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HomeMy WebLinkAboutC07-149 Elam ConstructionAGREEMENT FOR OVERLAY PROJECT THIS AGREEMENT is dated as of the 2nd day of April , 2007,by and between Eagle County, Colorado, a body corporate and politic, acting by and through its Board of County Commissioners (hereinafter called "Owner"), and Elam Construction, 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: 2007 OVERLAY 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 August 31, 2007. 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 C07- i N9- cnu ARTICLE 4 - CONTRACT PRICE 4.1 The funds appropriated for this project are equal to or in excess of the contract amount. 4.2 Owner shall pay Contractor for performance of the Work in accordance with the Contract Documents in current funds as follows: PROGRESSIVE PAYMENTS UPON COMPLETION OF EACH AREA AS SPECIFIED IN EXHIBIT "A". 4.3 Pursuant to the provisions §24-91-103.6, C.R.S., and notwithstanding anything to the contrary contained elsewhere in the Contract Documents, no change order or other form of order or directive by Owner, and no amendment to this Agreement, requiring additional compensable work to be performed which work causes the aggregate amount payable under the Agreement to exceed the amount appropriated for the original Agreement, shall be of any force or effect unless accompanied by a written assurance by Owner that lawful appropriations to cover the costs of the additional work have been made or unless such work is covered under a remedy -granting provision in the Agreement. 4.4 The Board of County Commissioners for Eagle County is a governmental entity. All obligations beyond the current fiscal year are subject to funds being budgeted and appropriated. ARTICLE 5 - PAYMENT PROCEDURES Contractor shall submit Applications for Payment in accordance with the General Conditions. Applications for Payment will be processed as. provided in the General Conditions. 5.1 PROGRESS PAYMENTS: Owner shall make monthly progress payments on account of the Contract Price on the basis of Contractor's Applications for Payments, as provided below. All progress payments will be on the basis of the progress of the Work. 5.1.1 Prior to Completion, progress payments will be in an amount equal to: Agreement ❑ 90% of the Work completed until fifty percent (50%) of the Work is performed, after which no additional retaining shall be withheld, and ❑ 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. 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. §24-91- 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. §38-26-107. 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. 7.9 Prohibitions on Public Contract for Services 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 Agreement Page 4 shall have no liability or obligation hereunder unless and until the bonds have been so delivered. 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. Agreement Page 5 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: Elam Construction, Inc. P. O. Box 1176 Edwards, CO 81632 Agreement Page 6 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. Agreement Page 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective on the date first above written. ATTEST COMMISSIONERS By: W 1 Clerk of the Boar of County Commissioners STATE OF COLORADO County of ale Mesa "Owner": COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY Ia rn enconi Chairman "Contractor": Elam Construction, Inc. B: Harold F. Elam, President ) ss: J (,)n +hic �C rinv of 2007. came before me, a notary public, Harold F. Elam ` known to me to be the President of Elam Construction, Inc , 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: I - Agreement Page 8 EXHIBIT "A" EAGLE COUNTY 2007 OVERLAY PROJECTS PROJECT #1 Location Description Colorado River Road (County Road #301) Overlay Colorado River Road (1,000 lin.ft.) near 2 mile marker with 4" (in two lifts) of HBP-SX, PG 58-28. Creek Rd. Emusified asphalt (tack) (County Road CSS -1 H or SS -1 H Construction zone traffic lifts) of HBP -SX, PG 58-28 control Materials sampling, testing, CSS -1 H or SS -1 H Construction zone traffic and inspection. Manhole adjustment control Valve box adjustment PROJECT #2 Location Description West Lake Overlay West Lake Creek Creek Rd. Rd. near 1 mile marker (for (County Road 5280 lin.ft.) with 4" (in two #25A) lifts) of HBP -SX, PG 58-28 Emusified asphalt (tack) CSS -1 H or SS -1 H Construction zone traffic control Materials sampling, testing, and inspection. Manhole adjustment Valve box adjustment QTY Unit Unit price Amount 587 ( ton 173 0" I � 00 266 gal o2. 