HomeMy WebLinkAboutC11-318 Elam Construction Inc. AGREEMENT BETWEEN EAGLE COUNTY,COLORADO
AND ELAM CONSTRUCTION, INC.
THIS AGREEMENT is made this 4/ day of , 2011, by and between
Eagle County, Colorado ( "County "), and Elam Construction, Inc., a company organized
under the laws of the State of Colorado ( "Contractor ").
RECITALS
WHEREAS, County desires to mill and overlay certain asphalt areas at the Eagle County
Regional Airport property (the "Airport").
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 services and related terms and
conditions to govern the relationship between Contractor and County in connection with
this Agreement.
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 will furnish all materials and labor necessary for completion of the mill
and overlay of the asphalt areas of the Airport identified in Contractor's proposal dated
September 19, 2011, attached hereto as Exhibit "A," and incorporated by this reference
(hereinafter the "Work" or "Services "). All Work shall be completed no later than
October 31, 2011. All Work shall be performed in a manner consistent with the
applicable professional standard of care. In the event of any conflict or inconsistency
between the terms and conditions set forth in Exhibit A and the terms and conditions set
forth in this Agreement, the terms and conditions set forth in this Agreement shall
prevail.
1.2 Time is of the essence in the performance of the Contract Documents Any delay
in achieving the completion date as set forth in paragraph 1.1 above shall result in
significant monetary loss to County and, as a result thereof, Contractor shall pay to
County as liquidated damages, and not as a penalty an amount of $250.00 per calendar
day for each day that completion is not achieved beyond October 31, 2011. The parties
hereby agree that such liquidated damages are not punitive in nature and represent the
parties' best estimate of County's damages should the project not be completed by
October 31, 2011.
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ARTICLE 2 - TERM OF AGREEMENT
2.1 This Agreement shall commence upon execution of this Agreement by both
parties, and, subject to the provisions of Article 10 hereof, shall continue in full force and
effect until the Services are satisfactorily completed in accordance with the terms of this
Agreement.
ARTICLE 3 — COMPENSATION
3.1 Upon and subject to the provisions and conditions of Sections 3.4, 3.5 and 3.6 hereof
County shall pay Contractor, for Contractor's performance of the Work under the Contract
Documents, an amount NOT TO EXCEED Thirty -one Thousand Nine Hundred Sixty Eight
Dollars ($31,968.00) (`Bid Price ").
3.2 The Bid Price (which is based upon Unit Prices) includes, without limitation, the entire
amount of overhead and profit payable to Contractor in connection with the Work under the
Contract Documents. Contractor shall not have the right to, nor shall it seek to recover, any
additional compensation for overhead and profit or change in unite prices.
3.3 Contractor acknowledges that Owner is a tax exempt entity.
3.4 The Bid Price, as set forth above, was calculated by the parties based upon the bid
tabulation in Exhibit A (collectively, the "Unit Prices "):
3.5 The quantities set forth in Section 3.4 are based on good faith estimates initially agreed to
by County and Contractor. County and Contractor both acknowledge and agree that the actual
quantity of each described item (which collectively constitute all of the Work) may differ as the
Work is performed and completed and that if the actual quantity of an item so described is
determined (as provided in Section 3.6 below) to be different from that so stated in Section 3.4, then
County and Contractor shall agree to and execute a Change Order indicating such change and the
resultant adjustment in the Bid Price. Notwithstanding the foregoing, in no event shall the Bid Price
and amount payable to Contractor for the Work exceed $31,968.00.
3.6 The quantity of each item actually incorporated into the Work shall be recalculated as
applicable, at any time and from time to time, but in any case upon completion of the Work. The
applicable quantities may be so determined by the mutual agreement of County and Contractor. As
indicated above, the parties agree that even if labor and materials are incorporated into the Work
beyond those anticipated in the Base Bid in no event will the amount due Contractor exceed
$31,968.00.
3.7 The scope of work to be performed under this Agreement shall not be modified
without an amendment to the Agreement signed by both parties.
3.8 Payment will be made for Services satisfactorily performed within thirty (30)
days of receipt of a proper and accurate invoice from Contractor respecting the Services.
