HomeMy WebLinkAboutC11-174 H&H Environmental Inc. CONSTRUCTION AGREEMENT BETWEEN EAGLE COUNTY AND H &H
ENVIRONMENTAL, INC.
IVrie
THIS AGREEMENT is made this t- day of May, 2011, by and between Eagle
County ( "County "), and H &H Environmental, Inc., a company organized and existing by
virtue of the laws of the State of Colorado ( "Contractor ").
WHEREAS, County desires to install a 45 mil reinforced polypropylene (RPP) liner in
the existing Eagle River Preserve pond to stop the leaking of water; and
WHEREAS, Contractor is authorized to do business in the State of Colorado, has
experience and expertise necessary to provide said services to County; and
WHEREAS, County and Contractor intend by this Agreement to set forth the scope of
the responsibilities of Contractor in connection with the Project and related terms and
conditions to govern the relationship between Contractor and County in connection with
this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the following
promises, County and Contractor agree as follows: -
ARTICLE 1— WORK
1.1 Contractor shall complete all Work as specified or indicated in the Contract
Documents. The "Work" is generally described as follows: Provide all labor,
tools materials and services to complete the installation of the 45 mil RPP liner
with an 8 oz geo- textile underneath and around the perimeter on top of the liner
per the Contractors bid dated April 13, 2011, attached hereto as Exhibit "A" and
shown on the survey, attached hereto as Exhibit `B ", and incorporated herein by
this reference.
ARTICLE 2 — COUNTY'S REPRESENTATIVE
2.1 The project is under the authority of the Eagle County Facilities Management
Department, the Manager of which, or his designee, shall be County's Project
Manager with Contractor with respect to the performance of the Work.
ARTICLE 3 — CONTRACT TIME
3.1 This Agreement shall commence upon execution of this Agreement by both
parties and, subject to the provisions of Article 11 hereof, shall continue in full
force and effect until the Work has been completed. Contractor will use its best
efforts to complete the Work in a diligent and expeditious manner. The final
completion shall be when County's Project Manager has certified that the
Facilities have been completed in accordance with the terms and conditions of this
Agreement, Exhibit "A ", the General Conditions, and correction of all field
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discovered deficiencies. Final completion must be achieved on or before June 4,
2011.
3.2 County and Contractor recognize that time is of the essence of this Agreement
and that County will suffer financial loss if Project is not substantially completed
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, in a legal or arbitration
proceeding, the actual loss suffered by the County if Project is not final completed
on time. Accordingly, instead of requiring any such proof, County and Contractor
agree that as liquidated damages for delay (but not as a penalty) Contractor shall
pay County in accordance with the following:
Late Final Completion: $100 per day
ARTICLE 4 — CONTRACT PRICE
4.1 The funds appropriated for this project are equal to or in excess of the contract
amount. COUNTY 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:
TWENTY THOUSAND NINE HUNDRED FORTY TWO DOLLARS AND
00 /100
Total: $20,942.00
ARTICLE 5 — PAYMENT PROCEDURES
5.1 CONTRACTOR shall submit Applications for Payment in accordance with
paragraph 17 of the General Conditions. Applications for Payment will be
processed by PROJECT MANAGER as provided in the General Conditions
5.2 PROGRESS PAYMENTS: County shall make monthly progress payments on
account of the Contract Price on the basis of Contractor's Applications for
Payments as recommended by the Project Manager, as provided below. All
progress payments will be on the basis of the progress of the work provided for in
paragraph 17 of the General Conditions.
5.3 FINAL PAYMENT: Upon final completion and acceptance in accordance with
paragraphs 19 and 20 of the General Conditions, County shall pay the remainder
of the Contract Price as recommended by Project Manager as provided in said
paragraphs 19 and 20.
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ARTICLE 6 — CONTRACTOR'S REPRESENTATIONS
In order to induce County 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.
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 To the extent possible, 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 To the extent possible Contractor, has given Project Manager written notice of all
conflicts, errors, or discrepancies that he has discovered in the Contract
Documents.
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
7.2 Exhibit "A"
7.3 Exhibit "B"
7.4 General Conditions
7.5 Certificates of Insurance
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7.6 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 the General Conditions). To the extent
the terms and conditions of both this Agreement and the General Conditions
conflict with any other Contract Document, the provisions most beneficial to the
County shall control.
