Example Construction Services Agreement - 2025 Road Improvements.pdf

TOWN OF BERTHOUD

CONSTRUCTION SERVICE AGREEMENT

THIS CONSTRUCTION SERVICES AGREEMENT (the ''Agreement") is made effective as of this _________ Day of ___________________ (Month), ________ (Year) (the "Effective Date'') by and between the Town of Berthoud, a Colorado statutory municipality (the “Town” or “Berthoud”), with an address of 807 Mountain Ave, Berthoud CO 80513 and [INSERT CONSTRUCTION COMPANY

NAME], an [INSERT TYPE OF ENTITY] with an address of [INSERT COMPANY ADDRESS], ("Contractor").

For the consideration described herein, the receipt and sufficiency of which is hereby acknowledged, the parties to this Construction Agreement hereby agree as follows:

The 2025 Berthoud Road Improvements Project consists of asphalt mill and overlay of multiple roadways, one alley reconstruction, and a curb-gutter-sidewalk project at Spartan Ave.

Additional curb, gutter, drain pan, and sidewalk work adjacent to roadway improvements is also included in the project.

I. Contractor shall furnish all the material, supplies, tools, equipment, labor supervision and other services necessary for the completion of the Work as described in the Contract Documents.

2. Contractor shall be substantially complete on or before ____________________(Date), and completed and ready for final payment in accordance with paragraph 6.02 of the General conditions on or before __________________(Date).

3. The Town agrees to pay Contractor, subject all of the terms and conditions of the Contract

Documents and in accordance with the unit prices in Exhibit A to this Agreement, for the work described in the Contract Documents an amount not to exceed $_____________________.

4. The term "Contract Documents'' means and includes all items as set forth m Section 1.0 I of the

General Conditions.

5. The Town shall pay Contractor in the manner and at such times as set forth in the General

Conditions.

6. This Agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigners.

IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the date first above written, whether or not the date of signing is some other date.

TOWN OF BERTHOUD

By:

Its:

ATTEST:

By: Christian Samora Its: Town Clerk

CONTRACTOR

By:

Its:

STATE OF COLORADO )

)ss

COUNTY OF:__________________________ )

The foregoing instrument was subscribed, sworn to and acknowledged before me this ________ Day of

________________(Month), ___________ (Year) by ______________________________ (Contractor), as ____________________(Title).

My commission expires: ____________________________

(SEAL)

NOTARY PUBLIC (Name of)

GENERAL CONDITIONS

PART 1. CONTENTS AND DEFINITIONS

1.01 CONTRACT DOCUMENTS:

The Contract comprises the following documents, including all additions, deletions and modifications incorporated therein before the execution of the Contract.

A. Construction Services Agreement (Agreement).

B. General Conditions.

C. Special Conditions.

D. Technical Specifications

E. Addendums 1 and 2

F. Payment and Performance Bond (in an amount not less than one-half of the total Contract Price).

G. Drawings.

H. Warranty Bond

1.02 CHANGE ORDER:

A written order to Contractor by the Town authorizing an addition, deletion or revision in the work, or an adjustment in the Contract Price or the contract time issued after execution of the agreement.

1.03 TOWN:

The Town of Berthoud, Colorado.

1.04 CONTRACT:

The entire written agreement covering the performance of the work described in the Contract Documents including all supplemental agreements thereto and all general and special provisions pertaining to the work materials therefore.

1.05 CONTRACT PRICE:

The amount set forth in the Agreement for the completion of the Work. Contractor shall be paid based on the unit prices shown on Exhibit A not to exceed the amount specified in the Agreement.

1.06 DAY:

Calendar day, unless otherwise specified. When the last day for the occurrence of an event falls on a Sunday or legal holiday as recognized by the Town, the time for performance shall be automatically extended to the next business day.

1.07 PUBLIC WORKS OPERATIONS MANAGER:

The Town's duly authorized representative in charge of the Work.

1.08 SUBCONTRACTOR:

Any person, firm or corporation with a direct contract with Contractor who acts for or on behalf of Contractor in executing any part of the Contract, but does not include one who merely furnishes material.

