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HomeMy WebLinkAboutC05-108 J.P. Trucking ~~6- I pEr fo 0 AGREEMENT FOR SUPPL YING, LOADING AND HAULING ROAD BASE MATERIALS PROJECT THIS AGREEMENT is dated as of the 04 day of March , 2005,by and between Eagle County, Colorado, a body corporate and politic, acting by and through its Board of County Commissioners (hereinafter called "Owner"), and J. P. TruckinQ, Inc. (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: 2005 SUPPLYING, LOADING AND HAULING ROAD BASE MATERIALS PROJECT AS SPECIFIED IN EXHIBIT "A" which is attached hereto and incorporated by this reference. 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 TIME 3.1 The Work will be completed and ready for final payment in accordance with the Contract Documents on or before JUL Y 30, 2005. 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 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. Agreement Page 1 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 UPON COMPLETION OF EACH AREA AS SPECIFIED IN EXHIBIT "A". 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 a remedy-granting provision in the Agreement. 4.4 The Board of County Commissioners for Eagle County is a governmental entity. All obligations beyond the current fiscal year are subject to funds being budgeted and appropriated. 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 monthly progress payments on account of the Contract Price on the basis of Contractor's Applications for Payments, as provided below. All progress payments will be on the basis of the progress of the Work. 5.1.1 Prior to Completion, progress payments will be in an amount equal to: 0 90% of the Work completed until fifty percent (50%) of the Work is performed, after which no additional retaining shall be withheld, and 0 90% of materials and equipment not incorporated in the Work but delivered and suitably stored, less in each case the aggregate of payments previously made. Agreement Page 2 5.1.2 Progress payments and retained funds shall occur in compliance with Paragraph 19 of the General Conditions attached hereto and C. R.S. 924-91- 103. The Owner shall authorize partial payments of properly requested amounts of at least ninety percent of the calculated value of the work completed until fifty percent of the work required under the Agreement has been performed. Thereafter, the Owner shall authorize partial payments of any other properly requested amounts without retaining additional funds if, in the opinion of the Owner, satisfactory progress is being made in the work. The withheld amounts of the contract price will be retained by the Owner until the contract is completed satisfactorily and accepted by the Owner. 5.2 FINAL PAYMENT: Upon final completion and acceptance in accordance with the General Conditions, Owner shall pay the remainder of the Contract Price. The final payment shall not be made until after final settlement of this contract has been duly advertised at least ten days prior to such final payment by publication of notice thereof at least twice in a public newspaper of general circulation published in Eagle County, and the Board of County Commissioners has held a public hearing, thereupon and complied with the C.R.S. 938-26-107. Final payment shall be made in accordance with the requirements of the aforesaid statute. 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. Agreement Page 3 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. ARTICLE 7 - CONTRACT DOCUMENTS The Contract Documents which comprise the entire Agreement are made a part hereof, 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 inconsistent or contrary provision in any other attachment or agreement. There are no Contract Documents other than those listed above in this 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 deliver 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. Agreement Page 4 ARTICLE 9 - MISCELLANEOUS 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 stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 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 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. 9.6 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 prepaid, or (iii) transmitted by facsimile machine together with a hard copy conveyed by delivery or mail, to the appropriate party at the following addresses: To Contractor: J.P. Trucking, Inc. P. O. Box 854 Avon, CO 81620 Agreement Page 5 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] '.' .. . Agreement Page 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on the date first above written. "Owner": COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BO OF COUNTY "Contractor": By: R.. STATE OF COLORADO ) ) ss: County of Eagle ) On this I b ~dayof (Y1~ , 2005, came before me, a notary public, ,}eSyS l/O^, c- ' known to me to be the V'-L^- of :\. V n~ ct: tV') ~c , who acknowledged to me that he executed the foregoing document, that he executed it in that capacity, and that the same was the act of the entity identified in the document as "Contractor" . My commission expires: '7 --l ! '-f) c, [)~., to ~ Notary Public Agreement Page 7 EXHIBIT" A" Contractor shall supply and deliver %" Road Base (Forest Service Design Mix 12% to 15%) to the following Eagle County Roads: PRICE/TON TOTAL TONS AMOUNT Gypsum Creek Road $ /;).Cfo 7,744:1: $ <1 q 8 q 7 . ~D Begin at mml0 J Derby Mesa Loop $ I 5. 