HomeMy WebLinkAboutC22-259 Johnson Construction1
CONSTRUCTION AGREEMENT FOR EAGLE VALLEY TRAIL –
DOTSERO SEGMENT
THIS CONSTRUCTION AGREEMENT is dated as of ________________ by and between Eagle
County, Colorado a body corporate and politic (hereinafter called “County” or "Owner") whose
address for purposes hereof is P.O. Box 850, 500 Broadway, Eagle, CO 81631, and Johnson
Construction, Inc. a Colorado corporation licensed to work in the State of Colorado (hereinafter
called "Contractor") whose address for purposes hereof is P.O. Box 1640, Rifle, CO 81650.
Owner and Contractor, in consideration of the mutual covenants set forth herein, agree as
follows:
ARTICLE 1 – THE PROJECT AND THE WORK
1.1 The construction project which is the subject matter hereof is generally described as
follows: construction services for construction of a segment of the Eagle Valley Trail near Dotsero,
Colorado, consisting of a 10 foot wide paved surface, including but not limited to the following
related construction items: site cleaning, site preparation, erosion control, retaining wall, safety
railing, trail and road signs, and storm culverts (the “Project”) located at 4200 U.S. Highway 6,
Eagle County. Contractor shall supply and perform all work to complete the Project as specified
in the Contract Documents (the “Work”).
1.2 A more complete description of the Project and a description of the applicable Project site
(the “Site”) is provided by the Contract Documents.
1.3 Capitalized terms that are not defined in this Agreement shall have the meanings ascribed
to them in the General Conditions and (or) the other Contract Documents as applicable.
1.4 The intent of the Contract Documents is to include all items reasonably necessary for the
proper execution and completion of the Work. The Contract Documents are complementary and
what is required by any one shall be binding as if required by all. Based on Contractor’s careful
review of the Contract Documents, Contractor acknowledges that the Contract Documents require
the construction of a completed Project in accordance with the terms hereof.
1.5 Contractor shall perform all the Work required by the Contract Documents or reasonably
inferable therefrom, for the complete construction of the Project in accordance with the Contract
Documents. Contractor shall provide and furnish all materials, supplies, equipment, tools,
implements, all other facilities, and all other labor, supervision, security, transportation, utilities,
storage, appliances and all other services as and when required for or in connection with the
complete construction of the Project.
1.6 If the Work is taking place on property owned by other federal, state or local
governmental entities, or a public utility or other third party, Contractor shall comply with any
additional terms and conditions required by applicable law and (or) applicable permits.
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ARTICLE 2 - OWNER'S REPRESENTATIVE
2.1 The Project is under the authority of the Owner, through the Eagle County ECO Trails
Department. Kevin Sharkey, or his designee, shall be Owner's liaison with Contractor with
respect to the performance of the Work.
2.2 Contractor’s representative is Rob Bercher.
2.3 Neither Owner’s nor Contractor’s representative shall be changed with less than ten (10)
days prior written notice to the other party.
ARTICLE 3 - CONTRACT TIME
3.1 The Work will be Substantially Complete on or before November 15, 2022. Final
Completion in accordance with the Contract Documents shall occur on or before
December 15, 2022.
3.2 Contractor shall employ all such additional labor, services, and supervision, including
such extra shifts and overtime, as may be necessary to maintain and to achieve Final
Completion in accordance with the Contract Documents on or before December 15, 2022,
all without an increase in the Contract Price.
3.3 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 at a legal or arbitration hearing the actual
loss suffered by Owner if the Work is not substantially complete on time. Accordingly,
instead of requiring such proof, Owner and Contractor agree that as liquidated damages
for delay (but not as a penalty) Contractor shall pay Owner two hundred fifty dollars
($250.00) for each day that expires after the time specified in paragraph 3.1 for
completion until the Work is Substantially Complete. If the liquidated damages set forth
herein are determined to be invalid or unenforceable for any reason, Owner reserves the
right to seek and recover actual, consequential, or special damages which arise or are the
result of Contractor’s failure to achieve Substantial Completion on or prior to the date set
forth in the Contract Documents.
