June Creek Emergency Access Improvements Project: Construction Agreement
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Form Approved by Town Attorney - 04/2024
CONSTRUCTION AGREEMENT
THIS CONSTRUCTION AGREEMENT (“Agreement”) is entered into this 1st day of May 2024
by and between:
The Town of Avon, Colorado (hereinafter referred to as “OWNER”) and RPM Excavating &
Pumping LLC (hereinafter referred to as “CONTRACTOR”).
OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth,
agree as follows:
Article 1. WORK
1.01 CONTRACTOR shall complete all Work as specified or indicated in the Contract
Documents (defined below). The Work is generally described as follows:
The June Creek Emergency Access Improvements Project will widen the southerly portion
of the June Creek Trail with the goal of allowing emergency vehicular access through the
project area. The work involves but is not limited to: clearing and grubbing, earthwork,
retaining wall, drainage pipe extensions, base course, surfacing course, erosion control,
revegetation, and gate installations.
Article 2. THE PROJECT
2.01 The project for which the Work under the Contract Documents may be the whole or only
a part is generally described as follows:
JUNE CREEK EMERGENCY ACCESS IMPROVEMENTS PROJECT
(hereinafter referred to as the “Project”).
Article 3. ENGINEER
3.01 The Avon Town Engineer shall serve as construction management engineer (hereinafter
referred to as “ENGINEER”) and who is to act as OWNER’S Representative, will assume
all duties and responsibilities and will have the rights and authority assigned to ENGINEER
and OWNER in the Contract Documents in connection with completion of the Work in
accordance with the Contract Documents.
Article 4. CONTRACTOR’S REPRESENTATIVES
In order to induce OWNER to enter into this Agreement, CONTRACTOR makes the following
representations:
4.01 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,
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ordinances, rules, and regulations that in any manner may affect the cost, progress, or
performance of the work.
4.02 CONTRACTOR has carefully studied all reports of investigations and tests of subsurface
and latent physical conditions at the site or otherwise affecting the cost, progress, or
performance of the Work which were relied upon by ENGINEER in the preparation of the
Contract Documents, and which have been identified in the Special Conditions.
4.03 CONTRACTOR has made or caused to be made examinations, investigations, tests, and
studies of such reports and related data in addition to those referred to in paragraph 6.2
above, as he deems necessary for the performance of the Work at the Contract Price, within
the Contract Time and in accordance with the 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.
4.04 CONTRACTOR has correlated the results of all such observations, examinations,
investigations, tests, reports and data with the terms and conditions of the Contract
Documents.
4.05 CONTRACTOR has given ENGINEER any conflicts, errors or discrepancies that he has
discovered in the Contract Documents, and the written resolution thereof by ENGINEER
is acceptable to CONTRACTOR.
Article 5. CONTRACT TIME
5.01 TIME IS OF THE ESSENCE
A. All time limits for Milestones, if any, Substantial Completion, and completion and
readiness for final payment as stated in the Contract Documents are of the essence of the
Contract.
5.02 DAYS TO ACHIEVE SUBSTANTIAL COMPLETION AND FINAL PAYMENT
A. CONTRACTOR shall achieve Substantial Completion within 90 calendar days of the
issuance by the OWNER of a Notice to Proceed and shall finally complete the Work so
that it is ready for final payment within 120 calendar days of the issuance by the OWNER
of a Notice to Proceed.
5.03 LIQUIDATED DAMAGES
A. Should the CONTRACTOR fail to complete the Work, or any part thereof, in the time
stipulated in the Agreement or within such extra time as may have been allowed for delays
by extensions granted as provided in the Contract Documents, the CONTRACTOR shall
reimburse the OWNER for the additional expenses and damage for each calendar day,
Sundays and holidays excluded, that the Contract remains uncompleted after the Contract
completion date. It is agreed that the amount of such additional expense and damage,
incurred by reason of failure to complete the Work, is $1,500.00 per day and will be
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doubled to $3,000.00 per day after 30 days. The said amounts are hereby agreed upon as
liquidated damages for the loss to the OWNER because of the impracticability and extreme
difficulty of fixing and ascertaining the actual damages the OWNER would, in such event,
sustain.
B. It is expressly understood and agreed that this amount is not to be considered in the nature
of a penalty, but as liquidated damages which have accrued against the CONTRACTOR;
and the OWNER is authorized to deduct the amount of such damages from any monies due
the CONTRACTOR for Work performed or material furnished under this Agreement and
the CONTRACTOR and his Sureties shall be liable for any excess
C. In the event that this section conflicts with any other provision regarding liquidated
damages within the Contract Documents, this section shall control.