ARTICLE 8 — MISCELLANEOUS
8.1 The terms used in this Agreement which are defined in 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 County and Contractor each binds itself, its 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, 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, 2010 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
8.5.1 If Contractor has any employees or subcontractors, Contractor 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 certifies
that it does not knowingly employ or contract with an illegal alien who will
perform under this Contract and that Contractor 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.
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• 8.5.2 Contractor 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 that the subcontractor shall not knowingly employ or
contract with an illegal alien to perform work under the public
contract for services.
8.5.3. Contractor 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 /gc 1185221678150.shtm
8.5.4 The Contractor 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.
8.5.5 If the Contractor obtains actual knowledge that a subcontractor performing work
under the public contract for services knowingly employs or contracts with an
illegal alien, the Contractor shall be required to:
(i) Notify the subcontractor and the County within three days that the
Contractor 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 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.
8.5.6 The 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 established in C.R.S. § 8-17.5-102(5).
8.5.7 If a 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
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breach of this provision of this Contract, the Contractor shall be liable for actual
and consequential damages to the County as required by law.
8.5.8 The County will notify the office of the Colorado Secretary of State if Contractor
violates this provision of this Contract and the County terminates the Contract for
such breach.
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.
8.7.1 At all times during the term of this Agreement, Contractor shall maintain
insurance on its own behalf in the minimum amounts required by Section 13 of
the General Conditions.
8.8 Invalidity or unenforceability of any provision of this Agreement shall not affect
the other provisions hereof, and this Agreement shall be construed as if such
invalid or unenforceable provision was omitted.
ARTICLE 9 - JURISDICTION AND VENUE:
9.1 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.
ARTICLE 10 - INDEMNIFICATION:
The Contractor shall, to the fullest extent permitted by law, indemnify and hold harmless
County and any of its officers, agents and employees against any losses, claims, damages
or liabilities for which County or any of its officers, agents, or employees may become
subject to, insofar as any such losses, claims, damages or liabilities arise out of, directly
or indirectly, this Agreement, or are based upon any performance or nonperformance by
Contractor hereunder; and Contractor shall reimburse County for any and all legal and
other expenses incurred by County in connection with investigating or defending any
such loss, claim, damage, liability or action. This indemnification shall not apply to
claims by third parties against the County to the extent that the County is liable to such
third party for such claim without regard to the involvement of the Contractor.
ARTICLE 11 - TERMINATION:
County may terminate this Agreement, in whole or in part, for any reason, at any time,
with or without cause. Any such termination shall be effected by delivery to Contractor
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of a written notice of termination specifying the reason and date upon which termination
becomes effective. Upon termination, Contractor shall deliver all redlined drawings and
other illustrations, or documents entirely or partially completed, whether in electronic
form or otherwise, together with all material supplied by Contractor by County. In such
event, Contractor shall be compensated for all Work satisfactorily completed up to the
date of termination, plus Contractor's Fee for such Work. Final payment will not be due
until thirty (30) days after Contractor has delivered the last of the documents or records
due the County.
ARTICLE 12 - OWNERSHIP OF DOCUMENTS:
All documents (including electronic files) which are obtained during or prepared in the
performance of the Work shall remain the property of the County and are to be delivered
to County before final payment is made to Contractor or upon earlier termination of this
Agreement.
ARTICLE 13 — NOTICE
Any notice required under this Agreement shall be personally delivered, mailed in the
United States mail, first class postage prepaid, or sent via facsimile provided an original
is also promptly delivered to the appropriate party at the following addresses:
The County: Eagle County Facilities Management
Ron Siebert, Project Manager
P.O. Box 850
Eagle, Colorado 81631
(970) 328 -8881 (p)
(970) 328 -3529 (f)
and a copy to: Eagle County Attorney
P.O. Box 850
Eagle, Colorado 81631
(970) 328 -8699 (1)
The Contractor: H &H Environmental Inc.
PO Box 4581
Grand Junction, CO 81502
Notices shall be deemed given on the date of delivery; on the date a FAX is transmitted
and confirmed received or, if transmitted after normal business hours, on the next
business day after transmission, provided that a paper copy is mailed the same date; or
three days after the date of deposit, first class postage prepaid, in an official depositary of
the U.S. Postal Service.
