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HomeMy WebLinkAboutC11-324 Elam Construction Agreement AGREEMENT FOR OVERLAY PROJECT THIS AGREEMENT is dated as of the day of t 2011, by and between Eagle County, Colorado, and a body corporate and politic, acting by and through its Board of County Commissioners (hereinafter called "Owner") and Elam Construction, INC., a Colorado Corporation with its principal place of business at 556 Struthers Ave., Grand Junction, Colorado 81501 (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 the asphalt overlay of the portion of Cooley Mesa Road from Gateway to Navajo Road, including mobilization, traffic control, 2 inch rotomilling and constructing the 2 inch asphalt overlay, as described in Contractor's proposal attached hereto as Exhibit A and incorporated herein by this reference. All Work shall be performed in a manner consistent with the applicable standard of care for like contractors. In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibit A and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. ARTICLE 2 - OWNER'S REPRESENTATIVE The Project is under the authority of the Eagle County Road & Bridge Department, the Director of which, or his designee, shall be Owner's liaison with Contractor with respect to the performance of the Work. ARTICLE 3 - CONTRACT TIME 3.1 The Work will be completed and ready for final payment in accordance with the Contract Documents on or before October 31, 2011. 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. eV N tJ 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 ". In no event shall the compensation provided Contractor under this Agreement for the Work, including but not limited to materials, services and direct and indirect costs, exceed the Bid Total of one hundred six thousand nine hundred forty four dollars and sixty cents ($106,944.66) absent an amendment to this Agreement signed by both parties. 4.3 The Bid Total (which is based upon Unit Prices) includes, without limitation, the entire amount of overhead and profit payable to Contractor in connection with the Work under the Contract Documents. Contractor shall not have the right to, nor shall it seek to recover, any additional compensation for overhead and profit or change in unit prices. 4.4 Contractor acknowledges that Owner is a tax exempt entity. 4.5 The quantities set forth in Exhibit A are based on good faith estimates initially agreed to by County and Contractor. The Parties acknowledge and agree that the actual quantity of each described item (which collectively constitute all of the Work) may differ as the Work is performed and completed and that if the actual quantity of an item so described is determined (as provided in 4.6 below) to be different from that so stated in Exhibit A, then County and Contractor shall agree to and execute a Change Order indicating such change and the resultant adjustment to the Bid Total. 4.6 The quantity of each item actually incorporated into the Work shall be recalculated as applicable, at any time and from time to time, but in any case upon completion of the Work. The applicable quantities may be so determined by the mutual agreement of County and Contractor. 4.7 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. Agreement Page 2 4.8 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: County shall make monthly progress payments on account of the Contract Price on the basis of Contractor's Applications for Construction Agreement Payments, as provided below. All progress payments will be on the basis of the progress of the Work. County shall have the right to request and inspect supporting documentation for progress payments, including but not limited to receipts and invoices evidencing payments of charges associated with the Work. Prior to Completion, progress payments will be in an amount equal to ninety -five percent of the calculated value of Work completed and materials and equipment not yet incorporated in the Work but delivered and suitably Tess in each case the aggregate of payments previously made. The withheld percentage of the Contract Price may be retained until the Work is completed satisfactorily and finally accepted by County as provided for herein. 5.2. FINAL PAYMENT: Except as provided by Section 5.3 of this Agreement, within sixty (60) days of completion and acceptance of the Work by County in accordance with Section 17 of this Agreement and Paragraphs 20 and 21 of the General Conditions, County 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 C.R.S. §38 -26- 107. Final payment shall be made in accordance with the requirements of the aforesaid statute. 