55 9,292:1: $ /:);;) &54, '-10 . From Derby Jet. up Colorado River Road $ 11o.Y5 4,646:1: $ -Ug/-t,J(p. to Begin at HWY 131 Hooks Spur Road $ 1\.15 2,581:1: $ ;;J R /7 7 8 p i 5 Begin at Hooks Lane TOTALS $ 3:J175G. 85 TOTAL CONTRACT $ 3;J 1. 751.c .86 , TOTAL CONTRACT TONS d'-l ;2 (p '3 ~(\5 . Contractor shall complete work with a minimum of 6 each Bottom Dump Trucks and Trailers, all work is to be completed on or before July 30,2005. THE AMERICAN INSTITUTE OF ARCHITECTS AlA Document A310 Bid Bond KNOW ALL MEN BY THESE PRESENTS, that we J.P. Trucking, Inc. P.O. Box 854, Avon, CO 81620 as Principal, hereinafter called the Principal, and Bond Safeguard Insurance Company 1919 S. Highland Ave., Bldg. A, Ste. 300, Lombard,lL 60148 a corporation duly organized under the laws of the State of IL as Surety, hereinafter called the Surety, are held and firmly bound unto Eagle County Road & Bridge P.O. Box 250, Eagle, CO 81631 as Obligee, hereinafter called the Obligee, in the sum of Five Percent of Amount Bid Dollars ($ 5.00% ), 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 2005 Supplying, Loading and Hauling Road Base Materials Project 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 larger 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 23rd day of February, 2005 {J.P. Truckinq, Inc. By: ________ tPrinCiPalJ (Seal) Attest: X~Xl -- ?c ?u7 C:J .11 C; 'C.. (Title) Bond Safeguard Insurance Company B :iL _ i ( . J .. . {" (Surety) (Seal) y ,\ i' ,..1, i i /. ; /1 -~ '" / ',,__ " ,.._1~ "-- --.,,,- ,f' -~~j\; ~ / I ,-:: .<_<(~/' A _ ( 4.,-} _/_~i/<_ _ '. ,y ---;.r=~--,-,~ (Witness) Elke E. Eriksen r1l/)t?1[LI.[ 7? I, i? Ji'.uMufftl-- C!v . (Title) ynthla M. Burnett ,Attorney-in-Fact CONFORMS WITH AlA DOCUMENT A310. BID BOND. AlA'. FEBRUARY 1970 ED. THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NY AVE., NW., WASHINGTON, D.C. 20006 1 POWER OF ATTORNEY AO 00 Bond Safegua:rd INSURANCE COMPANY KNOW ALL MEN BY THESE PRESENTS, that BOND SAFEGUARD INSURANCE COMPANY, an Illinois Corporation with its principal office in Lombard, Illinois, does hereby constitute and appoint: Florietta Acosta, Donald E. Appleby, Gloria C. Blackburn. Cynthia M. Burnett, Dilynn Guern, Pamela J. Hansen, Susan J. lattarulo, Kristen L. McCormick. Kevin W. McMahon, Frank C. Penn. J.R. Richards, Douglas J. Rothey its true and lawful Attorney(s)-In-Fact to make, execute, seal and deliver for, and on its behalf as surety, any and all bonds, undertakings or other writings obligatory in nature of a bond. This authority is made under and by the authority of a resolution which was passed by the Board of Directors of BOND SAFEGUARD INSURANCE COMPANY on the 7th day of November, 2001 as follows: Resolved, that the President of the Company is hereby authorized to appoint and empower any representative of the Company or other person or persons as Attorney-In-Fact to execute on behalf of the Company any bonds, undertakings, policies, contracts of indemnity or other writings obligatory in nature of a bond not to exceed $500,000.00, Five Hundred Thousand Dollars, which the Company might execute through its duly elected officers, and affix the seal of the Company thereto. Any said execution of such documents by an Attorney- In-Fact shall be as binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company. Any Attorney-In-Fact, so appointed, may be removed for good cause and the authority so granted may be revoked as specified in the Power of Attorney. Resolved, that the signature of the President and the seal of the Company may be affixed by facsimile on any power of attorney granted, and the signature of the Vice President, and the seal of the Company may be affixed by facsimile to any certificate of any such power and any such power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certificate so executed and sealed shall, with respect to any bond or undertaking to which it is attached, continue to be valid and binding on the Company. IN WITNESS THEREOF, BOND SAFEGUARD INSURANCE COMPANY has caused this instrument to be signed by its President, and its Corporate Seal to be affixed this 7th day of November, 2001. BOND SAFEGUARD INSURANCE COMPANY BYW~~ David E. Campbell President ACKNOWLEDGEMENT On this 7th day of November, 2001, before me, personally came David E. Campbell to me known, who being duly sworn, did depose and say that he is the President of BOND SAFEGUARD INSURANCE COMPANY, the corporation described in and which executed the above instrument; that he executed said instrument on behalf of the corporation by authority of his office under the By-laws of said corporation. "OFFICIAL SEAL" JANET L. COPPOCK NOTARY PUBLIC, STATE OF ILLINOIS MY COMMISSION EXPIRES 8/14/05 CERTIFICATE I, the undersigned, Secretary of BOND SAFEGUARD INSURANCE COMPANY, An Illinois Insurance Company, DO HEREBY CERTIFY that the original Power of Attorney of which the foregoing is a true and correct copy, is in full force and effect and has not been revoked and the resolutions as set forth are now in force. Signed and Sealed at Lombard, Illinois this 23rd Day of February , 2ci)~ (lJmcdJ BJ ~ Donald D. Buchanan Secretary ROAD & BRIDGE DEPARTMENT GENERAL CONDITIONS 1. 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. 2. If 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 exemption for this project. 3. 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. 