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HomeMy WebLinkAboutC06-217 AGREEMENT FOR CHIPSEAL PROJECT THIS AGREEMENT is dated as of the 3rd day of June , 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 United Companies of Mesa County (hereinafter called "Contractor"). Owner and Contractor, in consideration of the mutual covenants set forth, agree as follows: ARTICLE 1 - WORK CHI P~AL Contractor shall complete all work as specified or indicate 'n the Contract Documents ("Work"). The Work is generally described as: 2006 e8~EJR^TE 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 Auqust 31,2006. 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 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 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: United Companies of Mesa County 2273 River Road Grand Junction, CO 81505 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 "Contractor": United Companies of Mesa County By: STATE OF COLORADO ) ) ss: County of ~~re: Mesa ) On this 14th day of June , 2006, came before me, a notary public, Craig Lamberty known to me to be the Vice President of United Companies of Mesa County , 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: 4, 2007 Agreement Page 7 -1 EXHIBIT "A" EAGLE COUNTY 2006 CHIPSEAL PROJECT Location Description QTY Unit Unit price Amount Chipseal from Sweetwater Road intersection (approx mm7) northeast 4 miles +/- Colorado River using HFMS-2P emulsion wi ~\,g3 . ~ <1'~)7fQ. &1 Road (county 3/4" covercoat aggregate. 53,973 +1- Sq. Yds. road #301 ) Centerline striping shall be marked with temporary raised pavement markers every 40'. Construction zone traffic 1 Lump ~ :2/Uo::so, 00 ~2I\.l,;::::O.CX) control sum TOTAL FOR PROJECT \0\'2:<'0. ~:{1 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. I n 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, ef 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.RS. 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 T ermination") 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 LIBERTY BID BOND BOND SERVICES Bond Number: KNOW ALL MEN BY THESE PRESENTS, that we OLDCASTLE SW GROUP, INC. DBA UNITED COMP AN IES OF MESA COUNTY as Principal, (the "Principal"), and LIBERTY MUTUAL INSURANCE COMPANY, a mutual company duly organized under the laws of the Commonwealth of Massachusetts as Surety, (the "Surety"), are held and firmly bound unto BOARD OF COUNTY COMMISSIONERS, EAGLE COUNTY, CO 500 BROADWAY, EAGLE, CO 81631 as Obligee, (the "Obligee"), in the penal sum of FIVE PERCENT OF AMOUNT BID Dollars ($5%), for the payment of which sum well and truly to be made, the 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 CHIP SEAL PROJECT NOW, THEREFORE, if the Obligee shall accept the bid of the Principal within the period specified therein, or, if no period be specified, within sixty (60) days after opening, 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, or in the event of the failure of the Principal to enter into such contract and give such bond or bonds, if the Principal shall pay to the Obligee the difference in money not to exceed the penal sum 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. In no event shall the liability hereunder exceed the penal sum hereof. DATED as of this 11TH day of APRIL, 2006. OLDCASTLE SW GROUP, INC. DBA UNITED COMPANIES OF MESA COUNTY (Seal) p'in~ ;ecretary BY:Nam: Crai;Lamberty Title: Vice President LIBERTY MUTUAL{..fNSURANCE COMPANY (Seal) Surety \ ~.................. t''''--"'''~'----~'--''"'"_.''''~'-''>--~'. .._-.-....~....,-,-" '~y: . :"----. -- -- ~ TtNk.. ."~~o!"~F,ct ~, THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. 