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HomeMy WebLinkAboutC06-196 AGREEMENT FOR GUARDRAIL PROJECT THIS AGREEMENT is dated as of the 26th day of April , 2006,by and between Eagle County, Colorado, a body corporate and politic, acting by and through its Board of County Commissioners (hereinafter called "Owner"), and Adarand Constructors, 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: 2006 GUARDRAIL 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 October 15, 2006. 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 S24-91-103.6, 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 Agreernent, 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 payment 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. S24-91- 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. S38-26-107. 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: Adarand Constructors, Inc. 2720 E. Las Vegas Street, Suite 200 Colorado Springs, CO 80906 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 ATTEST BOARD OF COUNTY COMMISSIONERS By: Clerk of the Boar of County Commissioners "Contractor": Adarand Constructors, Inc STATE OF COLORADO ) ss: County of ~cl ) On this /tJ g.. day of t!f~ ' 2006, came before me, a notary public, /l.A?t~.4? ~ known to me to be the of jJre,,/?, ~ fI./ ,A!pA?JJ(}-;;1'!.I',':::' , who acknowledged to me that he executed tfle 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: Agreement Page 7 EXHIBIT A EAGLE COUNTY 2006 GUARDRAIL PROJECT PROJECT #1 Pg.1 location Description QTY Unit Unit price Amount Sweetwater . R d ( t New construction of Type 3 1,600 LF :iI? . f! (i 1: ' -'e oa coun Y d '/ t., k 4 road # 40 guar rar a mr e mar er . .1t; /5' C.tl.l/ Ne~~~ .j gu a r .2 0 Type 3-E end anchorage 2X each ,. &'.>-.S-_ tit) Traffic control 1 lump J &'3 ?t .Vl7 1 (; j?{C'C sum ' / TOTAL COST 1J~t 9'f/.OC! PROJECT #2 location Description QTY Unit Unit price Amount West Squaw ! cre~ad ew 10~~tenr: (cou ad rd a m rker 1, ~. 00 #23A Type 3-E end anchorage .,vt7 Traffic control lump sum TOTAL COST j r. PROJECT #3 Pg.2 Location Description QTY Unit Unit price Amount Colorado River New construction of Type 3 j Road (county guard rail at mile marker 850 LF /1. lcS f/ 12.5 (remove end anchorage I ~ IE t.:< pr-( road #301) and add on to existing) New construction of Type 3 j ~ 3?S': t{' guard rail at mile marker 875 LF l?lG 18.5 New construction of Type 3 1. t guard rail at mile marker 750 LF 13.2-> -' q 9.? 2,'>-(: 21.5 ;/ N~tr of ':uM' E , t gu d m e ma1t:t \ -. I"'> .. v"'" (J /> .L> r v'" 26. Type 3-E end anchorage 6 each .{ & ?2~C:P .J 't (52. Of) Traffic control 1 lump It ~~.(;(i i sum b;ss"'2. CT TOTAL COST f;.>~ l;iLf, VI) PROJECT #4 Location Description QTY Unit Unit price Amount Trough Road New construction of Type 3 -I , (county road guard rail at mile marker 4.5 900 LF /? . C'() 1& ,) tl).,i~i) #11 ) Type 3-E end anchorage 2 each i tkS~CO ! 1,5J6', CV Traffic control 1 lump j .? eee" c () .$ ,~ ? CCCJ:t.. sum / ' / TOTAL COST I II: Ole: Ct / PROJECT #5 Pg.3 Location Description QTY Unit Unit price Amount WestLake !J $ J.. /,' - C C Creek Road @ Replace post 1 Each ;JJ;l.. c i yt .. .5 mile marker Traffic control 1 lump 1/ 91t', 0(: .$ '// t' . () C'. sum TOTAL COST ., I)tt) " t' p PROJECT #6 Location Description QTY Unit Unit price Amount Polar Star Road @ ~:St.f'.f)Cf j /; (j'f - t't intersection Replace end pieces 2 Each with W. Lake Cr. Rd. Traffic control 1 lump .1 toil. co $,r;'I_cP sum TOTAL COST ,$ I. 29%. C(J '/ PROJECT #7 Location Description QTY Unit Unit price Amount Miller Ranch Road at 1:2. qs;-. c>c ,$2-q!:? to intersection Replace post 1 Each with Winslow Road Replace rail section 1 i .3:J.h. CC f s.2 ~ . C 0 Traffic control 1 lump ~ 'S if. Co j ~]9.tC sum TOTAL COST il .s5"'~ttj I PROJECT #8 Pg. 4 Location Description QTY Unit Unit price Amount Upper Cattle .19>-';\ cc Creek Rd @ Replace posts 3 Each l2~'~CC .75 mile marker Replace rail section 2 Each I.?Sl'C [ 11)[[, C C; T raffle control 1 lump 1 i tlC.tc 1; sum ~ Cst.. te: TOTAL COST If 2- CI.5>-.