4. Before commencing activities, Contractor shall: (1) take field measurements and verify field conditions; (2) carefully compare this and other information known to Contractor with the Agreement; and (3) promptly report errors, inconsistencies or omissions discovered to Owner. 5. Contractor shall supervise and direct the Work, using Contractor's best skill and attention. Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work. 6. Contractor, as soon as practicable, shall furnish in writing to the Owner the names of subcontractors and suppliers for each portion of the Work. 7. 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 or 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 extensions 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. .--. -_._-_..-------- -----..-.._--- --- 8. Contractor shall deliver, handle, store and install materials in accordance with manufacturers' instructions. 9. 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. 10. 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 whose acts the Contractor may be liable. 11. Contractor shall keep the premises/work site and surrounding area free from accumulation of debris and trash related to the Work. 12. 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 by law. Contractor shall also furnish other bonds as are required by the supplementary conditions. All bonds shall be in forms satisfactory to Owner, and be executed by such sureties as (a) 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. 13. 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 festoration of the damaged Work. 14. 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, Of by any subcontractor, or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. All such insurance shall remain in effect until final payment, and at all times thereafter when Contractor may be 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 usual 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. Completed Operations Liability Insurance issued to and covering the liability for damage imposed by law upon the Contractor and each subcontractor arising .----.----,,----" -----...---. between the date of final cessation of the Work, and the date of final acceptance thereof out of that part of the Work performed by each. 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. Builder's Risk Insurance: Insofar as the Work to be performed under this contract consists entirely of new construction removed and separated from any existing facility used by Owner, Contractor shall procure and maintain, for the duration of the Work of this project, Builder's Risk Insurance, including the perils of fire, extended coverage (loss due to vehicles, explosion, wind, flood, riot, etc.), vandalism and malicious mischief, and special extended coverage (loss due to falling objects, collapse, water damage from faulty or leaking systems, etc.) in the full amount of the contract price plus the cost of authorized extras. Said amount of insurance coverage shall be considered to cover the-insurable value of the Work under this contract which is considered not to exceed one hundred percent (100%) of the amount of this contract and authorized extras. Such policy shall not insure any tools or equipment, or temporary structures erected at the site and belonging to any person or persons, or their subcontractors who are obliged by contract with the Owner to do Work on the projects. 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. Insurance covering claims for damages to persons or property shalf 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 may be amended from time-to-time, or (iii) such greater amount(s) as may be required by law. 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 ----"._'~ n ~_'__"'__"'___'.~_'_ 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 canceled 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 obtained and certificates with the proper endorsements 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. 15. 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. 16. 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. 17. 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 butnot 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 use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. "-~' _..---"--.-.._-_...._..~-_. ---.. "--- 18. After execution of the Agreement, changes in the Work may be accomplished by Change Order of 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 may be 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 a written order to the Contractor signed by Owner to change the Work. c. 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. 19. Progress Payments: If the project is subject to progress payments, not more often than once a month, Contractor shall submit to Owner an application for payment filled out and signed by Contractor covering the work completed as of the date of the application, and accompanied by such supporting documentation as Owner may reasonably require. If payment is requested on the basis of materials and equipment not incorporated in the work, but delivered and suitably stored at the site or at another location agreed to in writing, the application for payment shall also be accompanied by such data, satisfactory to Owner, as will establish Owner's title to the material and equipment, and protect Owner's interest therein, including applicable insurance. Each subsequent application for payment shall include an affidavit of Contractor stating that all previous progress payments received on account of the work have been applied to discharge in full all of Contractor's obligations reflected in prior applications for payment The amount of retainage with respect to progress payments will be as stipulated in the Agreement. Owner will, with ten days after receipt of each application for payment, either indicate in writing a recommendation of payment, or return the application to Contractor indicating in writing its reasons for refusing to recommend payment. In the latter case, Contractor may make the necessary corrections and resubmit the application. Owner shall, within twenty days of recommendation of payment, pay Contractor the amount recommended. - '--~-_.,--- -'_.....