HomeMy WebLinkAboutRESOLUTION 16-87Cç
R E S 0 L U T I 0 N 16-87
WHEREAS,the Town has solicited a bid for a Public Works
Project known as the Cascade Diversion Structure;and
WHEREAS,Gavell Excavating,Inc.is the low bidder on the
project;and
WHEREAS,as part of the contract,Gavell Excavating,Inc.,
is required to post adequate surety for performance of its
obligation under the Contract Agreement;and
WHEREAS,the Town and Gavell Excavating,Inc.have agreed on
a Surety Agreement,a copy of which is attached as Exhibit “A.”
NOW,THEREFORE,BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF ESTES PARK,COLORADO:
1.The Town of Estes Park accepts the Surety Agreement in
the form attached hereto as surety for the performance
of the terms and conditions of the Contract Agreement
between Gavell Excavating,Inc.,and the Town of Estes
Park,for the Cascade Diversion Structure.
2.The Mayor is hereby authorized to execute the Surety
Agreement on behalf of the Town of Estes Park.
DATED this .3AL day of November,1987.
Mayor
ATTEST:
Town Clerk
ci0
SURETY AGREEMENT
THIS AGREEMENT,made this 15th day of December ,1987,
by and between the TOWN OF ESTES PARK,a Municipal Corporation,
hereinafter referred to as the “Town”,and GAVELL EXCAVATING,
INC.,a Colorado Corporation,hereinafter referred to as
“Gave 11”,
WITNES SETH:
WHEREAS,the Town put out to bid the Cascade Diversion
System,and
WHEREAS,Gavell Excavating submitted the low bid for the
project,and
WHEREAS,as part of the award of the contract,Gavell is
reguired to post an acceptable surety to insure its performance
under the terms and conditions of the contract and the applicable
provisions of Article 26 of Title 32 CRS,1973,and
WHEREAS,Gavell has agreed,and the Town has accepted this
Agreement as surety for its performance under the terms and
conditions of the contract and the aforementioned provisions of
the statutes of the State of Colorado.
NOW,THEREFORE,in consideration of the mutual covenants and
promises herein set forth,the parties agree as follows:
1.Gavell shall well,truly and faithfully perform its
duties,all the undertakings,covenants,terms,conditions and
agreements of the Contract Agreement,hereinafter referred to as
the “Contract Agreement”,a copy of which is attached hereto as
Exhibit “A”and incorporated herein by reference,during the
original term thereof,and any extensions or modifications
thereof which may be granted by the Town;and Gavell shall
satisfy all claims and demands incurred under such Contract
Agreement;and Gavell shall fully indemnify and save harmless the
Town from all cost and damages which the Town may suffer by
reason of its failure to do so;and Gavell shall reimburse and
repay the Town all outlay and expense which the Town may incur in
making good any default;and Gavell shall promptly make payment
to all persons,firms,subcontractors and corporations furnishing
materials for or performing labor in the prosecution of the work
provided for in such Contract Agreement,including all amounts
due for materials,lubricants,repairs or construction of such
work,and all insurance premiums on said work,and for all labor
performed in such work whether by subcontractor or otherwise.
2.As additional security for the performance of its
obligations under the Contract Agreement and this Surety
Agreement,Gavell shall give to the Town an irrevocable Letter of
00
cTh
Credit in the principal amount of TWO HUNDRED THOUSAND DOLLARS
($200,000.00).The terms and conditions of said Letter of Credit
shall be acceptable to the Town.
3.As further security for performance of its obligations
under the Contract Agreement and this Surety Agreement,Gavell
shall also execute a Promissory Note secured by a first Deed of
Trust on property owned by Gavell,all as more fully set forth on
Exhibit “B”attached hereto and incorporated herein by reference.
4.Gavell shall provide a Title Insurance Policy insuring
the Town’s security interest.The cost of said Title Policy
shall be born by Gavell.
5.After Gavell has performed thirty-five percent (35%)of
the Contract Agreement,the Town hereby agrees to release the
note and Deed of Trust.Gavell shall supply the Town with
documentation showing that thirty-five percent (35%)of the work
under the Contract Agreement,including any extensions,modifica
tions or change orders,has been completed,and all labor and
materials included in the thirty—five percent (35%),have been
paid in full.It shall be in the sole discretion of the Town
after examining the documentation provided by Gavell whether,in
fact,the thirty-five percent (35%)has been completed.