~ CC "/ PROJECT #9 Location Description QTY Unit Unit price Amount Colorado River Road at approx Replace end piece 1 Each i 2&1; .Cf) .$ 15.5 mile 2$t ./,")1} marker Traffic control 1 lump .:J ~i,CC '!(~tj; lit? sum 2> TOTAL COST ~ .~W to TOTAL FOR ALL WORK /I> I%~ ,/ Note: some of the above projects may be deleted :$ 95- I) If 7. &0 ./ 4f.r~r c1l~/~ /r Or'? >. s-- 9 ~oG ~ 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, quality, 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 restoration 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, or 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 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 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 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 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 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 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 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 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, within 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. Defects are those identified by an Eagle County Official(s) and shall be judged on quality by that Official(s). 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 called 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 all 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 Owner 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 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 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; defects are those identified by an Eagle County Official(s) and shall be judged on quality by that Official(s) 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 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 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 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 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. \rd&brdge.gc BID BOND Conforms with The American Institute of Architects, A.LA. Document No. A-310 KNOW ALL BY THESE PRESENTS, That we, ADARAND CONSTRUCTORS, INC. 2720 E. Las Veqas St., Suite 200 , Colorado Sprinqs, CO 80906 as Principal, hereinafter called the Principal, and the First National Insurance Company of America of Safeco Plaza, Seattle, WA 98185 , a corporation duly organized under the laws of the State of Washington , as Surety, hereinafter called the Surety, are held and firmly bound unto Eagle County as Obligee, hereinafter called the Obligee, in the sum of --5% of total bid amount - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dollars ($ --5% of total 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 2006 Guardrail 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 tenns 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 tlle 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 17th day of April 2006 , Adarand Constructors, Inc. 2720 E. Las Vegas, Suite 200 Cola Spgs, Co (Seal) { Principal Witness Title C~ I I c, I "'."... \ \ '''p~/~ \.vll~~\h{l ~ ( First Nationallnsura of America __{t){)U~n,-/, { By Samantha Coplan Witness Attorney-in-Fact S-0054/GEEF 12/00 ~---- FRP ~ S A F E C 00 POWER FIRST NATIONAL INSURANCE COMPANY OF AMERICA OF ATTORNEY PO BOX 34526 FIRST NATIONAL SURETY SEATTLE, WA 98124.1526 PO BOX 34526 SEATTLE. WA 98124-1526 No. KNOW ALL BY THESE PRESENTS: That FIRST NATIONAL INSURANCE COMPANY OF AMERICA, a Washington corporation, does hereby appoint *************************************THOtv1AS \V, TITSWORTH: SAtv1ANTHA COPLAN: Colorado Springs. Colorado************************************** its true and lawful attorney(s)-in.fact, with full authority to execute on behalf of the company fidelity and surety bonds or undertakings and other documents of a similar character issued by the company in the course of its business, and to bind FIRST NATIONAL INSURANCE COMPANY OF AMERICA thereby as fully as if such instruments had been