1905104 This Power of Attorney limits the acts of those named herein, and they have no authority to bind the Company except in the manner and to the extent herein stated. liBERTY MUTUAL INSURANCE COMPANY BOSTON,MASSACHUSETTS POWER OF ATTORNEY KNOW All PERSONS BY THESE. PRESENTS: That Uberty Mutual Insurance Company (the "Company"), a Massachusetts stock insurance company, pursuant to and by authority of the By-law and Authorization hereinafter set forth, does hereby name, constitute and appoint TINA DAVIS, MARClNDADRV SDALEJDERIK STEVENSON, ALL OF THE CITY OF SALT LAKE CITY, STATE OF UTAH . - - - - - -' - ,,- - - - . -' -. " . . - ,'. " ,,- '. -. -' " -', ,- '. ,", -. ~ '. . "'-'-,, "_,, '_,__. . .'_', '_", _.", .'_ ,', .'''.. .__,._., ,.n "','" __.',' - - . . - - - .. . .. / - _',..,.-., _, '._ ','_' " . ','H," ',....'..._.. '"', .'.'--..' _ .-,' ','_' _ _ .. _ _'_."',H_,_ .,..."..,.... ,.H :::: ::: :::::::: ::::::::::: ::::::::::::::::::::::::::::::;:::::::::::::: ::::::::::::::::: ::::::::::::: :::::::: :::::::::::::::::: ::::::::::::::::::::::::::::: :::::: :::: :::: :::::: ::::::::::: , each individually if there be more than onel}all18d, its true and lawful attomey"in-facttomake, exeCute, seal, ackoowledge and deliver, for and on its behalf as surety' and as its act and deed, ~ andalt undertakings, bonds, recognizancils and otheF:surety obligations in the penal sum not exceeding SEVENTY FIVE MILLION AND 001100 . -************* . .. ....DOlLi\RS ($ 75~OOO,OOO.OO***"* .... ) each, and the execution of such undertakings, bOnds, reCOgnizances and other surety obligations,. in pursuance of these presents; shall be as binding upon the Company as if they had been duly signed bY the president and attested by the secretary Of the Company in their owriproper persons. - _, '_', '. .,"_. ,_' ',' - ,'.- .,d," " __'_.'__', _. . " - " . That this power is made and executed pursuant to and by authority of the foUowing By-law and AuthoriZation: .' '. - - . - -- ," .- ._, . '.." . '- "" - . . .d '.d', H_', d" _. _.,' _ _ . . ARTICLE XlIr - Execution of ContractS: Section 5. Surety Bonds and Undertakings. Any officer of the Company authorized for that purpose in writing by the chairman or the president, and subject to such limitations as the chairman or the president may prescribe, shall appoint such attorneys-in-fact, as may be necessary to act in behalf of the Company to make, ~ execute, seal, acknowledge and deliver as surety any and all undertakings, bonds, recognizances and other surety obligations. Such ~ a:rorneys-in-fact,SUb!ect to the limi~tions set forth in their respective powers of attomey, shall have full power to bind th~ Company by their o signature and execution of any such Instruments and to attach thereto the seal of the Company: When so executed such Instruments shall be 5r as binding as if signed by the president and attested by the secretary. . "0- (/) .::eCl) Ccn cu.- ..Qc ...r~ .-.cu "O::J eO) UCl) -::J 0-. . "- ~ IN WITNESS WHEREOF, this Power of Attorney has been subscribed by an authorized officer or official of the Company and the corporate seal of ~ cu Liberty Mutual Insurance Company has been affixed thereto in Plymouth Meeting, Pennsylvania this 13th day of March ~. ::J 2006 ~"O ~.~ LIBERTY MUTUAL INSURANCE COMPANY ... o ... CI) ~"- ~ Cl)0 ~~ ~~ 0 oCl) By M- c.. C :; Gamet W. Elliott, Assistant Secretary .!!! ( ar':: COMMONWEALTH OF PENNSYLVANIA ss :S ~ g> ~ COUNTY OF MONTGOMERY '0 c tn"- I 1::: E On this 13th day of March , 2006 , before me, a Notary Public, personally came Gamet W. Elliott, to me known, and acknowledged .f?; 0._ that he is an Assistant Secretary of Liberty Mutual Insurance Company; that he knows the seal of said corporation; and that he executed the above :!2 ~ ~.i Power of Attorney and affixed the corporate seal of Liberty Mutual Insurance Company thereto with the authority and at the direction of said corporation. cu J ocu R. > :; ~ IN TESTIMO':'lY WH .,~g~ nto subscribed my name and affixed my notarial seal at Plymouth Meeting, Pennsylvania, on the day and year ~ ~ :: (,) first above wntten. ~ ,,~Oi'lW~ < ... ... ....... . . .... . .... .. n. .... - ~ CG C 4;~-,~ 4l(.;..