HomeMy WebLinkAboutC03-092 GMCO Corporation
AGREEMENT FOR MAGNESIUM CHLORIDE
THIS AGREEMENT is dated as of the -24th day of March , 2003, by and
between Eagle County, Colorado, a body corporate and politic, acting by and through its Board
of County Commissioners (hereinafter called "Owner"), and _GMCO Corporation
(hereinafter called "Contractor").
Owner and Contractor, in consideration of the mutual covenants set forth, agree as follows:
ARTICLE 1 -WORK
Contractor shall complete all work as specified or indicated in the contract documents ("Work").
The Work is generally described as: CONTRACTOR SHALL SUPPLY DUST STABILIZING
AND CONTROL AGENT, MAGNESIUM CHLORIDE ONLY, IN LIQUID FORM WITH A
11/IIl\TIMUM OF 30% MAGNESIUM CHLORIDE. SUPPLY SHALL BE LOCATED AT
GLENWOOD RAIL YARDS, DEVEREAUX ROAD, GLENWOOD SPRINGS, COLORADO.
CONTRACTOR SHALL HAVE A I~IINIMUM OF 30,000 GALLONS AVAILABLE FOR
PICK UP FROM 6:00 AM TILL 7:00 PM MONDAY THROUGH FRIDAY BEGINNING April
15, 2003 CONTINUING THROUGH NOVEMBER 30, 2003. CONTRACTOR SHALL
PROVIDE AN INITIAL CHEMICAL ANALYSIS FROM AN INDEPENDENT
LABORATORY, OF THE AGENT AND SHALL PROVIDE ADDITIONAL ANALYSIS' OF
THE AGENT AT THE REQUEST OF EAGLE COUNTY ROAD AND BRIDGE.
ARTICLE 2 - OWNER' S REPRESENTATIVE
The project is under the authority of the Eagle County Road & Bridge Department, the Director
of which, or his designee, shall be Owner's liaison with Contractor with respect to the
performance of the Work.
ARTICLE 3 -CONTRACT TIlVIE
3.1 The Work will be completed and ready for final payment in accordance with the Contract
Documents on or before November 30, 2003
3.2 LIQUIDATED DAMAGES: Owner and Contractor recognize that time is of the essence
of this Agreement and that Owner will suffer financial loss if the Work is not
substantially complete within the time specified in paragraph 3.1 above, plus any
extensions thereof allowed in accordance with the General Conditions. They also
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recognize the delays, expense, and difficulties involved in proving a legal or arbitration
proceeding the actual loss suffered by Owner if the Work is not substantially complete on
time. Accordingly, instead of requiring such proof, Owner and Contractor agree that as
liquidated damages for delay (but not as a penalty) contractor shall pay Owner Three
Hundred dollars 300.00 for each day that expires after the time specified in paragraph
3.1 for completion until the Work is complete.
ARTICLE 4 -CONTRACT PRICE
4.1 The funds appropriated for this project are equal to or in excess of the contract amount.
4.2 Owner shall pay contractor for performance of the Work in accordance with the contract
documents in current funds as follows: PROGRESSIVE PAYMENTS FOLLOWING
ACQUIREMENT OF AGENT AND UPON RECEIPT OF INVOICE FROM
CONTRACTOR.
4.3 Pursuant to the provisions §24-91-103.6, C.R.S., and notwithstanding anything to the
contrary contained elsewhere in the Contract Documents, no change order or other form
of order or directive by Owner, and no amendment to this Agreement, requiring
additional compensable work to be performed which work causes the aggregate amount
payable under the Agreement to exceed the amount appropriated for the original
Agreement, shall be of any force or effect unless accompanied by a written assurance by
Owner that lawful appropriations to cover the costs of the additional work have been
made or unless such work is covered under aremedy-granting provision in the
Agreement.
4.4 The Board of County Commissioners for Eagle County is a governmental entity.
Notwithstanding anything to the contrary contained in this Agreement, Owner shall have
no obligations under this Agreement nor shall any payment be made in respect of any
period after December 31 of each calendar year during the term of this Agreement,
without prior appropriation therefore by Eagle County in accordance with a budget
adopted by the Board of Eagle County Commissioners in compliance with applicable
provisions of law.
ARTICLE 5 -PAYMENT PROCEDURES
Contractor shall submit Applications for Payment in accordance with the General Conditions.
Applications for Payment will be processed as provided in the General Conditions.
5.1 PROGRESS PAYMENTS: Owner shall make progress payments on account of the
contract price on the basis of the contractor's applications for payments as provided
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below. All progress payments will be on the basis of the owner's acquirement of the
agent.
5.1.1 Prior to completion, progress payments will be made following owner's acquirement of
agent and upon receipt of invoices from contractor.
ARTICLE 6 -CONTRACTOR'S REPRESENTATIONS
In order to induce Owner to enter into this Agreement Contractor makes the following
representations:
6.1 Contractor has familiarized 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 cost, progress, or
performance of the Work.
6.2 Contractor has made, or caused to be made, examinations, investigations, and tests and
studies of such reports and related data as he deems necessary for the performance of the
Work at the Contract Price, within the Contract Time, and in accordance with other terms
and conditions of the Contract Documents; and no additional examinations,
investigations, tests, reports, or similar data are, or will be required by Contractor for such
purposes.