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ARTICLE 14 — INDEPENDENT CONTRACTOR
It is expressly acknowledged and understood by the parties hereto that nothing contained
in this Agreement shall result in, or be construed as establishing, an employment
relationship. Contractor shall be, and shall perform as, an independent contractor. No
technician, agent, subcontractor, employee, or servant of Contractor shall be, or shall be
deemed to be, the employee, agent or servant of County. Contractor shall be solely and
entirely responsible for its acts and for the acts of its technicians, agents, employees, and
servants during the performance of this agreement. Contractor shall not represent, act,
purport to act or be deemed the agent, representative, employee or servant of County.
/1 SIGNATURE PAGE TO FOLLOW //
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
COUNTY OF EAGLE, STATE OF COLORADO,
By and Through Its COUNTY MANAGER
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BY: .c —�
Keith Montag
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Title: pg,a /�'r7
STATE OF 0_,O )
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COUNTY OF )) 4-4
The foregoing instrument was acknowledged before me by II this /t1 day
of a� , 2011.
My commission expires: 0510 �� _ / ' L ✓L /: /_
No . Publ c
9
H &H
Preserving eN VZ R ONMEN7q� INC Through
Our Environment Water Conservation
Water Containment Products Liners Bentonite Clay
• REV LINER QUOTATION
DATE: May 9, 2011 NO. OF PAGES: 1
TO: Ron Siebert
Facilities Project Manager ( 970) 471 -0385
PROJECT: Edwards Eagle River Preserve Pond
Edwards, CO
QUOTATION: We are pleased to provide the following quotation:
1. Furnish and install 19,500 sf of 30 mil Anti -skid liner in pond with
8 oz geo- textile underneath and around perimeter on top of liner $16,056.00
2. Furnish and install 20,003 sf of 36 mil RPP liner in pond with 8 oz
geo- textile underneath and around perimeter on top of the liner $20,007.00
3. Same as items 1 & 2 except 45 mil RPP liner w/ 20 year manufactures warranty $20,942.00
Construction schedule: 1 -3 weeks to order, fabricate liner and install.
CLARIFICATIONS:
1. Sales tax is not included.
2. Price includes all materials, labor, tools, equipment and field seaming required for a complete liner
installation. Does not include pond construction, anchor trench or anchor trench backfill dewatering,
and final compacted sub - grade. Sub -grade shall be free of rocks, roots and any organic, or inorganic
debris which could compromise the liner .One year installation warranty is included.
3. Terms: net 25 days from invoice date.
THANK YOU FOR THE OPPORTUNITY TO QUOTE,
Randy Kendall - Field Supervisor
H & H Environmental, Inc.
sow
www.hhenv.comm bon Kendall, President
PO Box 4581 Grand Junction, CO 81502 • 1- 800 - 952 -0802 • (970) 243 -2700. Fax: (970) 243 -0098
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GENERAL CONDITIONS
1. Contractor shall provide and pay for labor, materials, equipment, tools, 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.
County 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 it from responsibility for successfully performing the Work without additional
expense to the County. County 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 County.
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 County 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 County. In any
event, County 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 County, 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 County
immediate (as determined by the circumstances, but not exceeding 72 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 warrants to County that: (1) materials and equipment furnished 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.
10. 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 Contractor performs Work knowing it to be contrary to laws, statutes,
ordinances, building codes, rules or regulations without notice to County, Contractor
shall assume full responsibility for such Work and shall bear the attributable costs.
Contractor shall promptly notify County in writing of any conflicts between the
specifications for the Work and such governmental laws, rules and regulations.
11. Contractor shall keep the premises and surrounding area free from accumulation
of debris and trash related to the Work.
12. Contractor shall be solely responsible for the protection of the Work and material.
Contractor shall have no claim against County because of any damage or loss to the
Work (except that caused by negligence of County or those for whom County is
responsible), and shall be responsible for the complete restoration of damaged Work to its
original condition. In the event Contractor's Work is damaged by another party, not
under its supervision or control, Contractor shall make its 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.
13. Contractor's Insurance:
A. Contractor shall purchase and maintain such insurance as will protect it
from claims set forth below which may arise out of or result from Contractor's
operations under the contract, whether such operations be by itself, or by any of
its subcontractors, 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 one
year after final payment.
B. Insurance coverages 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;
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Claims for damage because of bodily injury, occupational sickness or disease, or
death of its employees, and claims insured by usual personal injury liability
coverage;
Claims for damage because of bodily injury, sickness or disease, or death of any
person other than its employees, and claims insured by usual personal injury
liability coverage; 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 Contractor and each subcontractor with respect to all Work
performed by them under this Agreement.
