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Home My WebLink AboutC09-146 Paving Project Oldcastle Group, Inc.AGREEMENT FOR PAVING PROJECT THIS AGREEMENT is dated as of the Z� day of , 2009, by and between Eagle County, Colorado, a body corporate and politic, acting by anpt hrough its Board of County Commissioners (hereinafter called "Owner "), and Oldcastle SW Group, Inc., d/b /a B & B Excavating (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: 2009 PAVING 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 ECO Trails Department, the Manager 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 September 10, 2009. BIDDER agrees that work will be completed on each project listed in Exhibit A as follows: Project #1 — on or before July 3, 2009 Project #2 — on or before June 15, 2009 Project #3 — on or before July 1, 2009 Project #4 - on or before July 1, 2009 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 preceding the actual loss suffered by Owner if the Work is not substantially complete on time. Accordingly, instead of requiring such proof, Owner and Contractor agree that as liquidated damages for delay (but not as a penalty) Contractor shall pay Owner Three Hundred dollars ($300.00) for each day that expires after the time specified in paragraph 3.1 for completion until the Work is complete. ARTICLE 4 - CONTRACT PRICE 4.1 The funds appropriated for this project are equal to or in excess of the contract amount. 4.2 Owner shall a Contractor for performance of the Work in accordance with the pay Contract Documents in current funds as follows: PROGRESSIVE PAYMENTS U PON COMPLETION OF EACH AREA AS SPECIFIED IN EXHIBIT "A". 4.3 Pursuant to the p rovisions §24 -91- 103.6, C.R.S., and notwithstanding anything to the contrary ontained elsewhere in the Contract Documents, no change order or other form y 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 b Owner that lawful appropriations to cover the costs of the additional work have been y p i made or unless such work is covered under a remedy - granting provision n the Agreement. 4.4 The Board of Count y Commissioners for Eagle County is a governmental entity. All obligations beyond the current fiscal year are subject to funds being budgeted and g y 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: (a) 90% of the Work completed until fifty percent (50 %) of the Work is performed, after which no additional retaining shall be withheld, and (b) 90% of materials and equipment not incorporated in the Work but delivered and suitabl y stored, less in each case the aggregate of payment previously made. 5.1.2 Progress payments and retained funds shall occur in compliance with Paragraph 19 of �' p y the General Conditions attached hereto and C.R.S. §24 -91 -103. The Owner shall authorize p artial payments of properly requested amounts of at least ninety percent of p 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 an a ments of other properly requested amounts without retaining additional funds if, y p ro p 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 2 Agreement Page 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. 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 Form including Exhibits A (Bid) and Addendum Number 1, B (Site Maps), C (Specifications) and D (CDOT Price Adjustment Policy) 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 Any modification, including Change Orders, duly delivered after execution of Agreement 7.7 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. 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 n 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: County: Board of County Commissioners Eagle County, Colorado P. O. Box 850 Eagle, CO 81631 Telephone: (970) 328 -8605 Fax: (970) 328 -7207 Contractor: B &B Excavating PO Box 4870 Eagle, CO 81631 Fax: 970-328-1735 With a copy to: ECO Trails PO Box 1070 Eagle, CO 81637 Telephone: (970) 328 -3523 Fax: (970) 328 -3539 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. 9.7.1 PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES: If Contractor /Consultant has any employees or subcontractors, Contractor /Consultant shall comply with C.R.S. § 8 -17.5 -101, et seq., regarding Illegal Aliens -- Public Contracts for Services, and this Contract. By execution of this Contract, Contractor /Consultant certifies that it does not knowingly employ or contract with an illegal alien who will perform under this Contract and that Contractor /Consultant will participate in the E- verify Program or other Department of Labor and Employment program ( "Department Program ") in order to confirm the eligibility of all employees who are newly hired for employment to perform work under this Contract. 9.7.1 Contractor /Consultant shall not: (a) Knowingly employ or contract with an illegal alien to perform work under this contract for services; or (b) Enter into a contract with a subcontractor that fails to certify to the Contractor /Consultant that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. 9.7.2 Contractor /Consultant has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract through participation in the E- verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E- verify program can be found at http:// wvwv .dhs.gov /xprevprot/programs /gc 1185221678150.shtm 9.7.3 The Contractor /Consultant shall not use either the E- verify program or other Department Program procedures to undertake pre - employment screening of job applicants while the public contract for services is being performed. 