<' Co.\!MO}i''''fA(..mOfPE1\1N~Yl\fANIA ~~ ... E ' >CI) f~fiJ.'1-j)i'.~ ~.... .... C' - ~ I "_~ ... ;;:: C" o - . 'Jr- ..B. C CIl Z - ". n . .y I (,) ~.,. .... . .. Teresa Pastella, Notary PubliC 8;: +~~VPV$y\:.~~';;f: ~~_,,,."".."""..~.':""'''''' "' ..."",0;,,",," aI.Nill'~,,_ . .................. ~ ~ CERTIFICATE 7;' ":x. ~',' _. . .. . . ~itl{ yUV''',.---, " --'." -'. ".'d._ --..". ". I, the undersigned, Assistant secretary of Liberty Mutual Insurance Company, do hereby certify that the original power of attorney of which the foregoing is a full, true and correct copy, is in full force and effect on tne.date oHhis certificate; and I do furt~r certify that the officer or official who executed the said power of attorney is an Assistant Secretary specially authoJjzedbythe chairman orthepresident toappoinfattomeys-in-fact as provided in Article XIII, Section 5 of the By-laws of Liberty Mutual Insurance Company: This certificate and the above power of attomey may be signed by facsimHe or mechanicany reproduced signatures under and by authority of the following vote of the board of directors of Liberty Mutual Insurance Company at a meeting duly caned and held on the 12th day of March, 1980. VOTED that the facsimile or mechanically reproduced signature of any assistant secretary of the company, wherever appearing upon a certified copy of any power of attorney issued by the company in connection with surety bonds, shall be valid and binding upon the company with the same force and effect as though manually affixed. IN TESTIMONY WHEREOF-i I have hereunto subscribed my name and affixed the corporate seal of the said company, this 11 TH day of APRIL . L006 . STATE OF COLORADC DEPAR~ENTOFTRANSPORTATION ~ Contracts and Market Analysis Branch --- 4201 East Arkansas Avenue, 4th Floor -- Denver, Colorado 80222 Telephone: (303) 757-9736 Facsimile: (303) 757-9868 April 12,2005 NOTIFICATION OF PRE QUALIFICATION OLD CASTLE SW GROUP, Inc. dba UNITED COMPANIES OF MESA COUNTY 2273 RIVER ROAD GRAND JUNCTION, CO 81505- Vendor ill: 547 A Reference is made to your application for registration as a qualified bidder on Colorado Highway work, dated Aprilll, 2005. Your file has been reviewed and determined to be complete. Based on the information contained in your application your firm is approved to submit bids on any project, subject to the ability of your firm to provide the required bond(s). Your firms Vendor ID is indicated above and must be shown on your bid proposal. Bids from a general contractor will be received subject to any limitation stated above, and with due consideration ofthe amount of work presently under contract, past performance on highway contract, and the contractor's financial status at the time of bidding. It is further understood that the bidder has available the organization and equipment adequate for any project on which a bid is submitted; that the contractor's organization and equipment will be available to undertake the work on which bids are currently made, promptly after award of contract; and that the work will be carried on expeditiously and under proper supervision. This notice supersedes all previous notices. This prequalification will expire on April 30, 2006. You must file a new application 10 days prior that time to remain current. It is the contractor's sole