6.Upon completion of seventy percent (70%)of the work,
Gavell may apply to the Town for a release of one-half (1/2)of
the Letter of Credit.Gavell shall supply the Town with
documentation showing that seventy percent (70%)of the work
under the Contract,including any extensions,modifications or
change orders,has been completed,and all labor and materials
included in the seventy percent (70%)shall be paid in full.It
shall be in the sole discretion of the Town after examining the
documentation provided by Gavell whether,in fact,the seventy
percent (70%)has been completed.
7.In the event Gavell defaults under any of the terms and
conditions of the Contract Agreement and/or this Surety
Agreement,including but not limited to any payment for any labor
or materials performed or used in the project,the Town shall
give Gavell written notice of said default.Gavell shall have
ten (10)days from the date of the notice within which to cure
the default.In the event that the default is not cured,the
Town has the option of calling upon the Letter of Credit and/or
declaring the demand note due and payable.The Town shall be
entitled,as part of its damages,to all reasonable attorney’s
fees and costs incurred by the Town;and the Town shall be
entitled to a reasonable fee for all administrative costs
incurred by the Town by reason of said default.
—2—
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8.This Surety Agreement shall be binding upon Gavell
until such time as the Contract Agreement has been fully
performed,including all necessary repair and warranty work or
claims under the terms of the Contract Agreement.The Letter of
Credit and/or Note and Deed of Trust,if not previously released,
shall continue in force and effect until sixty (60)days from the
end of the warranty period set forth in the Contract Agreement.
In the event that there is any claim against Gavell for work
covered by the warranty,this Surety Agreement and the Letter of
Credit and/or Note and Deed of Trust shall not be released until
such time as all of said warranty work is completed to the
satistaction of the Town.
9.This represents the entire Agreement between the
parties,and may not be amended without the written consent of
the parties hereto.
10.This Agreement shall be binding upon the heirs,
personal representatives,successors and assigns of the parties
hereto.
11.Notice as provided herein shall be deemed sufficient
when mailed,postage prepaid,and certified as follows:
Town:TOWN OF ESTES PARK
P.O.Box 1200
Estes Park,CO 80517
Gavell:GAVELL EXCAVATING,INC.
995 Dry Gulch Road
Box 1643
Estes Park,CO 80517
IN WITNESS WHEREOF,the parties have executed this Surety
Agreement the day and year first above written.
TOWN OF ESTES PARK,a
Municipal Corporation
By:
_____________
Mayor
ATTEST:
,D
Town Clerk
-GAVELL EXCAVATING,INC.,a
Colorado Corporation
By:
_____________
S./Ai /ATTEST:
Its
—-‘---L.
—3—
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fr )CONTRACT AGREEf1ENT )C
This CONTRACT AGREEMENT,made this 15th day of December
19 ,by and between the TOWN OF ESTES PARK,COLORADO,
hereinafter called “OWNER”and Gavell Excavating,.Inc.,
authorized to do bUsiness in the State of Colorado as a
corporation,hereinafter called “CONTRACTOR”.
WIThESSETH:That for and in consideration of the payments and
agreements hereinafter mentioned:
1.The Contractor will commence and complete the
construction of Town of Estes Park Project -Cascade
Diversion System.
2.The Contractor will furnish all material,supplies,
tools,equipment,labor and other services necessary
for the construction and completion of the hereinabove
named project.-
3.The Contractor will commence the work required by the
Contract Documents within ten (10)calendar days after
the date of the Notice td Proceed.-
4.The Contractor will complete the work required by the
Contract Documents by May 1,1988,unless the period
for completion is extended otherwise by the Contract
Documents.
5.The Contractor agrees to perform all of the work
described in the Contract Documents for the sum of
$296,774.00,at the Unit Prices by Item,setforth in
the Bid.Proposal,a copy of which is hereto attached
and made a part hereof for the indicated total of
$296,774.00.
EXHIBIT “A”
(p
)
6.TE term “Contract Documents”means anc icludes the
following:
A.Advertisement for Bids I.Contract Agreement
B.Information I or Bidders J Performance and
Payment Bond.
C.Specialj Conditions K.Insurance Certificates
D.Addendum L.Notice to Proceed
E.Bid Bond M.General Conditions
F.Bid Proposal N.Change Orders
G.Bid Schedule 0.Tax Certification
H.Notice of Award
p.Specifications prepared or issued by Warzyn Engineering,
Inc.
Q.Drawings prepared by Warzyn Engineering,Inc.and number
Sheet 1through 8.
7.The Owner will pay to the Contractor in the manner and at
such times as setforth in the General Conditions such amounts
as required by the Contract Documents.
8.This Contract Agreement shall lie binding upon all parties
hereto and their respective heirs,executors,administrators,
successors and assigns.