9.7.4 If the Contractor obtains actual knowledge that a Subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, the Contractor shall be required to: a. Notify the Subcontractor and the County within three days that the Contractor has actual knowledge that the Subcontractor is employing or contracting with an illegal alien; and b. Terminate the Subcontract with the Subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the Subcontractor does not stop employing or contracting with the illegal alien; except that the Contractor shall not terminate the contract with the Subcontractor if during such three days the Subcontractor provides information to establish that the Subcontractor has not knowingly employed or contracted with an illegal alien. 9.7.5 The Contractor /Consultant shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. § 8- 17.5- 102(5). 9.7.6 If a Contractor /Consultant violates these prohibitions, the County may terminate the contract for a breach of the contract. If the contract is so terminated specifically for a breach of this provision of this Contract, the Contractor /Consultant shall be liable for actual and consequential damages to the County as required by law. 9.7.7 The County will notify the office of the Colorado Secretary of State if 1 Agreement Page Contractor /Consultant violates this provision of this Contract and the County terminates the Contract for such breach. 10.00 This Agreement shall be governed by and construed in accordance with the internal laws of the State of Colorado. The Parties agree that venue in any action to enforce or interpret this agreement shall be in the District Court in the 5 h District for the State of Colorado. IN WITH SS WHEREOF, the parties have executed this Agreement this 1A day of 2009. ATTEST'�tn By: Clerk of the Board of County Commissioners STATE OF COLORADO County of Eagle The foregoing in this rday of My commission �. OF �GOL�� EAGLE COUNTY, COLORADO By and through its Board of County Commissioners By: Sara J. Fisher Chairman Oldcastle SW Group, Inc. "Contractor ": d.b.a. B &B Excavating By: ss: ged before me by��m/,*s 2009. Notary Pubes My C0f S10" Exp1a 05/26/201 t 7 Exhibit "A" 2009 TRAIL PAVING PROJECT PROJECT #1 Location Description QTY Unit Unit price Amount Riverwalk to Miller Ranch Road Trail, Edwards Overlay Trail with 1.5" of HBP -SX, PG 58 -28, 2800'x 10' wide in two locations along trail segment. 256 ton $ 106.45 $ 27,251.20 ton Emusified asphalt tack CSS -1 H or SS -1 H Construction zone traffic control on trail, road intersection and driveways Materials sampling, testing, and inspection. Manhole adjustment 311 1 1 21 gal lump sum lump sum each 3/12/09 $ 4.12 $ 1,281.32 $ 926.11 $ 926.11 $ 431.24 $ 431.24 $ 137.72 $ 275.44 1 BID FOR PROJECT #1 $ 309165.31 PROJECT #2 Location Description Cooley Mesa Road Trail, Gypsum OTY Unit Unit nrice Amount Install 2" recycled asphalt "black base" prior to 450 s.f. 2.78 $1,251.00 paving, 2036' x 9' wide 224 ton $ 35.31 $ 7,909.44 ve I Fail wi - - or x . 300 ton $ 93.64 $ 28,092.00 Saw cut 10' of existing trail asphalt, east side of 42 ton $ 50.45 $ 2,119.00 project, remove /haul asphalt, use existing base, 1 lump sum 1 624.41 $624.40 match new paving to existing $ 375.66 $ 375.66 Add 3" of shoulder material (3/4" road base) 1' 75 ton both sides, 2036', compacted $ 37.31 $ 2,798.25 Construction zone traffic control on trail, Cooley 1 lump sum Mesa Road entry/exit $ 445.97 $ 445.97 Materials sampling, testing, and inspection. 1 lump sum $ 316.24 1 $ 316.24 PROJECT #3 Location Description Homestead Spur Trail, Edwards s11ZIuy L$1U rUK rKUJtk.# i 3FZ ;1-5101V-31 .00 OTY Unit Unit nrir_p Amount Removal of existing trail and new trail platform by 450 s.f. 2.78 $1,251.00 others n/a n/a n/a n/a Install 4" of 3/4" road base prior to paving, 190'x 450 s.f. 3.16 $1,422.00 9' wide 42 ton $ 50.45 $ 2,119.00 Pave Trail with 3" of HBP -SX, PG 58 -28 for 190'x 28 ton 1 624.41 $624.40 8' wide $ 128.50 $ 3,598.00 Add 3" of shoulder material (3/4" road base) 1' 7 ton both sides, 190', compacted $ 85.49 $ 598.43 Construction zone traffic control on trail, Edwards 1 lump sum Village Blvd entry/exit $ 240.13 $ 240.13 Materials sampling, testing, and inspection. 1 lump sum $ 115.00 1 $ 115.00 PROJECT #4 As Additonal Work Location Description Trail Connection at Violet Lane, Eagle 41ZU 1U9 KLV15LU LHU FUK tUK t'KUJt(:I ?F3 �bb,blu.40 Description Unit Unit nrice Amount Excavate 9 inch section for 6" base /3" asphalt 450 s.f. 2.78 $1,251.00 Prep area with 6" of 3/4" roadbase, compacted 450 s.f. 2.4 $1,080.00 Pave Trail with 3" of HBP -SX, PG 58 -28 450 s.f. 3.16 $1,422.00 Construction zone traffic control on trail: 2 1 flaggers, 2 signs if needed lump sum 1 624.41 $624.40 Project Notes: 1. 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I'F' .� °;•- y' F yr Al i r { 3 ` " r ,�� '�",k�� ?