1 Lump sum, 2oma. ca 1 Lump sum"e 'S S1�. /, BUD . 0 na 0 na TOTAL FOR PROJECT #1 I*/�1909. 5'—.D QTY Unit Unit price Amount 2,840 I ton ( 71. °a I ZDI� &,V o 1290 gal .2. 35 2190.15% 1 Lump sum 7��ap, °O 75-eo• oa 1 Lump sum 0 na 0 na TOTAL FOR PROJECT #2 1217, ".2s' Exhibit "A" pg. 2 PROJECT #3 Location Description QTY Unit Unit price Amount Eagle -Vail Overlay Eagle Rd. with 2" of oa Subdivision 1,193 ton 73. 5 east HBP -SX, PG 58-28 TOTAL FOR PROJECT #3 136-a3/19'p- TOTAL �-- TOTAL FOR ALL PROJECTS 7/73/0- -s -b PROJECT NOTES: 1. Manhole and valve box adjustment "lump sum" shall be the cost to adjust the quantities listed. 2. Final manhole and valvebox counts may vary from what is listed. Overlay Columbine Cir. with290 2" of HBP -SX, PG 58-28 ton oa -73. AO -Z-14 17D. Overlay Eagle Dr. with 2" of HBP -SX, PG 58-28 2840 ton7� aO ZDI320.ac Overlay Eagle Cir. Dr. with 2" of HBP -SX, PG 58-28 145 ton°4 /D SSS. od Overlay Daisy Ln. with 2" of290 HBP-SX, PG 58-28 ton 73 °o 21,1770-60 Overlay Mariposa Ln. with Z of HBP-SX, PG 58-28 178 tono0 73' 00 /?'g� Overlay Riverside Rd. with 2" of HBP-SX, PG 58-28 71 ton 73 05_ 1r,3 00 Overlay Riverside Ct. with 2" of HBP-SX, PG 58-28 114 ton 7,3, 8,322. 00 Overlay Deer Blvd (bubble31 cul-de-sac). ith 2" of HBP_ ton 7,3 00z�,213. Add shoulder material (3/4" road base) 2' wide, 2" dee 852 ton fCfl, oa 37,g8V. Emusified asphalt (tack) CSS -1 H or SS -1 H 4682 gal Construction zone traffic Control 1 Lump sum Zp av• Zo, o' Materials sampling, testing, and inspection. Manhole adjustment Valve box adiustment 1 1 20 20 Lump sum Lump sum 1 Lum sum I g�5 TOTAL FOR PROJECT #3 136-a3/19'p- TOTAL �-- TOTAL FOR ALL PROJECTS 7/73/0- -s -b PROJECT NOTES: 1. Manhole and valve box adjustment "lump sum" shall be the cost to adjust the quantities listed. 2. Final manhole and valvebox counts may vary from what is listed. 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 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. §38-26-107. 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 materials except as may be the Work as is not terminated; subcontracts for services, equipment or necessary for completion of such portion of 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 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 X00 h m wz CL a CD CL co z m N i o� 3 cn a" 0 0 m N 0 3 m m z o 0 j .. Z 0 0 0 m =i Z � m, .. 0 C n rt im 0 0 m m m m ^r a� n 0 0 cn cn N O CO O O El W W Z 0 xo Z O v (Q OD 0X mm 0;K Mm r 0 0 0 O cn cnP cn C4 THE AMERICAN Bond #6442965 INSTITUTE OF ARCHITECTS „- N 4 AIA Document A311 PerformanCe Bond KNOW ALL MEN BY THESE PRESENTS: that ELAM CONS TRU CS IIONertI, name and address or C. legal title of contractor) 1225 SOUTH 7TH. ST. GRAND JUNCTION, CO 81501 as Principal, hereinafter called Contractor, and, SAFECO INSURANere CE COMPANY rt full name OeAMERICA rge of Surety) SAFECO PLAZA SEATTLE, WA 98185 nd as Surety, hereinafter called Surety, are held and firmly COUNTY, BOARD OF COUNTY COMMISSIONERS u (Here unto AGLE CO insert full name and address or legal title of Owner) 500 BROADWAY EAGLE, CO 81631 as Obligee, hereinafter called Owner, in the amount of N AND 501100 Dollars ($ 717,310.50), SEVEN HUNDRED SEVENTEEN THOUSAND THREE HUNDRED TE for the payment whereof Contractor and Surety bind themselves, theirheirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, written agreement dated APR. 2, 2007 entered into a contract with Owner for Contractor has by (Here insert full name address and description of project) EAGLE COUNTY 2007 OVERLAY PROJECT in accordance with Drawings and Specifications prepared by (Here insert full name and address or legal title of Architect) which