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HomeMy WebLinkAboutC12-204 Evertist Materials AGREEMENT FOR PURCHASE AND DELIVERY OF GRAVEL THIS AGREEMENT is dated as of this (ay of , 2012,by and between Eagle County, Colorado, a body corporate and polit c, acting by and through its Board of County Commissioners (hereinafter called "Owner "), and Everist Materials, LLC, a company organized under the laws of the State of South Dakota with its principal place of business at 28755 Highway 9, Silverthorne, Colorado 80498 (hereinafter called "Contractor "). WHEREAS, Owner desires to resurface a nine mile portion of the Eagle County Trough Road from the Grand /Eagle County line west to State Bridge (the "Project "); and WHEREAS, the Project requires up to 27,000 tons of 3/ inch U.S. Forest Service specification road base material (the "Materials "); and WHEREAS, Owner issued two separate requests for proposals for purchase of the road base material and delivery of the same; and WHEREAS, because Contractor was the successful bidder for both the sale of the materials and delivery of the same, Owner and Contractor wish to include both procurement and delivery of the road material in a single Agreement; and WHEREAS, Owner and Contractor, in consideration of the mutual covenants set forth, hereby agree as follows: ARTICLE 1 - WORK 1.1 Contractor agrees to sell the Materials specified in Contractor's proposal, "Eagle County 2012 Purchase Only, Gravel Project" attached hereto as Exhibit A and incorporated herein by this reference, in the amounts required by Owner, as more fully set forth in Exhibit A. In addition, Contractor shall haul, deliver and spread said materials to the locations identified in and as more fully set forth in Contractor's proposal, "Addendum to Eagle County 2012 Gravel Project," attached hereto as Exhibit B and incorporated herein by this reference (hereinafter the "Work "). 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 AND TERM OF AGREEMENT 3.1 The Work will be completed and ready for final payment in accordance with the Contract Documents on or before JULY 31, 2012. 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. �1 X -d-O They also recognize the delays, expense, and difficulties involved in proving a legal or arbitration preceding the actual Toss 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. 3.3 This Agreement shall commence upon execution of the Agreement by both parties, and shall continue in full force and effect until the Services are satisfactorily completed in accordance with the terms of this Agreement. 3.4 The term of this Agreement may be extended or modified and the scope of services may be changed upon a written amendment to this Agreement signed by both parties. ARTICLE 4 - CONTRACT PRICE 4.1 The funds appropriated for this project are equal to or in excess of the contract amount. 4.2 Contractor shall provide the Materials at the rate of nine dollars and fifty cents ($9.50) per ton, in the amounts required by Owner, as more fully set forth in Exhibit A. In addition, Contractor shall haul, deliver and spread said materials for the cost of six dollars ($6.00) per ton to the locations identified in Exhibit B. The parties agree that actual Project tonages may be adjusted based on actual need of Owner. The maximum amount of compensation under this Agreement for procurement, hauling, delivery and spreading of the Materials shall not exceed three hundred ninety five thousand two hundred fifty dollars ($395,250) without a signed amendment to this Agreement. 4.3 Payment will be made for materials deemed satisfactory by Owner and hauled, delivered and spread in accordance with Exhibits A and Exhibit B, within thirty (30) days of receipt of a proper and accurate invoice from Contractor. The invoice shall include a description of materials sold to Owner under this Agreement. Upon request, Contractor shall provide Owner with other supporting information as Owner may request. 4.4 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 4.5 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 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. 6.6 Contractor assumes all risk of loss with respect to the Materials until the Materials are delivered, accepted by Owner and spread in accordance with Exhibit B, at which time Owner shall assume all risk of Toss with respect to the Materials. 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 Exhibits A and B 7.3 Notice of Award and, if any, Notice to Proceed. 7.4 General Conditions (Pages 1 to 10, inclusive). 7.5 Specifications and Drawings (if any) 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 - MISCELLANEOUS 8.1 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. 8.2 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. 8.3 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. 8.4 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 Agreement Page 4 under, or in connection with this Agreement shall be exclusive in Eagle County, Colorado. 8.5 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. 