�i �• * "" ;' � -1 °" *} is �... � �,� � �s � r 40 _` Am do* lu K- EXHIBIT "c" Project Specifications • Asphalt material shall be HBP — SX, PG 58 -28 or alternate mix design previously agreed upon by Contractor and Owner. • Compacted mat thickness shall not exceed 3" per lift. • Temperature of mat behind paver screed shall be a minimum of 235 degrees F. • Materials sampling and inspection shall occur at every 500 tons of material placed. • Materials density testing shall occur every 250 feet on each lift. • Emulsified asphalt "tack" shall be CSS —1 H or SS —1 H. Tack must not be applied during inclement weather (precipitation) and shall "break" before the HBP mat is applied. • Shoulder material shall be 3/4" spec road base or substitute material with approval from owner. EXHIBIT "D" November 3, 2008 REVISION OF SECTION 109 ASPHALT CEMENT COST ADJUSTMENT (ASPHALT CEMENT INCLUDED IN THE WORK) NOTICE This is a standard special provision that revises or modifies CDOT's Standard Specifications for Road and Bridge Construction. It has gone through a formal review and approval process and has been issued by CDOT's Project Development Branch with formal instructions for its use on CDOT construction projects. It is to be used as written without change. Do not use modified versions of this special provision on CDOT construction projects, and do not use this special provision on CDOT projects in a manner other than that specified in the instructions unless such use is first approved by the Standards and Specifications Unit of the Project Development Branch. The instructions for use on CDOT construction projects appear below. Other agencies which use the Standard Specifications for Road and Bridge Construction to administer construction projects may use this special provision as appropriate and at their own risk. Instructions for use on CDOT construction projects: Use this standard special provision in all projects with items 403 Hot Mix Asphalt and/or 403 Stone Matrix Asphalt in which the cost of AC is included in the work. The designer should add a Planned Force Account item called F/A Asphalt Cement Cost Adjustment, Pay Item 700 -70019 to the plans and project special provisions to account for the possibility that an adjustment will be required. The amount of this Force Account item to be included in the project budget can be calculated using the AC Cost Adjustment Worksheet provided on the Design and Construction Support - Asphalt Cement Cost Adjustment website. Input the following data in the worksheet o Price index for the current month (BP) o BP + 10% o Estimated Percent AC to be in the mix in decimal, i.e. 0.05 for 5% o Planned tonnage ■ This will calculate an estimated dollar amount assuming a 10% increase in price. This should be used as the minimum FA budget amount. o Follow the same instructions but use BP + 50% for the estimated maximum amount the project would pay in AC Cost Adjustment ■ This will calculate an estimated dollar amount assuming a 50% increase in price. This should be used as the maximum FA budget amount. o The Region may determine an amount between these two figures for the final FA budget amount. Contact your Area Engineer if you have any questions. If the amount of actual Asphalt Cement Adjustments exceeds the funding allotted in the Planned Force Account, the remainder of the adjustments should be made using funding from Minor Contract Revisions (MCRs), or by adding funding to the project. November 3, 2008 REVISION OF SECTION 109 ASPHALT CEMENT COST ADJUSTMENT (ASPHALT CEMENT INCLUDED IN THE WORK) Section 109 of the Standard Specifications is hereby revised for this project as follows: Subsection 109.06 shall include the following: (i) Asphalt Cement Cost Adjustments. Contract price adjustments will be made to reflect increases or decreases in the price of asphalt cement from that in effect during the month in which bids were received for the Contract. 1. Price adjustments will be based on the asphalt cement price index established by the Department on the first working day of each month. The index will be the spot price per barrel of Western Canadian Select (WCS) as published on http : / /www.encana.com /doingbusiness /crudeoilpricing /index.htm for the first working day of the month. The index from this source will be converted to US Dollars using the currency converter at http : / /finance.yahoo.com /currency by converting the posted price of Canadian Dollars per cubic meter of WCS on Encana.com to US Dollars per cubic meter. A conversion factor of 0.89 cubic meter per Ton will be used to convert the posted price from cubic meter to tons. The converted index number will be posted on the CDOT website at: htt : / /www.dot.state.co.us /Desi nSu ort/Construct ion / Fuel% 20Cost %2OAdiustments /EnCana %20As ha It %20Cement %20Cost %20Adjustments/ Asphalt% 20Cement %20Cost %2OAdjustment %20Index htm 2. Price adjustments will be paid on a monthly basis with the following conditions: A Payment will be based on the pay quantities on the monthly partial pay estimate for the following pay items when asphalt cement is included in the pay items: 403 Hot Mix Asphalt 403 Stone Matrix Asphalt B A price adjustment will be made only when the asphalt cement price index varies by more than 5 percent from the asphalt cement price index at the time of bid, and only for that portion of the variance in excess of 5 percent. Price adjustments may be either positive or negative dollar amounts. C Asphalt cement cost adjustments will not be made for any partial estimate falling wholly after the expiration of contract time. D Adjustment formula: EP