1.09 SUBSTANTIAL COMPLETION:

The date as certified by the Public Works Operations Manager when the Work or a specified part thereof is sufficiently completed, in accordance with the Contract Documents, so that the Work or specified part can be utilized for the purposes for which it was intended; or if there be no such certification, the date when final payment is due in accordance with approval of final payment.

1.10 WORK:

All the work specified, indicated, shown or contemplated in the Contract to construct the Work, including all alterations, amendments or extensions thereto made by supplemental agreements or written orders of the Director of Water Utilities.

1.11 WRITTEN NOTICE:

Any written notices required herein shall be delivered in person, by facsimile, or by mailing by first class mail, postage fully prepaid, addressed as follows:

To the Town:|

Keith Knoll Public Works Operations Manager Town of Berthoud 807 Mountain Avenue Berthoud, Colorado 80513

PART 2. COMMENCEMENT AND COMPLETION OF WORK

2.01 COMMENCEMENT OF WORK:

Contractor shall begin the Work within ten (10) calendar days from the date of the Notice to Proceed.

2.02 TIME OF THE ESSENCE:

All times stated in the Contract Documents are of the essence.

2.03 SUBSTANTIAL COMPLETION:

The Work shall be substantially completed as specified in the Agreement. The Work shall be substantially completed when the Town occupies or takes possession of all or substantially all of the Work, or when the Town may occupy or take possession of all or substantially all of the Work and put it to beneficial use for its intended purposes. The Town and Contractor agree that the Town will suffer financial loss if the Work is not substantially completed within the time specified in the Agreement, and recognize the delays, expense and difficulties involved in proving in a legal proceeding the actual losses suffered by the Town if the Work is not substantially completed within the time specified.

2.04 FINAL COMPLETION:

The Work shall be completed and ready for final payment as specified in the agreement.

2.05 CHANGES IN THE WORK:

The Town reserves the right to order changes in the Work, in the nature of additions, deletions or modifications, without invalidating the Contract, and to make corresponding adjustments in the Contract Price and the time for completion. All changes shall be authorized by a written Change Order. The Change Order shall include appropriate changes in the Contract and the time for completion. The Work shall be changed, and the Contract Price and completion time shall be modified only as set forth in the written Change Order. Any adjustment in the Contract Price resulting in a credit or a charge to the Town shall be determined by mutual agreement of the parties before the work set forth in the Change Order is commenced.

2.06 CONTRACTOR’S DUTY TO INSPECT:

Contractor shall inspect all Contract Documents, tests and reports, if any, including as applicable, soil tests and engineering tests, and shall conduct a site or field review prior to bidding on the work. Contractor assumes the risk of all conditions which are disclosed, or which are reasonably suggested by any such tests or reports, or which would be disclosed by a field or site review. Contractor shall have the affirmative duty to advise the Town of any concerns which Contractor may have regarding construction conditions prior to executing the Contract.

2.07 DELAYS AND EXTENSIONS OF TIME:

If Contractor is delayed in the progress of the Work by changes ordered in the work, labor disputes, fire, unusual delay in transportation, adverse weather conditions not reasonably to be anticipated, unavoidable casualties, or any other causes beyond Contractor's control, the time for substantial completion and for completion shall be extended by change order for a reasonable period of time. Any claim for extension of time shall be made in writing to the Public Works Operations Manager not more than seven (7) days after commencement of the delay; otherwise it shall be waived. Any such claim shall contain an estimate of the probable effect of such delay on the progress of the Work. In the event of any such delay, Contractor shall not be entitled to any increase in the Contract Price, or to damages, or to additional compensation as a consequence of such delay.

2.08 NO DAMAGES FOR DELAY:

In strict accordance with C.R.S. § 24-91-103.5, the Town shall not amend the Contract Price to provide for additional compensation for any delays in performance which are not the result of acts or omissions within the control of the Town or persons acting on behalf of the Town. The Town shall extend the time of performance, however, to correspond to the length of any delay suffered by Contractor due to activities or circumstances which are unforeseen or unforeseeable in the construction industry, and so long as such delay is not attributed or attributable to Contractor’s acts or omissions, or those of any person or entity or subcontractor controlled or selected and contracted for by Contractor.

