filled out and signed
by Contractor covering the work completed as of the date of the application, and
accompanied by such supporting documentation as Owner may reasonably
require. If payment is requested on the basis of materials and equipment not
incorporated in the work, but delivered and suitably stored at the site or at
another location agreed to in writing, the application for payment shall also be
accompanied by such data, satisfactory to Owner, as will establish Owner's title
to the material and equipment, and protect Owner's interest therein, including
applicable insurance. Each subsequent application for payment shall include an
affidavit of Contractor stating that all previous progress payments received on
account of the work have been applied to discharge in full all of Contractor's
obligations reflected in prior applications. for payment. The amount of retainage
with respect to progress payments will be as stipulated in the Agreement.
Owner will, with ten days after receipt of each application .for payment, either
indicate in writing a recommendation of payment, or return the application to
Contractor indicating in writing its reasons for refusing to recommend payment.
In the latter case, Contractor may make the necessary corrections and resubmit
the application. Owner shall, within twenty days of recommendation of payment,
pay Contractor the amount recommended.
20. Final Payment:
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Upon written notice from Contractor that the work is complete, Owner will make a
final inspection with Contractor, and will notify Contractor in writing of all
particulars in which this inspection reveals that the work is incomplete or
defective. Contractor shall immediately take such measures as are necessary to
remedy such deficiencies.
After Contractor has completed all such corrections to the satisfaction of Owner,
and delivered all maintenance and operating instructions, schedules,.
guarantees, bonds, certificates of inspection, marked-up record documents or
as-built drawings covering all of the Work, Contractor may make application for
final payment following the procedure for progress payments. The final
application for payment shall be accompanied by all documentation called for in
the contract documents, and such other data and schedules as Owner may
reasonably require, together with complete and legally effective releases or
waivers (satisfactory to Owner) of all liens arising out of, or filed in connection
with the work. In lieu thereof, and as approved by Owner, Contractor may
fumish receipts or releases in full; an affidavit of Contractor that the releases and
receipts include all labor, services, material, and equipment for which lien could
be filed, and that all payrolls, material, and equipment bills, and other
indebtedness connected with the work, for which Owner or his property might in
any way be responsible, have been paid or otherwise satisfied; and consent of
the surety, if any, to final payment. If any subcontractor, manufacturer,
fabricator, supplier, or distributor fails to fumish a release or receipt in full,
Contractor may furnish a bond or other collateral satisfactory to Owner to
indemnify against any lien.
21. Final payment shall not become due until Contractor submits to Owner releases
and waivers of fiens,~ and data establishing payment or satisfaction of obligations,
such as receipts, claims, security interests or encumbrances arising out of the
Work. Final payment is subject to the Final Settlement requirements and time
periods set forth in C.R.S. §38-26-107.
22. Contractor warrants and guarantees that title to all work, materials, and
equipment covered by any application for payment, whether incorporated. in the
project or not, will pass to Owner at the time of payment free and clear of all
liens, claims, security interests, and encumbrances (in these General Conditions
referred to as "Liens°).
23. Contractor's obligations to perform and complete the Work in accordance with
the contract documents shall be absolute. Neither the recommendation of any
progress or final payment nor the payment by Owner to Contractor under the
contract documents, nor any use or occupancy of the Work or any part thereof
by Owner, nor any act of acceptance by Owner, nor any failure to do so, nor any
correction of defective Work by Owner shall constitute an acceptance of Work
not in accordance with the contract documents or a release of Contractor's
obligation to perform the Work in accordance with the contract documents.
24. If Contractor fails to correct Work which is not in accordance with the Agreement,
the Owner may direct the Contractor to stop the Work until the correction is
made.
25. Contractor shall promptly correct Work rejected by Owner as failing to conform to
the requirements of the Agreement and Contractor shall bear the cost of
correcting such rejected Work.
26. Contractor warrants to Owner that: (1) materials and.equipment famished under
the Agreement will be new and of good quality; (2) the Work will be free from
defects not inherent in the quality required or permitted; and (3) the Work will
conform to the requirements of the Agreement.
27. Contractor warrants and guarantees to Owner that all Work will be in accordance
with the Contract Documents and will not be defective. Prompt notice of all
defects shall be given to Contractor. If, within one year after the date of
completion, or such longer period of time as may be set forth in the Agreement
(including the Bid), prescribed 6y law, prescribed by the terms of any applicable
warranty given by a materials supplier or required by or a part of the Agreement,
any Work is found to be defective; Contractor shall promptly, without cost to
Owner, and in accordance with Owner's written instructions, either correct such
defective Work, or, if it has been rejected by Owner, remove it from the site, and
replace it with nondefective work. If Contractor does not promptly comply with
the terms of such instructions, or in an emergency where delay would cause
serious risk of loss or damage, Owner may have the defective Work corrected or
the rejected Work removed and replaced, and all direct and indirect costs of
such removal and replacement, including compensation for additional
professional services, shall be paid by Contractor.
28. If Contractor defaults or neglects to, carry out the Work in accordance with the
Agreement and fails within a seven day period after receipt of written notice from
the Owner to correct such default or neglect with diligence and promptness, the
Owner may, without prejudice to other remedies, correct such deficiencies. In
such case, the Agreement may be terminated by Owner or a Change Order shall
be issued deducting the cost of con'ection from payments due the Contractor.
29. The performance of the Work may be terminated at any time in whole, or from
time-to-time in part, by Owner for its convenience. Any such termination shall be
effected by delivery to Contractor of a written notice ("Notice of Termination")
specifying the extent to which performance of the Work is terrriinated and the
date upon which termination becomes effective. After receipt of a Notice of
Termination, and except as otherwise directed by Owner, Contractor shall, in
good faith, and to the best of its ability, do alt things necessary, in the light of
such notice. and of such requests in implementation thereof as Owner may
make, to assure the efficient, proper closeout of the terminated Work (including
the protection of Owner's property). Among other things, Contractor shall,
except as otherwise directed or approved by Owner.
a. stop the Work on the date and to the extent specified in the Notice of
Termination;
b. place no further order or subcontracts for services, equipment or materials
except as may be necessary for completion of such portion of the Work as
is not terminated;
c. terminate all orders and subcontracts to the extent that they relate to the
pertormance of Work terminated by the Notice of Termination;
d. assign to Owner, in the manner and to the extent directed by it, all of the
right, title and interest of Contractor under the orders or subcontracts so
terminated, in which case Owner shall have the right to settle or pay any
or all claims arising out of the termination of such orders and
subcontracts;
e. with the approval of Owner, settle all outstanding liabilities and all claims
arising out of such termination or orders and subcontracts; and
f. deliver to Owner, when and as directed by Owner, all documents and all
property which, if the Work had been completed, Contractor would be
required to account for or deliver to Owner, and transfer title to such
property to Owner to the extent not already transferred.
In the event of such termination, there shall be an equitable reduction of the Contract
Price to reflect the reduction in the Work and no cost incurred after the effective date of
the Notice of Termination shall be treated as a reimbursable cost unless it relates to
carrying out the unterminated portion of the Work or taking closeout measures.
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