IN WITNESS WHEREOF,the parties hereto have executed,or caused to be
executed by their duly authorized officials,this Contract Agreement in
three copies,each of which shall lie deemed an original on the date
first above written.
OWNER:CONTRACTOR:
TOWN F E S PARK,CO RADO //
_________
By_________
Mayor)
Title /.1i-7
Address f2.,y ,11/f
ATTEST ATTEST:
By__________________By____________________
(Town Clerk)fSecretary-j
(Seal)(Seal)
Other Partners
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(5
PROMISSORY NOTE
$100,000.00 Loveland,Colorado
December 15 ,1987
FOR VALUE RECEIVED,the undersigned promises to pay to the
order of the TOWN OF ESTES PARK,COLORADO,a Municipal Corpora
tion,the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00),
without interest.
Said sum shall be due and payable ON DEMAND.
•Maker of this note reserves the right of prepayment at any
time without penalty.
In the event any payment of principal is not made in full
within fifteen (15)days after the same becomes due,the total
principal and interest then remaining unpaid under this note
shall become due and payable in full,and the maker shall be in
default hereunder.•In the event of such default,unpaid
principal shall bear interest at the rate of twelve percent (12%)
per annum until paid.Further,in the event it becomes necessary
to place this note in the hands of an attorney for collection,
maker and endorser shall pay,in addition to principal and
interest,a reasonable attorney’s fee as allowed by law.
Maker and endorser hereon waives demand,protest and notice
of dishonor and all defenses on the grounds of any extension of
the time of its payment that may be given by the holder or
holders.
This note is secured by a first deed of trust of even date
herewith to the Public Trustee of the County ot Larimer and State
of Colorado,which deed of trust is to be recorded in the office
of the Clerk and Recorder of said County,and to which deed of
trust reference is hereby made for the description of the
property and the interests conveyed.
Dy:
Its
ATTEST:
•____________
Its:
GAVELL EXCAVATING,INC.,a
Colorado Corporaiton
‘F
EXHIBIT “B”
6D
l?CCOttlCtl ii .____M
Reception No
________________
Recortkt
DEEI)OF TRUST
THIS INl)ENTURE Made this day of 19 8 7 .between
GAVELL EXCAVATING,INC.,a Colorado EXHIBIT “B”
Corporation
whose addrcss is P.O.Box 1643,Estes Park,CO 80517
hcretnaftcr referred to as grantor.and the Public Trustee of the County of
Larimer .Statc of Colorado.hereinafter referred to as Public Trustee,
WITNESSETH.THAT.WHEREAS,GAVELL ,INC.,
a Colorado Corporation
has executed a promissory note or notes.hereinafter referred to in the siniular.dated ,for the
principal sum of ONE HUNDRED THOUSAND ($100 ,000 .00)-follars.payable to the order of
TOWN OF ESTES PARK,COLORADO,a Municipal Corporation,
whoseaddressis P.O.Box 1200,Estes Park,CO 80517
alter the date hereof.
on demand
AND WHEREAS.The grantor is desirous of securing payment of the principal and interest of said promissory note in whose hands soever the said
note or any of them may be.
NOW.THEREFORE.The grantor.in consideration of the premises and for the purpose aforesaid,does hereby grant.bargain,sell and convey
Unto the said Public Trustee in trust fore’r.the following described property.situate in the County of
Larimer .State of Colorado.to wit:
also known by street and number as
TO HAVE AND TO HOLD the same,together with all and singular the privileges and appurtenances thereunto belonging:In Trust nevertheless,that
in case of default in the payment of said note or any of them.or any part thereof,or in the payment of the interest thereon.according to the tenor and effect of
said note or any of them.or in the payment of any prior encumbrances,principal or interest,if any.or in case default shall be made in or in ease of violation
or breach of any of the terms,conditions.convenants or agreements herein contained,the beneficiary hereunder or the legal holder of the indebtedness
secured hereby may declare a violation of any of the covenants herein contained and elect to advertise saitl properly for sale and demand such sale,then.
