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AGREEMENT
THIS AGREEMENT is dated as of the 12th day of June, in the year 2008, by and
between
Board of County Commissioners
Eagle County, Colorado
(hereinafter called OWNER)
And
Neils Lunceford, Inc.
P.O. Box 2130
Silverthorne, CO 80498
(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. The work is generally described as follows:
Eagle County Administration Campus Phase I Xeriscape Project
ARTICLE 2 - OWNER'S REPRESENTATIVE
2.1 The project is under the authority of the Eagle County Public Works, Project
Management Department, the Manager of which, or his designee, shall be
Owner's PROJECT MANAGER with Contractor with respect to the performance
of the Work.
ARTICLE 3 -CONTRACT TIME
3.1 The work will be substantially completed within 60 days of start date, OR on or
before October 1, 2008, and completed and ready for final payment in accordance
with paragraph 14.13 of the General Conditions on or before October 15, 2008.
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 Article 12 of 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 One
Hundred Fifty dollars ($150.00) for each day that expires after the time specified
in paragraph 3.1 for substantial completion until the work is substantially
complete.
ARTICLE 4 -CONTRACT PRICE
4.1 The funds appropriated for this project are equal to or in excess of the contract
amount. OWNER shall pay CONTRACTOR for the Scope of Work, including
the CONTRACTOR's fee, in accordance with the Contract Documents in current
funds in an amount not to exceed:
Total: $254,927.13
ARTICLE 5 -PAYMENT PROCEDURES
CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of
the General Conditions. Applications for Payment will be processed by PROJECT
MANAGER 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 recommended by PROJECT MANAGER, as provided below. All
progress payments will be on the basis of the progress of the work measured by
the schedule of values provided for in paragraph 14.1 of the General Conditions.
5.1.1 Prior to Substantial Completion, progress payments will be in an amount
equalto:
90% of the work completed until fifty percent (50%) of the work
is performed, after which no additional retainage 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.
5.1.2 Upon Substantial Completion, OWNER shall pay an amount sufficient to
increase total payments to CONTRACTOR to 95% of the Contract Price,
less such amounts as PROJECT MANAGER shall determine in
accordance with paragraph 14.7 of the General Conditions.
5.2 FINAL PAYMENT: Upon final completion and acceptance in accordance with
paragraph 14.13 of the General Conditions, OWNER shall pay the remainder of the
Contract Price as recommended by PROJECT MANAGER as provided in said
paragraph 14.13. 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 Revised Statutes 1973,
Section 38-26-107 as amended. Final payment shall be made in accordance with the
requirements of 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 affect
cost, progress, or performance of the work.
6.2 CONTRACTOR has studied carefully all reports of investigations and tests of
subsurface and latent physical conditions at the site or otherwise affecting cost,
progress, or performance of the work which were relied upon by PROJECT
MANAGER in the preparation of the Drawings and Specifications, and which
have been identified in the Supplementary Conditions.
6.3 CONTRACTOR has made, or caused to be made, examinations, investigations,
and tests and studies of such reports and related data in addition to those referred
to in paragraph 6.2 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.
6.4 CONTRACTOR has correlated the results of all such observations, examinations,
investigations, tests, reports, and data with the terms and conditions of the
Contract Documents.
6.5 CONTRACTOR has given PROJECT MANAGER written notice of all conflicts,
errors, or discrepancies that he has discovered in the Contract Documents and the
written resolution thereof by PROJECT MANAGER is acceptable to
CONTRACTOR.
ARTICLE 7 -CONTRACT DOCUMENTS
The contract Documents which comprise the entire Agreement, made a part hereof, and
consist of the following:
7.1 This Agreement (Pages 1 to 8, inclusive}.
7.2 Invitation to Bid consisting of 1 page.
7.3 Instructions to Bidders (Pages 1 to 6, inclusive).
7.4 Notice of Award, Notice to Proceed.
7.5 General Conditions (Pages 1 to 41, inclusive).
7.6 Drawings, consisting of 14 sheets
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 a Modification (as
defined in Section 1 of the General Conditions).