ARTICLE 4 - CONTRACT PRICE
4.1 Owner shall pay Contractor, for Contractor’s performance of the Work under the Contract
Documents, including contingencies, an amount not to exceed Two Million Five
Hundred Eighty-Five Thousand Five Hundred Forty-Two Dollars ($2,585,542.00)
“Contract Price” or “Guaranteed Maximum Price” or “GMP”). Any project savings
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below the Guaranteed Maximum Price resulting from bidding of subcontractors and other
costs of the work shall accrue to the County.
4.2 Notwithstanding anything in the Contract Documents to the contrary, the Contract Price
includes, without limitation, the entire amount of overhead and profit payable to
Contractor in connection with the Work under the Contractor Documents. Contractor
shall not have the right to, nor shall it seek to recover, any additional compensation for
overhead or profit. The quantities associated with unit prices may be adjusted as set forth
in the Contract Documents subject to the not to exceed Contract Price. In no event shall
the unit prices set forth in Contractor’s Proposal Form be adjusted.
4.3 Contractor acknowledges that Owner is a tax-exempt entity and that Owner has
appropriated funds for this Project in a sum equal to or in excess of the Contract Price.
4.4 Owner shall pay Contractor for performance of the Work in accordance with the Contract
Documents.
4.5 Pursuant to the provisions of C.R.S. § 24-91-103.6, 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.
4.6 Eagle County is a governmental entity and all obligations beyond the current fiscal year
are subject to funds being budgeted and appropriated. Specifically, notwithstanding
anything to the contrary contained in this Agreement, Owner shall have no obligations
under this Agreement, nor shall any payment be made to Contractor in respect of any period
after December 31 of each calendar year during the term of this Agreement, without an
appropriation therefore by the Owner in accordance with a budget adopted by the Board of
County Commissioners in compliance with the provisions of Article 25 of Title 30 of the
Colorado Revised Statutes, the Local Government Budget Law (C.R.S. § 29-1-101 et.
seq.), and the TABOR Amendment (Constitution, Article X, Sec. 20).
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 and as provided in the Contract Documents. All progress payments
will be on the basis of the progress of the Work. Owner shall have the right to request and
inspect supporting documentation for progress payments, including but not limited to
receipts and invoices evidencing payments of charges associated with the Work.
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5.2 The period covered by each Application for Payment shall be one calendar month
beginning on the first of each month and ending on the last day of the month.
5.3 Each Application for Payment shall be based upon the unit prices, percentage of
completion, and Contract Price and otherwise in accordance with the Contract
Documents. Each Application for Payment shall show actual quantities incorporated into
the Project for each portion of the Work as of the end of the period covered by such
Application for Payment.
5.4 Prior to Completion, Owner shall authorize partial payments at the end of each calendar
month or as soon thereafter as practicable if Contractor is satisfactorily performing the
Agreement. Progress payments will be in an amount equal to 95% of the Work completed.
The withheld percentage of the Contract Price shall be retained until the Agreement is
completed satisfactorily and finally accepted.
5.5 Progress payments and retained funds shall occur in compliance with the General
Conditions attached hereto and C.R.S. § 24-91-103.
5.6 In taking action on Contractor’s Applications for Payment, Owner shall be entitled to rely
on the accuracy and completeness of the information furnished by Contractor and shall
not be deemed to represent that (i) Owner has made a detailed examination, audit, or
arithmetic verification of the documentation submitted by Contractor; (ii) Owner has
made exhaustive or continuous on-site inspections of the Work; or (iii) Owner has made
examination to ascertain how or for what purposes Contractor has used amounts
previously paid on the Contract Price.
5.7 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 sitting as the as sole member of Owner has held a
public hearing thereon and complied with C.R.S. § 38-26-107. Final payment shall be
made in accordance with the requirements of the aforesaid statute. Owner shall make a
final settlement in accordance with C.R.S. § 38-26-107 within sixty days after the contract
is completed satisfactorily and finally accepted by Owner.
5.8 Owner may withhold payments due to Contractor, to such an extent as may be necessary
to protect Owner from loss, because of defective work or material not remedied or the
failure of Contractor to carry out the Work in accordance with this Agreement.