The invoice shall include a description of services performed including a detail of the
number of units incorporated into the Work. Upon request, Contractor shall provide
County with such other supporting information as County may request.
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ARTICLE 4— CONTRACTOR'S REPRESENTATIONS
In order to induce County to enter into this Agreement, Contractor makes the following
representations:
4.1 Contractor has familiarized itself with the nature and extent of the Services to be
provided hereunder, the Airport, 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 Services.
4.2 Contractor will make, or cause to be made, examinations, investigations, and tests
as he deems necessary for the performance of the Services.
4.3 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 this Agreement.
4.4 To the extent possible Contractor, has given County written notice of all conflicts,
errors, or discrepancies that he has discovered in the Agreement.
4.5 Contractor will be responsible for provision of the Services and shall perform the
Services in a skillful, professional and competent manner and in accordance with the
standard of care, skill and diligence applicable to contractors of its kind. Further, in
rendering the Services, Contractor shall comply with the highest standards of customer
service to the public. Contractor shall provide appropriate supervision of its employees
to ensure the Services are performed in accordance with this Agreement.
4.6 Contractor shall coordinate all Work with the Eagle County Airport Manager and
shall comply with any and all rules and regulations while working on Airport property.
Contractor shall ensure that the Work occurs in a manner that minimizes any impact to
Airport operations.
4.7 Contractor shall comply with P -403 asphalt specifications for the Work.
4.8 Contractor shall coordinate all Work in advance, with any tenants to minimize
any impact to such tenants in the performance of the Work.
ARTICLE 5 — ENTIRE AGREEMENT
5.1 This Agreement represents the entire Agreement between the parties hereto.
There are no Contract Documents other than this Agreement and Exhibit A. The
Agreement may only be altered, amended, or repealed in writing.
ARTICLE 6 — MISCELLANEOUS
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6.1 Neither party may assign its rights under this Agreement without the prior written
consent of the other. Any assignment without such consent shall be null and void.
6.2 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 this Agreement.
6.3 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, 2011 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).
6.4 Provision Mandated by C.R.S. § 8- 17.5 -101 et seq. PROHIBITIONS ON
PUBLIC CONTRACT FOR SERVICES
6.4.1 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 Services under this
Contract.
6.4.2 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.
6.4.3 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
6.4.4 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.
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6.4.5 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 durin g such
three days the subcontractor provides information to establish that
the subcontractor has not knowingly employed or contracted with
an illegal alien.
6.4.6 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).
6.4.7 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 breach of
this provision of this Contract, the Contractor shall be liable for actual and consequential
damages to the County as required by law.
6.4.8 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.
6.5 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.
6.6 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 7 - JURISDICTION AND VENUE:
7.1 This Agreement shall be interpreted in accordance with the laws of the State of
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Colorado and the parties hereby agree to submit to the jurisdiction of the courts thereof
Venue shall be in the District Court of Eagle County, Colorado.
ARTICLE 8 - INDEMNIFICATION:
8.1 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 or any of its sub- contractors 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 9 - OWNERSHIP OF DOCUMENTS AND MATERIALS:
9.1 All documents (including electronic files) which are obtained during, purchased
or prepared in the performance of the Services shall remain the property of the County
and are to be delivered to County before fmal payment is made to Contractor or upon
earlier termination of this Agreement.
ARTICLE 10 - TERMINATION:
10.1 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 of a written notice of termination specifying the reason and date upon which
termination becomes effective. In such event, Contractor shall be compensated for all
Services satisfactorily completed up to the date of termination for such Services.
ARTICLE 11— NOTICE
11.1 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 Airport
P.O. Box 850
Eagle, Colorado 81631
(970) 328- 2680(p)
(970) 328 -2687 (f)
and a copy to: Eagle County Attorney
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P.O. Box 850
Eagle, Colorado 81631
(970) 328 -8685 (p)
(970) 328 -8699 (f)
The Contractor: Elam Construction, Inc.
Patrick Bourke
P.O. Box 1176
Edwards, CO 81632 -1176
(970) 926 -5411 (p)
(970) 926 -5465 (f)
11.2 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.