Article 6. CONTRACT PRICE
6.01 OWNER shall pay CONTRACTOR Two Hundred Eighty Five Thousand Nine Hundred
One dollars and Eighty Four Cents ($285,901.84) for completion of the Work as full
compensation for everything furnished and done by CONTRACTOR under this
Agreement, including all loss or damage arising out of the work or from the action of the
elements; for any unforeseen obstruction or difficulty encountered in the prosecution of the
work, including increased prices for or shortages of materials for any reason, including
natural disasters; for all risks of every description associated with the work; for all expenses
incurred due to the suspension or discontinuation of the work; and for well and faithfully
completing the work as provided in this Agreement.
Article 7. PAYMENT PROCEDURES
7.01 Submittal and Processing of Payments
A. CONTRACTOR shall submit Applications for Payment to the OWNER on a monthly
basis, which shall be processed by the ENGINEER.
7.02 Progress Payments; Retainage
A. OWNER shall make progress payments towards the Contract Price, less five percent (5%)
for retainage, on the basis of CONTRACTOR’S Applications for Payment, as verified and
recommended by ENGINEER, on or about the twenty-fifth (25th) day of each month
during performance of the Work. In the ENGINEER’S discretion, the OWNER may
withhold some or all of a progress payment where the CONTRACTOR’S Application for
Payment does not reflect the actual amount of the Work completed.
7.03 Final Payment
A. Upon final completion and acceptance of the Work as recommended by the ENGINEER,
OWNER shall pay the remainder of the Contract Price, including any retainage previously
withheld.
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Article 8. PROJECT WARRANTIES
8.01 CONTRACTOR’S warranties in respect of the Work (the “Project Warranties”) are as
follows: CONTRACTOR warrants to OWNER that the Work shall be fit for its intended
purposes, that materials and equipment furnished under this Agreement shall be of good
quality and new, that all Work shall be free from defects and that all Work shall meet all of
the requirements of this Agreement. CONTRACTOR shall furnish satisfactory evidence that
it has met the Project Warranties. The Project Warranties shall commence on the date
CONTRACTOR achieves final completion of the Work satisfactorily to OWNER. If at
any time within two (2) years after the date on which the Project Warranties commenced,
any portion of the Work is found to be not in accordance with the Project Warranties,
CONTRACTOR shall correct it promptly after receipt of notice from OWNER to do so
unless OWNER has previously given CONTRACTOR a written acceptance of such
condition.
Article 9. INSURANCE
9.01 Insurance Requirements
A. CONTRACTOR shall not commence work under this Agreement until CONTRACTOR
has obtained all insurance required under Article 5 of the General Conditions and the
insurance has been approved by the Town Manager or his designee. The Town of Avon
shall be named as an additional insured. Certificates of insurance shall be issued prior to
execution of the Notice to Proceed. Additionally, CONTRACTOR shall not allow any
approved subcontractor to commence work on his or her subcontract until all similar
insurance required of subcontractor has been so obtained and approved.
Article 10. CONTRACTOR’S REPRESENTATIONS
10.01 In order to induce OWNER to enter into this Agreement, CONTRACTOR makes the
following representations:
A. CONTRACTOR has examined, carefully studied, and familiarized himself with the nature
and extent of the Contract Documents and the other related data identified in the Bidding
Documents as well as work, locality, and all local conditions and federal, state, and local
laws, ordinances, rules, and regulations that in any manner may affect the cost, progress,
or performance of the works.
B. CONTRACTOR has visited the Site and become familiar with and is satisfied as to the
general, local, and Site conditions that may affect cost, progress, and performance of the
work in addition to carefully studying all reports of investigations and tests of subsurface
and latent physical conditions at the site, or otherwise, affecting the cost, progress, or
performance of the Work which were relied upon by the ENGINEER in the preparation of
the Contract Documents and which have been identified in the Special Conditions.
C. CONTRACTOR has obtained and carefully studied (or assumes responsibility for having
done so) any examinations, investigations, explorations, tests, studies, and data concerning
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conditions at or contiguous to the Site which may affect cost, progress, or performance of
the Work or which relate to any aspect of the means, methods, techniques, sequences, and
procedures of construction to be employed by CONTRACTOR, including applying the
specific means, methods, techniques, sequences, and procedures of construction, if any,
expressly required by the Contract Documents to be employed by CONTRACTOR, and
safety precautions and programs incident thereto.
D. CONTRACTOR does not believe that any further examinations, investigations,
explorations, tests, studies, or data are necessary or will be required by CONTRACTOR
for the performance of the Work at the Contract Price, within the Contract Times, and in
accordance with the other terms and conditions of the Contract Documents.