ARTICLE 8 -MISCELLANEOUS
8.1 The terms used in this Agreement which are defined in Article 1 of the General
Conditions shall have the meanings indicated in the General Conditions.
8.2 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.
8.3 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.
8.4 Notwithstanding anything to the contrary contained in this Agreement, Eagle
County shall have no obligations under this Agreement after, nor shall any
payments be made to Contractor in respect of any period after December 31, 2008
without an appropriation therefore by County in accordance with a budget
adopted by the Board of County Commissioners in compliance with Article 25,
Title 30 of the Colorado Revised Statutes, the Local Government Budget Law
(C.R.S. § 29-1-101 et seq.) and the TABOR Amendment (Colorado Constitution,
Article X, Sec. 20).
8.5 Provision Mandated by C.R.S. § 8-17.5-101 et seq. PROHIBITIONS ON
PUBLIC CONTRACT FOR SERVICES
A. Contractor shall not knowingly employ or contract with an illegal alien to
perform work under the public contract for services; or enter into a contract with a
subcontractor that fails to certify to Contractor that the subcontractor shall not
knowingly employ or contract with an illegal alien to perform work under the
public contract for services.
B. Contractor shall verify or attempt to verify through participation in the
Basic Pilot Verification program, as administered by the United States
Department of Homeland Security, that Contractor does not employ any illegal
aliens. If Contractor is not accepted into the Basic Pilot Verification Program
prior to entering into a public contract for services, the contractor shall apply to
participate in the Program every three months until the contractor is accepted or
the public contract for services has been completed, whichever is earlier.
Information on applying for the Basic Pilot Verification Program can be found at:
https://www.vis-dhs.com\employerre gistration
C. Contractor shall not use the Basic Pilot Verification Program procedures
to undertake pre-employment screening of job applicants while the public contract
for services is being performed.
D. If Contractor obtains actual knowledge that a Subcontractor performing
work under the public contract for services knowingly employs or contracts with
an illegal alien, Contractor shall be required to:
1. Notify the Subcontractor and the County within three days that
Contractor has actual knowledge that the Subcontractor is employing or
contracting with an illegal alien; and
2. Terminate the Subcontract with the Subcontractor if within three days
of receiving the notice required pursuant to subparagraph (i) of the
paragraph (d) the Subcontractor does not stop employing or contracting
with the illegal alien; except that Contractor shall not terminate the
contract with the Subcontractor if during such three days the
Subcontractor provides information to establish that the Subcontractor has
not knowingly employed or contracted with an illegal alien.
E. Contractor shall comply with any reasonable request by the Department of
Labor and Employment made in the course of an investigation that the department
is undertaking pursuant to its authority.
F. If Contractor violates these prohibitions, the County may terminate the
contract for a breach of the contract. If the contract is so terminated specifically
for a breach of this provision, Contractor shall be liable for actual and
consequential damages to the County.
8.6 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.
8.7 JURISDICTION AND VENUE: This Agreement shall be interpreted in
accordance with the laws of the State of Colorado and the parties hereby agree to
submit to the jurisdiction of the courts thereof. Venue shall be in the Fifth
Judicial District for the State of Colorado.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement in triplicate.
One counterpart each has been delivered to OWNER, CONTRACTOR, and PROJECT
MANAGER. All portions of the Contract Documents have been signed or identified by
OWNER and CONTRACTOR, or by PROJECT MANAGER on their behalf.
This Agreement will be effective on June 12, 2008.
OWNER:
ATTEST:
County Commissioners
Peter Runyon, Chairman
CONTRACTOR:
COUNTY OF EAGLE, STATE OF COLORADO,
By and Through Its BOARD OF COUNTY
COMMISSIONERS ~ i~~
By:
Name: ~C'1
Title: ~~
STATE OF COLORADO
County of ~U~.rr~ ~,~
The foregoing was acknowledged before me this ~ day of
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WITNESS my hand and official seal.
My commission expires ''7 - ~~ ®7s~C'~ I
Notary Public