responsibility to obtain and file the necessary forms each year prior to expiration. Forms are available on the Internet at http://www.dot.state.co.us/Bidding/BidForms.htm. If you need forms sent to you, they may be requested at 303-757-9354. ~A~ Richard . Ott CDOT A ward Officer (303) 757-9006 cc: K. Gonzales REO;ro Chip Seal Projects Colorado Department of Transportation Project No. STA R300-120 - Southwest Chipseals - 2004 Highway 92 and Highway 50 - Gunnison, Delta & Montrose Counties - Colorado 2424 North Townsend, Montrose, CO 81401 Ron Alexander - 970-249-5285 Amount: $849,869.40 Subcontractors: Kolbe Striping - Joe Crenshaw - 303-688-9516 - Striping Majestic Traffic Control- Kelly Potts - 970-931-4224 - Traffic Control Great American Sweeping - Jeff Loville 303-289-7171 - Pickup Broom Koch Oil- Owen Hill- 970-241-1135 - HFMS-2PIHFRS-2P Town of Fruit a Chipsea12003 900 Keifer Street Fruita, CO 81521 Tom Huston: 970-858-9558 Amount: $55,970.00 Subcontractors: Great American Sweeping -Jeff - 303-289-7171- Sweeping CC Enterprises - Cindy - 970-242-0669 - Traffic Control Koch Oil- Bill Pigg - 970-260-1548 - HFMS-2P & SS 1 Orchard City Chip Sea12001 Various Locations in Orchard City, CO Amount: $43,875.00 Mike England - 970-835-3337 Orchard City Chip Seal 2000 Various Locations in Orchard City, CO Amount: $125,957 Mike England - 970-83S-3337 Silverthorne Chip Seal - County Road 30 Silverthorne, CO General Contractor: B&B Excavating Bryan Lingle - 970-376-6410 September, 2001 Amount: $29,707 Town of Telluride, CO Chipseals 2002 Various Locations in Telluride POBox 397 Telluride, CO 81435 Bill Frownfelter 970-728-3071 Amount: $88,170.70 Town of OIathe, CO Chip seal 2002 Various Location in OIathe POBox 789 OIathe, CO 81425 Wayne Trounce 970-323-5701 Amount: $13,571.25 ~IU CUM~ARISON DESCRIPTION: 2006 Chipseal Project OTY I I MAKE/ ICOST 10 MAKE/ VENDOR VENDOR MODEL COST MODEL Pavement Maint. Servo $108,851.81 GMCO $101,350.05 IVENDOR I MAKE/ ICOST 10 MAKE/ OTY VENDOR MODEL COST MODEL United Companies $101,220.59 **** Low Bid Per our Specs RECOMMENDATION: , Certificate of Insurance ~: THIS CERTIFICATE ISSUED AS A MATER OF INFORMATION. ONLY AND CONFERS NO RIGHT UPON YOU THE CERTIFICATE HOLDER. THIS CERTIFICATE IS NOT AN INSURANCE POLICY AND DOES NOT AMEND, EXTEND, OR ALTER THE COVERAGE AFFORDED BY THE POLICIES LISTED BELOW. This is to Certify that . I I OLDCASTLE SW GROUP INC. Libertx NAME AND dba UNITED COMPANIES OF MESA COUNTY ADDRESS PO BOX 3609 OF INSURED Mutual. I GRAND JUNCTION CO 81502 ~ Is, at the Issue date of this certificate, insured by the Company under the poUcy(ies) listed below. The insurance afforded by the listed POII~~si subject to all their tenus, exclusions and Conditions and is not altered by any requirement, tenn or condition of any contract or other document with respect to which this certificate ma issued. EXP DATE TYPE OF POUCY o CONTINUOUS POUCY NUMBER LIMIT OF LlABllJTY o EXTENDED III POLICY TERM WORKERS COVERAGE AFFORDED UNDER WC EMPLOYERS LIABILITY 9/1/2006 W A? -C8D-Q04095-02S* LAW OF THE FOLLOWING STATES: COMPENSATION WC? -C85-00409S-D 15 ALL STATES EXCLUDING Bodily Inii by Accident MONOPOLlSTICS STATES 000.000 OR,WI Bodily Injwy By Disease $1 000 000 Bodily Injury By Diseue $1 000000 GENERAL LIABILITY 9/1/2006 RG2-C85-004095-115 General Aggregate-Other than Products I Completed Operations $2 000 000 (;21 OCCURRENCE Products I Completed Operations Aggregate o CLAIMS MADE $2 000 000 Bodily Injury and Property Damage Liability !l:? nno non Per Occwrencc I RETRO DATE I Personal Injury . Included* Per Person I Organization ~~Iuded In BI/PD Uablllty rt~RE DAMAGE $100,000; PER ct;1n l~rT AUTOMOBILE 9/1/2006 AS2-C85-004095-125 Each Accident-5ingle Limit LIABILITY $2,000,000 BJ. And P.D. Combined o OWNED Each Person iii NON-oWNED Each Accident or OccUlTence o mRED Each Accident or Occwrence ~NCEOFCOVERAGE Auto: Camp Oed $10,OOO/CoII Oed $10,000 ADDITIONAL COMMENTS Re: Eagle County 2006 Chipseal Project Eagle Countys Colorado is named as additional insured. 