E. CONTRACTOR is aware of the general nature of work to be performed by OWNER and
others at the Site that relates to the Work as indicated in the Contract Documents.
F. CONTRACTOR has correlated the information known to CONTRACTOR, information
and observations obtained from visits to the Site, reports and drawings identified in the
Contract Documents, and all additional examinations, investigations, explorations, tests,
studies, and data with the Contract Documents.
G. CONTRACTOR has given ENGINEER written notice of all conflicts, errors, ambiguities,
or discrepancies that CONTRACTOR has discovered in the Contract Documents, and the
written resolution thereof by ENGINEER is acceptable to CONTRACTOR.
H. The Contract Documents are generally sufficient to indicate and convey understanding of
all terms and conditions for performance and furnishing of the Work.
I. CONTRACTOR warrants and guarantees to OWNER and ENGINEER that all Work will
be in accordance with the Contract Documents and will not be defective within two (2)
years of Substantial Completion.
J. CONTRACTOR is organized, validly existing and in good standing under the laws of the
State of Colorado and has all requisite power to own its properties and assets and carry on
its business as now conducted or proposed to be conducted.
Article 11. CONTRACT DOCUMENTS
11.01 CONTENTS
A. The Contract Documents which comprise the entire agreement between OWNER and
CONTRACTOR are attached to this Agreement, are incorporated by reference as if fully
set forth herein, and consist of the following:
1. Advertisement for Bid (page AB-1 to AB-2)
2. Instruction to Bidders (pages IB-1 to IB-6)
3. Performance and other Bonds, identified as exhibits A & B and consisting of 7 pages.
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4. Notice of Award (page NA-1)
5. Construction Agreement (pages CA-1 to CA-9)
6. Notice to Proceed (page NP-1)
7. General Conditions (pages GC-1 to GC-47 , inclusive)
8. Special Conditions (pages SC-1 to SC-11 , inclusive)
9. Plans, consisting of sheets listed below by number, title, date and revision number with
each sheet:
a) Wildridge Emergency Egress, sheets C1.0-D1, Yarnell Consulting and Civil
Design LLC., dated 12/30/2023.
b) June Creek Trail Upper Egress Improvements, sheets 1-6, Town of Avon, dated
11/22/2023.
10. Addenda numbers to 1 , inclusive
11. Contractor’s Bid (pages BF-1 to BF-3, inclusive) marked exhibit A
12. Documentation submitted by CONTRACTOR prior to Notice of Award (N/A)
B. Any written Amendments, Modifications, or Work Change Orders which may be delivered
or issued on or after the Effective Date of the Agreement that are not attached hereto. There
are no Contract Documents other than those listed above in this Article.
C. The Contract Documents may only be altered, amended, modified, supplemented, or
repealed by written agreement signed by both parties.
Article 12. PERFORMANCE BOND
A. To secure performance of CONTRACTOR’S obligations under this Agreement, the
CONTRACTOR shall provide the OWNER with a Performance Bond in the amount of the
full contract price. Prior to execution of this Agreement, the CONTRACTOR shall provide
the form of the Performance Bond to the Town for its review and approval. The Town shall
be authorized to draw upon the Performance Bond to correct any default by Builder under
this Agreement, which default shall be determined and substantiated by an Affidavit of
Default signed by the ENGINEER. The Performance Bond shall be held by the Town
through the two (2) year Project Warranties period specified in this Agreement.
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Article 13. MISCELLANEOUS
13.01 Terms Used in this Agreement
A. The terms used in this Agreement, which are defined in Article 1 of the General Conditions,
shall have the meanings set forth therein.
13.02 Indemnification
A. The CONTRACTOR agrees to indemnify, save, and hold harmless the OWNER, its
officers, employees, and agents from any and all liability, loss, costs, charges, obligations,
expenses, attorney’s fees, litigation, judgments, damages, claims, and demands of any kind
arising from or out of any negligent act, error, omission or other tortious conduct of the
CONTRACTOR, its officers, subcontractors, employees, or agents in the performance or
non-performance of its obligations under this Agreement.
13.03 Assignment of Contract
A. No assignment by a party hereto of any rights under, or interests in, the Contract 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.
13.04 Successors and Assigns
A. OWNER and CONTRACTOR each binds itself, its partners, successors, assigns, and legal
representatives to the other party hereto, its partners, successors, assigns, and legal
representatives in respect to all covenants, agreements, and obligations contained in the
Contract Documents.