duly executed by its regularly elected officers at its home office. IN WITNESS WHEREOF, FIRST NATIONAL INSURANCE COMPANY OF AMERICA has executed and attested these presents this 1 sl day of 2003 jl;k fA '-~\ U-<- CHRISTINE MEAD, SECRETARY MIKE MCGAVICK, PRESIDENT CERTIFICATE Extract from the By-Laws of FIRST NATIONAL INSURANCE COMPANY OF AMERICA: "Article V, Section 13. - FIDELITY AND SURETY BONDS ... the President, any Vice President, the Secretary, and any Assistant Vice President appointed for that purpose by the officer in charge of surety operations, shall each have authOrity to appoint individuals as attorneys-in-fact or under other appropriate titles with authority to execute on behalf of the company fidelity and surety bonds and other documents of similar character issued by the company in the course of its business... On any instrument making or evidencing such appointment, the signatures may be affixed by facsimile. On any instrument conferring such authority or on any bond or undertaking of the company, the seal, or a facsimile thereof, may be impressed or affixed or in any other manner reproduced; provided, however, that the seal shall not be necessary to the validity of any such instrument or undertaking." Extract from a Resolution of the Board of Directors of FIRST NATIONAL INSURANCE COMPANY OF AMERICA adopted July 28,1970. "On any certificate executed by the Secretary or an assistant secretary of the Company setting out, (i) The provisions of Article V, Section 13 of the By-Laws, and (ii) A copy of the power-of-attorney appointment, executed pursuant thereto, and (Hi) Certifying that said power-of-attorney appointment is in full force and effect, the signature of the certifying officer may be by facsimile, and the seal of the Company may be a facsimile thereof." I, Christine Mead, Secretary of FIRST NATIONAL INSURANCE COMPANY OF AMERICA, do hereby certify that the foregoing extracts of the By-Laws and of a Resolution of the Board of Directors of this corporation, and of a Power of Attorney issued pursuant thereto, are true and correct. and that both the By-Laws, the Resolution and the Power of Attorney are still in full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the facsimile seal of said corporation this 17th day of Apri 1 2006 CHRISTINE MEAD, SECRETARY S-1049/FNEF 7/98 @ A registered trademark of SAFECO Corporation 08/01/2003 PDF BID COMPAKI~UN DESCRIPTION: 2006 Guardrail Project IVENDOR I MAKE/ ICOST 10 MAKE/ aTY VENDOR MODEL COST MODEL Gonzales Construcion $165,085.00 Adarand $131,533.00 *** Low Bid Per Our Specs IVENDOR I MAKE/ ICOST 10 MAKE/ QTY VENDOR MODEL COST MODEL United Rentals $134,887.50 Cruz Construction $148,354.38 RECOMMENDATION: tjlU CUrv1~JAKI~UN Page 2 DESCRIPTION: 2006 Guardrail Project IVENDOR I MAKE! ICOST 10 MAKE! OTY VENDOR MODEL COST MODEL Ideal Fencing $136,612.50 IVENDOR I MAKE! ICOST 10 MAKE! OTY VENDOR MODEL COST MODEL RECOMMENDATION: ACORD", CERTIFICA T.... OF LIABILITY INSURA~~'~E I DATE 05/09/2006 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Twin T Insurance Agency HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR P.O. Box 700 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE Colorado Springs CO 90901- INSURED INSURER A: Zurich Cormnercial Group NArC U6535 Adarand Constructors, Inc. INSURER B: 2720 E. Las Vegas, Suite 200 INSURER C: INSURER D: Co~orado Springs CO 80906- INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLlCY PERIOD INDICATED. NOTWlTHSTANDINGANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERllFICA TE MAY BE ISSUED OR MAY PERTA/N, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT To ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, AGGREGATE LIMITS SHO\II.N MAY HAVE BEEN REDUCED BY PAID CLAIMS. IN~: TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE Pg~lf:(~:bR~tgN LiMns OA TE IMMJDOfYY\ A GENERAL LIABILITY / / / / EACH OCCURRENCE ~ 1,000,000 f-- X nMMERCIAL GENERAL LIABILITY FIRE DAMAGE (Anyone fire) $ 300,000 f-- CLAIMS