'If the certificate expiration dale is continuous or extended term, you will be notified if coverage Is tcnninated or reduced before the certificate expiration dale. ~E~Pli~.&oC:i?a~"T'~~h':N~A~~g~~~~WofurJSJt~~~AGAlNST AN INSURER, SUBMITS IMPORTANTNOT1CE TO FLORIDA POUCVHOLDERS AND CIRTlFlCA TE HOLDERS: IN TIlE EVENT YOUHA VB ANY QUESTIONS OR NEED INFORMATION ABOUT lm:k~~~~~~~ii:~'WJo~l{?ftLoE~~~=~~~8~~~~~v"~'g~~~ NOTICE OF CANCELLATION: (NOT APPLICABLE UNLESS A NUMBER OF DAYS IS ENTERED BELOW.) BEFORE THE STATED EXPIRATION DATE THE COMPANY WILL NOT CANCEL OR REDUCE THE INSURANCE AFFORDED UNDER THE ABOVE POLICIES UNTIL AT LEAST 30 DAYS NOTICE OF SUCH CANCELLATION HAS BEEN MAILED TO: IEagl e County, Colorado I tj 1J~ Judith Balazentis a~ POBox 250 Pittsburgh / 0387 AUTHORIZED REPRESENTATIVE ~:c Eagle, CO 81631-0250 12 Federal Street, Ste. 310 6/13/06 I:l Pittsburgh PA 15212-5706 412-231-1331 L -1 OFFICE PHONE DATE ISSUED This certificate is executed by LIBERTY MU1UAL INSURANCE GROUP as respects such insurance as is afforded by those Companies NM 772 PERFORMANCE BOND LIBERTY BOND SERVICES Bond Number: 14-040-405 KNOW ALL MEN BY THESE PRESENTS, that we OLDCASTLE SW GROUP, INC. DBA UNITED COMPANIES OF MESA COUNTY , as Principal (the "Principal"), and Liberty Mutual Insurance Company, a mutual company duly organized under the laws of the commonwealth of Massachusetts, as Surety (the "Surety"), are held and firmly bound unto BOARD OF COUNTY COMMISSIONERS, EAGLE COUNTY, CO , as Obligee (the "Obligee"), in the penal sum of ONE HUNDRED ONE THOUSAND TWO HUNDRED TWENTY AND 59/100 Dollars ($101,220.59), for the payment of which sum well and truly to be made, the Principal and the Surety, bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS: the Principal has by written agreement, dated JUNE 3, 2006, entered into a contract (the "Contract") with the Obligee for 2006 CHIP SEAL PROJECT which Contract is by reference made a part hereof. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal shall promptly and faithfully perform the Contract, then this obligation shall be null and void; otherwise it shall remain in full force and effect. PROVIDED AND SUBJECT TO THE CONDITIONS PRECEDENT: 1. Whenever the Principal shall be, and be declared by the Obligee to be in default under the Contract, the Obligee having performed the Obligee's obligations thereunder, the Surety may promptly remedy the default, or shall promptly: 1.1 Complete the contract in accordance with its terms and conditions, or 1.2 Obtain a bid or bids from alternative contracts to complete the Contract in accordance with its terms and conditions, and upon determination by the Surety of the lowest responsible bidder, or if the Obligee elects, upon determination by the Obligee and the Surety jointly of the lowest responsible bidder, arrange for a contract between such bidder and the Obligee, and make available as work progresses (even though there should be a default or a succession of defaults under the contract or contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the contract price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph of this bond. The term "balance of the contract price," as used in this paragraph, shall mean the total amount payable by the Obligee to the Principal under the Contract and any amendments thereto, less the amount properly paid by the Obligee to the Principal. 