5.3 County may withhold from any payments due to Contractor, to such extent as may be necessary to protect ECAT from Toss, because of defective work or material not remedied or the failure of Contractor to carry out the Scope of Work in accordance with this Agreement. 5.4. Contractor shall maintain comprehensive, complete and accurate records and accounts of its performance relating to this Agreement for a period of three (3) years following termination, which period shall be extended at County's reasonable request. County shall have the right within such period to inspect such books, records and documents upon demand, with reasonable notice and at a reasonable time. 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 General Conditions 7.3 Exhibit A 7.5 Notice of Award if any, and Notice to Proceed. Agreement Page 4 7.6 Specifications and Drawings (if any) 7.7 Any modification, including Change Orders, duly delivered after execution of Agreement. The parties acknowledge and agree that the terms and conditions of this Agreement (7.1) and the General Conditions (7.2) 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 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 This Agreement shall be governed by and construed in accordance with the 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 District for the State of Colorado. 9.7 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: With a copy to: Board of County Commissioners, Eagle County Road & Bridge Eagle County, Colorado P. O. Box 250 P. O. Box 850 Eagle, CO 81631 Eagle, CO 81631 Telephone: (970) 328 -3540 Telephone: (970) 328 -8605 Fax: (970) 328 -3546 Fax: (970) 328 -7207 Contractor: Elam Construction P.O. Box 1176 Edwards, Colorado 81632 -1176 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. 9.8 PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES. 9.8.1 The Contractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services; or enter into a contract with Agreement Page 6 t - a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services. 9.8.2 The Contractor shall confirm or attempt to confirm through participation in the Basis Pilot Verification program, as administered by the United States Department of Homeland Security, that the Contractor does not employ any illegal aliens. If the Contractor is not accepted into the Basic Pilot Verification Program prior to entering into a public contract for services, the Contractor shall apply to participate in the Program every three months until the Contractor is accepted or the public contract for services has been completed, whichever is earlier. Information on applying for the Basic Pilot Verification Program can be found at: httos:// www. vis- dhs.com\emploverreoistration 9.8.3 The Contractor shall not use the Basic Pilot Verification Program procedures to undertake pre - employment screening of job applicants while the public contract for services is being performed. 9.8.4 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. 9.8.5 The Contractor 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. 9.8.6 If a Contractor violates these prohibitions, the County may terminate the contract for a breach of the contract. If the contract is so terminated, the Contractor shall be liable for actual and consequential damages to the County. // Remainder of Page Intentionally Left Blank // IN WITNESS WHEREOF, the parties have executed this Agreement this! day of EAGLE COUNTY, COLORADO By and through its Board of County Commissioners ATTEST o f . ? e c t • By _ _ :.� ..�.:� , Clerk of the Bo. of ° s oRPo , . '= - - , - I c_t `t County Commissioners Chairman tot)_ ELAM CONS RUCTION, INC. By; Print name Todd Bauer Title: President STATE OF COLORADO ) ) ss: County of Eagle -- Mesa ) The foregoing instrument was acknowledged before me by Todd Bauer this 27 , day of September , 2011. My ce mission expir- w , oct..er 6, 2015 ar Public - SPRY Pt/ ∎ Q • ,• •.l. SARAH E. 1 . • FEES OFc Agreement Page 8 • ROAD & BRIDGE DEPARTMENT GENERAL CONDITIONS 1. Contractor shall provide and pay for labor, materials, equipment, tools, utilities, permits, licenses, transportation, and other facilities and services necessary for proper execution and completion of the Work. 2. If Contractor fails to obtain the tax exemption(s) applicable to public works projects from sales, consumer, use and similar taxes, Contractor shall pay the same. Owner will cooperate with Contractor to obtain tax exemption for this project. 