__.._~.---- 20. Final Payment: Upon written notice from Contractor that the work is complete, Owner will make a final inspection with Contractor, and will notify Contractor in writing of all particulars in which this inspection reveals that the work is incomplete or defective. Contractor shall immediately take such measures as are necessary to remedy such deficiencies. After Contractor has completed all such corrections to the satisfaction of Owner, and delivered all maintenance and operating instructions, schedules, guarantees, bonds, certificates of inspection, marked-up record documents or as-built drawings covering all of the Work, Contractor may make application for final payment following the procedure for progress payments. The final application for payment shall be accompanied by all documentation cal/ed for in the contract documents, and such other data and schedules as Owner may reasonably require, together with complete and legally effective releases or waivers (satisfactory to Owner) of all liens arising out of, or filed in connection with the work. In lieu thereof, and as approved by Owner, Contractor may furnish receipts or releases in full; an affidavit of Contractor that the releases and receipts include aI/labor, services, material, and equipment for which lien could be filed, and that all payrolls, material, and equipment bills, and other indebtedness connected with the work, for which Owner or his property might in any way be responsible, have been paid or otherwise satisfied; and consent of the surety, if any, to final payment. If any subcontractor, manufacturer, fabricator, supplier, or distributor fails to furnish a release or receipt in full, Contractor may furnish a bond or other collateral satisfactory to Owner to indemnify against any lien. 21. Final payment shall not become due until Contractor submits to Owner releases and waivers of liens, and data establishing payment or satisfaction of obligations, such as receipts, claims, security interests or encumbrances arising out of the Work. Final payment is subject to the Final Settlement requirements and time periods set forth in C.R.S. s38-26-107. 22. Contractor warrants and guarantees that title to all work, materials, and equipment covered by any application for payment, whether incorporated in the project or not, will pass to Owner at the time of payment free and clear of all liens, claims, security interests, and encumbrances (in these General Conditions referred to as "Liens"). 23. Contractor's obligations 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 by 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. 24. 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. 25. 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. 26. 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. 27. 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 may be 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 instructions, 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. 28. 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 other remedies, correct such deficiencies. In such case, the Agreement may be terminated by Owner or a Change Order shall be issued deducting the cost of correction from payments due the Contractor. 29. The performance of the Work may be 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 to the best of its ability, do all things necessary, in the light of -_._-,------~. ..'_____._..'u._____ .-.-+ '~--" 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 order 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 subcontracts 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 su bcontracts; 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 deliver to Owner, and transfer title to such property to Owner to the extent not already transferred. In the event of such termination, there shall be an equitable reduction of the Contract Price to reflect the reduction in the Work and no 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. _.~ ..-.--~. ------------.,...