2024 Street Improvements – Swift Gulch Road Asphalt Overlay Project: Construction Agreement CA-1
Form Approved by Town Attorney – 05/15/2024
CONSTRUCTION AGREEMENT
THIS CONSTRUCTION AGREEMENT (“Agreement”) is entered into this 22 day of August
2024 by and between:
The Town of Avon, Colorado (hereinafter referred to as “OWNER”) and GM Asphalt Repair 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:
Asphalt milling, demolition, grading, curb & gutter installation, guardrail replacement,
asphalt repair, asphalt paving, shouldering and pavement marking.
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:
2024 Street Improvements – Swift Gulch Road Asphalt Overlay Project
(hereinafter referred to as the “Project”).
Article 3. ENGINEER
3.01 The 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
4.01 In order to induce OWNER to enter into this Agreement, CONTRACTOR makes the
following representations:
A. CONTRACTOR has familiarized himself with the nature and extent of the contract
documents, Work, locality, and with all local conditions and federal, state, and local
laws, ordinances, rules and regulations that in any manner may affect the cost, progress,
or performance of the Work.
B. CONTRACTOR has carefully studied all reports of investigations and tests of
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Form Approved by Town Attorney – 05/15/2024
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.
C. 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
4.01(B) 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.
D. CONTRACTOR has correlated the results of all such observations, examinations,
investigations, tests, reports and data with the terms and conditions of the Contract
Documents.
E. 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 between the dates of September 3,
2024 and October 31, 2024, and shall finally complete the Work so that it is ready for final
payment within 60 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 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.
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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 $616,811 (Six hundred sixteen thousand eight
hundred eleven dollars) 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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Form Approved by Town Attorney – 05/15/2024
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.
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Form Approved by Town Attorney – 05/15/2024
C. CONTRACTOR has obtained and carefully studied (or assumes responsibility for
having done so) any examinations, investigations, explorations, tests, studies, and data
concerning 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:
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Form Approved by Town Attorney – 05/15/2024
1. Advertisement for Bid (page AB-1)
2. Instruction to Bidders (pages IB-1 to IB-6)
3. Performance and other Bonds, identified as Exhibits A & B and consisting of 4 pages.
4. Notice of Award (page NA-1 to NA-A)
5. Construction Agreement (pages CA-1 to CA-5)
6. Notice to Proceed (page NP-1)
7. General Conditions (pages GC-1 to GC-45 , inclusive)
8. Special Conditions (pages SC-1 to SC-12 , inclusive)
9. Plans, consisting of sheets listed below by number, title, date and revision number with
each sheet:
SHEET DESCRIPTION DATE
Swift Gulch Road Asphalt Overlay
C-1 Cover Sheet 02-21-2024
C-2 Sheet Index Map 02-21-2024
C-3 thru C-8 Mill & Overlay and Improvements Plan 02-21-2024
C-9 Details 02-21-2024
10. Addenda numbers to 1 , inclusive
11. Contractor’s Bid (pages BF-1 to BF-3, inclusive) marked exhibit C.
12. Documentation submitted by CONTRACTOR prior to Notice of Award (page 1)
marked exhibit D.
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
12.01 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
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Form Approved by Town Attorney – 05/15/2024
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.
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.
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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 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, 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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Form Approved by Town Attorney – 05/15/2024
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 August 23, 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
GM Asphalt Repair LLC
By: _________________________________
Printed Name: Martin Mendez
Title: President
ADDRESS FOR GIVING NOTICES:
PO Box 3132
Eagle, CO 81631
License No. __020732_________
AGENT FOR SERVICE OF PROCESS:
___Martin Mendez_______________
_______________________________
_______________________________
_______________________________
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Town of Avon- 2024 Swift Gulch Construction
Agreement
Final Audit Report 2024-08-27
Created:2024-08-23
By:Nicole Mosby (nmosby@avon.org)
Status:Signed
Transaction ID:CBJCHBCAABAA1rAIbsTAqa-mNuAcsACuGiqWEmqIzL-5
"Town of Avon- 2024 Swift Gulch Construction Agreement" Histo
ry
Document created by Nicole Mosby (nmosby@avon.org)
2024-08-23 - 1:20:48 AM GMT
Document emailed to gmasphaltrepair@gmail.com for signature
2024-08-23 - 1:23:27 AM GMT
Email viewed by gmasphaltrepair@gmail.com
2024-08-25 - 5:25:21 PM GMT
Signer gmasphaltrepair@gmail.com entered name at signing as Martin Mendez
2024-08-25 - 5:29:31 PM GMT
Document e-signed by Martin Mendez (gmasphaltrepair@gmail.com)
Signature Date: 2024-08-25 - 5:29:33 PM GMT - Time Source: server
Document emailed to nina@wwfdlaw.com for signature
2024-08-25 - 5:29:34 PM GMT
Email viewed by nina@wwfdlaw.com
2024-08-26 - 1:02:29 AM GMT
Signer nina@wwfdlaw.com entered name at signing as Nina P. Williams
2024-08-26 - 1:02:48 AM GMT
Document e-signed by Nina P. Williams (nina@wwfdlaw.com)
Signature Date: 2024-08-26 - 1:02:50 AM GMT - Time Source: server
Document emailed to aphillips@avon.org for signature
2024-08-26 - 1:02:51 AM GMT
Email viewed by aphillips@avon.org
2024-08-27 - 8:22:38 PM GMT
Signer aphillips@avon.org entered name at signing as Amy Phillips
2024-08-27 - 8:23:22 PM GMT
Document e-signed by Amy Phillips (aphillips@avon.org)
Signature Date: 2024-08-27 - 8:23:24 PM GMT - Time Source: server
Agreement completed.
2024-08-27 - 8:23:24 PM GMT