8.6 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: 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: Everist Materials P.O. Box 1150 Silverthorne, CO 80498 Telephone: (970) 468 -2521 or (970) 468 -3647 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. PROHIBITIONS ON PUBLIC CONTRACT FOR SERVICES: If Contractor has any employees or subcontractors, Contractor 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 certifies that it does not knowingly employ or contract with an illegal alien who will perform under this Contract and that Contractor 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. Contractorshall not: (i) Knowingly employ or contract with an illegal alien to perform work under this contract for services; or (ii) Enter into a contract with 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. B. Contractor 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:// www .dhs.gov /xprevprot/programs /qc 1185221678150.shtm C. The Contractor 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 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: (i) 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 (ii) 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. E. 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 established in C.R.S. § 8- 17.5- 102(5). F. If a Contractor violates these prohibitions, the Owner 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 shall be liable for actual and consequential damages to the Owner as required by law. G. Owner will notify the office of the Colorado Secretary of State if Contractor violates this provision of this Contract and the Ownerterminates the Contract for such breach. Agreement Page 6 IN WITN WHEREOF, the parties have executed this Agreement this /of , day of , 2012. EAGLE COUNTY, COLORADO By and through its Board of County Commissioners ATTEST ..- .....:<,, s : : 0 0 , 0 „ , I ''....." • 1 1 7 By: s . t i��i. i* By 1. a , Peter F. Runyon �' � Clerk of the Boar. of Y County Commissioners Chairman EVERIST MATERIALS By: Arul//t_ Greg Norwick e 1i a 6„.„rI- Title STATE OF COLORADO ) ) ss: County of Eagle ) 1 The foregoing instrument was acknowledged before me by �V11.QQ r � v 0/ L � this ( , day of '-s& , 2012. `( My commission expires: 4 ( 1-2- Zc cL , 5c�4 &-. Notary Public / Q p'SRlclq �`‘∎, rNO T � c -� i y i 10 A VO J j 1 '% % CO` OP p _ ADDENDUM #1 Addendum to Eagle County 2012 Gravel Project. Project identification: "2012 delivery only, of gravel project" This addendum shall be included with the Eagle County 2012 Gravel Project and shall be titled as 9 Y j EXHIBIT "B" ( below) and shall serve as an additional bid along with EXHIBIT "A ". EXHIBIT "B" EAGLE COUNTY 2012 GRAVEL PROJECT Location Description QTY Unit Unit price TOTAL Deliver 3/4" road base from the LG Everist pit located at Trough Road 881 Grand County Rd. #1 to the Eagle County portion of F 1k (Eagle County the Trough Road (at the 20,000 tons ln,L'u f 12 ) #11) Grand / Eagle County line), spreading west 9 miles to State Bridge. Notes: This project is for delivery only. Gravel will be hauled from the LG Everist pit at 881 Grand Co Rd #1 and will be delivered to the Eagle County portion of the Trough Road at the Grand / Eagle County line (approx. 14.5 miles from pit to county line). The gravel will be spread using 6 minimum belly dump trailers, beginning at the Grand / Eagle County line spreading west for 9 miles to State Bridge, CO. Project tonnages may be adjusted depending on final bid totals. Contractor name: gI/07. )ST 1ThL 114iI -L 3, Addendum #1, dated April 10, 2012 . � A reD ZS 50C �A-- -- 5/ / 7._ • EXHIBIT "A" EAGLE COUNTY 2012 PURCHASE ONLY, GRAVEL PROJECT Location Description QTY Unit Unit price Amount At pit located within 20 miles Prepare and make available of Grand and 3/4" U.S. Forest Service 27,000 + /- tons O 'TO Eagle county specification road base. line, on Trough Rd. TOTAL AMOUNT _ "a Contractor name: (please print) f t e k/5 NOTE: 1. Material shall be a 3/4" surface course aggregate meeting USFS specifications with a plasticity index of between 4 and 12. 2. "Location" is the point where gravel is to be prepared and made available for pick up which needs to be located within 20 miles of the Grand and Eagle County line on the Trough Rd. (Eagle County Rd. #11 / Grand County Rd. #1). pe 47 3. Material must be available for pick up beginning May 31st. and-- - : -_ p p 9 g Y - / 4. "Unit price" shall be F.O.B. at the location. 5. Quantities may be reduced depending on final bid totals. 2_5 SO O `-! /(Z— 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 the larger of (i) $500,000 each person /$1,000,000 each occurrence, for bodily injury and $600,000 each occurrence for property damage , (ii) the maximum liability of a local government provided in the Colorado Governmental Immunity Act, 24 -10 -101, et seq., CRS (1973) as that may be amended from time -to -time, or (iii) such greater amount(s) as may be required by law. Insurance shall be placed jointly in the names of the Owner, Contractor, and any and all subcontractors, and any and all others obliged by contract with the Owner to do Work on this project, and, at the Owner's option, any other person or persons whom the Owner deems to have an insurable interest in said property, or any part thereof, payable as their several interests may appear. Any proceeds obtained from insurance provided for by this paragraph shall be paid to and held by the Owner as trustee. The Owner shall have the right to withhold payment of such proceeds until such