Contractor's Protective Liability Insurance issued to and covering the liability for
damages imposed by law upon Contractor and each subcontractor with respect to
all Work under this Agreement performed for Contractor by subcontractors.
Completed Operations Liability Insurance issued to and covering the liability for
damage imposed by law upon Contractor and each subcontractor arising 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 shall be carried in the amount of
$500,000 /$1,000,000 for bodily injury and $500,000 for property damage, each
occurrence. All liability and property damage insurance required hereunder shall
be Comprehensive General and Automobile Bodily Injury and Property Damage
form of policy.
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 all the insurance and requirements herein set forth,
subject to the approval of the County, will be permissible.
Insurance covering claims for damages to persons or property required by the
preceding paragraph shall be in the following minimum amounts:
Bodily Injury Liability:
Each Person: $1,000,000
Each Accident or Occurrence: $2,000,000
Property Damage Liability:
Each Accident or Occurrence: $1,000,000
Aggregate: $2,000,000
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Insurance shall be placed jointly in the names of the County, the Corporation, the
Trustee, Contractor, and any and all subcontractors, and any and all others obliged
by contract with the County to do Work on this project, and, at the County's
option, any other person or persons whom the County 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 County as trustee. The County 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.
C. Certificates of Insurance: Certificates of Insurance acceptable to the
County, the Corporation and the Trustee shall be filed with the County, the
Corporation and the Trustee with respect to each contractor and subcontractor
prior to commencement of the Work. These Certificates shall contain provisions
naming the County as an additional insured under Contractor's insurance, as more
fully required by 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 County. Contractor and its subcontractors shall not permit any of
its subcontractors to start Work until all required insurance have been obtained
and certificates with the proper endorsements have been filed with the County.
Failure of Contractor to comply with the foregoing insurance requirements shall
in no way waive the County's rights hereunder.
14. The County, at its option, may purchase and maintain such liability insurance as
will protect it against claims which may arise from operations under this contract.
Purchasing and maintaining such insurance, however, will not relieve Contractor from
purchasing and maintaining the insurance hereinbefore specified.
15. Before permitting any of its subcontractors to perform any Work under this
contract, Contractor shall either (a) require each of its subcontractors to procure and
maintain during the life of its subcontracts, Subcontractor's General Liability and
Property Damage Insurance of the types and in the amounts as may be applicable to its
Work, which type and amounts shall be subject to the approval of the County, or (b)
insure the activities of its subcontractors in its own policy.
16. To the fullest extent permitted by law, Contractor shall indemnify and hold
harmless County, and Eagle County Board of 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
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whole or in part by negligent acts or omissions of Contractor, a subcontractor, anyone
directly or indirectly employed by them or anyone for whose acts they may be liable.
17. Progress Payments:
Not more often than once a month, Contractor shall submit to County 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 County 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
County, as will establish County's title to the material and equipment, and protect
County'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 retention with respect to progress payments will be as
stipulated in the Agreement.
County will, within 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. County shall, within ten days of recommendation of payment, pay
Contractor the amount recommended.
18. 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 County at the time of payment free and clear of all liens, claims, security interests,
and encumbrances (in these General Conditions referred to as "Liens ").
19. Final Payment:
A. Upon written notice from Contractor that the work is complete, County
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.
B. After Contractor has completed all such corrections to the satisfaction of
County, and delivered all maintenance and operating instructions, guarantees,
bonds, certificates of inspection, 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 County may reasonably require,
5
together with complete and legally effective releases or waivers (satisfactory to
County) of all liens arising out of, or filed in connection with the work. In lieu
thereof, and as approved by County, Contractor may furnish 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 County or its 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 furnish a release or receipt in full, Contractor may furnish a bond or other
collateral satisfactory to County to indemnify County against any lien.
20. Final payment shall not become due until Contractor submits to County releases
and waivers of liens, and data establishing payment or satisfaction of obligations, such as
receipts, claims, security interests or encumbrances arising out of the Work.
20.1 The County shall not authorize final payment until all items on the punch list have
been completed.