---- I:jILJ COMPAKI~UN DESCRIPTION: 2005 SupplyinQ, LoadinQ and HaulinQ Road Base Materials Project OTY\ I MAKE/ leosT 10 MAKE/ VENDOR VENDOR MODEL COST MODEL Western Slope Aggregate J. P. Trucking $327,756.85 no bid Total $327,756.85 *** Low bid per our specs IVENDOR I MAKE/ leosT 10 MAKE/ Ory VENDOR MODEL COST MODEL Gould Construction $328,841.05 GMCO no bid Total $358,841.05 RECOMMENDATION: BID <";Urv1tJAKltiUN DESCRIPTION: 2005 SupplyinQ, LoadinQ and HaulinQ Road Sase Materials Project QTyl 1 MAKEI ICOST 10 MAKE/ VENDOR VENDOR MODEL COST MODEL E&M Leasing G. P. Meenach no bid no bid *** Low bid per our specs IVENDOR I MAKE! ICOST 10 MAKEI QTY VENDOR MODEL COST MODEL Knupp,LLC B & B Excavating $350,837.51 no bid Total $350,837.51 RECOMMENDATION: THE AMERICAN INSTITUTE OF ARCHITECTS . Bond No.5005062 A/A Document A372 Performance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY (Name and Principal Place of Business): J.P. Trucking, Inc. Bond Safeguard Insurance Company P.O. Box 854 1919 S. Highland Ave., Bldg. A, Ste. 300 Avon, CO 81620 Lombard, IL 60148 OWNER (Name and Address): Eagle County, Colorado a body corporate and politic acting by and through its Board of County Commissioners P.O. Box 250 Eagle, CO 81631 CONSTRUCTION CONTRACT Date: March 4, 2005 Amount: ($ 327,756.85 ) Three Hundred Twenty Seven Thousand Seven Hundred Fifty Six Dollars and 85/100 Description (Name and Location): 2005 Supplying, Loading and Hauling Road Base Materials Project as Specified in Exhibit "A" BOND Date (Not earlier than Construction Contract Date): March 22, 2005 Amount: ($327,756.85 ) Three Hundred Twenty Seven Thousand Seven Hundred Fifty Six Dollars and 85/100 Modifications to this Bond: KJ None o See Page 3 CONTRACTOR AS PRINCIPAL CQmpany: (Corporate Seal) (Corporate Seal) J.P. Trucking, Signature: Name and (Any additional signatures appear on page 3) (fOR INFORMATION ONL Y-Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or HRH of Colorado other party): 720 S. Colorado Blvd., North Penthouse Denver, CO 80246 303-722-7776 , AlA DOCUMENT A312 . PERFORMANCE BOND AND PAYMENT BOND, DECEMBER 1984 ED. . AlA @ THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 1 THIRD PRINTING' MARCH 1987 1 The Contractor and the Surety, jointly and severally, which it be liable to the Ovmer and, as bind themselves, their heirs, executors, administrators, soon as practicable alter the amount is deter- successors and assigns to the Owner for the performance mined, tender payment therefor to the of the Construction Contract, which is incorporated herein Ovvner; or by reference. .2 Deny liability in whole or in part and notify the 2 If the Contractor performs the Construction Contract, Owner citing reasons therefor. the Surety and the Contractor shall have no obligation 5 If the Surety does not proceed as provided in Paragraph under this Bond, except to participate in conferences as provided in Subparagraph 3.1_ 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an 3 If there is no Owner Default, the Surety's obligation additional written notice from the Owner to the Surety under this Bond shall arise after: demanding that the Surety perform its obligations under 3.1 The Owner has notified the Contractor and the this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. It the Surety proceeds as Surety at its address described in Paragraph 10 below provided in Subparagraph 4.4, and the Owner refuses the that the Owner is considering declaring a Contractor payment tendered or the Surety has denied liability, in Default and has requested and attempted to arrange a whole or in part, without further notice the Owner shall be conference with the Contractor and the Surety to be entitled to enforce any remedy available to the O\'\'ner_ held not later than fifteen days after receipt of such notice to discuss methods of performing the Construc- 6 After the Ovmer has terminated the Contractor's right tion Contract. If the Owner, the Contractor and the to complete the Construction Contract, and ii the Surety Surety agree, the Contractor shall be allowed a reason- elects to act under Subparagraph 4.1, 4.2, or 4.3 above, able time to perform the Construction Contract, but then the responsibilities of the Surety to the Owner shall such an agreement shall not '..vaive the Owner's right, if not be greater than those of the Contractor under the any, subsequently to declare a Contractor Default; and Construction Contract, and the responsibilities of the 3.2 The Owner has declared a Contractor Default and Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the formally terminated the Contractor's right to complete amount of this Bond, but subject to commitment by the the contract. Such Contractor Default shall not be de- Owner of the Balance of the Contract Price to mitigation of elared earlier than twenty days after the Contractor and costs and damages on the Construction Contract, the Su re- the Surety have received notice as provided in Sub- ty is obligated without duplication for: paragraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the 6.1 The responsibilities of the Contractor for correc- tion of defective work and completion of the Construe. Contract Price to the Surety in accordance with the tion Contract; terms of the Construction Contract or to a contractor selected to perform the Construction Contract in aecor- 6.2 Additional legal, design professional and delay dance with the terms of the contract with the Owner. costs resulting from the Contractor's Default, and re- 4 When the Owner has satisfied the conditions of Para- sulting from the actions or failure to act of the Surety graph 3, the Surety shall promptly and at the Surety's ex- under Paragraph 4; and pense take one of the following actions: 6.3 liquidated damages, or if no liquidated damages 4.1 Arrange for the Contractor, with consent of the are specified in the Construction Contract, actual dam- ages caused by delayed performance or non-perfor- Owner, to perform and complete the Construction mance of the Contractor. Contract; or 4.2 Undertake to perform and complete the Construc- 7 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Con- tion