13.05 Severability
A. Any provision or part of the Contract Documents held to be void or unenforceable by any
court of competent jurisdiction shall be deemed stricken, and all remaining provisions shall
continue to be valid and binding upon OWNER and CONTRACTOR, who agree that the
Contract Documents shall be reformed to replace such stricken provision or part thereof
with a valid and enforceable provision that comes as close as possible to expressing the
intention of the stricken provision.
13.06 Independent Contractor
A. The CONTRACTOR shall perform the Services as an independent contractor and shall not
be deemed by virtue of this Agreement to have entered into any partnership, joint venture,
employer/employee relationship with the OWNER other than as a contracting party and
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independent contractor/the OWNER shall not be obligated to secure, and shall not provide,
any insurance coverage or employment benefits of any kind or type to or for the
CONTRACTOR or the CONTRACTOR’s employees, sub-consultants, contractors,
agents, or representatives, including coverage benefits related but not limited to: local,
state, or federal income or other tax contributions; insurance contributions (e.g., FICA);
workers' compensation; disability, injury, or health; professional liability insurance, errors,
and omissions insurance; or retirement account contributions.
13.07 No Waiver of Governmental Immunity
A. Nothing herein is intended as nor shall it be construed as a waiver of the protections and
immunities afforded the OWNER pursuant to the Colorado Governmental Immunity Act,
Sections 24-10-101, et seq., Colorado Revised Statutes, or pursuant to any other applicable
laws.
13.08 Governing Law, Venue, and Enforcement
A. This Agreement shall be governed by and interpreted according to the law of the state of
Colorado. Venue for any action arising under this Agreement shall be in the appropriate
Court in Eagle County, Colorado. The Parties hereby waive any and all right either may
have to request a jury trial in any civil action relating primarily to the enforcement of this
Agreement in order to reduce the cost of dispute resolution and to expedite the resolution
of disputes under this Agreement. The parties agree that the rule providing ambiguities in
a contract are to be construed against the drafting party shall not apply to the interpretation
of this Agreement. If there is any conflict between the language of this Agreement and any
exhibit or attachment, the language of this Agreement shall govern.
13.09 Other Provisions
A. Pursuant to Section 24-91-103.6, C.R.S., the OWNER hereby states that it has appropriated
an amount equal to or in excess of the Contract amount. OWNER shall not issue a Change
Order, or other form of order or directive requiring additional compensable work to be
performed, which work causes the aggregate amount payable under the Contract to exceed
the amount appropriated for the original Contract unless CONTRACTOR is given written
assurance by the public entity that lawful appropriations to cover the costs of the additional
work have been made.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement in triplicate. One
counterpart each has been delivered to OWNER, CONTRACTOR, and ENGINEER. All portions
of the Contract Documents have been signed or identified by OWNER and CONTRACTOR or by
ENGINEER on their behalf.
This Agreement will be effective on May 1st, 2024.
OWNER, TOWN OF AVON
By: ________________________________
Printed Name: ____Amy Phillips________
Title: ___Mayor______________________
APPROVED AS TO FORM
By:
Nina P. Williams, Town Attorney
ADDRESS FOR GIVING NOTICES:
Town Attorney___________________
PO Box 975_____________________
Avon, CO 81620_________________
_______________________________
RPM EXCAVATING & PUMPINT, LLC
By: _________________________________
Printed Name: __Marie-Christine Carel___
Title: ___President____________________
ADDRESS FOR GIVING NOTICES:
109 Riverview RD, Gypsum, CO_81637
PO Box 6405, Vail, CO 81658_______
_______________________________
_______________________________
License No. ____________________
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12,180.00
BF-1
TOWN OF AVON
June Creek Trail Emergency Egress BID FORM
PROPOSAL OF ,
An individual doing business as ,
A partnership consisting of ,
A corporation organized and existing under the Laws of the State of Colorado.