2. Notwithstanding any other provision of this bond or the Contract, or otherwise, the Surety is not responsible for and shall not be held liable to the Obligee for any hazardous waste removal and the Surety shall not be held liable to, or in any other respect be responsible to, the Obligee by way of indemnity, claims or otherwise, or to any public authority or to any other person, firm or corporation, for or on account of any fines or claims by any public authority or for bodily injuries or property damage to any person or thing, including, but not limited to, injury or damage due to the release or threat of release of hazardous substances of any kind or damage to real estate or to the environment or clean-up costs or other damages of whatever kind or nature arising out of any act of commission or omission by the Principal, the Principal's agents, servants, employees, subcontractors or suppliers or any other person in connection with the performance of the Contract. This limitation applies regardless of when any such fine is assessed, claim is made, or injury, damage, release or threat of release occurs and without regard to any term of condition of the Contract. I R<::.'>1()() R/Q.d RA\I PAYMENT BOND LffiERTY Bond Number: 14-040-405 BOND SERVICES KNOW ALL MEN BY THESE PRESENTS, that we OLDCASTLE SW GROUP, INC. DBA UNITED COMPANIES OF MESA COUNTY , as Principal (the "Principal"), and LIBERTY MUTUAL INSURANCE COMPANY, a mutual company duly organized under the laws of the Commonwealth of Massachusetts, as Surety (the "Surety"), are held and firmly bound unto BOARD OF COUNTY COMMISSIONERS, EAGLE COUNTY, CO as Obligee, in the penal sum of ONE HUNDRED ONE THOUSAND TWO HUNDRED TWENTY AND 59/100 Dollars ($101,220.59), for the payment of which sum well and truly to be made, the Principal and the Surety, bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has by written agreement dated JUNE 3, 2006, entered into a contract (the "Contract") with the Obligee for 2006 CHIP SEAL PROJECT which Contract is by reference made a part hereof. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal shall promptly make payment to all Claimants, as hereinafter defined, for all labor and material used or reasonably required for use in the performance of the Contract, then this obligation shall be null and void; otherwise it shall remain in full force and effect. PROVIDED AND SUBJECT TO THE CONDITIONS PRECEDENT: 1. A "Claimant" is defined as one having a direct contract with the Principal or with a subcontractor of the Principal for labor, material, or both, used or reasonably required for use in the performance of the Contract, labor and material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the Contract. 2. The Principal and the Surety hereby jointly and severally agree with the Obligee that every Claimant, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such Claimant's work or labor was done or performed, or materials were furnished by such Claimant, may sue on this bond for the use of such Claimant, prosecute the suit to final judgment for such sum or sums as may be justly due Claimant, and have execution thereon. The Obligee shall not be liable for the payment of any costs or expenses of any such suit. 3. No suit or action shall be commenced hereunder by any Claimant: (a) Unless Claimant, other than one having a direct contract with the Principal, shall have given written notice to the Principal and the Surety within ninety (90) days after such Claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, or for whom the work or labor was done or performed. Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal or the Obligee at any place where an office is regularly maintained for the transaction of business, or in any manner in which legal process may be served in the state in which the aforesaid project is located, save that such service need not be made by a public officer, and to the Surety to the attention of Liberty Bond Services, Claim Department, 450 Plymouth Road, Ste. 400, Plymouth Meeting, PA 19462-1644. (b) Other than in a state court of competent jurisdiction in and for the county or other political subdivision on the state in which the project, or any part thereof, is situated, or in the United States District Court for the district in which the project, or any part thereof, is situated, and not elsewhere. I R~_" ?nn RIQ.1 RA\I 1944622 'THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. This Power of Attorney limits the acts of those named herein, and they have no authority to bind the Company except in the manner and to the extent herein stated. LIBERTY MUTUAL INSURANCE COMPANY BOSTON,MASSACHUSETTS POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS: That Liberty Mutual Insurance Company (the "Company"), a Massachusetts stock insurance company, pursuant to and by authority of the By-law and Authorization hereinafter set forth, does hereby name, constitute and appoint TINA DAVIS, MARCINDA DRYSDALE, DERIK STEVENSON, ALL OF THE CITY OF SALT LAKE CITY, STATE OF UTAH .. .....................................................................,...........................-................................................................................................................................................ II .-. II II.. II II .... Ii II" II II II II" II II"'; II II a.. -. II II II II II .-. II II II II .... II.. II II II II II II II II II II II 1i.1i ...,: II .... II II II II II 1i.1i II ..... -... .... II II II II II II II II II II II II .1i-.Ii.1i II -'" II Ii.. II II Ii.. ..." II II II .... II II II II II II II ... .... ....... II II II .... II II 11"- 1i.1i ...... II II .-. II II II II II II II II II II II II II II II II II II II II" II II II II.. .:.......... ,each individually if there be mQrethan one named, its true and lawful attorney-in-fact to make, execute, seal, acknowledge and deliver, for and on its behalf as surety and as its act and d. e.ed, anv a. nd all und..erta. kings, bonds, recog. nizanc. es a..nd other. surety obligatio.n.s in the penal sum not exceeding SeVeNTY FIVE MILLION AND 00/1 OO*~****************** > ... ...DOLLARS ($ 75,000,000.00*****. .... ) each, and the execution of such undertakings, bonds, recognizances and other surety obligations,Inpt.JrsuanceOf these presents, shall be as binding upon the I Company as if they had been duly signed by the president and attested by the secretary of the Company in their own proper persons. I I That this power is made and executed pursuant to and by authority ofthefollowing By-Iawar)d Authorization: i i ARTICLE XIII - Execution of Contracts: Section 5. Surety Bonds and Undertakings. ยท Any officer of the Company authorized for that purpose in writing by the chairman or the president, and subject to such limitations as the . chairman or the president may prescribe, shall appoint such attorneys-in-fact, as may be necessary to act in behalf of the Company to make, a; ~ execute, seal, acknowledge and deliver as surety any and all undertakings, bonds, recognizances and other surety obligations. Such "tl :; attorneys-in-fact, subject to the limitations set forth in their respective powers of attorney, shall have full power to bind the Company by their ~ () signature and execution of any such instruments and to attach thereto the seal of the Company. When so executed such instruments shall be 0) g. as binding as if signed by the president and attested by the secretary. .