20.2. Before the County releases final payment, Contractor shall:
A. Deliver to the Eagle County Project Manager for review:
1. All guaranties and warranties;
2. A letter confirming that sales taxes from which the County is
exempt have not been paid;
3. Satisfactory evidence that all payroll, material bills, and other
indebtedness connected with the Work have been paid or otherwise
satisfied;
4. A complete and final waiver and/or release of any and all lien
rights and liens from each subcontractor of all tiers, material, men,
supplier, manufacturer and dealer for all labor, equipment and
material used or furnished by each on the Work;
5. Any other documents required to be furnished by the Contract
Documents.
B. Demonstrate to the operating personnel of the County the proper operation
and maintenance of all equipment.
20.3. If any unpaid claim for labor, materials, rental machinery, tools, supplies, or
equipment is filed before payment in full of all sums due Contractor, County shall
withhold from Contractor sufficient funds to insure the payment of such claim,
6
until the same shall have been paid or withdrawn, such payment or withdrawal to
be evidenced by filing a receipt in full or an order for withdrawal signed by the
claimant or its duly authorized agent or assignee.
•
20.4. The making of final payment, shall constitute a waiver of all claims by the County
except those arising from:
A. Unsettled Claims;
B. Faulty or defective work appearing after Completion of the Work;
C. Failure of the Work to comply with the requirements of the Contract
Documents; or
D. Terms of any warranties or special warranties required by the Contract
Documents.
20.5. The acceptance of final payment, shall constitute a waiver of all claims by
Contractor except those previously made in writing and separately identified by
Contractor as unsettled in the final Project Application for Payment.
20.6. All provisions of the Contract Documents including without limitation those
establishing obligations and procedures, shall remain in full force and effect
notwithstanding the making or acceptance of final payment.
21. Contractor's obligation 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 County to Contractor under the contract documents,
nor any use or occupancy of the Work or any part thereof by County, nor any act of
acceptance by County, nor any failure to do so, nor any correction of defective Work by
County 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.
22. Any work in accordance with the Contract Documents that the County finds
improper, Contractor will correct said work in a timely manner so as not to delay
completion of the project.
23. If Contractor defaults or neglects to carry out the Work in accordance with the
Agreement and fails within a ten (10) day period after receipt of written notice from the
County to correct such default or neglect with diligence and promptness, the County may,
without prejudice to other remedies, correct such deficiencies and Contractor shall be
responsible for the cost of such correction.
24. Contractor shall be responsible for initiating, maintaining and supervising all
safety precautions and programs, including all those required by law in connection with
7
performance of the Agreement. Contractor shall promptly remedy damage and loss to
property caused in whole or in part by Contractor, or by anyone for whose acts
Contractor may be liable.
25. Contractor shall promptly correct Work rejected by County as failing to conform
to the requirements of the Agreement and Contractor shall bear the cost of correcting
such rejected Work.
26. Contractor warrants and guarantees to County 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 two years after the date of completion, or such longer
period of time as may be prescribed by 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 County, and in
accordance with County's written instructions, either correct such defective Work, or, if it
has been rejected by County, remove it from the site, and replace it with non - defective
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, County 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.
27. The performance of the Work may be terminated at any time in whole, or from
time to time in part, by County 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 terminated and the date upon
which termination becomes effective. After receipt of a Notice of Termination, and
except as otherwise directed by County, Contractor shall, in good faith, and to the best of
its ability, do all things necessary, in the light of such notice and of such requests in
implementation thereof as County may make, to assure the efficient, proper closeout of
the terminated Work (including the protection of County's property). Among other things,
Contractor shall, except as otherwise directed or approved by County:
A. stop the Work on the date and to the extent specified in the Notice of
Termination;
B. place no further orders 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
performance of Work terminated by the Notice of Termination;
D. assign to County, 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
8
which case County 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 County, settle all outstanding liabilities and all claims
arising out of such termination or orders and subcontracts; and
F. deliver to County, when and as directed by County, all documents and all
property which, if the Work had been completed, Contractor would be required
to account for or deliver to County, and transfer title to such property to County
to the extent not already transferred.
In the event of such termination, Contractor shall be entitled to payment for the
work performed prior to the termination date.
28. The selection of bidders shall be in accordance with the laws of Colorado. In the
event of Contractor's non - compliance with the Colorado labor laws, this Contract
may be canceled, terminated or suspended, in whole or in part, without any
liability to the County.