upon filing notice of such election and demand for sale with the Public Trustee,‘s ho shall upon receipt of such notice of election and demand for sale cause
a copy of the same to be recorded in the recorder’s office of the county in which said real estate is situated,it shall and mas’be lass ful for the Public Trustee
to sell and dispose of the same ten masse or in separate parcels,as the said Public Trustee may think best),and all the right,title and interest of the grantor,
his heirs or assigns therein,at public auction at the SE front door of the Court House,in the County of Larimer
State of Colorado,or on said premises.or any part thereof as may be specified in the notice of said sale,for the highest and best price the
same will bring in cash.four weeks public notice having been previously given of the time and plae of such sale,by advertisement,weekly,in some
newspaper of general circulation at that time published in said County of Lar imer .a cops’of which notice shall be mailed
within ten days from the date of the first publication thereof to the grantor at the address herein given and to such person or persons appearing to have
acquired a subsequent record interest in said real estate at the address given in the recorded instrument:where only the county and state is given as the
address then such notice shall be mailed to the county seat,and to make and give to the purchaser or purchasers of such property at such sale,a certificate
or certificates in writing describing such property purchased.and the sum or sums paid therefor.and the time when the purchaser or purchasers (or other
person entitled thereto)shall be entitled to a deed or deeds thcrefor.unless the same shall be redeemed as is provided by lass:and said Public Trustee shall,
upon demand by the person or persons holding the said certificate or certificates of purchase.when said demand is made,or upon demand by the person
entitled to a deed to and for the property purchased.at the time such demand is made,the time for redemption having expired.make and execute to such
person or persons a deed or deeds to the said property purchased.which said deed or deeds shall be in the ordinan’form of a conveyance,and shall be
signed.acknowledged and delivered by the said Public Trustee and shall convey and quitclaim to such person or persons entitled to such deed,the said
property purchased as aforesaid and all the right.title,interest,benefit and equity of redemption of the grantor,his heirs and assigns therein,and shall
recite the sum or sums for which the said property was sold and shall refer to the power of sale therein contained,and to the sale or sales made by virtue
thereof:and in case of an assignment of such certificate or certificates of purchase.or in case of the redemption of such property,by a subsequent
encumbrancer.such assignment or redemption shall also be referred to in such deed or deeds;but the notice of sale need not be set out in such deed or
deeds and the Public Trustee shall,out of the proceeds or avails of such sale,after first paying and retaining all fees,charges and costs of making said sale,
pay to the beneficiary hereunder or the legal holder of said note the principal and interest due on said note according to the tenor and effect thereof,and all
moneys advanced by such beneficiary or legal holder of said note for insurance,taxes and assessments,with interest thc’reon at 1 2 %per cent per
annum,rendering the overplus.if any.unto the grantor.his legal rcprescntatises or assigns:which safe or sales and said deed or deeds st made shall be a
perpetual bar,both in law and equity,against the grantor,his heirs and assigns,and all other persons claiminc the said properts.or any part thereof,by,
[mm.through or under the grantor,or ans ot them.The holder or holders of said note or notes may purchase said pmpcrt or an part thereof;and it shall
not be obligatory upon the purchaser or purchasers at any such sale to see to the application of the purchase iiioncv Ii a release dec’d he required,it is
agreed that the grantor.hi heirs or nssign.will pay the expelise thereof.
1f in Denser,insert “City and.”
Ni’..t3IA.Re,,2.8.1.t)t I I)1)1 [itt St I’oi?n Iiu,i.r I 5iiti Ii.ou thn,e
ccCo
\iid Ii rTIt’r.t’t Iiiiiisci t Ii,is.‘,r’.’i’;ii ‘r .tsiiii ‘.tiiits iiul ii itid Ii )i I’tihIi..c.Ii,it ii hc l?u
thL’CsClIil1 )I Bid dcIicry ul these i1i’scTlIs hc is ‘II si,el l li ‘IlL1 I.iid ;uiI c,it:riicti’,in lc siiiipli’..-111(1 i.s L’(I tiiit.hilt and lass lot
.uithoritv to erant.bargain,sell ;iiitl ns’s tine same in the niantier intl t’rm as .ifircs:nid:hereby tufl ,ind nbsohiitclv ssaivjng md releasing ill tights and
dantus he ntav have in or to said laiis.tenetitents.md property as i 1 loincsle:nml lxernption.or other exenntpttoni.tinder and h virtue it anvact of the
General Assembly iii the State of C’olini;ido.or as an esemption under .ttiil by virtue cit any act cii the United States Congress.now existing orsshmh may
hereafter he passed in relation titerutci utd that the same are tree and clear ot all liens and encumbrances ss hatever.except
and the above bargained property in the quiet and peaceable possession of the Public Trustee,his successors and assigns,against all and every person or
persons lawfully claiming or to claim the whole or an’,part therectt the grantor shall and will Warrant and Forever Defend.