~ "CI' . . ::s .:.:::g By the fOllowing instrument the chairman or the president has authorized the officer or other official named therein to appoint attorneys-in-fact: .c CO) > ,g.i.1S. Pursuant to Article XIII, Section 5 of the By-Laws, Garnet W. Elliott, Assistant Secretary of Liberty Mutual Insurance Company, is hereby ai ~ e authorized to appoint such attorneys-in-fact as may be necessary to act in behalf of the Company to make, execute, seal, acknowledge and e :s .~. deliver as surety any and all undertakings, bonds, recognizances and other surety obligations. 16 0 ~Q. ... ..... .......... .... ....... .... ........ ...... ....... ... ........... Q~ ~ ~ That the By-law and the Authorization set forth above are true copies thereof and are now in full force and effect t'fa a- ..... ................. .. ........ ...... .. ... ...... .... .. ..... ... . . .... .... ..... e i.~ IN WITNESS WHEREOF, this Power of Attorney has been subscribed by an authorized officer or official of the Company and the corporate seal of 0 & =:"i Uberty Mutual Insurance Company has been affixed thereto in Plymouth Meeting, Pennsylvania this 12th day of May , ::: 0 ~. ::s 2006 <( M "tl _u c.... O~ ca:g LIBERTY MUTUAL INSURANCE COMPANY i -g .2.... >ca ~.... ~ ;> 0)0 .. ' 0 E e.O) By~4 b./.. .az.. a. ca c'tii Garnetw. Elliott, Assistant Secretary .!!l Q Gi''::: COMMONWEALTH OF PENNSYLVANIA ss ;S <? ~ $ COUNTY OF MONTGOMERY '0 Q) .(S).... e 1:: ~ On this .12thday of May , 2006 , before me, a Notary Public, personally came Garnet W. Elliott, to me known, and acknowledged ~ ~ ~.'- that he is an Assistant Secretary of Liberty Mutual Insurance Company; that he knows the seal of said corporation; and that he executed the above :2.! ... t Power of Attorney and affixesL!Qt~orporate seal of Liberty Mutual Insurance Company thereto with the authority and at the direction of said corporation. ~ .8 .ee ~ p tiA"';' 0 " .>- .INTESTIMONY WH~~. . . .:::v.~.~unto subscribed my my notarial seal at Plymout.h M. . eeting, Pennsylvania, on the day and year ! ~ :: Q first above written.I((::11ii}::;NfI'I~;:</'\\ .. .... ~ cae 1/4tli!r .... .."1<::':\{"ejP A>>;i.. ..... E ~ >!. $Y%.!U ~'p' \..'.. .~ .... ..~........... ';M ........ . , m ' ... __ O::s I ' $ i B .. e- Z Q t \. A . I IY .. ... .. . .. .. 00 \ X'::~c c,i!!l I Teresa Pastella, Notary Public <.> ,... ~'i..4~>~<%*tlv<~""t%\1~,>. .10 '9 CERTIFICATE 'if:Jri~!":;;;;,,;.~,ij I- ,... ,_~*iffrP\J%i0~J1- I, the undersigned, ASsist;;;,r'Secr;;;ryofLiberty Mutual Insurance Company, do hereby certify thattheoriginal powefof attorney of which the foregoing is a full, true and correct copy, is in full force and effect on the date ofthis certificate; and I do further certify that the officer or official who executed the said power of attorney is an Assistant Secretary specially authorized by the chairman or the president to appoint attorneys-in-fact as provided in Article XIII, Section 5 of the By-laws of Uberty Mutual Insurance Company. This certificate and the above power of attorney may be signed by facsimile or mechanically reproduced signatures under and by authority of the following vote of the board of directors of Uberty Mutual Insurance Company at a meeting duly called and held on the 12th day of March, 1980. VOTED that the facsimile or mechanically reproduced signature of any assistant secretary of the company, wherever appearing upon a certified copy of any power of attorney issued by the company in connection with surety bonds, shall be valid and binding upon the company with the same force and effect as though manually affixed. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seal of the said company, this 8TH day of JUNE ,. 20Q6