Contract itself, through its agents Of through inde- struction Contract, and the Balance of the Contract Price pendent contractors; or shall not be reduced or set off on account of any such 4.3 Obtain bids or negotiated proposals from unrelated obligations. No right of action shall accrue on qualified contractors acceptable to the Owner for a this Bond to any person or entity other than the Owner or contract for performance and completion of the Con- its heirs, executors, administrators or successors. struction Contract, arrange for a contract to be pre- S The Surety hereby waives notice of any change, includ- pared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured iog changes of time. to the Construction Contract or to with performance and payment bonds executed by a related subcontracts, purchase orders and other obliga- qualified surety equivalent to the bonds issued on the tions. Construction Contract, and pay to the Owner the 9 Any proceeding, legal or equitable, under this Bond amount of damages as described in Paragraph 6 in ex. may be instituted in any court of competent jurisdiction in cess of the Balance of the Contract Price incurred by the the location in v\'hicl1 the work or parI of the \\'ork is located Owner resulting from the Contractor's default; or and shall be instituted vvithin two years after Contractor 4.4 Waive its right to perform and complete, arrange Default or within two years after the Contractor ceased for completion. or obtain a new contractor and with working orvvithin two years after the Surety refuses or fails reasonable promptness under the circumstances: to perform its obligations under this Bond, whichever oc- curs first. If the provisions of this Paragraph are void or .1 After investigation. determine the amount for prohibited by law, the minimum period of limitation avail- AlA DOCUMENT A312 . PERFORMANCE BOND AND PAYMENT BOND. DECEMBER 1984 ED_ . AlA ,~ THE AMERICAN INSTITUTE OF ARCHlTECTS. 1i3S NEW YORK AVE.. N.W.. WASHINGTON. D.C. 2000& A312-1984 2 THIRD PRINTING' MARCH 1987 able to sureties as a defense in the jurisdiction of the suit tractor of any amounts received or to be received by shall be applicable. the Owner in settlement of insurance or other claims 10 Notice to the Surety, the Owner or the Contractor shall for damages to which the Contractor is entitled, re- duced by all valid and proper payments made to or on be mailed or delivered to the address shown on the sig- behalf of the Contractor under the Construction Con- nature page. tract. 11 When this Bond has been furnished to comply with a 12.2 Construction Contract: The agreement between statutory or other legal requirement in the location where the Owner and the Contractor identified on the sig- the construction was to be performed, any provision in this nature page, including all Contract Documents and Bond conflicting with said statutory or legal requirement changes thereto. shall be deemed deleted herefrom and provisions con- forming to such statutory or other legal requirement shall 12.3 Contractor Default: Failure of the Contractor, be deemed incorporated herein. The intent is that this which has neither been remedied nor waived, to per- Bond shall be construed as a statutory bond and not as a form or otherwise to comply with the terms of the common law bond. Construction Contract. 12 DEFINITIONS 12.4 Owner Default: Failure of the Owner, which has 12.1 Balance of the Contract Price: The total amount neither been remedied nor waived, to pay the Con- tractor as required by the Construction Contract or to payable by the Owner to the Contractor under the perform and complete or comply with the other terms Construction Contract after all proper adjustments thereof. have been made, including allowance to the Con- MODIFICATIONS TO THIS BOND ARE AS FOllOWS: (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature: Name and Title: Name and Title: Address: Address: AlA DOCUMENT A312 . PERFORMANCE BOND ANa PAYt"lENT BOND' DECEMBER 1934 ED. . AlA JJ; 3 THEM.1ERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C 20006 A312.1984 THIRD PRINTING' MARCH 1987 THE AMERICAN INSTITUTE OF ARCHITECTS . Bond No. 5005062 AlA Document A312 Payment Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY (Name and Principal Place of Business): J.P. Trucking, Inc. Bond Safeguard Insurance Company P.O. Box 854 1919 S. Highland Ave., Bldg. A, Ste. 300 Avon, CO 81620 Lombard,lL 60148 OWNER (Name and Address): Eagle County, Colorado a body corporate and politic acting by and through its Board of County Commissioners P.O. Box 250 Eagle, CO 81631 CONSTRUCTION CONTRACT Date: March 4, 2005 Amount: ($327,756.85 ) Three Hundred Twenty Seven Thousand Seven Hundred Fifty Six Dollars and 85/100 Description (Name and location): 2005 Supplying, Loading and Hauling Road Base Materials Project as Specified in Exhibit "A" BOND Date (Not earlier than Construction Contract Date): March 22, 2005 Amount: .($ 327,756.85 ) Three Hundred Twenty Seven Thousand Seven Hundred Fifty Six Dollars and 85/100 Modifications to this Bond: KJ None o See Page 6 CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) (Corporate Seal) J.P. Trucking, Inc. Signature: Name and Title: (Any additional signatures appear on page 6) (FOR INFORMATfON ONLY-Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or HRH of Colorado other party): 720 S. Colorado Blvd., North Penthouse Denver, CO 80246 303-722-7776 , AlA DOCUMENT A312 . PERFORMANCE BONO AND PAYMENT BONO. DECEMBER 1984 ED. . AlA @ THE AMERICAN INSTITUTE OF ARCHlTEDS. 