PART 3. RIGHTS AND RESPONSIBILITIES

3.01 TOWN'S RESPONSIBILITY:

All Work shall be done under the general supervision of the Director of Water Utilities, or his or her designee, including any inspector(s) employed or retained by the Town and identified as such to Contractor by the Director of Water Utilities.

3.02 CONTRACTOR’S RESPONSIBILITIES:

(A) INSPECTION/SUPERVISION OF WORK:

Contractor shall be responsible for the completion of all construction pursuant to this Contract in a timely and workmanlike manner and in accordance with the terms and specifications incorporated herein, including the techniques, sequences, procedures and means. Contractor shall be responsible for the coordination of all work. Contractor shall supervise and direct the Work and give it all attention necessary for such proper supervision and direction. Contractor shall be required to provide a supervisor on site at all times when Contractor or any subcontractor is performing Work on the Work site.

(B) RESPONSIBILITY FOR EMPLOYEES AND SUBCONTRACTORS:

Contractor shall be fully responsible to the Town for the acts, negligence and omissions of all direct and indirect employees and subcontractors. The Contract Documents shall not be construed as creating any contractual relation between any subcontractor and the Town.

(C) LABOR AND MATERIALS FURNISHED BY CONTRACTOR:

Contractor shall provide and pay for all labor, materials and equipment, including: tools;

construction equipment and machinery; utilities, including water; transportation; and all other facilities and services necessary for the proper completion of the Work.

(D) USE OF COLORADO MATERIALS:

In all purchases of supplies, materials and provisions to be incorporated or otherwise used by Contractor in the Work, Contractor shall use supplies, materials and provisions produced, manufactured or grown in Colorado if such supplies, materials and provisions are not of inferior quality to those offered by competitors outside of Colorado.

(E) DISCIPLINE OF EMPLOYEES:

Contractor shall maintain at all times strict discipline of its employees, and Contractor shall not employ on the Work any person unfit or without sufficient knowledge, skill, and experience to perform properly the job for which the employee was hired.

(F) EMPLOYMENT PRACTICES:

While engaged in the performance of the work herein contracted, Contractor shall maintain employment practices that do not violate the provisions of the Colorado Antidiscrimination Act of 1957, C.R.S. § 24-34-301, et seq., as amended.

(G) CLEANUP:

Contractor shall keep the Work site and adjoining ways free of waste material and rubbish caused by its employees or subcontractors. Contractor shall remove all such waste material and rubbish on a daily basis during construction of the Work, together with all tools, equipment, machinery and surplus materials. Contractor shall, upon termination of its Work, conduct general cleanup operations on the Work site, including the cleaning of all surfaces, paved streets and walks, and steps. Contractor shall also conduct such general cleanup operations on adjacent properties which were disturbed by the Work. If Contractor fails to perform the cleanup required by this Section, after written notice, the Town may cause the cleanup to be performed at Contractor's expense.

Within five (5) days of delivery to Contractor of a statement for such cleanup, Contractor shall pay to the Town the costs incurred by the Town for such cleanup, or the Town shall have the right to withhold said amount from any final payment due to Contractor.

(H) PAYMENT OF ROYALTIES AND LICENSE FEES

Contractor agrees to pay all royalties and license fees necessary for the Work, and to defend against all actions for infringement of copyright or patent rights, and to save and hold the Town harmless from such actions.

(I) PAYMENT OF TAXES, PROCUREMENT OF LICENSES AND PERMITS:

Contractor shall pay all taxes imposed by law in connection with the Work, except the Town of Berthoud Sales Tax, for purchases within the Town. Contractor shall obtain a Town tax exempt number for the sales tax exemption. Contractor shall procure all permits and licenses necessary for the prosecution of the Work.

(J) FURNISHING OF SAMPLES AND SHOP DRAWINGS:

Contractor shall furnish, upon the request of the Director of Water Utilities, samples and shop drawings for the Director of Water Utilities’ review and approval as to conformity with the Contract Documents and the design concepts called for therein. The Work shall be in accordance with the approved samples and drawings.