MADE [i] OCCUR CPO 3757778 03/01/2006 03/01/2007 MEO EXP (Anyone person) $ 10,000 - r---' X ContractualL1ability PERSONAL & ADV INJURY $ 1,000,000 - / / / / - GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREG'" TE LIMIT APPLIES PER PRODUCTS. COMP/OP AGG $ 2,000,000 'I fXl PRO. n I / / I POLICY X JECT LOC A -AUTOMOBILE UABlllTY I I / / COMBINED SINGLE LIMIT ~ ANY AUTO (Ea accident) S 1,000,000 ALL O'MlED AUTOS CPO 3757778 03/01/2006 03/01/2007 - BODIL Y INJURY - SCHEDULED AUTOS 'Per peroor.) . X HIRED AUTOS / / / / 80DIL Y INJURY - ~ NON.0'M'ED AUTOS {Pet accident] $ - / / / / PROPERTY DAMAGE (Per accident) $ ~RAGE LIABILITY AUTO ONLY. EA ACCIDENT S ANY AUTO / I I / OTHER THAN EA ACC $ AUTO ONl y, AGG S A EXCESS LIABILITY AUC 3757779 03/01/2006 03/01/2007 EACH OCCURRENCE . 4,000,000 i)-OCCUR 0 CLAIMS MADE AGGREGATE S 4,000,000 $ R DEDUCTIBLE / / / / $ RETENTION $ . WORKERS COMPENSATION AND PROVIDED ELSEWHERE I I / / I _~,STATU.: I 10TH. EMPLOYERS' UASIUTY TORY liMITS ER EL EACH ACCIDENT $ / / / / EL DISEASE. EA EMPLOYEE $ -- E.L. DISEASE. POLICY LIMIT $ OTHER / / I J DESCRIPTION OF OPERATlONSJLOCA TIONSlVEHICLESJEXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVlSIONS Re: 2006 Eagle county Guardrail Installation. Eagle County is named as additional insured in respects to this project. Adarand Job # 07111 CERTIFICATE HOLDER I X I ADDlnONAlINSUREO; INSURER LETTER: CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE 'THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIF1CATE HOLDER IIIAMED TO THE lEFT, BUT Eagle County FAILURE: TO 00 SO SHALL IMPOSE NO OBUGATION OR LIABILITY OF ANY KIND UPON THE PO Box 250 INSURER ITS AGENTS OR REPRESENTATIVES. AUTHOR1ZEDR~~/ ~~ .__" Eagle CO 81631- .. J /././ X"./Y ACORD 25-S (7/97) .C:~-r~~ ~ ~~ ACORD CORPORA TION 1999 - ~ "'; INS026S (9910) 01 ELECTRONIC LASER FORMS, /NC . BOO):>27.0545 Page 1 01 2 I . d d I I : EO 90 or hew ACORDm CERTIFICAl OF LIABILITY INSURAI'fPE OP 10 D~ DATE (MMfDD~ ADARA31 05/10/06 PRODUCER THIS CERTIFICATE ISt;:;SUED AS A MATIER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Network Insurance Services,LLC HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 7395 E Orchard Rd-Ste A400 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. ~ Greenwood Village CO 80111 Phone:303~708-9999 Fax:303-708-0202 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURER A: Pinnacol Assurance of CO INSURER B: Adarand Constructors, Inc. INSURER C: 2720 E. Las Vegas Street #200 INSURER 0: Colorado Springs CO 80906 INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTR NSRt TYPE OF INSURANCE POLICY NUMBER ~qL!~TI Et;!;ifM)E I P9L!p...YlfXPIR~N LIMITS DATE MMlDD DATE MMlDD GENERAL LIABILITY EACH OCCURRENCE $ - PREMlS'Es '(E~~~~nCe) COMMERCIAL GENERAL LIABILITY $ I CLAIMS MADE 0 OCCUR MED EXP (Anyone person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ I POLICY n f~8r n LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT - (Ea accident) $ ANY AUTO - ALL OWNED AUTOS BODILY INJURY - (Per person) $ SCHEDULED AUTOS I-- HIRED AUTOS BODILY INJURY I---- (Per accident) $ I NON-OWNED AUTOS I---- I---- PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ =l ANY AUTO OTHER THAN EA ACC $ ! AUTO ONLY: AGG $ EXCESSlUMBRELLA LIABILITY EACH OCCURRENCE $ =:J OCCUR o CLAIMS MADE AGGREGATE $ $ =1 DEDUCTIBLE $ RETENTION $ $ WORKERS COMPENSATION AND X ITORY LIMITS I IUJ~- A EMPLOYERS' LIABILITY 4067429 04/01/06 04/01/07 $ 500000 ANY PROPRIETORlPARTNERJEXECUTIVE El. EACH ACCIDENT OFFICERlMEMBER EXCLUDED? El. DISEASE - EA EMPLOYEE $ 500000 If yes, describe under ~- SPECIAL PROVISIONS below E.L. DISEASE - POLICY LIMIT $ 500000 OTHER DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS Project: Eagle County 2006 Adarand Job #: 07111 Installation of Guardrail. I I I I CERTIFICATE HOLDER CANCELLATION EAGLECO SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL ~ DAYS WRITTEN Eagle County NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL Attn: Rhonda Parker IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR P.O. Box 250 Eagle CO 81631 REPRESENTATIVES. A~SE~ ACORD 25 (2001/08) @ ACORD CORPORATION 1988 AlA Document A312 Performance Bond Bond# 6405883 Conforms with the American Institute of Architects, AlA Document A312. 