6.3 Contractor has correlated the results of all such observations, examinations,
investigations, tests, reports, and data with the terms and conditions of the Contract
Documents.
6.4 Contractor has given Owner written notice of all conflicts, errors, or discrepancies that he
has discovered in the Contract Documents and the written resolution thereof by Owner is
acceptable to Contractor.
6.5 In performing the work under this Agreement, the Contractor acts as an independent
contractor and is solely responsible for necessary and adequate worker's compensation
insurance, personal injury and property damage insurance, as well as errors and omissions
insurance. The Contractor, as an independent contractor, is obligated to pay federal and
state income tax on moneys earned. The personnel employed by the Contractor are not
and shall not become employees, agents or servants of the Owner because of the
performance of any work by this Agreement.
Agreement Page 3
ARTICLE 7 -CONTRACT DOCUMENTS
The Contract Documents which comprise the entire Agreement are made a part thereof, and
consist of the following:
7.1 This Agreement
7.2 Contractor's Bid
7.3 Performance and other Bonds
7.4 Notice of Award and, if any, Notice to Proceed.
7.5 General Conditions (Pages 1 to 10, inclusive)
7.6 Specifications and Drawings
7.7 Any modification, including Change Orders, duly delivered after execution of Agreement.
7.8 The parties acknowledge and agree that the terms and conditions of this Agreement (7.1)
and the General Conditions (7.5) attached hereto, shall supersede and control over any in
consistent or contrary provision in any other attachment or agreement.
There are no Contract Documents other than those listed above in Article 7. The Contract
Documents may only be altered, amended, or repealed by an executed, written amendment to this
Agreement.
ARTICLE 8 -BONDS
Not later than five business days following the execution of this Agreement, Contractor shall
delivery to the Owner the bonds required by the Contract Documents, and, notwithstanding
anything to the contrary contained in the Contract Documents, Owner shall have no liability or
obligation hereunder unless and until the bonds have been so delivered.
ARTICLE 9 - NII5CET~ANF.OUS
9.1 No assignment by a party hereto of any rights under, or interests in the Contract
Documents will be binding on another party hereto without the written consent of the
party sought to be bound; and specifically, but without limitation, 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
Agreement Page 4
stated to the contrary in any written consent to an assignment, no assignment will release
or discharge the assignor from any duty of responsibility under the Contract Documents.
9.2 Owner and Contractor each binds himself, his partners, successors, assigns and legal
representatives to the other party hereto, in respect to all covenants, agreements, and
obligations contained in the Contract Documents.
9.3 ATTORNEY'S FEES: In the event of litigation between the parties hereto regarding the
interpretation of this Agreement, or the obligations, duties or rights of the parties
hereunder, or if suit otherwise is brought to recover damages for breach of this
Agreement, or an action be brought for injunction or specific performance, then and in
such events, the prevailing party shall recover all reasonable costs incurred with regard to
such litigation, including reasonable attorney's fees.
9.4 APPLICABLE LAW: This Agreement shall be governed by the laws of the State of
Colorado. Jurisdiction and venue of any suit, right, or cause of action arising under, or in
connection with this Agreement shall be exclusive in Eagle County, Colorado.
9.5 SEVERABII.TTY: It is understood and agreed by and between the parties that if any
covenant, condition or provision contained in this Agreement is held to be invalid by any
court of competent jurisdiction , or otherwise appears to be invalid, such invalidity shall
not affect the validity of any other covenant, condition or provision herein contained;
provided however, that the invalidity of any such covenant, condition or provision does
not materially prejudice either party in its respective rights and obligations contained in
the remaining valid covenants, conditions and provisions of this Agreement.
9.6 NONWAIVER OF RIGHTS: No waiver of default by either party of any of the terms,
covenants, and conditions hereof to be performed, kept and observed by the other party
shall be construed, or shall operate as a waiver of any subsequent default of any of the
terms, covenants, or conditions herein contained, to be performed, kept and observed by
the other party.
9.7 INTEGRATION: This Agreement supersedes all previous communications, negotiations
and/or contracts between the respective parties hereto, either verbal or written, and the
same not expressly contained herein are hereby withdrawn and annulled.. This is an
integrated agreement and there are no representations about any of the subject matter
hereof except as expressly set forth in the Contract Documents.
9.8 NOTICE: Any notice and all written communications required under this Agreement
shall be (i) personally delivered, (ii) mailed in the United States mails, first class postage
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prepaid, or (iii) transmitted by facsimile machine together with a hard copy conveyed by
delivery of mail, to the appropriate party at the following addresses:
To Contractor:
GMCO
P. O. Box 1480
Rifle, CO 81650
To Owner:
Brad Higgins -Director
Road & Bridge Department
Eagle County
P. O. Box 250
Eagle, CO 81631
Telephone: 970-328-3540
Telefax: 970-328-3546
Mailed notices will be deemed given three business days after the date of deposit in a regular
depository of the United States Postal Service, and FAX notices will be deemed given upon
transmission, if during business hours, or the next business day. Either party can change its
address for notice by notice to the other in accordance with this paragraph.
[signature page next page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on the date
first above written.
