HomeMy WebLinkAboutC11-091 Magnesium Chloride Project Agreement AGREEMENT FOR MAGNESIUM CHLORIDE PROJECT
THIS AGREEMENT is dated as of the % day of 1,Akjfi, 2011,by and between
Eagle County, Colorado, a body corporate and politic, acting by and through its Board of
County Commissioners (hereinafter called "Owner"), and EnviroTech Services 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: 2011 MAGNESIUM CHLORIDE
PROJECT 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 November 30 2011
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 preceding the actual Toss 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.
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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 a remedy - 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
payment previously made.
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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.
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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 (if any)
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.
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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 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.
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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:
County:
With a copy to:
Board of County Commissioners, Eagle County Road & Bridge
Eagle County, Colorado P. O. Box 250
P. O. Box 850 Eagle, CO 81631
Eagle, CO 81631 Telephone: (970) 328 -3540
Telephone: (970) 328 -8605 Fax: (970) 328 -3546
Fax: (970) 328 -7207
Contractor:
EnviroTech Services
910 54 Ave. Suite 230
Greeley, CO. 80634 -4403
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.
PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES:
If Contractor /Consultant has any employees or subcontractors, Contractor /Consultant shall
comply with C.R.S. § 8- 17.5 -101, et seq., regarding Illegal Aliens - Public Contracts for
Services, and this Contract. By execution of this Contract, Contractor /Consultant certifies that it
does not knowingly employ or contract with an illegal alien who will perform under this
Contract and that Contractor /Consultant will participate in the E- verify Program or other
Department of Labor and Employment program ( "Department Program ") in order to confirm the
eligibility of all employees who are newly hired for employment to perform work under this
Contract.
A. Contractor /Consultant shall not:
(i) Knowingly employ or contract with an illegal alien to perform work under
this contract for services; or
(ii) Enter into a contract with a subcontractor that fails to certify to the
Contractor /Consultant that the subcontractor shall not knowingly employ
or contract with an illegal alien to perform work under the public contract
for services.
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B. Contractor /Consultant has confirmed the employment eligibility of all employees
who are newly hired for employment to perform work under this Contract through
participation in the E- verify Program or Department Program, as administered by
the United States Department of Homeland Security. Information on applying for
the E- verify program can be found at:
http: / /www.dhs.gov /xprevprot /programs /ac 1185221678150.shtm
C. The Contractor /Consultant shall not use either the E- verify program or other
Department Program procedures to undertake pre- employment screening of job
applicants while the public contract for services is being performed.
D. If the Contractor /Consultant obtains actual knowledge that a subcontractor
performing work under the public contract for services knowingly employs or
contracts with an illegal alien, the Contractor /Consultant shall be required to:
(i) Notify the subcontractor and the County within three days that the
Contractor /Consultant has actual knowledge that the subcontractor is
employing or contracting with an illegal alien; and
(ii) 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 the Contractor /Consultant 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. The Contractor /Consultant 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 established in C.R.S. § 8-
17.5- 102(5).
F. If a Contractor /Consultant 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 of this Contract, the
Contractor /Consultant shall be liable for actual and consequential damages to the
County as required by law.
G. The County will notify the office of the Colorado Secretary of State if
Contractor /Consultant violates this provision of this Contract and the County
terminates the Contract for such breach.
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IN WITNESS WHEREOF, the parties have executed this Agreement this AA day of
U1l / O11
EAGLE COUNTY, COLORADO
By and through its Board of County
Commissioners
ATTEST o4 shect
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',� e Bltrd Ap o Jon Stavney f,
County Com issioners �� Chairman ✓
"Contractor ": •
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By:
STATE OF COLORADO
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County of EagIc )
The foregoi g instrument wail / acknowledged before me by ' "it, ijuAtz
this K day of - 3/ , 2011.
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