greater than BP: ACCA = (EP —1.05 BP)(PA) (Q) EP less than BP: ACCA = (EP — 0.95 BP) (PA) (Q) Where: BP = Asphalt Cement price index for the month in which bids are opened EP = Asphalt Cement price index for the month in which the partial estimate pay period ends ACCA = Asphalt Cement Cost Adjustment PA = Percent of the paving mixture that is asphalt cement. Asphalt Cement content will be determined by the weighted average of all asphalt cement content percentages obtained from the field acceptance tests for that item (Use decimal in formula, e.g.: 0.05.). If Reclaimed Asphalt Pavement (RAP) is used the percent of Virgin Asphalt Cement added to the mix will be determined by subtracting the percent of asphalt cement in the Reclaimed Asphalt Pavement (RAP) from the percent of asphalt cement in the mix as calculated from Revision of Section 401 Reclaimed Asphalt Pavement. Q = Increased pay quantity for all 403 items shown above on the monthly partial pay estimate in Tons. November 3, 2008 REVISION OF SECTION 109 ASPHALT CEMENT COST ADJUSTMENT (ASPHALT CEMENT INCLUDED IN THE WORK) E No adjustment will be allowed for the quantity of any item that is left in place at no pay or for material removed and replaced at the Contractor's expense. F The asphalt cement cost adjustment will be the sum of the individual adjustments for each of the pay items shown above. No adjustment will be made for asphalt cement costs on items other than those shown above. G Asphalt cement cost adjustments resulting in an increased payment to the Contractor will be paid for under the planned force account item: Asphalt Cement Cost Adjustment. Asphalt cement cost adjustments resulting in a decreased payment to the Contractor will be deducted from monies owed the Contractor. 2009 TRAIL PAVING 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. �;., weather, or to acts of omission or commission by the Owner, provided that such extensions of time shall in no instance exceed the time actually lost to Contractor by reason of such causes, and provided further that Contractor shall have given Owner immediate (as determined by the circumstances, but not exceeding 48 hours) notice in writing of the cause of the detention or delay. 8. Contractor shall deliver, handle, store and install materials in accordance with manufacturers' instructions. 9. Contractor shall comply with and give notices required by all federal, state and local laws, statutes, ordinances, building codes, rules and regulations applicable to the Work. If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, rules or regulations without notice to Owner, Contractor shall assume full responsibility for such Work and shall bear the attributable costs. Contractor shall promptly notify Owner in writing of any conflicts between the specifications for the Work and such governmental laws, rules and regulations. 10. The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs, including all those required by law in connection with performance of the Agreement. The Contractor shall promptly remedy damage and loss to property caused in whole or in part by the Contractor, or by anyone for whose acts the Contractor may be liable. 11. Contractor shall keep the premises /work site and surrounding area free from accumulation of debris and trash related to the Work. 12. Contractor shall furnish performance and payment bonds, each in an amount at least equal to the contract price as security for the faithful performance and payment of all Contractor's obligations under the contract documents. These bonds shall remain in effect at least until two years after the date of final payment, except as otherwise provided by law. Contractor shall also furnish other bonds as are required by the supplementary conditions. All bonds shall be in forms satisfactory to Owner, and be executed by such sureties as (a) are licensed to conduct business in the state where the project is located, and (b) are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" as published in Circular 570 (amended) by the Audit Staff Bureau of Accounts, U.S. Treasury Department. All bonds signed by an agent must be accompanied by a certified copy of the authority to act. If the surety on any bond furnished by Contractor is declared bankrupt, or becomes insolvent, or its right to do business is terminated in any state where any part of the project is located, or it ceases to meet the requirements of clauses (a) and (b) of the preceding paragraph, Contractor shall within five days thereafter substitute another bond and surety, both of which shall be acceptable to Owner. 13. Contractor shall be solely responsible for the protection of the Work until its final acceptance by Owner. Contractor shall have no claim against Owner because of any damage or loss to the Work, and shall be responsible for the complete restoration of damaged Work to its original condition. In the event Contractor's Work is damaged by another party, not under his supervision or control, Contractor shall make his claim directly with the party involved. If a conflict or disagreement develops between Contractor and another party concerning the responsibility for damage _or Loss to Cont. actor'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. 