29. Contractor acknowledges that the Work is a public work financed in whole or in
part by funds of the state of Colorado and/or County, and pursuant to section Title
8 -17 -101, C.R.S. (1973) Colorado labor shall be employed to perform the
Work in the extent of not less than eighty percent (80 %) of each type or class of
labor in the several classifications of skilled and common labor employed in the
Work. For purposes of this provision, "Colorado labor" means "any person who
is a resident of the state of Colorado at the time of employment, without
discrimination as to race, color, creed, sex, age, or religion except when sex or
age is a bona fide occupational qualification.
30. Contractor agrees to comply with the letter and spirit of the Colorado Anti-
discrimination Act of 1957, as amended, and other applicable laws respecting
discrimination and unfair employment practices. Pursuant thereto, the following
provision shall be contained in all County contracts or subcontracts: during the
performance of this Contract, Contractor agrees as follows:
A. Contractor will not discriminate against any employee or applicant for
employment because of race, creed, color, national origin, sex, marital status,
religion, ancestry, mental or physical disability, sexual orientation, or age.
Contractor will take affirmative action to insure that applicants are employed
and that employees are treated during employment, without regard to the above
mentioned characteristics. Such action shall include, but not be limited to, the
following: employment, upgrading, demotion or transfer, recruitment or
recruitment advertising; lay -offs or terminations; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. Contractor
agrees to post in conspicuous places, available to employees and applicants for
9
employment, notices to be provided by the contracting officer setting forth
provisions of this non - discrimination clause.
B. Contractor will, in all solicitations or advertisements for employees placed by or
on behalf of Contractor, state that all qualified applicants will receive
consideration for employment without regard to race, creed, color, national
origin, sex, marital status, religion, ancestry, mental or physical disability, or
age.
10
GENERAL CONDITIONS
1. Contractor shall provide and pay for labor, materials, equipment, tools, 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.
County 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 it from responsibility for successfully performing the Work without additional
expense to the County. County 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 County.
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 County 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 County. In any
event, County 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 County, 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 County
immediate (as determined by the circumstances, but not exceeding 72 hours) notice in
writing of the cause of the detention or delay.
1
8. Contractor shall deliver, handle, store and install materials in accordance with
manufacturers' instructions.
9. Contractor warrants to County that: (1) materials and equipment furnished 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.
10. 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 Contractor performs Work knowing it to be contrary to laws, statutes,
ordinances, building codes, rules or regulations without notice to County, Contractor
shall assume full responsibility for such Work and shall bear the attributable costs.
Contractor shall promptly notify County in writing of any conflicts between the
specifications for the Work and such governmental laws, rules and regulations.
11. Contractor shall keep the premises and surrounding area free from accumulation
of debris and trash related to the Work.
12. Contractor shall be solely responsible for the protection of the Work and material.
Contractor shall have no claim against County because of any damage or loss to the
Work (except that caused by negligence of County or those for whom County is
responsible), and shall be responsible for the complete restoration of damaged Work to its
original condition. In the event Contractor's Work is damaged by another party, not
under its supervision or control, Contractor shall make its 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.
13. Contractor's Insurance:
A. Contractor shall purchase and maintain such insurance as will protect it
from claims set forth below which may arise out of or result from Contractor's
operations under the contract, whether such operations be by itself, or by any of
its subcontractors, 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 one
year after final payment.
B. Insurance coverages shall be as follows:
Claims under Workmen's Compensation, disability benefits, and other similar
p ri ,
employee benefit acts, with coverage and in amounts as required by the laws of
the State of Colorado;
2
Claims for damage because of bodily injury, occupational sickness or disease, or
death of its employees, and claims insured by usual personal injury liability
coverage;
Claims for damage because of bodily injury, sickness or disease, or death of any
person other than its employees, and claims insured by usual personal injury
liability coverage; 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 Contractor and each subcontractor with respect to all Work
performed by them under this Agreement.
Contractor's Protective Liability Insurance issued to and covering the liability for
damages imposed by law upon Contractor and each subcontractor with respect to.
all Work under this Agreement performed for Contractor by subcontractors.
Completed Operations Liability Insurance issued to and covering the liability for
damage imposed by law upon Contractor and each subcontractor arising 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 shall be carried in the amount of
$500,000/$1,000,000 for bodily injury and $500,000 for property damage, each
occurrence. All liability and property damage insurance required hereunder shall
be Comprehensive General and Automobile Bodily Injury and Property Damage
form of policy.