3. Contractor shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the Work, and the general and local conditions which can affect the Work or the cost thereof. Any failure by Contractor to do so will not relieve him from responsibility for successfully performing the Work without additional expense to the Owner. Owner assumes no responsibility for any understanding or representations concerning conditions made by any of its officers, employees or agents prior to the execution of this Agreement, unless such understanding or representations are expressly stated in the Agreement. 4. Before commencing activities, Contractor shall: (1) take field measurements and verify field conditions; (2) carefully compare this and other information known to Contractor with the Agreement; and (3) promptly report errors, inconsistencies or omissions discovered to Owner. 5. Contractor shall supervise and direct the Work, using Contractor's best skill and attention. Contractor shall be solely responsible for and have control over construction means, methods, techniques, quality, sequences and procedures, and for coordinating all portions of the Work. 6. Contractor, as soon as practicable, shall furnish in writing to the Owner the names of subcontractors and suppliers for each portion of the Work. 7. No charge shall be made by Contractor for hindrances or delays from any cause whatever during the progress of any portion of the Work, unless such hindrance or delay is caused in whole or in part by acts or omissions within the control of Owner. In any event, Owner may grant an extension of time for the completion of the Work, provided it is satisfied that delays or hindrances were due to causes outside Contractor's control, e.g., weather, or to acts of omission or commission by the Owner, provided that such extensions of time shall in no instance exceed the time actually lost to Contractor by reason of such causes, and provided further that Contractor shall have given Owner immediate (as determined by the circumstances, but not exceeding 48 hours) notice in writing of the cause of the detention or delay. 8. Contractor shall deliver, handle, store and install materials in accordance with manufacturers' instructions. 9. Contractor shall comply with and give notices required by all federal, state and local laws, statutes, ordinances, building codes, rules and regulations applicable to the Work. If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, rules or regulations without notice to Owner, Contractor shall assume full responsibility for such Work and shall bear the attributable costs. Contractor shall promptly notify Owner in writing of any conflicts between the specifications for the Work and such governmental laws, rules and regulations. 10. The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs, including all those required by law in connection with performance of the Agreement. The Contractor shall promptly remedy damage and loss to property caused in whole or in part by the Contractor, or by anyone for whose acts the Contractor may be liable. 11. Contractor shall keep the premises /work site and surrounding area free from accumulation of debris and trash related to the Work. 12. Contractor shall furnish performance and payment bonds, each in an amount at least equal to the contract price as security for the faithful performance and payment of all Contractor's obligations under the contract documents. These bonds shall remain in effect at least until two years after the date of final payment, except as otherwise provided by law. Contractor shall also furnish other bonds as are required by the supplementary conditions. All bonds shall be in forms satisfactory to Owner, and be executed by such sureties as (a) are licensed to conduct business in the state where the project is located, and (b) are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" as published in Circular 570 (amended) by the Audit Staff Bureau of Accounts, U.S. Treasury Department. All bonds signed by an agent must be accompanied by a certified copy of the authority to act. If the surety on any bond furnished by Contractor is declared bankrupt, or becomes insolvent, or its right to do business is terminated in any state where any part of the project is located, or it ceases to meet the requirements of clauses (a) and (b) of the preceding paragraph, Contractor shall within five days thereafter substitute another bond and surety, both of which shall be acceptable to Owner. 