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): Adarand Constructors, Inc. First National Insurance Co of America 2720 E. Las Vegas, Suite 200 4333 Brooklyn Ave. N.E. Seattle, WA 98185 Colorado Springs, CO 80906 OWNER (Name and Address): Eagle County PO Box 250 Eagle, CO 81631 CONSTRUCTION CONTRACT Date: April 26 2006 Amount: 95,747.00 Description (Name and Location): Istallation Of Guardrails BOND Date (Not earlier than Construction Contract Date): May 10 2006 Amount: 95,747.00 Modifications to this Bond: ~ None o See Page 2 CONTRACTOR AS PRlNCIP AL SURETY ._ Company: Adarand Constructors, Inc. (Corporate Seal) Company:fTravelers Casualty and Surety (Corporate Seal) Company of America , Signature: ~~J1;( ~ Signature: Natne and Title: Ra..plY M Pech, PResident Name and Title: (Any additional signatures appear on page 2.) (FOR INFORMATION ONLY - Name, Address and OWNER'S REPRESENT A TlVE (Architect, Engineer or other Telephone) AGENT or BROKER: party): 1 The Contractor and the Surety, jointly and severally, bind themselves, perform the Construction Contract, but such an agreement shall their heirs, executors, administrators, successors and assigns to the OW11er not waive the Owner's right, if any, subsequently to declare a for the performance of the Construction Contract, which is incorporated Contractor Default; and herein by reference. 3.2 The Owner has declared a Contractor Default and formally 2 If the Contractor performs the Construction Contract, the Surety and terminated the Contractor's right to complete the contract. Such the Contractor shall have no obligation under this Bond, except to Contractor Default shall not be declared earlier than twenty days participate in conferences as provided in Subparagraph 3.1. after the Contractor and the Surety have received notice as 3 If there is no Owner Default, the Surety's obligation under this Bond provided in Subparagraph 3.1; and shall arise after: 3.3 The Owner has agreed to pay the Balance of the Contract 3.1 The Owner has notified the Contractor and the Surety at its Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the address described in Paragraph lO below that the Owner is considering Construction Contract in accordance with the terms of the declaring a Contractor Default and has requested and attempted to contract with the Owner. 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 4 When the 0W11er has satisfied the conditions of Paragraph 3, the performing the Construction Contract. If the Owner, the Contractor and Surety shall promptly and at the Surety's expense take one of the the Surety agree, the Contractor shall be allowed a reasonable time to following actions: ,URETY 5026 (6-92) ,.1852/GEEF10/99 Page 1 of 2 4.1 Arrange for the Contractor, with consent of the O\Vller, to 7 The Surety be liable to the Owner or others for obligatior perform and complete the Construction Contract; or of the Contractor that are unrelated to the Construction Contract, and th . 4.2 Undertake to perform and complete the Construction Contract Balance of the Contract Price shall not be reduced or set off on account c . itself, through its agents or through independent contractors; or any such unrelated obligations. No right of action shall accrue on tlll . 