(K) COMPLIANCE WITH LAWS AND REGULATIONS:

Contractor shall comply with all federal, state and local laws, ordinances, rules, regulations and orders of all public authorities in any manner relating to the Work. If any provisions of the Contract Documents are at variance therewith, Contractor shall notify the Public Works Operations Manager promptly.

(L) SUBCONTRACTORS:

Contractor shall furnish to the Public Works Operations Manager at the time this Contract is executed, a list of names of subcontractors to whom Contractor proposes to award the principal portions of the work to be subcontracted by Contractor. A subcontractor, for the purposes of this Contract, shall be a person with whom Contractor has a direct contract for Work at the Work site.

Contractor shall not employ a subcontractor to whose employment the Town reasonably objects, nor shall Contractor be required to hire a subcontractor to whose employment he reasonably objects. All contracts between Contractor and subcontractor shall conform to the provisions of the Contract Documents and shall incorporate in them the relevant provisions of this Contract.

(M) CORRECTIVE WORK DURING COURSE OF CONSTRUCTION:

When, during the course of the Work, the Work does not conform to the Contract Documents, Contractor shall make the necessary corrections so that the Work will conform. Such corrective work shall be accomplished within the time period required by the Director of Water Utilities.

Failure to complete such required corrective work within the time period required by the Public Works Operations Manager shall constitute a breach of the Contract.

(N) SAFETY PRECAUTIONS AND PROGRAMS:

Contractor shall provide for and oversee all safety orders, precautions and programs necessary for the safe performance of the Work. Contractor shall take reasonable precautions for the safety of all employees and other persons whom the Work might affect, all work and materials incorporated into the Work, and all property and improvements on the Work site and adjacent property.

3.03 TOWN'S RIGHT TO TERMINATE CONTRACT – NONEXCLUSIVE REMEDY:

The Town may terminate this Contract on seven (7) days' written notice of the termination to Contractor in the event that Contractor defaults in the timely performance of any provisions of the Contract, or otherwise fails to perform the Work, or any part thereof, in accordance with the Contract Documents. Termination of the Contract by the Town shall not be an exclusive remedy, and the Town may pursue such other remedies and actions, including an action at law for damages against Contractor or any bonding agency issuing a bond under the Contract, or an action for specific performance against either Contractor or any agency issuing a bond under the Contract, or an action in equity for injunctive relief, as may be lawfully available to the Town.

3.04 OTHER CONTRACTS:

The Town reserves the right to let other contracts in connection with the Work. Contractor shall cooperate with all other contractors and subcontractors so that their work is not impeded by this Work. Contractor shall allow such other contractors and subcontractors access to the Work site necessary to perform their work.

3.05 COMMUNICATION REGARDING WORK:

All communication to the Town regarding the Work shall be directed to the attention of the Director of Water Utilities.

3.06 TERMINATION IN THE EVENT OF LABOR DISPUTES:

Notwithstanding any other provision contained in this Contract, in the event of any picket or other form of labor dispute at the construction site, Contractor shall continue to perform the Work without interruption or delay. In the event Contractor fails to continue the performance of the Work without interruption or delay because of such picket or other form of labor dispute, the Town may terminate the services of Contractor after giving forty-eight (48) hours' written notice of its intent to do so.

3.07. KEEP JOBS IN COLORADO ACT:

Pursuant to the Keep Jobs in Colorado Act, C.R.S. 8-17-101 et seq. (the “Act”) and the rules adopted by the Division of Labor of the Colorado Department of Labor and Employment implementing the Act (the “Rules”), the Contractor shall employ Colorado labor to perform at least eighty percent (80%) of the work and shall obtain and maintain the records required by the Act and the Rules. For purposes of this Section “Colorado labor” means any person who is a resident of the state of Colorado at the time of the Work under this Contract pursuant hereto, without discrimination as to race, color, creed, sex, sexual orientation, marital status, national origin, ancestry, age, or religion except when sex or age is a bona fide qualification. A resident of the state is a person who can provide a valid Colorado driver’s license, a valid Colorado state-issued photo identification, or documentation that he or she has resided in Colorado for the last thirty (30) days. Contractor represents that it is familiar with the requirements of the Act and the Rules and will fully comply with same. This Section shall not apply to any project for which appropriation or expenditure of moneys may be reasonably expected not to exceed five hundred thousand dollars ($500,000) in the aggregate for any fiscal year.