contract is by reference made a part hereof, and is hereinafter referred to as the Contract. AIA DOCUMENT A311 PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND AIA O FEBRUARY 1970 ED THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 N.Y. AVE., NW., WASHINGTON, D.C. 20006 PERFORMANCE BOND NOW, THEREFORE, THE CONDITION n OF THIS s obligation OBhalClbe ION is such tat, if Cntractor null and voidhotherwise it shall hemain ipromn I forly dce faithfully perform said Contract, and effect. The Surety hereby waives notice of any alteration or extension of time made by the Owner Whenever Contractor shall be, and declared by Owner to be in default under the Contract, the Owner having performed Owner's obligations thereunder, the Surety may promptly remedy the default, or shall promptly 1) Complete the Contract in accordance with its terms and conditions, or 2) Obtain a bid or bids for completing the Contract in accordance with its terms and conditions, and upon determination by Surety of the lowest responsible bidder, or, if the Owner elects, upon determination by the Owner and the Surety jointly of the lowest responsible bidder, arrange for a contract between such bidder and Owner, 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 Signed and sealed this 20th day of April, 2007 but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term "balance of the contract price,„ as used in this paragraph, shall mean the total amount payable by Owner to Contractor under the Contract and any amendments thereto, less the amount properly paid by Owner to Contractor. Any suit under this bond must be instituted before the expiration of two (2) years from the date on which final payment under the Contract falls due. No right of action shall accrue on this bond to or for the use of any person or corporation other than the Owner named herein or the heirs, executors, administrators or successors of the Owner. ;ELAgMNSTRUCTrfind Seal pal Witness Jason D. Cates, Assistant Secretary (Title) Harold F. Elam, President i Witness CHERYL M. RUSTED SAFECO INSURANCE COMPANY OF AMERICA Surety Seal L /1 1 W . ,�, 7,,-- 7' (Title) Mark H. Sweigart, Attorney -in- act AIA DOCUMENT A311 PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND AIAO FEBRUARY 1970 ED THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 N. Y. AVE., N.W., WASHINGTON, D.C. 20006 THE AMERICAN INSTITUTE OF ARCHITECTS Bond #6442965 AIA Document A311 Labor and Material Payment Bond THIS BOND IS ISSUED SIMULTANEOUSLY WITH PERFORMANCE BOND IN FAVOR OF THE OWNER CONDITIONED ON THE FULL AND FAITHFUL PERFORMANCE OF THE CONTRACT KNOW ALL MEN BY THESE PRESENTS: that ELAM CONSTRUCTION, INC. (Here insert full name and address or legal title of Contractor) 1225 SOUTH 7TH. ST. GRAND JUNCTION, CO 81501 as Principal, hereinafter called Contractor, and, SAFECO INSURANCE COMPANY OF AMERICA (Here insert full name and address or legal title of Surety) SAFECO PLAZA SEATTLE, WA 98185 as Surety, hereinafter called Surety, are held and firmly bound unto EAGLE COUNTY, BOARD OF COUNTY COMMISSIONERS (Here insert full name and address or legal title of Owner) 500 BROADWAY EAGLE, CO 81631 as Obligee, hereinafter called Owner, for the use and benefit of claimants as hereinbelow defined, in the amount of SEVEN HUNDRED SEVENTEEN THOUSAND THREE HUNDRED TEN AND 50/100 Dollars ($ 717,310.50), (Here insert a sum equal to at least one-half of the contract price) for the payment whereof Principal and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, Principal has by written agreement dated APR. 2, 2007 entered into a contract with Owner for (Here insert full name address and description of project) EAGLE COUNTY 2007 OVERLAY PROJECT in accordance with Drawings and Specifications prepared by (Here insert full name and address or legal title of Architect) which contract is by reference made a part hereof, and is hereinafter referred to as the Contract. AIA DOCUMENT A311 PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND AIA O FEBRUARY 1970 ED THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 N.Y. AVE., N.W., WASHINGTON, D.C. 20006 LABOR AND MATERIAL PAYMENT