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HomeMy WebLinkAbout24-113 Approving a Construction Contract between the Town and Lumin8 Transportation for Neighbors Point Hawk Signal 12-18-2024i 1 1 1 1'_iirr'i 1 r i i r, i i i r r WHEREAS, the Town of Firestone ("Town") is in need of professional construction services in connection with the Neighbors Point HAWK Traffic Signal Project (the "Project"); and WHEREAS, the Town issued an request for bids ("RFB") for such services for the Project; and WHEREAS, the Town has evaluated the bids submitted in response to the RFB, and finds that Lumin8 Transportation Technologies, LLC ("Lumin8) is the lowest responsible and responsive bidder for the RFB; and WHEREAS, the Town finds that Lumin8 has the expertise, qualifications, and experience to perform the work and duties required for the Project, and desires to select Lumin8 as the lowest responsible and responsive bidder for the RFB and to enter into a construction contract with Lumin8 to provide the construction services and perform the work as described in Construction Contract, attached hereto as Exhibit A. 1, .; i 1 i', it Section 1. The Construction Contract between the Town of Firestone and Lumin8 Transportation Technologies, LLC is approved in substantially the same form as the copy attached hereto and made a part of this Resolution, and the Mayor is authorized to execute the Agreement on behalf of the Town. Section 2. The Town Manager is authorized to approve, sign, execute and deliver any and all change orders on behalf of the Town as may be necessary for the Town to perform under the Agreement up to and until such time as the total dollar amount of all such change orders results in an increase in the contract price equal to or greater than $69,000.00, at which time any such change order shall be subject to approval by the Board. PASSED AND ADOPTED this 18th day of December, 2024. Jr. CONSTRUCTION CONTRACT THIS CONSTRUCTION CONTRACT (the "Construction Contract" or "Agreement") is made and entered into this day of , 2024 (the "Effective Date"), by and between the TOWN OF FIRESTONE, a Colorado municipal corporation with an address of 9950 Park Avenue, Firestone, Colorado 80504 (the "Town" or the "Owner"), and LUMIN8 TRANSPORTATION TECHNOLOGIES, LLC, an independent contractor with a principal place of business at 5920 Lamar St. Arvada, CO 80003 ("Contractor") (each a "Party" and collectively the "Parties"). WHEREAS, the Town requires services; and WHEREAS, the Town has found the Contractor to have the expertise and experience to perform the required services. NOW THEREFORE, in consideration hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: I. SCOPE OF WORK A. The Contractor shall complete all Work and perform all Services described or reasonably implied from the Scope of Work set forth in Exhibit A and the Contract Documents, attached hereto and incorporated herein by this reference and known as: Neighbors Point HAWK Signal Construction (S2024.9248). B. A change in the Scope of Work shall not be effective unless authorized as a modification to this Agreement or change order in accordance with the Contract Documents. If the Contractor proceeds without such written authorization, the Contractor shall be deemed to have waived any claim for additional compensation, including a claim based on the theory of unjust enrichment, quantum merit or implied contract. Except as expressly provided herein, no agent, employee, or representative of the Town is authorized to modify any term of this Agreement, either directly or implied by a course of action. C. Within ten days of the Effective Contract Date, the Contractor shall provide the performance bond, labor & material payment bond, and certificate of insurance required by the Contract Documents. II. DESIGN PROFESSIONAL This Project has been designed by: Bohannan Hutson, Inc. who is hereinafter called DESIGN PROFESSIONAL and who is to act as FIRESTONE's representative, assume all duties and responsibilities, and have the rights and authority assigned to DESIGN PROFESSIONAL in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents. Page 1 of 8 FIRESTONE III. CONTRACT TIMES; COMMENCEMENT AND COMPLETION OF WORK A. The Work shall be substantially completed within 60 days of the Notice to Proceed of this Agreement. It shall continue until the Contractor completes the Scope of Services to the Town's satisfaction, or until terminated as provided herein. B. Either Party may terminate this Agreement upon 30 days advance written notice. The Town shall pay the Contractor for all Work previously authorized and satisfactorily completed prior to the date of termination. If, however, the Contractor has substantially or materially breached this Agreement, the Town shall have any remedy or right of set-off available at law and equity. C. Should a delay in completion constitute