5.9 Contractor acknowledges and agrees that payment shall be made in accordance with C.R.S.
§§ 24-91-103 and 38-26-107 and hereby waives it right to lien the property. Contractor
shall include the language of this paragraph 5.9 in any subcontracts for the Project.
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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 itself with the nature and extent of the Contract Documents,
the 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 it 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.
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 monies 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.
6.6 Contractor represents and warrants that it holds a license, permit, or other special license,
as required by law, to perform the Work required under the Contract Documents and shall
keep and maintain such licenses, permits, and special licenses in good standing and in
full force and effect at all times while Contractor is performing the Work under the
Contract Documents.
6.7 Contractor shall maintain insurance as set forth in the General Conditions. Before
permitting any of his subcontractors to perform any Work under this Agreement,
Contractor shall require each of his subcontractors to procure and maintain such insurance
as set forth in the General Conditions.
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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, including the Contractor’s certificate of insurance.
7.2 Contractor's Proposal Form attached as Exhibit A.
7.3 Proposal Documents including Instructions to Proposers, attached as Exhibit B, which
includes the following:
I. Objective of the Request
II. Project Summary
III. Project Schedule
IV. General Instructions
V. Selection Criteria
VI. Special Instructions
VII. Insurance and Bonding Requirements
VIII. Proposal Submittal Form
IX. Bid Form
X. Sample Contract
XI. General Conditions
XII. Standard Special Provisions
XIII. Project Special Provisions
XIV. Supplementary Information
a. Subsurface Exploration Program and Geotechnical Report – Eagle Valley
Trail Dotsero to Gypsum. Eagle County, Colorado, June 2, 2016. Job #15-
6009R1, Ground Engineering
b. Environmental Checklist for Eagle County’s Eagle Valley Trail – Dotsero
Segment, December 15, 2021, SGM
c. CatEx Criteria List, July 12, 2021, revise December 15, 2021
XV. Drawings [“Bid Plan Set”]: Eagle Valley Trail, Dotsero Segment, ECO Trails,
Eagle County, Colorado. 100% Plans. March 2022, #2015.503, SGM
7.7 Addenda attached as Exhibit C.
7.8 Performance and Payment Bonds.
7.9 Notice of Award and, if any, Notice to Proceed.
7.10 Any modification, including Change Orders, duly delivered after execution of
Agreement.
The parties acknowledge and agree that this Agreement and the General Conditions
attached hereto, shall supersede and control over any inconsistent or contrary provision in
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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
8.1 Contractor shall deliver to the Owner the bonds required by the Contract Documents with
the executed Contract Documents and before starting work. 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.
ARTICLE 9 - SUBCONTRACTS AND OTHER AGREEMENTS
9.1 Those portions of the Work that Contractor does not customarily perform with Contractor’s
own personnel shall be performed under subcontracts and (or) by other appropriate
agreements with Contractor (individually a “Subcontract” and collectively
“Subcontracts”).
9.2 All Subcontracts shall conform to provisions of this Agreement. Owner shall have the right
to review and approve each form of Subcontract. By an appropriate written agreement,
Contractor shall require the subcontractor to the extent of the Work to be performed by the
subcontractor, to be bound to Contractor by the terms of the Contract Documents and to
assume toward Contractor all the obligation and responsibility which Contractor, by these
Documents, assumes towards Owner. Said agreement shall preserve and protect the rights
of Owner under the Contract Documents with respect to the Work to be performed by the
subcontractor so that the subcontracting thereof will not prejudice such rights. Contractor
shall require each subcontractor to enter into similar agreements with its subcontractors.
Contractor shall make available to each proposed subcontractor, prior to the execution of
the subcontract, the Contract Documents to which the subcontractor will be bound by this
paragraph 9.2. Each subcontractor shall similarly make copies of such Contract Documents
available to its subcontractors. Owner shall have the right to review and approve each form
of Subcontract.
9.3 Contractor shall be responsible to Owner for the acts and omissions of its agents,
employees, suppliers, or subcontractors performing the Work under a contract with
Contractor and such subcontractors’ lower-tier subcontractors, agents, and employees.