ATTEST
~ ~~~~
By
Clerk of the Board of
County Commissioners
"Owner"
COUNTY OF EAGLE, STATE OF
COLORADO, By and Through Its BOARD
o~ ~~ rQ OF COUNTY COMMISSIONERS
~, GZ
®L®RA~®~ . _ . n (1 _ ~ ~I
Michael L. Gallagher,
"Contractor":
GMCO Corporation
By: ~ ~ -
Randy Parsons
STATE OF COLORADO
County of ~~~~~~
On thi day of ~ , 2003, came before me, a notary public,
~ known to me to be the ~ f
s ,who acknowled ed to me that he exec ed the foregoing
document, that a executed it in that capacity, and that the same was the act of the entity
identified in the document as "Contractor".
My commission expires: ~ - S' ~d ~
Notary Public
Ion
Agreement Page 7
.. BID BOND
Conforms with The American Institute of
Architects, A.I.A. Document No. A-310
KNOW ALL BY THESE PRESENTS, That we, G.M.C.O. Corporation
P.O. Box 1480. Rifle. CO 81650
as Principal, hereinafter called the Principal,
and the Fidelity and Deposit Company of Maryland
of P.O. Box 60130, Grand Junction, CO 81506 , a corporation duly organized under
the laws of the State of Maryland , as Surety, hereinafter called the Surety, aze held and firmly bound unto
Eagle County Road & Bridge
3289 Cooley Mesa Road, Gypusm, CO 81637 as Obligee, hereinafter called the Obligee,
in the sum of 5%ofBidAmount------------------------------------------------------------------
Dollazs ($ 5% of Bid Amount ) ,for the payment of which sum well and truly to be made, the said Principal and the said
Surety, bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
WHEREAS, the Principal has submitted a bid for Magnesium Chloride
NOW, THEREFORE, if the Obligee shall accept the bid of the Principal and the Principal shall enter into a Contract with the Obligee
in accordance with the terms of such bid, and give such bond or bonds as may be specified in the bidding or Contract Documents with
good and sufficient surety for the faithful performance of such Contract and for the prompt payment of labor and material furnished in
the prosecution thereof, or in the event of the failure of the Principal to enter such Contract and give such bond or bonds, if the
Principal shall pay to the Obligee the difference not to exceed the penalty hereof between the amount specified in said bid and such
lazger amount for which the Obligee may in good faith contract with another party to perform the Work covered by said bid, then this
obligation shall be null and void, otherwise to remain in full force and effect.
Signed and sealed this 12th day of March 2003
Witness
~.~
/' `~
Witness
G.M.C.O.Corporation (S~)
Principal
l re enderson; Vice Pres. Title
Fidelity a eposit Company f Maryland
By
Tim thy la chard Attorney-in-Fact
C~
•
~~~~4~
Power of Attorney
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
HOME OFFICE: P.O. BOX 1227, BALTIMORE, MD 21203-1227
Know ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a
corporation of the State of Maryland, by W. B. WALBRECHER, Vice-President, and T. E. SMITH, Assistant Secretary,
in pursuance of authority granted by Article Vl, Section 2, of the By-Laws of said Company, which are set forth on the
reverse side hereof and are hereby certified to be in full and eff the date hereof, does hereby nominate,
constitute and appoint Barry N. BLANCHARD, San PIER ° een A. BLANCAARD and Timothy J.
BLANCHARD, all of Grand Junction, Colorado, its tru awful agent and Attorney-in-Fact, to make,
execute, seal and deliver, for, and on its behalf ass d as i a d deed: any and all bonds and undertakings
and the execution of such bonds or undertakings ' ce of resents, shall be as binding upon said Company, as
fully and amply, to all intents and purposes, as ' had bee executed and acknowledged by the regularly elected
officers of the Company at its office in Bal ' d., in proper persons. This power of attorney revokes that
issued on behalf of Barry N. BLANC ~ ted Oa~~r 5, 1993.
The said Assistant Secretary does her rtify th `^~,"~-extract set forth on the reverse side hereof is a true copy of
Article VI, Section 2, of the By-Laws o'1~ Compag~ is now in force.
IN WITNESS WHEREOF, the ice-Pres' d Assistant Secretary have hereunto subscribed their names'and
affixed the Corporate Seal of tl~ FIDE AND DEPOSIT COMPANY OF MARYLAND, this 27th day of
August, A.D. 1998. ~°
ATTEST: FIDELITY AN POSIT COMPANY OF MARYLAND
~~ ~ ''
sue. ~ , t;~~QtcuG,c-~
~,~ By. .