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 4 THIRO PRINTING. MARCH 1967 1 The Contractor and the Surety, jointly and severally, 6 When the Claimant has satisfied the conditions of bind themselves, their heirs, executors, administrators, Paragraph 4, the Surety shall promptly and at the successors and assigns to the Owner to pay for labor, Surety's expense take the following actions: materials and equipment furnished for use in the perfor- 6.1 Send an answer to the Claimant, with a copy to mance of the Construction Contract, which is incorpo- rated herein by reference. the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis 2 With respect to the Owner, this obligation shall be for challenging any amounts that are disputed. null and void if the Contractor: 6.2 Payor arrange for payment of any undisputed 2.1 Promptly makes payment, directly or indirectly, amounts. for all sums due Claimants, and 7 The Surety's total obligation shall not exceed the 2.2 Defends, indemnifies and holds harmless the amount of this Bond, and the amount of this Bond shall be Owner from claims, demands, liens or suits by any credited for any payments made in good faith by the Surety. person or entity whose claim, demand, lien or suit is for the payment for labor, materials or equipment fur- 8 Amounts owed by the Ovmer to the Contractor under nished for use in the performance of the Construction the Construction Contract shall be used for the perfor- Contract, provided the Owner has promptly notified mance of the Construction Contract and to satisfy claims, the Contractor and the Surety (at the address if any, under any Construction Performance Bond. By described in Paragraph 12) of any claims, demands, the Contractor furnishing and the Owner accepting this liens or suits and tendered defense of such claims, Bond, they agree that all funds earned by the Contractor demands, liens or suits to the Contractor and the in the performance of the Construction Contract are Surety, and provided there is no Owner Default. dedicated to satisfy obligations of the Contractor and 3 With respect to Claimants, this obligation shall be the Surety under this Bond, subject to the Owner's prior- ity to use the funds for the completion of the work. null and void if the Contractor promptly makes pay- ment, directly or indirectly, for all sums due. 9 The Surety shall not be liable to the Owner, Claimants 4 The Surety shall have no obligation to Claimants or others for obligations of the Contractor that are unrelat- under this Bond until: ed to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claim- 4.1 Claimants who are employed by or have a direct ant under this Bond, and shall have under this Bond no obi i- contract with the Contractor have given notice to the gations to make payments to, give notices on behalf of, or Surety (at the address described in Paragraph 12) and othelWise have obligations to Claimants under this Bond. sent a copy, or notice thereof. to the Owner, stating that a claim is being made under this Bond and, with 10 The Surety hereby waives notice of any change, substantial accuracy, the amount of the claim. including changes of time, to the Construction Contract 4.2 Claimants who do not have a direct contract or to related subcontracts, purchase orders and other with the Contractor: obligations. .1 Have furnished written notice to the Con- 11 No suit or action shall be commenced by a Claimant tractor and sent a copy, or notice thereof, to under this Bond other than in a court of competent juris- the Owner, within 90 days after having last diction in the location in which the work or part of the performed labor or last furnished materials or work is located or after the expiration of one year from the equipment included in the claim stating. with date (1) on which the Claimant gave the notice required by substantial accuracy, the amount of the claim Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last and the name of the party to whom the labor or service was performed by anyone or the last mate- materials were furnished or supplied or for rials or equipment were furnished by anyone under the Con- vvhom the labor was done or performed; and struction Contract, whichever of (1) or (2) first occurs. If the .2 Have either received a rejection in whole or provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a in part from the Contractor, or not received defense in the jurisdiction of the suit shall be applicable. within 30 days of furnishing the above no- tice any communication from the Contractor 12 Notice to the Surety, the Owner or the Contractor by which the Contractor has indicated the claim will be paid directly or indirectly; and shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the .3 Not having been paid within the above 30 Owner or the Contractor, however accomplished, shall days, have sent a written notice to the Surety be sufficient compliance as of the date received at the (at the address described in Paragraph 12) and address shown on the signature page. sent a copy, or notice thereof. to the Owner, stating that a claim is being made under this 13 When this Bond has been furnished to comply with a Bond and enclosing a copy of the previous statutory or other legal requirement in the location \'\'here written notice furnished to the Contractor. the construction was to be performed, any provision in this 5 If a notice required by Paragraph 4 is given by the Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions con. Owner to the Contractor or to the Surety. that is suffi- forming to such statutory or other legal requirement shall dent compliance. be deemed incorporated herein. The intent is that this AlA DOCUMENT A312' PERFORMANCE BONO AND PAYI'1ENT BOND' DECEMBER 1934 ED.' AlA'" THE AMERICAN INSTITUTE OF ARCHITECTS. 