To: Town of Avon
P.O. Box 975
Avon, Colorado 81620
Pursuant to the Invitation to Bid and Instructions to Bidders, issued by the Town of Avon, Colorado,
furnish all labor and materials required for the June Creek Trail Emergency Egress, Town of Avon,
Colorado, and appurtenant work as shown on the Drawings and Specifications, to be performed or
furnished by Contractor in accordance with the following Bid prices:
Bid Tabulation Date 1/2/2023
Item
No. Description Quantity Units Unit Price Ext. Price 1 Mobilization 1 LS $ - 2 Traffic Control 30 Day $ - 3 Construction Surveying 1 LS $ - 4 Vehicle Tracking Control 285 SF $ - 5 Sediment Control Logs 805 LF $ - 6 Permanent Seeding 9,230 SF $ - 7 Woodstraw 9,230 SF $ - 8 Strip & Stockpile Topsoil 119 CY $ - 9 On-Site Earthwork (Including Placement) 10 CY $ - 10 Import Structural Fill 571 CY $ - 11 Import Topsoil 119 CY $ - 12 Export Unsatisfactory Soils 10 CY $ - 13 Riprap 5 CY $ - 14 Redi-Rock Retaining Wall 315 SFF $ - 15 Boulder Retaining Wall 75 SFF $ - 16 Gate System 1 LS $ - 17 12" HDPE Culvert 8 LF $ -
RPM Excavating & Pumping LLC, dba RPM Construction
41,973.00 41,973.006,699.904,845.005,635.002,769.00
11,905.00
7,753.20952.00
160.0056,780.249,769.90500.00600.0072,399.6012,000.0012,400.003,200.00
223.3311,905.0017.007.000.30.848.0016.0099.4482.1050.00120.00229.84160.0012,400.00400,00
2/2/2024
Exhibit A
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18 Aggregate Base Course 163 Ton $ - 19 Aggregate Surface Course 41 Ton $ - 20 Upper Road Single Lane Gate 1 LS $ -
TOTAL (BASE BID) $ -
Bid Alternate #1
Item
No. Description Quantity Units Unit Price Ext. Price EROSION CONTROL 21 Erosion Control Blankets 9,230 SF $ -
TOTAL ( ALTERNATE #1) $ -
Total Base Bid: ____________________________________________________
______________________________ Dollars and _____cents ($___________________)
Alternate Total Base Bid (less Item 7 and add item 21) :
____________________________________________________
______________________________ Dollars and _____cents ($___________________)
Bid Item Descriptions
Date 1/2/2024
Item
Number
Item Name Item Description
1 Mobilization This work consists of the mobilization of personnel, equipment
and supplies at the project site in preparation for work on the
project. This item shall also include the establishment of the
Contractor's offices, buildings and other necessary facilities, and
all other costs incurred or labor and operations which must be
performed prior to beginning the other items under the Contract.
This work also consists of the construction, maintenance, and
removal of temporary plastic fence.
2 Traffic Control This work consists of furnishing, installing, moving, maintaining,
and removing temporary traffic signs, advance warning arrow
panels, flashing beacon (portable), barricades, channelizing
devices, delineators, temporary traffic signals, mobile pavement
marking zones, masking and unmasking existing signs in
construction zones, and concrete barriers as required by the
Manual on Uniform Traffic Control Devices (MUTCD)for streets
and highways and in accordance with the Contract Documents.
Devices shall comply with NCHRP 350 criteria requirement.
Devices temporarily not in use shall, as a minimum, be removed
from the shoulder area. Moving will include devices removed
from the project and later returned to use. This work also
includes Traffic Control Management, flagging and pilot car
operation.
14,670.00
3,690.00
17,200.00
285,901.84
1.27 11,722.10
11,722.10
Two Hundred Eighty Five Thousand Nine Hundred One Dollars & Eighty Four Cents
285,901 84 285,901.84
Two Hundred Eighty Nine Thousand Eight Hundred Seventy Dollars & Seventy Four Cents
289,870 74 289,870.74
17,200.00
90.00
90.00
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Addenda
L-1 L-3 L-5
L-2 L-4 L-6
The Owner will act on this Proposal within forty-five (45) days following receipt. Upon acceptance and
award of the Contract to the undersigned by the Owner, the undersigned shall execute the Contract
Documents, and furnish Performance and Payment Bonds for the full amount of the Contract within ten
(10) calendar days to insure proper compliance with the terms and provisions of the Contract, to
guarantee the work until final completion and acceptance including the guarantee period stipulated, and to
guarantee payment of all lawful claims for labor performed and materials furnished in the fulfillment of
the Contract.
Work under this Contract shall commence not later than June 5. 2024 and the undersigned shall cause
work to progress in a manner satisfactory to the Owner. Such work shall be completed no later than as
agreed upon in the Notice to Proceed. The undersigned bidder further agrees to pay as liquidated
damages the sum of $1,500.00 for each consecutive calendar day thereafter and $3,000.00 per day after
30 days, as hereafter provided in the Special Conditions.
The undersigned certifies that the bid prices contained in this Proposal have been carefully checked and
are submitted correct and final.
Signed at , this day of , 2024.
Contractor’s License No.
012180
Our license is expired, I realized, only 1hr before the deadline, an active license was needed. I called the 888 to
Avon 2nd February
Marie-Christine Carel, President
01/25/2024
reactivate it but could only leave a message. I do apologize for this oversight.
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