2 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 there from; 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 constructicr contract b.,, ie 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. 3 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/$1,040,000 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 4 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 acceptaince 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 6 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 specific(., 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; 7 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. 8 ecc)irailt .. 6*009* ADDENDUM #1 2009 TRAIL PAVING PROJECT Issued March 10, 2009 NOTES: 1. Questions, responses, corresponding changes, additions, or deletions shall be made to the Contract Documents as indicated, and all other Contract Documents shall remain the same. 2. ALL BIDDERS MUST ACKNOWLEDGE RECEIPT OF THIS ADDENDUM ON THE BID FORM. Failure to do so may render the Bidder's bid non - responsive. Potential Bidder Questions /ECO Trails Response: What is expected for Construction Zone Traffic control? Project #1: Riverwalk to Miller Ranch Road Trail — Paving Work Only, no base work. • This trail cannot be closed due to heavy use April through November as a local non - motorized travel route. • Detours will need to be arranged with the following signs on both sides of work: • Detour Ahead • Trail Closed (on trail at work zone) • Bicyclists Dismount • Cones or barrels on each end to guide to detour area Flaggers on each side of the work need to be assigned. Appropriate safety measures should be taken to direct trucks in and out of the work area. ■ Detours can be located through areas on sides of trail. Detour route should be inspected for rocks or obstacles, grasses may need to be cut. ECO Trails can assist with the latter as needed. A detour inspection by Contractor and ECO Trails will occur on site the day prior to commencement of the work, to review location and duration of detours. Project #2: Cooley Mesa Road Trail — Base and Paving • This trail is new and lightly used and can be closed with a Trail Closed and Detour Ahead sign to direct trail users to travel on Cooley Mesa Road • Flaggers are not required, but Contractor to advise work crew to be alert for users and if not advisable for them to use Cooley Mesa Road for safety reasons (e.g. children, strollers), and respond accordingly to assist the user past the work zone safely. ■ Appropriate safety measures should be taken to direct trucks in and out of the work area. ■ A detour inspection by Contractor and ECO Trails will occur on site the day of the work. Project #3: Homestead Spur Trail — Base and Paving ■ This spur trail is lightly used and can be closed for the length of time necessary to do the work, but not to exceed one day. Extra time can be discussed with ECO Trails. ■ Trail Closed signs should be placed on either end of the work. ■ Appropriate safety measures should be taken to direct trucks in and out of the work area. ■ Crew to remain alert for trail users attempting to use the spur trail, and can direct them to use the Lake Creek Road sidewalk as an alternative route to connect travel between the main trail along Highway 6 and neighborhoods in Homestead. ■ A detour inspection by Contractor and ECO Trails will occur on site the day of the work. Manhole adjustment, does this refer to just grade rings to bring it up to elevation or do we have to get involved with stair and cone adjustment? Grade rings only anticipated at this time, and only on Project #1 area located behind Riverwalk. Contractor to request inspection by Eagle River Water and Sanitation prior to the work to confirm that 1.5" asphalt overlay will not create non - conformance with stair specifications. Is the 2 " of recycled asphalt contractor supplied material or do you have millings to be used for this? Contractor to provide millings. The saw cut line item mentions removal /haul of asphalt, do you have a quantity for the amount of asphalt to be removed? Approximately 80 square feet as an 8' x 10' area. Do all three Projects have to bid as a group? Yes. Should the Bid Bond be made out to ECO Trails or Eagle County? Eagle County. Other Information or Amendments: 1. ECO Trails will place and pay for notice in the local newspaper prior to the work being performed, following a pre - construction meeting with the Contractor to determine paving dates. 2. A Project #1 quantity error and Project Notes error on the Bid Form Exhibit A were found after the first two bid packets went out to PCL Construction Services and Grand River Construction. They were provided with corrected Bid Form Exhibit A immediately. The incorrect exhibit was replaced for all subsequent bid packages but please check your Bid Form Exhibit A to insure that it matches the Exhibit A attached. If not, please use the attached Exhibit A. 3. The Eagle County Attorney's office has reviewed the bid package Agreement, and advised ECO Trails of two potential revisions: a. The "prohibitions on public contracts for services" language has been amended by statute. The new language is attached. It reflects a change in the screening program name. PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES: If Contractor /Consultant has any employees or subcontractors, Contractor /Consultant shall comply with C.R.S. § 8 -17.5 -101, et seq., regarding