13. Contractor shall be solely responsible for the protection of the Work until its final acceptance by Owner. Contractor shall have no claim against Owner because of any damage or loss to the Work, and shall be responsible for the complete restoration of damaged Work to its original condition. In the event Contractor's Work is damaged by another party, not under his supervision or control, Contractor shall make his claim directly with the party involved. If a conflict or disagreement develops between Contractor and another party concerning the responsibility for damage or loss to Contractor's Work, such conflict shall not be cause for delay in Contractor's restoration of the damaged Work. • 14. Contractor's Insurance: The Contractor shall purchase and maintain such insurance as will protect him from claims set forth below which may arise out of or result from the Contractor's operations under the contract, whether such operations be by himself, or by any subcontractor, or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. All such insurance shall remain in effect until final payment, and at all times thereafter when Contractor may be correcting, removing, or replacing defective Work. In addition, Contractor shall maintain such completed operations insurance for at least two years after final payment, and furnish Owner with evidence of continuation of such insurance at final payment and one year thereafter. Insurance coverage shall be as follows: Claims under Workmen's Compensation, disability benefits, and other similar employee benefit acts, with coverage and in amounts as required by the laws of the State of Colorado; Claims for damage because of bodily injury, occupational sickness or disease, or death of his employees, and claims insured by usual personal injury liability coverage; Claims for damage because of bodily injury, sickness, disease, or death of any person other than his employees; and Claims for damages because of injury to or destruction of tangible property, including loss of use resulting 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 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 $1,000,000 each person /$2,000,000 each occurrence for bodily injury and $2,000,000 each occurrence for property damage. 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. Contractor shall indemnify, hold harmless and, not excluding the Owner's right to participate, defend Owner, its officers, officials, agents and employees (hereinafter referred to as "Indemnitee ") from and against all liabilities, claims, actions, damages, losses, and expenses including without limitation reasonable attorneys' fees and costs, (hereinafter referred to collectively as "claims ") for bodily injury or personal injury including death, loss or damage to tangible or intangible property caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of contractor or any of its owners, officers, directors, agents, employees or subcontractors. This indemnity includes any claim or amount arising out of or recovered under the Workers' Compensation Law or arising out of the failure of such contractor to conform to any federal, state or local law, statute, ordinance, rule, regulation or court order. It is the specific intent of the Parties that the Indemnitee shall, in all instances, except for claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified by Contractor from and against any and all claims. It is agreed that Contractor will be responsible for primary loss investigation, defense and judgment costs where this indemnification is applicable. In consideration of the award of this contract, Contractor agrees to waive all rights of subrogation against Owner, its officers, officials, agents and employees for losses arising from the work performed by Contractor for Owner. 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 Hens, 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 fumished 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 Toss or damage, Owner may have the defective Work corrected or the rejected Work removed and replaced, and all direct and indirect costs of such removal and replacement, including compensation for additional professional services, shall be paid by Contractor. 28. If Contractor defaults or neglects to carry out the Work in accordance with the Agreement and fails within a seven day period after receipt of written notice from the Owner to correct such default or neglect with diligence and promptness, the Owner may, without prejudice to other remedies, correct such deficiencies. In such case, the Agreement may be terminated by Owner or a Change Order shall be issued deducting the cost of correction from payments due the Contractor. 