T. E. Smilth Assistant Secretary W. B. Walbrecher Yice-President
State of Maryland } ss:
County of Bahimore JJJ
On this 27th day of August, A.D. 1998, before the subscriber, a Notary Public of the State of Maryland, duly
commissioned and qualified, came W. B. Walbrecher, Vice-President and T. E. Smith, Assistant Secretary of the
FIDELITY AND DEPOSTT COMPANY OF MARYLAND, to me personally known to be the individuals and officers
described in and who executed the preceding instrument, and they each acknowledged the execution of the same, and
being by me duly sworn, severally and each for himself deposeth and with, that they are the said officers of the Company
aforesaid, and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said
Corporate Seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the
authority and direction of the said Corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above
written.
uN.1 F,y_
Carol J. F Notary Public
My Commissi ~ Expires: August 1, 2000
L1428-020-5324
A Corporation
~~
By: GMCO Corporation
(Corporation Name)
Colorado
gy; Jer
(State of Corporation)
Henderson
(Name of Pe Autho ' d to Sign)
Vice President
(Title)
(CORPORATE SEAL)
A
Business Address: P . o . Box 1480
Rifle, CO 81650
Phone Number: 970-625-9100
RTO addenda to date
EXHIBIT "B"
Total Project gallons to be supplied, f.o.b. Glenwood Rail Yard, Devereux Road,
Glenwood Springs, Colorado
TOTAL PROJECT GALLONS 710,556
Contractor shall have a minimum of 30,000 gallons of Magnesium Chloride available for
pickup from 6:00 a.m. to 7:00 p.m., Monday thru Friday beginning March 30, 2003 and
continuing thru November 30, 2003.
F.O.B. Glenwood Springs Rail Yard
Description Quantity Unit Price Amount
Magnesitaa 710,556 Gal $0.173 $122,926.19
Chloride
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ROAD & BRIDGE DEPARTMENT
GENERAL CONDITIONS
Contractor shall provide and pay for labor, materials, equipment, tools, utilities, permits,
licenses, transportation, and other facilities and services necessary for proper execution
and completion of the Work. .
1. ff Contractor fails to obtain the tax exemption(s) applicable to public works projects from
sales, consumer, use and similar taxes, Contractor shall pay the same. Owner will
cooperate with Contractor to obtain tax exception for this project.
2. Contractor shall be responsible for having taken steps reasonably necessary to ascertain
the nature and location of the Work, and the general and local conditions which can affect
the Work or the cost thereof. Any failure by Contractor to do so will not relieve him from
responsibility for successfully performing the Work without additional expense to the
Owner. Owner assumes no responsibility for any understanding or representations
concerning conditions made by any of its officers, employees or agents prior to the
execution of this Agreement, unless such understanding or representations are expressly
stated in the Agreement.
3. Contractor shall supervise and direct the Work, using Contractor's best skill and
attention.
4. Contractor, as soon as practicable, shall furnish in writing to the Owner the names of
subcontractors and suppliers for each portion of the Work.
5. No charge shall be made by Contractor for hindrances or delays from any cause whatever
during the progress of any portion of the Work, unless such hindrance or delay is caused
in whole or in part by acts of omissions within the control of Owner. In any event, Owner
may grant an extension of time for the completion of the Work, provided it is satisfied
that delays or hindrances were due to causes outside Contractor's control, e.g. weather, or
to acts of omission or commission by the Owner, provided that such extension of time
shall in no instance exceed the time actually lost to Contractor by reason of such causes,
and provided further that Contractor shall have given Owner immediate (as determined by
the circumstances, but not exceeding 48 hours) notice in writing of the cause of the
detention or delay.
6. Contractor shall delivery, handle, store and install materials in accordance with
manufacturers' instructions.
7. Contractor shall comply with and give notices required by all federal, state and local laws,
statutes, ordinances, building codes, rules and regulations applicable to the Work. If the
Contractor performs Work knowing it to be contrary to laws, statutes, ordinances,
building codes, rules or regulations without notice to Owner, Contractor shall assume full
responsibility for such Work and shall bear the attributable costs. Contractor shall
promptly notify Owner in writing of any conflicts between the specifications for the Work
and such governmental laws, rules and regulations.
8. The Contractor shall be responsible for initiating, maintaining and supervising all safety
precautions and programs, including all those required by law in connection with
performance of the Agreement. The Contractor shall promptly remedy damage and loss
to property caused in whole or in part by the Contractor, or by anyone for those acts the
Contractor maybe liable.
9. Contractor shall furnish performance and payment bonds, each in an amount at least
equal to 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 two years after the date of final payment, except as otherwise provided
bylaw. Contractor shall also furnish other bonds as are required by the supplementary
conditions. All bonds shall be informs satisfactory to Owner, and be executed by such
sureties as (1) are licensed to conduct business in the state where the project is located,
and (b) are named in the current list of "Companies Holding Certificates of Authority as
Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" as
published in Circular 570 (amended) by the Audit Staff Bureau of Accounts, U.S.
Treasury Department. All bonds signed by an agent must be accompanied by a certified
copy of the authority to act.
If the surety on any bond furnished by Contractor is declared bankrupt, or becomes
insolvent, or its right to do business is terminated in any state where any part of the
project is located, or it ceases to meet the requirements of clauses (a) and (b) of the
preceding paragraph, Contractor shall within five days thereafter substitute another bond
and surety, both of which shall be acceptable to Owner.
10. Contractor shall be solely responsible for the protection of the Work until its final
acceptance by Owner. Contractor shall have no claim against Owner because of any
damage or loss to the Work, and shall be responsible for the complete restoration of
damaged Work to its original condition. In the event Contractor's Work is damaged by
another party, not under his supervision or control, Contractor shall make his claim
directly with the party involved. If a conflict or disagreement develops between
Contractor and another party concerning the responsibility for damage or loss to
Contractor's Work, such conflict shall not be cause for delay in Contractor's restoration
of the damaged Work.