Illegal Aliens — Public Contracts for Services, and this Contract. By execution of this Contract, Contractor /Consultant certifies that it does not knowingly employ or contract with an illegal alien who will perform under this Contract and that Contractor /Consultant will participate in the E- verify Program or other Department of Labor and Employment program ( "Department Program ") in order to confirm the eligibility of all employees who are newly hired for employment to perform work under this Contract. A. Contractor /Consultant shall not: (i) Knowingly employ or contract with an illegal alien to perform work under this contract for services; or Enter into a contract with a subcontractor that fails to certify to the Contractor /Consultant that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. B. Contractor /Consultant has confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract through participation in the E- verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E- verify program can be found at: j hqp://www.dhs.gov/xprey prot ro r gc 118 5 21 7 R 1.5 0. shtm C. The Contractor /Consultant shall not use either the E- verify program or other Department Program procedures to undertake pre - employment screening of job applicants while the public contract for services is being performed. D. If the Contractor /Consultant obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, the Contractor /Consultant shall be required to: (i) Notify the subcontractor and the County within three days that the Contractor /Consultant has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (D) the subcontractor does not stop employing or contracting with the illegal alien; except that the Contractor /Consultant shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. E. The Contractor /Consultant shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority established in C.R.S. § 8- 17.5- 102(5). F. If a Contractor /Consultant violates these prohibitions, the County may terminate the contract for a breach of the contract. If the contract is so terminated specifically for a breach of this provision of this Contract, the Contractor /Consultant shall be liable for actual and consequential damages to the County as required by law. G. The County will notify the office of the Colorado Secretary of State if Contractor /Consultant violates this provision of this Contract and the County terminates the Contract for such breach. b. Amendment 54 will apply if fewer than three bids received and contract language will need to be amended accordingly. END of ADDENDUM PERFORMANCE BOND Bond Number: 8964436 KNOW ALL MEN BY THESE PRESENTS, that we OLDCASTLE SW GROUP, INC. DBA B &B EXCAVATING PO BOX 4870, EAGLE, CO 81631 , as Principal (the "Principal "), and Fidelity and Deposit Company of Maryland, a corporation duly organized under the laws of the State of Maryland, as Surety (the "Surety "), are held and firmly bound unto EAGLE COUNTY BOARD OF COUNTY COMMISSIONERS , PO BOX 850, EAGLE, CO 81631 , as Obligee (the "Obligee "), in the penal sum of Eighty One Thousand One Hundred Fifty And 73/100 Dollars ($81,150.73), 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 April 21, 2009, entered into a contract (the "Contract ") with the Obligee for 2009 TRAIL PAVING 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 was ovisican of this bond or the Contract, or otherwise, the Surety is not responsibl�; 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. PAYMENT BOND Bond Number: 8964436 KNOW ALL MEN BY THESE PRESENTS, that we OLDCASTLE SW GROUP, INC. DBA B &B EXCAVATING PO BOX 4870, EAGLE, CO 81631 , as Principal (the "Principal "), and Fidelity and Deposit Company of Maryland, a corporation duly organized under the laws of the State of Maryland, as Surety (the "Surety "), are held and firmly bound unto EAGLE COUNTY BOARD OF COUNTY COMMISSIONERS , PO BOX 850, EAGLE, CO 81631 , as Obligee (the "Obligee "), in the penal sum of Eighty One Thousand One Hundred Fifty And 73/100 Dollars ($81,150.73), 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 April 21, 2009, entered into a contract (the "Contract ") with the Obligee for 2009 TRAIL PAVING 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 vivwth the Principal, shall have given written notice to the Principal and the Surety within ninety (90) days (or such iesser or greater time period as otherwise permitted by relevant law) 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 separate envelopes addressed to the Principal and Surety. (b) Other than in a state court of competent 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. (c) After the expiration of one (1) year (or such lesser or greater time period as otherwise permitted by relevant law) from the date on which the Principal ceased work on the Contract. If the provisions of this paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. SURETY ACKNOWLEDGMENT STATE OF UTAH I COUNTY OF SALT LAKE I SS On this 21 ST day of APRIL, 2009, before me personall Y came TINA DAVIS to me known, who, being by me duly sworn, did depose and say that she is an Attorney -In- Fact of FIDELITY AND DEPOSIT COMPANY OF MARYLAND the corporation described in and which executed the within instrument; that she knows the corporate seal of said corporation, that the seal affixed to the within