BOND NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if 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 void; otherwise it shall remain in full force and effect, subject, however, to the following conditions: 1. A claimant is defined as one having a direct con- tract 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 above named Principal and Surety hereby jointly and severally agree with the Owner that every claimant as herein defined, 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 Owner shall not be liable for 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 that one having a direct contract with the Principal, shall have given written notice to any two of the following: the Principal, the Owner, or the Surety above named, within (90) day after such claimant did or performed the last of the work or labor, or furnished the las of the materials for which said claim is made, stating with substantial accuracy the amount claimed and the name of the Signed and sealed this 20th day of April, 2007 . (Witness) Jason D. Cates, Assistant Secretary (Witness) CHER M. RUSTED party to whom 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, Owner or Surety, at any place where an office is regularly maintained for the transaction of business, or served in any state 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. b) After the expiration of one (1) year following the date on which Principal ceased Work on said Contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law. c) Other than in a state court of competent for the jurisdiction in and for the county or other political subdivision of 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. 4. The amount of this bond shall be reduced by and to the extent of any payment or payments made in good faith hereunder, inclusive of the payment by Surety of mechanic's liens which may be filed of record against said improvements whether or not claim for the amount of such lien be presented under and against this bond. ELAM CONSTRUCTION, INC. (Pr' C, (Seal) W - (Title) Harold F. Elam, President SAFECO INSURANCE COMPANY OF AMERICA (Surety) (Seal) �. _7 " (Title) Attorney -in- act Mark H. Sweigart, Attorney -i sct AIADOCUMENT A311 PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND AIAO 4 FEBRUARY 1870 ED THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 N.Y. AVE., N.W., WASHINGTON, D.C. 20006 Safeco Insurance Company of America General Insurance Company of America POWER Safeco Plaza OF ATTORNEY Seattle, WA 98185 No. 9575 KNOW ALL BY THESE PRESENTS: That SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA, each a Washington corporation, does each hereby appoint *****************************ANIT9 M. COLAIUTA; TRACY A. GOODWIN; CHERYL M. HUSTED; DARRELL C. R. OLSON II; LANCE M. OLSON; MARK H. SWEIGART, STEVEN L. WALKER; Englewood, Colorado*********************"******************* its true and lawful attomey(s)-in-fact, with full authority to execute on its behalf fidelity and surety bonds or undertakings and other documents of a similar character issued in the course of its business, and to bind the respective company thereby. IN WITNESS WHEREOF, SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA have each executed and attested these presents this 26thday of February 2007 STEPHANIE DALEY-WATSON SECRETARY TIM MIKOLAJEWSKI SENIOR VICE-PRESIDENT SURETY CERTIFICATE Extract from the By -Laws of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL 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 attomeys-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 SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL 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 (iii) 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, Stephanie Daley -Watson , Secretary of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL 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 these corporations, 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 20TH. day of S-0974/DS 4/05 APRIL 1 2007 COIA'E SEAL STEPHANIE DALEY-WATSON, SECRETARY Of SafecoO and this Safeco logo are registered trademarks of Safeco Corporation. WEB PDF