11. Contractor's Insurance:
The Contractor shall purchase and maintain such insurance as will protect him from
claims set forth below which may arise out of or result from the Contractor's operations
under the contract, whether such operations be by himself, or by any subcontractor, or by
anyone for whose acts any of them maybe liable. All such insurance shall remain in
effect until final payment, and at all times thereafter when Contractor maybe correcting,
removing, or replacing defective Work. In addition, Contractor shall maintain such
completed operations insurance for at least two years after final payment, and furnish
Owner with evidence of continuation of such insurance at final payment and one year
thereafter.
Insurance coverage shall be as follows:
Claims under Workmen's Compensation, disability benefits, and other similar employee
benefit acts, with coverage and in amounts as required by the laws of the State of
Colorado;
Claims for damage because of bodily injury, occupational sickness or disease, or death of
his employees, and claims insured by ususal personal injury liability coverage;
Claims for damage because of bodily injury, sickness, disease, or death of any person
other than his employees; and
Claims for damages because of injury to or destruction of tangible property, including
loss of use resulting therefrom;
Contractor's Liability Insurance issued to and covering the liability for damage imposed
by law upon the Contractor and each subcontractor with respect to all Work performed by
them under the Agreement;
Contractor's Protective Liability Insurance issued to and covering the liability for
damages imposed by law upon the Contractor and each subcontractor with respect to all
Work under the Agreement performed for the Contractor by subcontractors.
Comprehensive Automobile Insurance
All liability and property damage insurance required hereunder shall be Comprehensive
General and Automobile Bodily Injury and Property Damage forms of policies, as the
case may be.
The Contractor shall in addition, and in the amounts required under the above, obtain
protective Liability Insurance issued to and covering the liability for damages imposed by
law upon the Owner with respect to all operations under the construction contract by the
Contractor or his subcontractors, including omissions and supervisory acts by the Owner.
Comprehensive Risk Policy Option: In lieu of the several policies specified for
Contractor's Liability Insurance, a comprehensive liability and property damage
insurance policy inclusive of all the insurance and requirements herein set forth, subject
to the approval of the Owner, will be permissible.
S ~
Insurance covering claims for damages to persons or property shall at a minimum provide
coverage of the larger of (i) $500,000 each person/$1,000,000 each occurrence, for bodily
injury and $600,000 each occurrence for property damage, (ii) the maximum liability of a
local government provided in the Colorado Governmental Immunity Act, 24-10-101, et
seq., CRS (1973) as that maybe amended from time-to-time, or (iii) such greater
amount(s) as may be required bylaw.
Insurance shall be placed jointly in the names of the Owner, Contractor, and any and all
subcontractors, and any and all others obliged by contract with the Owner to do Work on
this project, and, at the Owner's option, any other person or persons whom the Owner
deems to have an insurable interest in said property, or any part thereof, payable as their
several interests may appear. Any proceeds obtained from insurance provided for by this
paragraph shall be paid to and held by the Owner as trustee. The Owner shall have the
right to withhold payment of such proceeds until such time as the Work destroyed or
damaged and covered by such insurance shall be reconstructed and shall pay such
proceeds on an installment basis similar to that provided for by progress payments
covering the original Work.
Certificates of Insurance: Certificates of Insurance acceptable to the Owner shall be filed with the
Owner prior to commencement of the Work. These Certificates shall contain provisions naming
the Owner as an additional insured under Contractor's insurance, as more fully required by the
General Conditions herein, and that coverage afforded under the policies will not be cancelled
until at least thirty days prior written notice has been given the Owner. Contractor and his
subcontractors shall not permit any of his subcontractors to start Work until all required
insurance have been filed with the Owner. Failure of the Contractor to comply with the
foregoing insurance requirements shall in no way waive the Owner's rights hereunder.
12. Owner, at its option, may purchase and maintain such liability insurance as will protect
him against claims which may arise from operations under this contract. Purchasing and
maintaining such insurance, however, will not relieve the Contractor from purchasing and
maintaining the insurance hereinbefore specified.
13. Before permitting any of his subcontractors to perform any Work under this contract,
Contractor shall either (a) require each of his subcontractors to procure and maintain
during the life of his subcontracts, Subcontractor's Public Liability and Property Damage
Insurance of the types and in the amounts as may be applicable to his Work, which type
and amounts shall be subject to the approval of the Owner, or (b) insure the activities of
his subcontractors in his own policy.
14. To the fullest extent permitted by law, Contractor shall indemnify and hold harmless
Owner, its board, commissioners, employees and the agents of any of them, from and
against claims, damages, losses and expenses, including but not limited to attorneys' fees,
arising out of or resulting from performance of the Work, provided that such claim,
damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to
injury to or destruction of tangible property (other than the Work itself) including loss of
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use resulting therefrom, but only the extent caused in whole or in part by negligent acts or
omissions of the Contractor, a subcontractor, be liable, regardless of where or not such
claim, damage, loss or expense is caused in part by a party indemnified hereunder.