1735 NEW YORK AVE.. NW. WASHINGTCN. D.C. 20006 A312-1984 5 THIRD PRINTINC . MARCH 1987 Bond shall be construed as a statutb. t bond and not as a Construction architectural and engineering common law bond. services required for performance of the work of the 14 Upon request by any person or entity appearing to be a Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be potential beneficiary of this Bond, the Contractor shall asserted in the jurisdiction where the labor, materials promptly furnish a copy of this Bond or shall permit a copy or equipment were furnished. to be made. 15 DEflNfTlONS 15.2 Construction Contract: The agreement between the Owner and the Contractor identified on the sig- 15.1 Claimant: An individual or entity having a direct nature page, including all Contract Documents and contract with the Contractor or with a subcontractor of changes thereto. the Contractor to furnish labor, materials or equip- 15.3 Owner Default: Failure of the Owner, which has ment for use in the performance of the Contract. The neither been remedied nor waived, to pay the Con- intent of this Bond shall be to include without limita- traclor as required by the Construction Contract or to tion in the terms "labor, materials or equipment" that perform and complete or comply with the other terms part of water, gas, power, light, heat, oil, gasoline, thereof. telephone service or rental equipment used in the MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature: Name and Title: Name and Title: Address: Address: AlA DOCUMENT A312 . PERFORMANCE BONO AND PAYMENT BOND. DECEMBER 1984 ED. . AlA @ THE AMERICAN INSTITUTE Of ARCHITECTS. 1735 NEW YORK AVE., N.W.. W.-\SH1NGTON, D.C. 20006 A312-1984 6 THIRD PRINTING' MARCH 1987 POWER OF ATTORNEY AO 010 Bond Safeguard INSURANCE COMPANY KNOW ALL MEN BY THESE PRESENTS, that BONO SAFEGUARD INSURANCE COMPANY, an Illinois Corporation with its principal office in Lombard, Illinois, does hereby constitute and appoint: Florietta Acosta, Donald E. Applebv. Gloria C. Blackburn. Cynthia M. Burnett, DiLyOD Guem, Pamela J. Hansen, Susan J. Lattarulo. Kristen L. McCormick, Kevin W. McMahon. Frank C. Penn, J.R. Richards, Douglas J. Rothey its true and lawful Attorney(s)-In-Fact to make, execute, seal and deliver for, and on its behalf as surety, any and all bonds, undertakings or other writings obligatory in nature of a bond. This authority is made under and by the authority of a resolution which was passed by the Board of Directors of BONO SAFEGUARD INSURANCE COMPANY on the 7th day of November, 2001 as follows: Resolved, that the President of the Company is hereby authorized to appoint and empower any representative of the Company or other person or persons as Attorney-In-Fact to execute on behalf of the Company any bonds, undertakings, policies, contracts of indemnity or other writings obligatory in nature of a bond not to exceed $500,000.00, Five Hundred Thousand Dollars, which the Company might execute through its duly elected officers, and affix the seal of the Company thereto. Any said execution of such documents by an Attorney- In-Fact shall be as binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company. Any Attorney-In-Fact, so appointed, may be removed for good cause and the authority so granted rnay be revoked as specified in the Power of Attorney. Resolved, that the signature of the President and the seal of the Company may be affixed by facsimile on any power of attorney granted, and the signature of the Vice President, and the seal of the Company may be affixed by facsimile to any certificate of any such power and any such power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certificate so executed and sealed shall, with respect to any bond or undertaking to which it is attached, continue to be valid and binding on the Company. IN WITNESS THEREOF, BONO SAFEGUARD INSURANCE COMPANY has caused this instrument to be signed by its President, and its Corporate Seal to be affixed this 7th day of November, 2001. BOND SAFEGUARD INSURANCE COMPANY BYW~ David E. Campbell President ACKNOWLEDGEMENT On this 7th day of November, 2001, before me, personally came David E. Campbell to me known, who being duly sworn, did depose and say that he is the President of BONO SAFEGUARD INSURANCE COMPANY, the corporation described in and which executed the above instrument; that he executed said instrument on behalf of the corporation by authority of his office under the By-laws of said corporation. "OFFICIAL SEAL" JANET L. COPPOCK NOTARY PUBLIC, STATE OF ILLINOIS MY COMMISSION EXPIRES 8114105 CERTIFICATE I, the undersigned, Secretary of BONO SAFEGUARD INSURANCE COMPANY, An Illinois Insurance Company, DO HEREBY CERTIFY that the original Power of Attorney of which the foregoing is a true and correct copy, is in full force and effect and has not been revoked and the resolutions as set forth are now in force. Signed and Sealed at Lombard, Illinois this 22nd Day of March ,20~ (iJmdJ 0, ~ Donald D. Buchanan Secretary