time as the Work destroyed or damaged and covered by such insurance shall be reconstructed and shall pay such proceeds on an installment basis similar to that provided for by progress payments covering the original Work. Certificates of Insurance: Certificates of Insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work. These Certificates shall contain provisions naming the Owner as an additional insured under Contractor's insurance, as more fully required by the General Conditions herein, and that coverage afforded under the policies will not be cancelled until at least thirty days prior written notice has been given the Owner. Contractor and his subcontractors shall not permit any of his subcontractors to start Work until all required insurance have been obtained and certificates with the proper endorsements have been filed with the Owner. Failure of the Contractor to comply with the foregoing insurance requirements shall in no way waive the Owner's rights hereunder. 15. Owner, at its option, may purchase and maintain such liability insurance as will protect him against claims which may arise from operations under this contract. Purchasing and maintaining such insurance, however, will not relieve the Contractor from purchasing and maintaining the insurance hereinbefore specified. 16. Before permitting any of his subcontractors to perform any Work under this contract, Contractor shall either (a) require each of his subcontractors to procure and maintain during the life of his subcontracts, Subcontractor's Public Liability and Property Damage Insurance of the types and in the amounts as may be applicable to his Work, which type and amounts shall be subject to the approval of the Owner, or (b) insure the activities of his subcontractors in his own policy. 17. To the fullest extent permitted by law, Contractor shall indemnify and hold harmless Owner, its board, commissioners, employees and the agents of any of them, from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, Toss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including Toss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. 18. After execution of the Agreement, changes in the Work may be accomplished by Change Order or by order for a minor change in the Work. Owner, without invalidating the Agreement, may order changes in the Work within the general scope of the Agreement consisting of additions, deletions or other revisions. a. No Change Orders or other form of order or directive which requires additional compensable work to be performed may be issued or be effective unless accompanied by a written assurance to the Contractor that lawful appropriations to cover the costs of the additional work have been made. b. A Change Order shall be a written order to the Contractor signed by Owner to change the Work. c. Owner will have authority to order minor changes in the Work not involving changes in the Contract Price or the Contract Time. Such changes shall be written orders and shall be binding on the Contractor and Owner. Contractor shall carry out such written orders promptly. 19. Progress Payments: If the project is subject to progress payments, not more often than once a month, Contractor shall submit to Owner an application for payment filled out and signed by Contractor covering the work completed as of the date of the application, and accompanied by such supporting documentation as Owner may reasonably require. If payment is requested on the basis of materials and equipment not incorporated in the work, but delivered and suitably stored at the site or at another location agreed to in writing, the application for payment shall also be accompanied by such data, satisfactory to Owner, as will establish Owner's title to the material and equipment, and protect Owner's interest therein, including applicable insurance. Each subsequent application for payment shall include an affidavit of Contractor stating that all previous progress payments received on account of the work have been applied to discharge in full all of Contractor's obligations reflected in prior applications for payment. The amount of retainage with respect to progress payments will be as stipulated in the Agreement. Owner will, within ten days after receipt of each application for payment, either indicate in writing a recommendation of payment, or return the application to Contractor indicating in writing its reasons for refusing to recommend payment. In the latter case, Contractor may make the necessary corrections and resubmit the application. Owner shall, within twenty days of recommendation of payment, pay Contractor the amount recommended. 