15. After execution of the Agreement, changes in the Work maybe accomplished by Change
Order or by order for a minor change in the Work. Owner, without invalidating the
Agreement„ may order changes in the Work within the general scope of the Agreement
consisting of additions, deletions or other revisions.
a. No Change Orders or other form of order or directive which requires additional
compensable work to be performed maybe issued or be effective unless
accompanied by a written assurance to the Contractor that lawful appropriations to
cover the costs of the additional work have been made.
b. A Change Order shall be written order to the Contractor signed by Owner to
change the Work.
Owner will have authority to order minor changes in the Work not involving
changes in the Contract Price or the Contract Time. Such changes shall be written
orders and shall be binding on the Contractor and Owner. Contractor shall carry
out such written orders promptly.
16. Contractor's obligation to perform and complete the Work in accordance with the
contract documents shall be absolute. Neither the recommendation of any progress or
final payment nor the payment by Owner to Contractor under the contract documents, nor
any use or occupancy of the Work or any part thereof by Owner, nor any act of
acceptance by Owner, nor any failure to do so, nor any correction of defective Work byt
Owner shall constitute an acceptance of Work not in accordance with the contract
documents or a release of Contractor's obligation to perform the Work in accordance with
the contract documents.
17. If Contractor fails to correct Work which is not in accordance with the Agreement, the
Owner may direct the Contractor to stop the Work until the correction is made.
18. Contractor shall promptly correct Work rejected by Owner as failing to conform to the
requirements of the Agreement and Contractor shall bear the cost of correcting such
rejected Work.
19. Contractor warrants to Owner that: (1) materials and equipment furnished under the
Agreement will be new and of good quality; (2) the Work will be free from defects not
inherent in the quality required or permitted; and (3) the Work will conform to the
requirements of the Agreement.
20. Contractor warrants and guarantees to Owner that all Work will be in accordance with the
Contract Documents and will not be defective. Prompt notice of all defects shall be given
•
to Contractor. If, within one year after the date of completion, or such longer period of
time as maybe set forth in the Agreement (including the Bid), prescribed by law,
prescribed by the terms of any applicable warranty given by a materials supplier or
required by or a part of the Agreement, any Work is found to be defective, Contractor
shall promptly without cost to Owner, and in accordance with Owner's written
instructions, either correct such defective Work, or, if it has been rejected by Owner,
remove it from the site, and replace it with nondefective work. If contractor does not
promptly comply with the terms of such instruction, or in an emergency where delay
would cause serious risk of loss or damage, Owner may have the defective Work
corrected or the rejected Work removed and replaced, and all direct and indirect costs of
such removal and replacement, including compensation for additional professional
services, shall be paid by Contractor.
21. If Contractor defaults or neglects to carry out the Work in accordance with the Agreement
and fails within a seven day period after receipt of written notice from the Owner to
correct such default or neglect with diligence and promptness, the Owner may, without
prejudice to the remedies, correct such deficiencies. In such case, the Agreement maybe
terminated by Owner or a Change Order shall be issued deducting the cost of correction
from payments due the Contractor.
22. The performance of Work, maybe terminated at any time in whole, or from time to time
in part, by Owner for its convenience. Any such termination shall be effected by delivery
to Contractor of a written notice ("Notice of Termination") specifying the extent to which
performance of the Work is terminated and the date upon which termination becomes
effective. After receipt of a Notice of Termination, and except as otherwise directed by
Owner, Contractor shall, in good faith, and the best of its ability, do all things necessary,
in the light of such notice and of such requests in implementation thereof as Owner may
make, to assure the efficient, proper closeout of the terminated Work (including the
protection of Owner's property). Among other things, Contractor shall, except as
otherwise directed or approved by Owner:
a. stop the Work on the date and to the extent specified in the Notice of Termination;
b. place no further orders or subcontracts for services, equipment or materials except
as may be necessary for completion of such portion of the Work as is not
terminated;
c. terminate all orders and subcontracts to the extent that they relate to the
performance of Work terminated by the Notice of Termination.
d. assign to Owner, in the manner and to the extent directed by it, all of the right,
title and interest of Contractor under the orders or subcontractors so terminated, in
which case Owner shall have the right to settle or pay any or all claims arising out
of the termination of such orders and subcontracts;
•
e. with the approval of Owner, settle all outstanding liabilities and all claims arising
out of such termination or orders and subcontracts; and
f. deliver to Owner, when and as directed by Owner, all documents and all property
which, if the Work had been completed, Contractor would be required to account
for or delivery to Owner, and transfer title to such property to Owner to the extent
not already transferred.
]n the event of such termination, there shall be an equitable reduction of the Contract Price to
reflect the reduction in the Work and not cost incurred after the effective date of the Notice of
Termination shall be treated as a reimbursable cost unless it relates to carrying out the
unterminated portion of the Work or taking closeout measures.
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• AIA Document A312
Performance Bond Bond No. 08483885
Conforms with the American Institute of Architects, AIA Document A312.
Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable.