instrument is such corporate seal, and that she signed the said instrument and affixed the said seal as Attorney -In -Fact of the Board of Directors of said corporation and by authority of this office under the Standing Resolutions thereof. Notary Public dit . Aw....... ,,...,. emem 41"M ft rm .,... don r KIRIE MARTIN Notary Public State of Utah ~� My Gomm"jon jxpiros March 03, 2011 commission #568208 Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND KNOW ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a corporation of the State of Maryland, by FRANK E. MARTIN JR., Vice President, and GERALD F. HALEY, Assistant Secretary, in pursuance of authority granted by Article V1, Section 2, of the By -Laws of said ny, which are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the d ereby nominate, constitute and appoint Tina DAVIS, Mareinda DRYSDALE and Kiri a City, Utah, EACH its true and lawful agent and Attorney -in -Fact, to make, execute , a ' s� surety, and as its act and deed: any and all bonds and undertakings a f syg ngs in pursuance of these presents, shall be as binding upon said Co y, d a 1 A i nd purposes, as if they had been duly executed and acknowledged b 1 cted ° ' �, pany at its office in Baltimore, Md., in their own proper persons. Th' at re ehalf of. Tina DAVIS, Marcinda DRYSDALE, Derik STEVENSON, date 2, The said Assistant ° s by certify that the extract set forth on the reverse side hereof is a true copy of Article VI, Section 2, of the By -L s said Company, and is now in force. IN WITNESS WHEREOF, the said Vice - President and Assistant Secretary have hereunto subscribed their names and affixed the Corporate Seal of the said FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 21st day of February, A.D. 2008. ATTEST: ♦�O OEPps�� _ 4 O W State of Maryland l ss: City of Baltimore f FIDELITY AND DEPOSIT COMPANY OF MARYLAND Gerald F. Haley Assistant Secretary ILI By: Frank E. Martin Jr. Vice President On this 21 st day of February, A.D. 2008, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, came FRANK E. MARTIN JR., Vice President, and GERALD F. HALEY, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and they each acknowledged the execution of the same, and being by me duly sworn, severally and each for himself deposeth and saith, that they are the said officers of the Company aforesaid, and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said Corporate Seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above written. �011CiiII), er POA -F 020 -8022 Maria D. Adamski Notary Public My Commission Expires: July 8, 2011 Certificate of Insurance THIS CERTIFICATE ISSUED AS A MATTER OF INFORMATION. ONLY AND CONFERS NO RIGHT UPON YOU THE CERTIFICATE HOLDER. THIS CERTIFICATE IS NOT AN INSURANCE POLICY AND DOES NUT AMEND. EXTEND. OR , -ALTER THE COVERAGE AFFORDED BY THE POLICIES LISTED BELOW. This is to Certify that F castle SW Group Inc d /b /a B &B Excavating • Attn: Debi Esslinger NAME AND Liberty., PO Box 4870 ADDRESS . Eagle CO 81631 OF INSURED Mutual. is, at the issue date of this certificate, insured by the Company under the policy(ies) listed below. The insurance afforded by the listed policy(ies) is subject to all their terms, exclusions and Conditions and is not altered by any requirement, term or condition of any contract or other document with respect to which this certificate may be issued. TYPE OF POLICY EXP DATE ❑ CONTINUOUS ❑ EXTENDED POLICY NUMBER LIMIT OF LIABILITY ❑ POLICY TERM WORKERS COMPENSATION 9/1/2009 WA7 -C8D- 004095-028 WC7 -C85- 004095 -018 COVERAt;E AFFORDED UNDER WC LAW OF THE FOLLOWING STATES: ALL STATES EXCLUDING MONOPOLISTICS STATES AND NY EMPLOYERS LIABILITY Bodily Injury by Accident 1 000 000 Each Accident Bodily Injury By Disease OR, WI $1,000,000 PolicyLimit Bodily Injury By Disease $1,000,000 Eachftirson GENERAL LIABILITY 9/1/2009 TB2 -C85- 004095 -118 General Aggregate —Other than Products / Completed Operations $2,000,000 Products / Completed Operations Aggregate ® OCCURRENCE $2,000,000 ❑ CLAIMS MADE Bodily Injury and Property Damage Liability $2,000,000 Per Occurrence Personal Injury 2 000 000 Per Person /Organization RETRO DATE O'ME DAMAGE $100,000 th�L PROJECT AGGREGATE AUTOMOBILE LIABILITY 9/1/2009 AS2 -C35- 004095 -128 Each Accident—Single Limit $2,000,000 B.I. And P.D. Combined OWNED Each Person Each Accident or Occurrence ® NON -OWN ED HIRED Each Accident or Occurrence OTHER Auto: Comp Ded $10,000 /Coll Ded $10,000 EVIDENCE OF COVERAGE ADDITIONAL COMMENTS Re: 2009 Trail Paving Project Additional insured: Owner and Engineer Includes a waiver of subrogation in f ,Jor of: The Owner, Engineer and Their Subconsultants, Employees, Officers and Directors. Insurance is primary and non - contributory. * If the certificate expiration date is continuous or extended term, you will be notified if coverage is terminated or reduced betbre the certificate expiration date. SPECIAL NOTICE -OHIO: ANY PERSON WHO. WITH INTENT TO DEFRAUD OR KNOWING THAT HE IS FACILITATING A FRAUD AGAINST AN INSURER, SUBMITS AN APPLICATION OR FILES A CLAIM CONTAINING A FALSE OR DECEPTIVE STATEMENT IS GUILTY OF INSURANCE FRAUD. INIPORTANT NOTICE TO FLORIDA POLICYHOLDERS AND CERTIFICATE HOLDERS: IN THE EVENT YOU HAVE ANY QUESTIONS OR NEED INFORMATION ABOUT THIS CERTIFICATE FOR ANY REASON, PLEASE CONTACT YOUR LOCAL SALES PRODUCER WHOSE NAME AND TELEPHONE NUMBER APPEARS IN THE LOWER RIGHT H.