20. Final Payment: Upon written notice from Contractor that the work is complete, Owner will make a final inspection with Contractor, and will notify Contractor in writing of all particulars in which this inspection reveals that the work is incomplete or defective. Contractor shall immediately take such measures as are necessary to remedy such deficiencies. Defects are those identified by an Eagle County Official(s) and shall be judged on quality by that Official(s). After Contractor has completed all such corrections to the satisfaction of Owner, and delivered all maintenance and operating instructions, schedules, guarantees, bonds, certificates of inspection, marked -up record documents or as -built drawings covering all of the Work, Contractor may make application for final payment following the procedure for progress payments. The final application for payment shall be accompanied by all documentation called for in the contract documents, and such other data and schedules as Owner may reasonably require, together with complete and legally effective releases or waivers (satisfactory to Owner) of all liens arising out of, or filed in connection with the work. In lieu thereof, and as approved by Owner, Contractor may furnish receipts or releases in full; an affidavit of Contractor that the releases and receipts include all labor, services, material, and equipment for which lien could be filed, and that all payrolls, material, and equipment bills, and other indebtedness connected with the work, for which Owner or his property might in any way be responsible, have been paid or otherwise satisfied; and consent of the surety, if any, to final payment. If any subcontractor, manufacturer, fabricator, supplier, or distributor fails to furnish a release or receipt in full, Contractor may furnish a bond or other collateral satisfactory to Owner to indemnify Owner against any lien. 21. Final payment shall not become due until Contractor submits to Owner releases and waivers of liens, and data establishing payment or satisfaction of obligations, such as receipts, claims, security interests or encumbrances arising out of the Work. Final payment is subject to the Final Settlement requirements and time periods set forth in C.R.S. §38 -26 -107. 22. Contractor warrants and guarantees that title to all work, materials, and equipment covered by any application for payment, whether incorporated in the project or not, will pass to Owner at the time of payment free and clear of all liens, claims, security interests, and encumbrances (in these General Conditions referred to as "Liens "). 23. Contractor's obligation to perform and complete the Work in accordance with the contract documents shall be absolute. Neither the recommendation of any progress or final payment nor the payment by Owner to Contractor under the contract documents, nor any use or occupancy of the Work or any part thereof by Owner, nor any act of acceptance by Owner, nor any failure to do so, nor any correction of defective Work by Owner shall constitute an acceptance of Work not in accordance with the contract documents or a release of Contractor's obligation to perform the Work in accordance with the contract documents. 24. If Contractor fails to correct Work which is not in accordance with the Agreement, the Owner may direct the Contractor to stop the Work until the correction is made. 25. Contractor shall promptly correct Work rejected by Owner as failing to conform to the requirements of the Agreement and Contractor shall bear the cost of correcting such rejected Work. 26. Contractor warrants to Owner that: (1) materials and equipment furnished under the Agreement will be new and of good quality; (2) the Work will be free from defects not inherent in the quality required or permitted; defects are those identified by an Eagle County Official(s) and shall be judged on quality by that Official(s) and (3) the Work will conform to the requirements of the Agreement. 27. Contractor warrants and guarantees to Owner that all Work will be in accordance with the Contract Documents and will not be defective. Prompt notice of all defects shall be given to Contractor. If, within one year after the date of completion, or such longer period of time as may be set forth in the Agreement (including the Bid), prescribed by law, prescribed by the terms of any applicable warranty given by a materials supplier or required by or a part of the Agreement, any Work is found to be defective, Contractor shall promptly, without cost to Owner, and in accordance with Owner's written instructions, either correct such defective Work, or, if it has been rejected by Owner, remove it from the site, and replace it with nondefective work. If Contractor does not promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage, Owner may have the defective Work corrected or the rejected Work removed and replaced, and all direct and indirect costs of such removal and replacement, including compensation for additional professional services, shall be paid by Contractor. 28. If Contractor defaults or neglects to carry out the Work in accordance with the Agreement and fails within a seven day period after receipt of written notice from the Owner to correct such default or neglect with diligence and promptness, the Owner may, without prejudice to other remedies, correct such deficiencies. In such case, the Agreement may be terminated by Owner or a Change Order shall be issued deducting the cost of correction from payments due the Contractor. 