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 all the insurance and requirements herein set forth,
subject to the approval of the County, will be permissible.
Insurance covering claims for damages to persons or property required by the
preceding paragraph shall be in the following minimum amounts:
Bodily Injury Liability:
Each Person: $1,000,000
Each Accident or Occurrence: $2,000,000
Property Damage Liability:
Each Accident or Occurrence: $1,000,000
Aggregate: $2,000,000
3
Insurance shall be placed jointly in the names of the County, the Corporation, the
Trustee, Contractor, and any and all subcontractors, and any and all others obliged
by contract with the County to do Work on this project, and, at the County's
option, any other person or persons whom the County 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 County as trustee. The County 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.
C. Certificates of Insurance: Certificates of Insurance acceptable to the
County, the Corporation and the Trustee shall be filed with the County, the
Corporation and the Trustee with respect to each contractor and subcontractor
prior to commencement of the Work. These Certificates shall contain provisions
naming the County as an additional insured under Contractor's insurance, as more
fully required by 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 County. Contractor and its subcontractors shall not permit any of
its subcontractors to start Work until all required insurance have been obtained
and certificates with the proper endorsements have been filed with the County.
Failure of Contractor to comply with the foregoing insurance requirements shall
in no way waive the County's rights hereunder.
14. The County, at its option, may purchase and maintain such liability insurance as
will protect it against claims which may arise from operations under this contract.
Purchasing and maintaining such insurance, however, will not relieve Contractor from
purchasing and maintaining the insurance hereinbefore specified.
15. Before permitting any of its subcontractors to perform any Work under this
contract, Contractor shall either (a) require each of its subcontractors to procure and
maintain during the life of its subcontracts, Subcontractor's General Liability and
Property Damage Insurance of the types and in the amounts as may be applicable to its
Work, which type and amounts shall be subject to the approval of the County, or (b)
insure the activities of its subcontractors in its own policy.
16. To the fullest extent permitted by law, Contractor shall indemnify and hold
harmless County, and Eagle County Board of 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
4
whole or in part by negligent acts or omissions of Contractor, a subcontractor, anyone
directly or indirectly employed by them or anyone for whose acts they may be liable.
17. Progress Payments:
Not more often than once a month, Contractor shall submit to County 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 County 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
County, as will establish County's title to the material and equipment, and protect
County'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 retention with respect to progress payments will be as
stipulated in the Agreement.
County will, within 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. County shall, within ten days of recommendation of payment, pay
Contractor the amount recommended.
18. 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 County at the time of payment free and clear of all liens, claims, security interests,
and encumbrances (in these General Conditions referred to as "Liens ").
19. Final Payment:
A. Upon written notice from Contractor that the work is complete, County
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.
B. After Contractor has completed all such corrections to the satisfaction of
County, and delivered all maintenance and operating instructions, guarantees,
bonds, certificates of inspection, 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 County may reasonably require,
5
together with complete and legally effective releases or waivers (satisfactory to
County) of all liens arising out of, or filed in connection with the work. In lieu
thereof, and as approved by County, Contractor may furnish 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 County or its 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 furnish a release or receipt in full, Contractor may furnish a bond or other
collateral satisfactory to County to indemnify County against any lien.
20. Final payment shall not become due until Contractor submits to County releases
and waivers of liens, and data establishing payment or satisfaction of obligations, such as
receipts, claims, security interests or encumbrances arising out of the Work.
20.1 The County shall not authorize final payment until all items on the punch list have
been completed.
20.2. Before the County releases final payment, Contractor shall:
A. Deliver to the Eagle County Project Manager for review:
1. All guaranties and warranties;
2. A letter confirming that sales taxes from which the County is
exempt have not been paid;
3. Satisfactory evidence that all payroll, material bills, and other
indebtedness connected with the Work have been paid or otherwise
satisfied;
4. A complete and final waiver and/or release of any and all lien
rights and liens from each subcontractor of all tiers, material, men,
supplier, manufacturer and dealer for all labor, equipment and
material used or furnished by each on the Work;
5. Any other documents required to be furnished by the Contract
Documents.
B. Demonstrate to the operating personnel of the County the proper operation
and maintenance of all equipment.
20.3. If any unpaid claim for labor, materials, rental machinery, tools, supplies, or
equipment is filed before payment in full of all sums due Contractor, County shall
withhold from Contractor sufficient funds to insure the payment of such claim,
6