PART 4. WARRANTIES

4.01 WARRANTY OF FITNESS OF EQUIPMENT AND MATERIALS:

Contractor represents and warrants to the Town that all equipment and materials used in the Work and made a part of the structures in the Work, or placed permanently in the Work, shall be new unless otherwise specified in the Contract Documents. All equipment and materials used shall be of good quality, free of defects and in conformity with the Contract Documents. All equipment and materials not in conformity with the Contract Documents shall be considered defective.

4.02 WARRANTY:

Contractor shall warrant and guarantee all material furnished and work performed by Contractor for a period of two (2) years from the date of written acceptance of the Work by the Director of Water Utilities. Under this warranty, Contractor agrees to repair or replace, at its own expense and under the direction of the Director of Water Utilities, any portion of the Work which fails or is defective, unsound, unsatisfactory because of materials or workmanship, or which is not in conformity with the provisions of the Contract.

4.03 MATERIAL WARRANTIES-LIMITED LIFETIME

Contractor shall provide Town with all documentation of limited lifetime warranties on all materials.

PART 5. BONDS, INSURANCE AND INDEMNIFICATION

5.01 INDEMNIFICATION:

Contractor agrees to indemnify and hold harmless the Town, its officers, employees, insurers, representatives, heirs and assigns, from and against all liability, claims, damages, losses, expenses and demands, including attorney fees, on account of injury, loss, or damage, including, without limitation, claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Contract, if such injury, loss, or damage is caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of Contractor, any subcontractor of Contractor, or any officer, employee, representative, or agent of Contractor or of any subcontractor of Contractor, or which arise out of any workmen's compensation claim of any employee of Contractor or of any employee of any subcontractor of Contractor. Consistent with C.R.S. § 13-21-111.5(6), this Section shall not be construed to require Contractor to indemnify, insure or defend the Town against liability for damage arising out of death or bodily injury to persons or damage to property caused by the negligence or fault of the Town or any third party under the control or supervision of the Town.

5.02 NOTIFICATION:

If Contractor receives any claim arising from the performance of the Work, Contractor shall notify the Town in writing of the nature of the claim within twenty-four (24) hours of receipt of the claim by Contractor. In this notice, Contractor shall provide evidence that Contractor has notified Contractor's insurer of the claim.

Contractor shall keep the Town apprised of the disposition of the claim, and Contractor shall take all necessary action to resolve the claim and make restitution, if required, as quickly as possible.

5.03 INSURANCE:

Contractor agrees to procure and maintain, at its own cost, during the entire period of this Agreement, a policy or policies of liability insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by Contractor pursuant to this Contract including property damage, bodily injury and death, as well as claims for worker’s compensation and other employee benefit laws. Such insurance shall be a combined single limit of not less than one million dollars ($1,000,000) per occurrence for bodily injury or death, and one million dollars ($1,000,000) for property damage. Such insurance shall name the Town as an additional insured and shall provide for a minimum thirty (30) days' written notice of cancellation.

Proof of such insurance including, at a minimum, a certificate of insurance and a certified copy of the policy of insurance together with all endorsements thereto, shall be filed by Contractor with the Town prior to the execution of the Construction Agreement by the Town. Such insurance shall be primary and not secondary.

5.04 GOVERNMENTAL IMMUNITY ACT:

The parties hereto understand and agree the Town is relying on, and does not waive or intend to waive by any provision of this Contract, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town, its officers, employees, or volunteers.

5.05 PERFORMANCE AND PAYMENT BONDS:

At the time of execution of the Construction Agreement, Contractor shall furnish to the Public Works Operations Manager a Performance Bond and a Payment Bond, each in one-half of the full amount of the Contract Price as security for the faithful performance and payment of all Contractor's obligations under the Contract Documents. These Bonds shall remain in effect at least until 90 days following final settlement. 5.06 WARRANTY BOND:

At the time of probationary acceptance of the Work by the Town, Contractor shall provide to the Town a warranty bond in the amount of ten percent (10%) of the Contract Price, which warranty bond shall be held by the Town for two (2) years. Such warranty bond may be drawn upon by the Town if the Town is required to perform any work which was required of Contractor, but which was not performed by Contractor.