29. The performance of the Work may be terminated at any time in whole, or from time to time in part, by Owner for its convenience. Any such termination shall be effected by delivery to Contractor of a written notice ( "Notice of Termination ") specifying the extent to which performance of the Work is terminated and the date upon which termination becomes effective. After receipt of a Notice of Termination, and except as otherwise directed by Owner, Contractor shall, in good faith, and to the best of its ability, do all things necessary, in the light of such notice and of such requests in implementation thereof as Owner may make, to assure the efficient, proper closeout of the terminated Work (including the protection of Owner's property). Among other things, Contractor shall, except as otherwise directed or approved by Owner: a. stop the Work on the date and to the extent specified in the Notice of Termination; b. place no further orders or 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. SPECIFICATIONS DRAWINGS - -n L711) -ti 01 / rf -IO/Lr y . SIV WRITING IN LIEU OF MEETING OF MANAGERS OF EVERIST MATERIALS, LLC The undersigned, being all of the managers of Everist Materials, LLC, a South Dakota limited liability company, entitled to notice of a special meeting held for the purpose of taking the action set forth herein, hereby waive all requirements of notice of meeting of managers and consent to the adoption of this writing in lieu of a meeting of managers of said limited liability company. The actions set forth below are hereby adopted and shall be of the same effect as if adopted at a meeting of managers of said limited liability company duly called and held for the purpose of taking such actions. This writing is hereby ordered filed with the minutes of meetings of managers. WHEREAS, the manager has the authority under Section 5.1(6) of the Declaration of the Company to employ, from time to time, persons, firms or corporations for the operation and management of the Company business or property; and WHEREAS, the Manager desires to employ Greg Norwick, as President of the Company, to serve at the discretion of the Manager; WHEREAS, the Manager desires to employ Douglas J. Hartley, as Controller of the Company, to serve at the discretion of the Manager; WHEREAS, the Manager desires to set forth herein the scope of the duties of the President and Controller of the Company; NOW, THEREFORE, BE IT RESOLVED as follows: RESOLVED, that the offices of President and Controller of the Company shall be established, the duties of which shall be described as follows: The Company shall have one or more natural persons exercising the functions of President and Controller to serve a the discretion of the Manager. The Manager may elect or appoint such other officers as he deems necessary for the operation and management of the Company, with such powers, rights, duties and responsibilities as may be determined by the Manager. Any of the positions or functions of those positions may be held by the same person. Unless provided otherwise by a resolution adopted by the Manager, the President (a) shall supervise the general active management of the business of the Company; (b) shall see that all orders and resolutions of the Manager are carried into effect; and (c) shall perform such other duties as may from time to time be prescribed by the Manager. He shall have the authority, subject to such rules as t }! may be prescribed by the Manager, to appoint si.uc ;h agents and employees of d Company as he shall deem necessary, to prescribe their powers, duties and compensation, and to delegate authority to then. Such agents and employees shall hold office at the discretion of the President. Be shall have authority to sign, execute and acknowledge, on behalf of the Company, all contracts, leases, reports and all other documents or instruments necessary or proper to be executed in the regular course of the Company's business, or which shall be authorized by resolution of the Manager and except in cases where the signing and execution thereof shall be expressly delegated by the Manager to some other officer or age.i u of the Company, or shall be required by law to be otherwise signed or executed. Except as otherwise provided by law or the Manager, he may authorize any other officer or agent of the Company to sign, execute and acknowledge such documents or instruments in his place and stead. Unless provided otherwise by a resolution adopted by the Manager, the Controller (a) shall keep accurate financial records for the Company; (b) shall deposit all monies, drafts and checks in the .narne of and to the credit of the Company in such banks and depositories as the Manager or the President shall designate from time to time; (c) shall endorse for deposit all notes, checks and drafts received by the Company as ordered by the Manager, or the President, snaking proper vouchers therefor; (d) shall disburse Company funds and issue checks and drafts in the name of the Company, as ordered by the Manager or the President; (e) shall render to the President and the Manager, whenever .requested, an account of all transactions performed by such person as Controller and of the financial condition of the Company; and (f) shall perform such other duties, including the signature of contracts, as may be prescribed by the Manager or the President from time to time. RESOLVED, that Greg Norwick be appointed as President of the Company, to hold such office in the discretion of the Manager; and R.1SOLVED, that Douglas 3. Hartley be appointed as Controller of the Company, to hold such office m the discretion of the Manager. " w . - _. Dated as of this 15' day of April 2002. '`' /, • ` Thomas S. Everist, Manager