4.3 Obtain bids or negotiated proposals from qualified contractors Bond to any person or entity other than the Owner or its heirs, executors acceptable to the Owner for a contract for performance and administrators or successors. completion of the Construction Contract, arrange for a contract to be 8 The Surety hereby waives notice of any change, including changes 0 prepared for execution by the CAvner and the contractor selected with tune, to the Construction Contract or to related subcontracts, purchast the O\Vner's concurrence, to be secured with perfonnance and orders and other obligations. payment bonds executed by a qualified surety equivalent to the bonds 9. Any proceeding, legal or equitable, under this Bond may be Issued on the Construction Contract, and pay to the Owner the 111stltuted 111 any court of competent jurisdiction in the location in which amount of damages as described in Paragraph 6 in excess of the the work or part of the work is located and shall be instituted within two Balance of the Contract Price incurred by the Owner resulting from years after Contractor Default or within two years after the Contractor the Contractor's default; or ceased working or within two years after the Surety refuses or fails to 4.4 W~ive its right to perform and complete, arrange for completion, perfonn its obligations under this Bond, whichever occurs first. If the or obtam a new contractor and with reasonable promptness under the provisions of this Paragraph are void or prohibited by law, the minimum CITcumstances: period of limitation available to sureties as a defense in the jurisdiction of .1 After investigation, determine the amount for which it the suit shall be applicable. may be liable to the Owner and, as soon as practicable 10 Notice to the Surety, the Owner or the Contractor shall be mailed or after the amount is determined, tender payment therefor delivered to the address shown on the signature page. to the Owner; or 11 When tills Bond has been furnished to comply with a statutory or .2 Deny liability in whole or in part and notifY the Owner other legal requirement in the location where the construction was to be citing reasons therefor. perfoffiled, any provision in this Bond conflicting with said statutory or 5 If the Surety does not proceed as provided in Paragraph 4 with legal requirement shall be deemed deleted herefrom and provisions reasonable promptness, the Surety shall be deemed to be in default on this conforming to such statutory or other legal requirement shall be deemed Bond fifteen days after receipt of an additional written notice from the incorporated herein. The intent is that this Bond shall be construed as a Owner t? the Surety demanding that the Surety perform its obligations statutory bond and not as a common law bond. und.er this Bond, and the Owner shall be entitled to enforce any remedy 12 DEFINITIONS avaIlable to the Owner. If the Surety proceeds as provided in 12.1 Balance of the Contract Price: The total amount payable by the 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 to the Contractor under the Construction Contract after all Owner shall be entitled to enforce any remedy available to the Owner. proper adjustments have been made, including allowance to the 6 After the Owner has terminated the Contractor's right to complete 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 Construction Contract, and if the Surety elects to act under Subparagraph Contractor is entitled, reduced by all valid and proper payments 4.1, 4.2; or .4.3 above, then the responsibilities of the Surety to the Owner made to or on behalf of the Contractor under the Construction shall not. be greater than those of the Contractor under the Construction Contract. Contr.act, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the 12.2 Construction Contract: The agreement between the Owner and limit of the amount of this Bond, but subject to commitment by the Owner the Contractor identified on the signature page, including all of the Balance of the Contract Price to mitigation of costs and damages on Contract Documents and changes thereto. the ConstructIOn Contract, the Surety is obligated without duplication for: 12.3 Contractor Default: Failure of the Contractor, which has 6.1 The responsibilities of the Contractor for correction of defective neither been remedied nor waived, to perform or otherwise to comply work and completion of the Construction Contract; with the terms of the Construction Contract. 