CONTRACTOR (Name and Address):
G.M.C.O. Corporation
P.O.Box1220
Carbondale, CO 81623
SURETY (Name and Principal Place of Business):
Fidelity and Deposit Company of Maryland
P.O. Box 60130
Grand Junction, CO 81506
OWNER (Name and Address):
Eagle County Road & Bridge
3289 Cooley Mesa Road
Gypsum, CO 81637
CONSTRUCTION CONTRACT
Date: March 24 2003
Amount: One Hundred Twenty Two Thousand Nine Hundred Twenty Six Dollars & 19/100
Description (Name and Location): Magnesium Chloride
BOND
Date (Not eazlier than Construction Contract Date): March 24 2003
Amount: 122,926.19
Modifications to this Bond:
CONTRACTOR AS PRINCIPAL
Company: G.M.C.O. Corporation (Corporate Seal)
Signature:
Name ~tle: Remy Henderson; Vice Pres .
(Any a ditiona gnatures appeaz on page 2.)
(FOR INFORMATION ONLY -Name, Address and
Telephone) AGENT or BROKER:
®None ^ See Page 2
SURETY
Company: Fidelity and Deposit Company of (Corporate Seal)
Maryland
Signature:
Name and Title: imo y .Blanchard, ttorney-In-Fact
OWNER'S REPRESENTATIVE (Architect, Engineer or other
PAY)
1 The Contractor and the Surety, jointly and severally, bind themselves,
their heirs, executors, administrators, successors and assigns to the Owner for
the performance of the Construction Contract, which is incorporated herein
by reference.
2 If the Contractor performs the Construction Contract, the Surety and the
Contractor shall have no obligation under this Bond, except to participate in
conferences as provided in Subparagraph 3.1.
3 If there is no Owner Default, the Surety's obligation under this Bond
shall arise after:
3.1 The Owner has notified the Contractor and the Surety at its address
described in Pazagraph 10 below that the Owner is considering
declaring a Contractor Default and has requested and attempted to
arrange a conference with the Contractor and the Surety to be held not
later than fifteen days after receipt of such notice to discuss methods of
performing the Construction Contract. If the Owner, the Contractor and
the Surety agree, the Contractor shall be allowed a reasonable time to
perform the Construction Contract, but such an agreement shall
not waive the Owner's right, if any, subsequently to declare a
Contractor Default; and
3.2 The Owner has declared a Contractor Default and formally
terminated the Contractor's right to complete the contract. Such
Contractor Default shall not be declared earlier than twenty days
after the Contractor and the Surety have received notice as
provided in Subparagraph 3.1; and
3.3 The Owner has agreed to pay the Balance of the Contract
Price to the Surety in accordance with the terms of the
Construction Contract or to a contractor selected to perform the
Construction Contract in accordance with the terms of the
contract with the Owner.
4 When the Owner has satisfied the conditions of Paragraph 3, the
Surety shall promptly and at the Surety's expense take one of the
following actions:
SURETY 5026 (6-92)
S-1852/GEEF10/99 Pag@ 1 Of 2
4.1' Arrange for the Contractor, with conse~the Owner, to perform
and complete the Construction Contract; or
4i.2 Undertake to perform and complete the Construction Contract
itself, through its agents or through independent contractors; or
4.3 Obtain bids or negotiated proposals from qualified contractors
acceptable to the Owner for a contract for performance and completion
of the Construction Contract, arrange for a contract to be prepared for
execution by the Owner and the contractor selected with the Owner's
concurrence, to be secured with performance and payment bonds
executed by a qualified surety equivalent to the bonds issued on the
Construction Contract, and pay to the Owner the amount of damages
as described in Pazagraph 6 in excess of the Balance of the Contract
Price incurred by the Owner resulting from the Contractor's default; or
4.4 Waive its right to perform and complete, arrange for completion,
or obtain a new contractor and with reasonable promptness under the
circumstances:
.1 After investigation, determine the amount for which it may
be liable to the Owner and, as soon as practicable after the
amount is determined, tender payment therefor to the
Owner; or
.2 Deny liability in whole or in part and notify the Owner
citing reasons therefor.
5 If the Surety does not proceed as provided in Paragraph 4 with
reasonable promptness, the Surety shall be deemed to be in default on this
Bond fifteen days after receipt of an additional written notice from the
Owner to the Surety demanding that the Surety perform its obligations
under this Bond, and the Owner shall be entitled to enforce any remedy
available to the Owner. If the Surety proceeds as provided in Subparagraph
4.4, and the Owner refuses the payment tendered or the Surety has denied
liability, in whole or in part, without further notice the Owner shall be
entitled to enforce any remedy available to the Owner.
6 After the Owner has terminated the Contractor's right to complete the
Construction Contract, and if the Surety elects to act under Subparagraph
4.1, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner
shall not be greater than those of the Contractor under the Construction
Contract, and the responsibilities of the Owner to the Surety shall not be
greater than those of the Owner under the Construction Contract. To the
limit of the amount of this Bond, but subject to commitment by the Owner
of the Balance of the Contract Price to mitigation of costs and damages on
the Construction Contract, the Surety is obligated without duplication for:
6.1 The responsibilities of the Contractor for correction of defective
work and completion of the Construction Contract;
6.2 Additional legal, design professional and delay costs resulting
from the Contractor's Default, and resulting from the actions or failure
to act of the Surety under Paragraph 4; and
6.3 Liquidated damages, or if no liquidated damages are specified in
the Construction Contract, actual damages caused by delayed
performance or non-performance of the Contractor.