29. The performance of the Work may be terminated at any time in whole, or from time to time in part, by Owner for its convenience. Any such termination shall be effected by delivery to Contractor of a written notice ( "Notice of Termination") specifying the extent to which performance of the Work is terminated and the date upon which termination becomes effective. After receipt of a Notice of Termination, and except as otherwise directed by Owner, Contractor shall, in good faith, and to the best of its ability, do all things necessary, in the light of such notice and of such requests in implementation thereof as Owner may make, to assure the efficient, proper closeout of the terminated Work (including the protection of Owner's property). Among other things, Contractor shall, except as otherwise directed or approved by Owner: a. stop the Work on the date and to the extent specified in the Notice of Termination; b. place no further orders or subcontracts for services, equipment or materials except as may be necessary for completion of such portion of the Work as is not terminated; c. terminate all orders and subcontracts to the extent that they relate to the performance of Work terminated by the Notice of Termination; d. assign to Owner, in the manner and to the extent directed by it, all of the right, title and interest of Contractor under the orders or subcontracts so terminated, in which case Owner shall have the right to settle or pay any or all claims arising out of the termination of such orders and subcontracts; e. with the approval of Owner, settle all outstanding liabilities and all claims arising out of such termination or orders and subcontracts; and f. deliver to Owner, when and as directed by Owner, all documents and all property which, if the Work had been completed, Contractor would be required to account for or deliver to Owner, and transfer title to such property to Owner to the extent not already transferred. In the event of such termination, there shall be an equitable reduction of the Contract Price to reflect the reduction in the Work and no cost incurred after the effective date of the Notice of Termination shall be treated as a reimbursable cost unless it relates to carrying out the unterminated portion of the Work or taking closeout measures. SPECIr1CAT1 DRAWINGS 70 1" • a in CONSTRUCTION, IMC. ✓r P.O. Box 1176 Edwards, CO 81632-1176 (970) 926 -5411 FAX (970) 926 -5465 }CCS y�-•� ay�' r �irare .Gf eil `! i"� . .3 f "T #. t . r of a ,= fr ',ryKF i;-r� W:ktt a 1 SUBMITTED TO: Eagle County Road & Bridge Brad Higgins PO Box 250 Eagle, CO 81631 (970) 328 -3541 JOB NAME & ADDRESS: Cooley Mesa Rd. Costco to Navajo Architect/Enginccr: Date of Plans: Site Visit We hereby propose: 1 Item Description Qty Units Unit Price Bid Amount 1 Mobilization 1 LS $2,300.00 $2,300.00 • 2 TraflicControl 1 • LS $1,800:00 $I,80000 3 2" Rotomilling 87,340 SF $0.19 $16,594.60 4 2" Asphalt Overlay 1,150 TN $75.00 886,250.00 Bid Total: $106,944.60 Project Notes: EXHIBIT A +• e r l' %■ e*•}V Interchange Corporate Center ♦ ",J Mutual 450 Plymouth Road, Suite 400 I1 t Plymouth Meeting, PA. 19462 -1644 Ph. (610) 832 -8240 PERFORMANCE BOND Bond Number: 327 - 012 -318 KNOW ALL MEN BY THESE PRESENTS, that we Elam Construction, Inc. 556 Struthers Avenue, Grand Junction, CO 81501 , as principal (the "Principal "), and LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts stock insurance company, as surety (the "Surety"), are held and firmly bound unto Board of County Commissioners, Eagle County, Colorado, P.O. Box 850, Eagle, CO 81631 , as obligee (the "Obligee "), in the penal sum of One Hundred Six Thousand Nine Hundred Forty Four Dollars and Sixty Six Cents Dollars ($ 106,944.66 ), 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 the day of , 20 entered into a contract (the "Contract ") with the Obligee for Cooley Mesa Road from Gateway to Navajo Road 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 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 Arrange for the Principal, with consent of the Obligee, to perform and complete the Contract; or 1.2 Undertake to perform and complete the Contract itself, through its agents or through independent contractors; or 1.3 Obtain a bid or bids from alternative contractors 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 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; or 1.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: a. After investigation, determine the amount for which it may be liable to the Obligee and, as soon as practicable after the amount is determined, tender payment therefore to the Obligee; or b. Deny liability in whole or in part and notify the Obligee citing reasons therefore. LMIC -5100 Page 1 of 2 Rev. 03/04 • 2. Notwithstanding any other provision of this bond or the Contract, or otherwise, the Surety is not responsible for and shall not be held liable to the Obligee for any hazardous waste removal and the Surety shall not be held liable to, or in any other respect be responsible to, the Obligee by way of indemnity, claims or otherwise, or to any public authority or to any other person, firm or