6.2 Additional legal, design professional and delay costs resulting 12.4 Owner Default: Failure of the Owner, which has neither been from the Contractor's Default, and resulting from the actions or remedied nor waived, to pay the Contractor as required by the failure to act of the Surety under Paragraph 4; and Construction Contract or to perform and complete or comply with the 6.3 Liquidated damages, or if no liquidated damages are specified in other terms thereof. the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor. 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.) :;ONTRACTOR AS PRINCIPAL SURETY ~ompany: (Corporate Seal) Company: (Corporate Seal) ignature: Signature: fame and Title: ~y Name and Title: ddress: Address: I 8521GEEF 10199 Page 2 of 2 ~ S A F E C O~" POWER FIRST NATIONAL INSURANCE COMPANY OF AMERICA OF ATTORNEY PO BOX 34526 FIRST NATIONAL SURETY SEATTLE, WA 98124-1526 PO BOX 34526 SEATTLE. WA 98124-1526 No, KNOW AllBY THESE PRESENTS: That FIRST NATIONAL INSURANCE COMPANY OF AMERICA, a Washington corporation, does hereby appoint ******>f:>iul<****"''''***********'''*******>I<*******THO!\.1AS W. TITSWORTH~ SAMANTHA FOWLER~ Colorado Springsl Colorado***>i'**********ol<********************>I<******* its true and lawful attorney(s)-in-fact, with full authority to execute on behalf of the company fidelity and surety bonds or undertakings and other documents of a similar character issued by the company in the course of its business, and to bind FIRST NATIONAL INSURANCE COMPANY OF AMERICA thereby as fully as if such instruments had been duly executed by its regularly elected officers at its home office, IN WITNESS WHEREOF, FIRST NATIONAL INSURANCE COMPANY OF AMERICA has executed and attested these presents this 19t1, day of F ebnJary 2003 ~k ftc-~\cA-.. CHRISTINE MEAD, SECRETARY MIKE MCGAVICK, PRESIDENT CERTIFICATE Extract from the By-laws of FIRST NATIONAL INSURANCE COMPANY OF AMERICA: "Article V, Section 13, - FIDELITY AND SURETY BONDS ", the President, any Vice President, the Secretary, and any Assistant Vice President appointed for that purpose by the officer in charge of surety operations, shall each have authority to appoint individuals as attorneys-in-fact or under other appropriate titles with authority to execute on behalf of the company fidelity and surety bonds and other documents of similar character issued by the company in the course of its business", On any instrument making or evidencing such appointment, the signatures may be affixed by facsimile, On any instrument conferring such authority or on any bond or undertaking of the company, the seal, or a facsimile thereof, may be impressed or affixed or in any other manner reproduced; provided, however, that the seal shall not be necessary to the validity of any such instrument or undertaking," Extract from a Resolution of the Board of Directors of FIRST NATIONAL INSURANCE COMPANY OF AMERICA adopted July 28,1970, "On any certificate executed by the Secretary or an assistant secretary of the Company setting out, (i) The provisions of Article V, Section 13 of the By-laws, and (Ii) A copy ofthe power-of-attorney appointment, executed pursuant thereto, and (ili) Certifying that said power-of-attorney appointment is in full force and effect, the signature of the certifying officer may be by facsimile, and the seal of the Company may be a facsimile thereof" I, Christine Mead, Secretary of FIRST NATIONAL INSURANCE COMPANY OF AMERICA, do hereby certify that the foregoing extracts of the By-laws and of a Resolution of the Board of Directors of this corporation, and of a Power of Attorney issued pursuant thereto, are true and correct, and that both the By-laws, the Resolution and the Power of Attorney are still in full force and effect IN WITNESS WHEREOF, I have hereunto set my hand and affixed the facsimile seal of said corporation this 10th day of MAY ,2006 CHRISTINE MEAD, SECRETARY S-1049iFNEF 7/98 @ A registered trademark of SAFECO Corporation 02/1912003 PDF