Until payment in full of the indebtedness,the grantor shall timely pay all taxes and assessments levied on the property;any and all amounts due on
account of principal and interest or other sums on any senior encumbrances,if any:and will keep all improvements that may be on said lands insured
against any casualty loss,including extended coverage,in a company or companies meeting the net worth requirements of the beneficiary hereof in an
amount not less than the then total indebtedness.Each policy shall contain a loss payable clause naming the beneficiary as mortgagee and shall further
provide that the insurance may not be canceled upon less than ten da s ssritten notice to the beneficiary.At the option of the beneficiary,the original policy
or policies of insurance shall be delivered to the heneticiare as further security for the indebtedness.Should the grantor fail to insure and deliver the
policies otto pay taxes orassessments as the same falldue.orro pay an amounts payable upon seniorencumbrances.ifany.the beneficiary may make any
such payments or procure any such insurance,and all monies so paid ss ith interest thereon at the rate of 12 per annum shall be added to and
become a part of the indebtedness secured by this Deed of Trust and rna he paid out of the proceeds of the sale of the property if not paid by the grantor.In
addition,and at its option.the beneficiary may declare the indebtedness secured hereby and this Deed of Trust to be in default for failure to procure
insurance or make any of the payments required b’this paragraph.
If allot any part of the property or an interest therein is sold or transferred by the grantor without beneficiary’s prior ssritten consent,excluding (a)the
creation of a lien or encumbrance subordinate to this Deed of Trust.(b)the creation of a purchase money securit%interest for household appliances.Ic)a
transfer by devise,descent or by operation of lass upon the death of a joint tenant or (d the grant of any leasehold interest of three years or less not
containing an option to purchase.beneficiary ma\,at beneticiary’s option,declare all the sums,.secud by this Deed of Trust to be immediately due and
payable.Beneficiary shall have waived such option to accelerate if.prior to the sale or transfer.beneficiary and the person to whom the property is to be
sold or transferred reach agreement in writing that the credit of such person is satisfactory to beneficiary and that the interest payable on the sums secured
by this Deed of Trust shall be a such rate as beneficiary shall request.
AND THAT IN CASE OF ANY DEFAULT.Whereby the right of foreclosure occurs hereunder,the Public Trustee or the holder of said note or
certificate of purchase.shall at once become entitled to the possession.use and enjoyment of the property aforesaid,and to the rents,issues and profits
thereof,from the accruing of such right and during the pendenev of foreclosure proceedings and the period of redemption.if any there be:and such
possession shall at once be delivered to the Public Trustee or the holder of said note or certificate of purchase on request.and on refusal,the delivery of
such possession may be enforced by the Public Trustee or the holder of said note or certificate of purchase by any appropriate civil suit or proceeding.and
the Public Trustee,or the holder of said note or certificate of purchase.or any thereof,shall be entitled to a Receiver for said property,and of the rents.
issues and profits thereof after such default,including the time covered by foreclosure proceedings and the period of redemption.if any there be.and shall
be entitled thereto as a matterof right without regard to the solvency or insolvency of the grantororof the then owner of said property and without regard to
the value thereof,and such Receiver may be appointed by any court of competent jurisdiction upon cx parte application and without notice —notice being
hereby expressly waived —and all rents,issues and profits.income and revenue therefrom shall be applied by such Receiver to the payment of the
indebtedness hereby secured,according to the law and the orders and directions of the court.
AND,That in case of default in any of said payments of principal or interest,according to the tenor and effect of said promissory note aforesaid.orany
of them.or any part thereof.orof a breach orviolation of any of the covenants or agreements herein,by the grantor.his personal representatives or assigns.
then and in that ease the whole of said principal sum hereby secured.and the interest thereon to the time of the sale.may at once,at the option of the legal
holder thereof,become due and payable,and the said property be sold in the manner and with the same effect as if said indebtedness had matured,and that
if forectosure be made by the Public Trustee,an attorney’s fee of the sum of ————a reasonable amount dollars
for services in the supervision of said foreclosure proceedings shall be allowed by the Public Trustee as a part of the Cost of toreclosure.and if foreclosure
be made through the courts a reasonable attorney’s fee shall be taxed by the court as a part of the Cost of such foreclosure proceedings.
The singular number shall include the plural.the plural the singular.and the use of any gender shall be applicable to all genders.
Executedthis 15th dayof December 19 87.
AHEST:
___________________________________________________
it :
SEAL,-‘—F
State of Colorado
County of Larimer
The foregoing instrument was acknowledged before me this /i”‘day of,(’%42.i,,.,L.g4J ,.19 87
by Gaveli Excavating,Inc.,byt’t%-%.-%c€L.,
a nd,,t)d its
ttness my ar a sea .
Nolan Pubtic
My ccmmsston expires
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I1 J’J 1
a
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GAVELL EXCAVATING,INC.,a
Coatny
Its:/t22-7
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