PART 6. PAYMENT

6.01 PROGRESS PAYMENTS:

The Town shall make periodic progress payments to Contractor within fifteen (15) days following the Director of Water Utilities’ approval of the Work completed. Progress payments shall be in an amount equal to ninety five percent (95%) of the Work completed. A progress payment shall be made only after Contractor has submitted an application for a progress payment on a form approved by the Director of Water Utilities, and if requested by the Director of Water Utilities, Contractor shall submit copies of all invoices from any subcontractors or suppliers and partial waivers executed by each subcontractor or supplier to whom payment is to be made by Contractor. If Contractor fails to complete any required Work within the time period agreed between Contractor and the Director of Water Utilities, or within any time period set forth in the Contract Documents, as modified or extended, the Town is expressly authorized to withhold any progress payment for such Work until such Work is completed.

6.02 FINAL PAYMENT:

Pursuant to C.R.S. § 38-26-107, within forty-five (45) days after completion of the Work, its acceptance by the Director of Water Utilities, receipt of copies of all invoices from any subcontractors and suppliers and a release executed by each subcontractor and supplier to whom payment is made by Contractor, and publication of the Notice of Final Settlement, the Town shall pay to Contractor the unpaid balance of the Contract Price.

6.03 LIQUIDATED DAMAGES:

Because time of performance is of the essence to the Town in this matter, and unless otherwise specified in the Agreement, the following liquidated damages provision shall be in force: Contractor understands and agrees that for each work day calendar day after the completion date set forth in the Agreement that Contractor substantially completes the Work, Contractor shall be assessed, as liquidated damages and not as a penalty, the daily amount of five hundred dollars ($500). Delayed performance constitutes a compensable inconvenience to the Town and its residents. Alternatively, and in lieu of liquidated damages, the Town may, in its discretion, recover its actual damages resulting from Contractor’s failure to substantially complete the Work by the completion date.

6.04 ORAL AGREEMENTS PROHIBITED:

This Contract is expressly subject to the provisions of C.R.S. § 29-1-110(1), and Contractor acknowledges that neither the Town nor any employee or agent thereof is authorized to expend or contract for the expenditure of any monies in excess of those appropriated by the Berthoud Board of Trustees for payment of the Contract. The Town acknowledges and agrees that sufficient funds have been appropriated to pay the Contract Price, but Contractor shall not rely upon the appropriation of any monies or other funds in addition to those already appropriated unless and until the same are lawfully appropriated by the Berthoud Board of Trustees.

PART 7. MISCELLANEOUS

7.01 PUBLICATIONS:

Any and all publications relating to the Work and authored by Contractor or any of its subcontractors shall be submitted to the Town for its prior written approval of the content of the publication. If the Town disapproves of the content of the publication, the author shall withdraw it from publication. The term "publication" as used herein shall include articles or letters to be published in any newspaper, magazine, trade journal or other periodical.

7.02 LAWS AND JURISDICTION:

This Contract shall be construed under the laws of the State of Colorado. In the event of any dispute between the parties which results in litigation, the exclusive venue for such litigation shall be the District Court in and for the County of Larimer, State of Colorado. Each party hereto shall be possessed of all remedies, whether legal or equitable, which are provided for and which are available under Colorado law.

7.03 CONTRACT MODIFICATIONS:

Pursuant to the requirements of C.R.S. § 24-91-103.6 the following provisions are included herein:

The Town has appropriated an amount of money equal to the Contract Price this Agreement: and

The Town is prohibited from issuing any contract modification, or other form of modification or directive by the Town requiring additional compensable work to be performed by the Contractor, which work causes the aggregate amount payable under the Agreement to exceed the amount appropriated for the Work, unless the Contractor is given written assurance by Town that lawful appropriations to cover the costs of the additional work have been made and the appropriations are available prior to performance of the additional work or unless such work is covered under a remedy granting provision in the Agreement.

[End of General Conditions]

EXHIBIT A

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