MODIFICATIONS TO THIS BOND ARE AS FOLLOWS:
12.2 Construction Contract: The agreement between the Owner and
the Contractor identified on the signature. page, including all Contract
Documents and changes thereto.
12.3 Contractor Default: Failure of the Contractor, which has neither
been remedied nor waived, to perform or otherwise to comply with
the terms of the Construction Contract.
12.4 Owner Default: Failure of the Owner, which has neither been
remedied nor waived, to pay the Contractor as required by the
Construction Contract or to perform and complete or comply with the
other terms thereof.
(Space is provided below for additional signatures of added parties, other than those appearing on the cover page.)
CONTRACTOR AS PRINCIPAL
Company:
Signature:
Name and Title:
Address:
7 The Surety shall ~e liable to the Owner or others for obligations of
the Contractor that elated to the Construction Contract, and the
Balance of the Contract Price shall not be reduced or set off on account of
any such unrelated obligations. No right of action shall accrue on this Bond
to any person or entity other than the Owner or its heirs, executors,
administrators or successors.
8 The Surety hereby waives notice of any change, including changes of
time, to the Construction Contract or to related subcontracts, purchase
orders and other obligations.
9 Any proceeding, legal or equitable, under this Bond may be instituted
in any court of competent jurisdiction in the location in which the work or
part of the work is located and shall be instituted within two yeazs after
Contractor Default or within two years after the Contractor ceased working
or within two yeazs after the Surety refuses or fails to perform its
obligations under this Bond, whichever occurs first. ff the provisions of this
Paragraph aze void or prohibited by law, the minimum period of limitation
available to sureties as a defense in the jurisdiction of the suit shall be
applicable.
10 Notice to the Surety, the Owner or the Contractor shall be mailed or
delivered to the address shown on the signature page.
11 When this Bond has been furnished to comply with a statutory or other
legal requirement in the location where the construction was to be
performed, any provision in this Bond conflicting with said statutory or
legal requirement shall be deemed deleted herefrom and provisions
conforming to such statutory or other legal requirement shall be deemed
incorporated herein. The intent is that this Bond shall be construed as a
statutory bond and not as a common law bond.
12 DEFINITIONS
12.1 Balance of the Contract Price: The total amount payable by the
Owner to the Contractor under the Construction Contract after all
proper adjustments have been made, including allowance to the
Contractor of any amounts received or to be received by the Owner in
settlement of insurance or other claims for damages to which the
Contractor is entitled, reduced by all valid and proper payments made
to or on behalf of the Contractor under the Construction Contract.
SURETY
(Corporate Seal) Company:
Signature:
Name and Title:
Address:
(Corporate Seal)
S-1852/GEEF 10/99 Page 2 Of 2
1~~~4'7
Power of Attorney
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
HOME OFFICE: P.O. BOX 1227, BALTIMORE, MD 21203-1227
Know ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a
corporation of the State of Maryland, by W. B. WALBRECHER, Vice-President, and T. E. SMITH, Assistant Secretary,
in pursuance of authority granted by Article Vl, Section 2, of the By-Laws of said Company, which are set forth on the
reverse side hereof and are hereby certified to be in full and eff the date hereof, does hereby nominate,
constitute and appoint Barry N. BLANCHARD, San PIER ° sari A. BLANCHARD and Timothy J.
BLANCHARD, all of Grand Junction, Colorado, its tru awful agent and Attorney-in-Fact, to make,
execute, seal and deliver, for, and on its behalf as d as i a d deed: any and all bonds and undertakings
and the execution of such bonds or undertakings ' ce of resents, shall be as binding upon said Company, as
fully and amply, to all intents and purposes, as ' had bee executed and acknowledged by the regularly elected
officers of the Company at its office in Bal ' d., in proper persons. This power of attorney revokes that
issued on behalf of Barry N. BLANC tad r 5, 1993.
The said Assistant Secretary does her rtify th `t~e,"'-extract set forth on the reverse side hereof is a true copy of
Article VI, Section 2, of the By-Laws Compaq is now in force.
IN WITNESS WHEREOF, the
affixed the Corporate Seal of tla(
August, A.D. 1998.
ATTEST: FIDELITY
~~
sue. ,~.
o~
T. E. Smith
State of Maryland ~ ss:
Couuty of Baltimore
Assistant Secretary have hereunto subscribed their names and
DEPOSIT COMPANY OF MARYLAND, this 27th day of
COMPANY OF MARYLAND
By. GtL6~a ~~
Assistant Secretary W. B. Walbrecher Yice-President
On this 27th day of August, A.D. 1998, before the subscriber, a Notary Public of the State of Maryland, duly
commissioned and qualified, came W. B. Walbrecher, Vice-President and T. E. Smith, Assistant Secretary of the
FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to be the individuals and officers
described in and who executed the preceding instrument, and they each acknowledged the execution of the same, and
being by me duly sworn, severally and each for himself deposeth and with, that they are the said officers of the Company
aforesaid, and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said
Corporate Seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the
authority and direction of the said Corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above
written.
U'` y ~y
~~~
Carol J. F Notary Public
My Commissi ~ Expires: August 1, 2000
Lt428-020-5324