corporation, for or on account of any fines or claims by any public authority or for bodily injuries or property damage to any person or thing, including, but not limited to, injury or damage due to the release or threat of release of hazardous substances of any kind or damage to real estate or to the environment or clean -up costs or other damages of whatever kind or nature arising out of any act of commission or omission by the Principal, the Principal's agents, servants, employees, subcontractors or suppliers or any other person in connection with the performance of the Contract. This limitation applies regardless of when any such fine is assessed, claim is made, or injury, damage, release or threat of release occurs and without regard to any term or condition of the Contract. 3. The Surety hereby waives notice of any alteration or extension of time made by the Obligee. 4. Any suit under this bond must be instituted before the expiration of one (1) year from the date on which the Principal ceased to work on the Contract or such time period as otherwise permitted by relevant statute. 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. 5. No right of action shall accrue on this bond to or for the use of any person or corporation other than the Obligee named herein or the heirs, executors, administrators or successors of the Obligee. 6. Any claims must be presented in writing to Liberty Mutual Insurance Company to the attention of the Surety Law Department at the above address. DATED as of this day of , 20 WITNESS / ATTEST Elam Construction, Inc. (Principal) By: c ( Seal) Jason D. Cates, CFO Na Todd Bauer Title: President LIBERTY UTUAL INSURANCE COMPANY (S ;t By: ■ Li vl ♦ ' (Seal) Les ie Clifton, Attorney -in -Fact LMIC -5100 Page 2 of 2 Rev. 03/04 • . THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. X1 606 • This P ower of Attorney limits the acts of those named herein, and they have no authority to bind the Company except in the manner and to the extent herein stated. LIBERTY MUTUAL INSURANCE COMPANY BOSTON, MASSACHUSETTS POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS: That Liberty Mutual Insurance Company (the "Company "), a Massachusetts stock insurance company, pursuant to and by authority of the By -law and Authorization hereinafter set forth, does hereby name, constitute and appoint ADRIAN MILES, ANTHONY TOMASSETTI, BRIAN J. HALL, ELENA MAZZUCA, LESLIE CLIFTON, RITA DAVIS, MICHAEL A. GEIGER, HEIDI J. THOMPSON, JASON KILGORE, ROBERT K. HALL, ALL OF THE CITY OF CHERRY HILL, STATE OF NEW JERSEY , each individually if there be more than one named, its true and lawful attomey -in -fact to make, execute, seal, acknowledge and deliver, for and on its behalf as surety and as its act and deed, any and all undertakings, bonds, recognizances and other surety obligations in the penal sum not exceeding FIFTY MILLION AND 00/100****************************************•***•*** * * * * * * * * * * * * * * * * * * * * * * * * *• * * *** DOLLARS ($ 50, 000, 000 .00 * * * * * * * * * * * * * * * * * * * * * * * * * * ** ) each, and the execution of such undertakings, bonds, recognizances and other surety obligations, in pursuance of these presents, shall be as binding upon the Company as if they had been duly signed by the president and attested by the secretary of the Company in their own proper persons. That this power is made and executed pursuant to and by authority of the following By -law and Authorization: ARTICLE XIII - Execution of Contracts: Section 5. Surety Bonds and Undertakings. as Any officer of the Company authorized for that purpose in writing by the chairman or the president, and subject to such limitations as the - N chairman or the president may prescribe, shall appoint such attomeys -in -fact, as may be necessary to act in behalf of the Company to make, N O execute, seal, acknowledge and deliver as surety any and all undertakings, bonds, recognizances and other surety obligations. Such attorneys - w Q in -fact, subject to the limitations set forth in their respective powers of attorney, shall have full power to bind the Company by their signature and c -O execution of any such instruments and to attach thereto the seal of the Company. When so executed such instruments shall be as binding as if 3 C d signed by the president and attested by the secretary. JZ Ja C co By the following instrument the chairman or the president has authorized the officer or other official named therein to appoint attorneys -in -fact: as . e s- c irs 3 Pursuant to Article XIII, Section 5 of the By -Laws, David M. Carey, Assistant Secretary of Liberty Mutual Insurance Company, is hereby authorized R 0 v to appoint such attorneys -in -fact as may be necessary to act in behalf of the Company to make, execute, seal acknowledge and deliver as surety 0 N -, 0 any and all undert bonds, recognizances and other surety obligations. d W E d > That the By -law and the Authorization set forth above are true copies thereof and are now in full force and effect. p Q � 'O IN WITNESS WHEREOF, this Power of Attorney has been subscribed by an authorized officer or official of the Company and the corporate seal of Liberty w t.. c'N Mutual Insurance Company has been affixed thereto in Plymouth Meeting, Pennsylvania this day of 17th day of August O 0 i 2011 N c a i C ) �� < � LIBERTY MUTUAL INSURANCE COMPANY 33 E CI) c c ,�,z ,,,,s 01 2,, f:f 2 0 0� y * David M. Carey, sistant Secretary „' of as L COMMONWEALTH OF PENNSYLVANIA ss 0 c • C ,;; COUNTY OF MONTGOMERY Z+ N O= C E w On this 17th day of August 2011 , before me, a Notary Public, personally came David M. Carey, to me known, and . z L. * O as acknowledged that he is an Assistant Secretary of Liberty Mutual Insurance Company; that he knows the seal of said corporation; and that he executed > 0 4- 1 the above Power of Attorney and affixed the corporate seal of Liberty Mutual Insurance Company thereto with the authority and at the direction of said t et •� 0 cor porat i on. +r co 4 L. IN TESTIMONY WHER , , :o subscribed my name and affixed my notarial seal at Plymouth Meeting, Pennsylvania, on the day and year ii= f" O first above written ^ ONWE y , <,,, � c Z V . ' C Notarial Seal V 0 sa ' Ter Pas e 18 Notary Pu'�[si ?LI& 0 I Any for rri pion Ewes ;. 28, 13 B Member, , Peo sylverea As x€as n of ota ;,es Teresa Pastella, Notary Public CERTIFICATE s e2P I, the undersigned, Assist -•: - A n eerty Mutual Insurance Company, do hereby certify that the original power of attomey of which the foregoing is a full, true and correct copy, i' - ce and effect on the date of this certificate; and I do further certify that the officer or official who executed the said power of attomey is an Assistant Secretary specially authorized by the chairman or the president to appoint attomeys -in -fact as provided in Article XIII, Section 5 of the By -laws of Liberty Mutual Insurance Company. This certificate and the above power of attorney may be signed by facsimile or mechanically reproduced signatures under and by authority of the following vote of the board of directors of Liberty Mutual Insurance Company at a meeting duly called and held on the 12th day of March, 1980. VOTED that the facsimile or mechanically reproduced signature of any assistant secretary of the company, wherever appearing upon a certified copy of any power of attorney issued by the company in connection with surety bonds, shall be valid and binding upon the company with the same force and effect as though manually affixed. IN TESTIMONY WHEREOF, 1 have hereunto subscribed my name and affixed the corporate seal of the said company, this day of ...e o. � 1912 a * 0 ' Gregory W. Davenport, Assistant Secretary • OW' Liberty LIBERTY MUTUAL INSURANCE COMPANY Mutual, FINANCIAL STATEMENT — DECEMBER 31, 2010 Assets Liabilities Cash and Bank Deposits $ 795,278,733 Unearned Premiums $3,502,531,059 *Bonds — U,S Government 928,976,332 Reserve for Claims and Claims Expense 15,450,806,243 *Other Bonds 12,269,586,768 Funds Held Under Reinsurance Treaties 1,764,193,716 Reserve for Dividends to Policyholders 4,776,435 *Stocks 8,410,330,089 Additional Statutory Reserve 89,441,297 Real Estate 280,897,925 Reserve for Commissions, Taxes and Agents' Balances or Uncollected Premiums 2,971,477,549 Other Liabilities 2,126.508,564 Accrued Interest and Rents 156,129,412 Total $22,938,257,314 Special Surplus Funds $1,218,426,655 Other Admitted Assets 10,888,871,535 Capital Stock 10,000,000 Paid in Surplus 7,731,965,815 Unassigned Surplus 4,802,898,559 Total Admitted Assets. $36,701,54$,343 Surplus to Policyholders 13,763,291,029 Total Liabilities and Surplus %1&7J1•Lg4$.143 1N 5�R 0011"414), (4 y , * Bonds are stated at amortized or investment value; Stocks at Association Market Values. _ Yn The foregoing financial information is taken from Liberty Mutual Insurance Company's financial } 1 912 2 f statement filed with the state of Massachusetts Department of Insurance. 4* I f I, TIM MIKOLAJEWSKI, Assistant Secretary of Liberty Mutual Insurance Company, do hereby certify that the foregoing is a true, and correct statement of the Assets and Liabilities of said Corporation, as of December 31, 2010, to the best of my knowledge and belief. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said Corporation at Seattle, Washington, this 29th day of March, 2011. I `' ► Assistant Secretary S- 1 262LMICla 2111