9.4 Nothing contained in the Contract Documents shall be deemed to create any contractual
relationship between any subcontractor of any tier and Owner.
ARTICLE 10 - MISCELLANEOUS
10.1 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, monies that may
become due and monies that are due may not be assigned without such consent (except
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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.
10.2 Owner and Contractor each binds itself and 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.
10.3 Intentionally Omitted.
10.4 Notwithstanding any other provision to the contrary, nothing herein shall constitute a
waiver, express or implied, of any of the immunities, rights, benefits, protection, or
other provisions of the Colorado Governmental Immunity Act, if applicable.
10.5 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 exclusively in the District Court for Eagle County, Colorado.
10.6 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.
10.7 Any notice and all written communications required under this Agreement shall be
deemed properly delivered when (i) personally delivered, (ii) mailed in the United States
mails, first class postage prepaid, (iii) delivered by FedEx or other comparable courier
service, charges prepaid, to the parties at their respective addresses listed below, or (iv)
when transmitted via e-mail with confirmation of receipt.
Owner:
Eagle County
c/o Eagle County Project Management Department
Attn: Kevin Sharkey
3289 Cooley Mesa Road
Post Office Box 1070
Gypsum, CO 81637
Email: kevin.sharkey@eaglecounty.us
phone: (970) 328-3523
Contractor:
Johnson Construction Inc.
Attn: Rob Bercher
P.O. Box 1640
Rifle, CO 81650
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Notices delivered in person shall be effective as of the date of delivery, 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.
10.8 PROHIBITIONS ON GOVERNMENT CONTRACTS:
As used in this Section 10, the term undocumented individual will refer to
those individuals from foreign countries not legally within the United States as set forth in
C.R.S. § 8-17.5-101 et. seq. If Contractor has any employees or subcontractors, Contractor
shall comply with these statutory provisions as they relate to undocumented
individuals. By execution of this Agreement, Contractor certifies that it does not
knowingly employ or contract with an undocumented individual who will perform under
this Agreement 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.
A. 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.
B. 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:
https://www.uscis.gov/e-verify
C. 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.
D. If Contractor obtains actual knowledge that a subcontractor performing work under
the public contract for services knowingly employs or contracts with an illegal
alien, the Contractor shall be required to:
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(i) Notify the subcontractor and the Owner 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.
E. 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).
F. If Contractor violates these prohibitions, the Owner 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 Owner as required by law.
G. The Owner will notify the office of the Colorado Secretary of State if Contractor
violates this provision of this Contract and the Owner terminates the Contract for
such breach.
10.9 Contractor shall keep full and detailed accounts and exercise such controls as may be
necessary for proper financial management under the Contract Documents, and all such
accounting and control systems shall be satisfactory to Owner. Owner and Owner’s
accountants shall be afforded access to, and shall be permitted to audit and copy
Contractor’s records, books, correspondence, instructions, drawings, receipts,
Subcontracts, purchase orders, vouchers, memoranda, and other data relating to the
Contract Documents and Contractor shall preserve these documents for a period of not less
than three (3) years after final payment, or for such longer period as may be required by
law.
10.10 Any indemnity, warranty or guaranty given by Contractor to Owner under the Contract
Documents shall survive the expiration or termination of the Contract Documents and shall
be binding upon Contractor until any action thereunder is barred by the applicable statute
of limitations or as otherwise expressly provided on the Contract Documents.
10.11 The signatories to this Agreement aver to their knowledge, no employee of the Owner has
any personal or beneficial interest whatsoever in the Work or property described in this
Agreement. The Contractor has no interest and shall not acquire any interest, direct or
indirect, that would conflict in any manner or degree with the performance of the Work
and Contractor should not employ any person having such known interests.
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10.12 In the event a change order or amendment to the Contract Documents is agreed to by the
parties, the same shall be in writing and executed by both parties. Signature by Owner may
be made by Owner’s project manager, Kevin Sharkey, so long as such change orders and
amendments are within the budget constraints set for the Project. Change orders in excess
of the budgeted amount must be approved by the Board of County Commissioners with
additional funding appropriation allocated to the Project.
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