-%\D CORNER OF THIS CERTIFICATE. THE APPROPRIATE LOCAL SALES OFFICE MAILING ADDRESS MAY ALSO BL OBTAINED BY CALLING THIS NUMBER. Liberty ;Mutual NOTICE OF CANCELLATION: (NOT APPLICABLE UNLESS A NUMBER OF DAYS IS ENTERED BELOW.) Insurance Group 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 MAIL—ED TO: Re: 2009 Trail Paving Project r Eagle County % ECO Trails Department Judith Balazentis Pittsburgh / 0387 AUTHORIZED REPRESENTATIVE 12 Federal Street, Ste. 310 = PO Box 1070 Pittsburgh PA 15212 -5706 412 - 231 -1331 4/23/2009 ., Eagle CO 81631 II OFFICE PHONE DATE ISSUED This certificate is executed by LIBERTY ',MUTUAL INSURANCE GROUP as respects such insurance as is afforded by those Companies NM 772 MARSH CERTIFICATE OF INSURANCE CERTIFICATE NUMBER ATL- 001821983 -01 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS MARSH USA INC. NO RIGHTS UPON THE CERTIFICATE HOLDER OTHER THAN THOSE PROVIDED IN THE 3475 PIEDMONT ROAD NE POLICY. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE SUITE 1200 AFFORDED BY THE POLICIES DESCRIBED HEREIN, ATLANTA, GA 30305 COMPANIES AFFORDING COVERAGE COMPANY 34420- ..- EX -08 -09 A American Guarantee & Liability Ins Co INSURED COMPANY OLDCASTLE SW GROUP INC. B dba B &B EXCAVATING - - - -- ____� _ _ -- -- -- --- ._ - - - -__ PO BOX 4870 COMPANY EAGLE, CO 81631 C COMPANY D COVERAGES This certificate supersedes and replaces any previously issued certificate for the policy period noted below. 3 THIS IS TO CERTIFY THAT POLICIES OF INSURANCE DESCRIBED HEREIN HAVE BEEN ISSUED TO THE INSURED NAMED HEREIN FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THE CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, CONDITIONS AND EXCLUSIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS LTR DATE (MM /DD/YY) DATE (MMlDD/YY) GENERAL LIABILITY GENERAL AGGREGATE I E $ COMMERCIAL GENERAL LABILITY PRODUCTS - COMP /OP AGG $ CLAIMS MADE OCCUR PERSONAL & ADV INJURY $ OWNER'S & CONTRACTOR'S PROT EACH OCCURRENCE $ `! FIRE DAMAGE (Anyone fire) $ �MED EXP (Any one person) AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ ANY AUTO $ ALL OWNED AUTOS 1 BODILY INJURY SCHEDULED AUTOS (Per person C HIRED AUTOS BODILY INJURY (Per accidenp 1 NON -OWNED AUTOS $ PROPERTY DAMAGE GARAGE LIABILITY 'AUTO ONLY - EA ACCIDENT $ OTHER THAN AUTO ONLY: ANY AUTO i { EACH ACCIDENT $ _ � j AGGREGATE $ A EXCESS LIABILITY AUC 8472904 11 f 09/01 /08 09/01 /09 EACH OCCURRENCE $ 10,000,000 $ 10,000,000 X UMBRELLA FORM AGGREGATE OTHER THAN UMBRELLA FCRM WORKERS COMPENSATION AND - A - I TORY LIMITS " ER EMPLOYERS' LIABILITY EL EACH ACCIDENT $ $ THE PROPRIETOR/ INCL EL DISEASE - POLICY LIMIT PARTNERS /EXECUTIVE OFFICERS ARE: EXCL EL DISEASE-EACH EMPLOYEE $ OTHER I f i DESCRIPTION OF OPERATIONS /LOCATIONS /VEHICLES /SPECIAL ITEMS EAGLE COUNTY IS (ARE) INCLUDED AS ADDITIONAL INSURED(S) PER WRITTEN CONTRACT. INSURANCE COVERAGE SHALL BE CONSIDERED PRIMARY AND NON - CONTRIBUTORY. WAIVER OF SUBROGATION APPLIES. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE POLICIES DESCRIBED HEREIN BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF. THE INSURER AFFORDING COVERAGE WILL ENDEAVOR TO MAIL ,111711 DAYS WRITTEN NOTICE TO THE EAGLE COUNTY CERTIFICATE HOLDER NAMED HEREIN, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR ECO TRAILS DEPARTMENT PO BOX 1070 LIABILITY OF ANY KIND UPON THE INSURER AFFORDING COVERAGE, ITS AGENTS OR REPRESENTATIVES, OR THE EAGLE, CO 81631 ISSUER OF THIS CERTIFICATE. AUTHORIZED REPRESENTATIVE of Marsh USA Inc. BY: Mary Radaszewski MM1(3/02) VALID AS OF:04/23/09 - - - - -- TERM SHEET MAY 4 2009 EAGLE COUNTY ATTG RN Elf 1) Requested hearing date: (First choice) May 12, 2009 (Second choice) Requesting May 12 so that paving can occur quickly. Contractor indicates our work can be one of first projects completed after asphalt plant opens, i.e. May 15. Contracts have been returned with bonds, insurance and signatures. Attorney reviewed contract prior to signature. 3) Requesting department: ECO Trails 4) Title: Agreement for Paving Project by B & B Excavating for Trail Paving Edwards and near Gypsum and Eagle 5) Check one: Consent: X On the Record: 6) Staff submitting: Ellie Caryl 7) Purpose: The work will include paving the Cooley Trail constructed by Road and Bridge in late 2008, paving two minor areas of trail in Eagle and Edwards, and an overlay of degrading trail sections in Edwards near Riverwalk and Miller Ranch. 8) Schedule: As noted above, work would commence within days of the agreements execution. 9) Financial considerations: The total contract amount is $81,150.73 for the four paving projects combined. All funds have been budgeted. The funds for the Edwards area work are provided by Edwards Metropolitan District, for the Cooley Trail by State of Colorado (Conservation Trust funds, that must be spent specifically for recreation projects such as trails) and for the short trail extension near Violet Lane in Eagle from the residual Eagle to Gypsum trail funds. An advertised bid process was used for solicitation of bids. B &B Excavating was the lowest bidder. 9) Other: Christina Hooper of the Attorney's office reviewed the Agreement prior to release for signature. Minor revisions incorporated. AS FORM ftle County Attorney's Office By: Eagle County Commissioners' Office