ARTICLE 12 — INDEPENDENT CONTRACTOR
12.1 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 between County and Contractor or County and Contractor's
employees. Contractor and its employees shall be, and shall perform as, independent
contractors. No officer, 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 the means and methods to carry out the Services under
this Agreement and for Contractor's acts and for the acts of its officers, agents,
employees, and servants during the performance of this agreement. Neither Contractor
nor its officers, agents, subcontractors, employees or servants may represent, act, purport
to act or be deemed the agent, representative, employee or servant of County.
ARTICLE 13 — INSURANCE REQUIREMENTS
13.1 At all times during the term of this Agreement, Contractor shall maintain
insurance on its own behalf in the following minimum amounts:
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;
Comprehensive Automobile Insurance shall be carried in the amount of
$1,000,000 for bodily injury and $1,000,000 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.
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Comprehensive liability and property damage insurance issued to and covering
Contractor and any subcontractor with respect to all Work performed under this
Agreement and shall also name County as an additional insured, in the following
minimum amounts:
Bodily Injury Liability:
Each Person: $1,000,000
Each Accident or Occurrence: $1,000,000
Property Damage Liability:
Each Accident or Occurrence: $1,000,000
13.2 Contractor shall purchase and maintain such insurance as required above and shall
provide certificates of insurance in a form acceptable to County upon execution of this
Agreement.
/ /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.
EAGLE COUNTY, COLO' ' D O
by an• :. sugh its Board o r 1 ounty Commissioners
1111 111 .
By Ari
J.1 . vney, Cha' '11
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ELAM CONSTRUCTION, INC.
By:
Todd Bauer
Title: President
STATE OF Colorado )
) ss.
COUNTY OF Mesa )
The foregoing instrument was acknowledged before me by Todd Bauer , of
Elam Construction, Inc. this 26th day of September , 2011.
My c fission ex ' es: 10/6/15
Y PU e `,
Notary Public �_ 0' �: •
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P.O. Box 1176
Edwards, CO 81632 -1176
(970) 926 -5411 FAX (970) 926 -5465
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t Y'• ie to • �di..� ®: F es^.'' dJL'0. -0�,!TitV $ C.` •1 �� 1_ •'.. 'h.* t � "¢ L ,
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SUBMITTED TO:
f Eagle County Airport
l Chris Anderson
t_ A.U. Box 850
Eagle, CO 81631
(970) 328-2683
JOB NAME & ADDRESS:
North Side Hanger Overlays
Architect/Engineer: •
Date of Plans: Site Visit
We hereby propose:
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Item Description Qty Units Unit Price Bid Amount
1 Mobilization 1 LS $2,300.00 $2,300.00
2 2" Taper Milling 9,070 SF $0 90 $8,163.00
3 2" Asphalt Overlay (16,770 SF) 230 TN $93.50 $21,505.00
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Bid Total: $31,968.00
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Project Notes:
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1. One mobilization is included. Each Additional mobilization will be billed time and material.
3. Please note that Elam Construction, Inc. assumes no responsibility for roadbase compaction or
moisture content by providing final grade of existing roadbase.
4. Please note that Elam Construction, Inc. assumes no responsibility for finished grades by performing
asphalt placement only.
5. Elam Construction, Inc. cannot guarantee complete drainage in areas with less than 2% of fall.
6. Permits, Permit Fees, Engineering, Surveying, Construction Staking, Traffic Control and
Independent Testing are not included in this proposal.
7. Excavation and stabilization of soft areas, if encountered, are not included. This work will be
completed on a time and materials basis per the geotechnical engineers recommendationsA S "- Vo V .
8. Work will be performed under frost -free conditions, there are no provisions for winter protection in
this proposal.
9. Final billing will be based on actual quantities installedh M ho# m ire 41 3 e 5'G 8.
10. No work other than what is specifically stated above is included, implied or assumed in the prices
quoted.
11. Mix Design used for this project will comply with P -403 specifications. • 12. Pricing is good for the 2011 construction season only. ' ' ' . .:.. _ _ .. .
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_`_e Lam „. CONSTRUCTIOR, INC. •'+