a compensable inconvenience to the Town and its residents, the liquidated damages established in this Section shall be enforced. Such damages are not a penalty, and the parties recognize the delays, expenses, and difficulties involved in proving the actual loss suffered by the Town if the Work is not completed on time. Accordingly, instead of requiring such proof the Parties agree that as liquidated damages for each day that all or a portion of the Work is delayed beyond the deadlines set forth in Section III hereof, plus any extensions thereof allowed, the Contractor shall be assessed the amount of one thousand dollars ($1000) each day until the Work is complete. IV. COMPENSATION In consideration for the completion of the Work by Contractor, the Town shall pay Contractor, subject to all of the terms and conditions of the Contract Documents, an amount not to exceed $690,700.00 (the "Contract Price"). The Contract Price shall include all fees, costs, and expenses incurred by the Contractor, and no additional amounts shall be paid by the Town for such fees, costs, and expenses. V. PAYMENT PROCEDURES A. The Contractor may submit Applications for Payment for completed Work per the UNIT -PRICE BID FORM. The Contractor may submit periodic invoices, which the Town shall pay within 30 days of receipt. B. The Town may retain up to five percent (5%) of the calculated value of completed work from each application of payment up until the Construction Contract is completed satisfactorily and finally accepted by the Town. C. Upon issuing a final acceptance of the Work for the Project, the Town shall pay to Contractor the remainder of the funds or monies previously withheld as retainage. VI. RESPONSIBILITY A. Contractor hereby warrants that it is qualified to assume the responsibilities and render the services described herein and has all requisite corporate authority and licenses in good standing, required by law. B. The Work performed by Contractor shall be in accordance with generally accepted practices and the level of competency presently maintained by other practicing contractors in the same or similar type of Work in the applicable community. Page 2 of 8 C. The Work performed by the Contractor hereunder shall be done in compliance with applicable laws, ordinances, rules and regulations, including the Keep Jobs in Colorado Act, C.R.S. 8-17-101, et seq. (the "Act") and the rules adopted by the Division of Labor of the Colorado Department of Labor and Employment implementing the Act (the "Rules"). D. The Town's review, approval or acceptance of, or payment for any completed Work shall not be construed to operate as a waiver of any rights under this Construction Contract or of any cause of action arising out of the performance of this Construction Contract. E. The Contractor hereby warrants to the Town that all materials and equipment used in the Work, and made a part of the Work, or placed permanently in the Work, shall be new unless otherwise specified in the Contract Documents. The Contractor further warrants that all equipment and materials shall be of good quality, conform to the requirements of the Contract Documents and will be free from defects. All Work, materials, or equipment not conforming to the Contract Documents shall be considered defective. F. The Contractor shall warrant and guarantee all materials and equipment furnished under the Construction Contract and all Work performed for two years after the date of Substantial Completion. Under this warranty, Contractor agrees to repair or replace, at its own expense, any Work that is found to be defective. The expiration of the warranty period shall in no way limit the Town's legal or equitable remedies, or the period in which such remedies may be asserted, for Work negligently or defectively performed. VII. OWNERSHIP Any materials, items, and Work specified in the Scope of Work, and any and all related documentation and materials provided or developed by the Contractor shall be exclusively owned by the Town. The Contractor expressly acknowledges and agrees that all Work performed under the Scope of Work constitutes a "work made for hire," To the extent, if at all, that it does not constitute a "work made for hire," the Contractor hereby transfers, sells, and assigns to the Town all of its right, title, and interest in such Work. The Town may, with respect to all or any portion of such Work, use, publish, display, reproduce, distribute, destroy, alter, retouch, modify, adapt, translate, or change such Work without providing notice to or receiving consent from Contractor. VIII. INDEPENDENT CONTRACTOR The Contractor is an independent contractor. Notwithstanding any other provision of this Construction Contract, all personnel assigned by Contractor to perform Work under the terms of this Construction Contract shall be, and remain at all times, employees or agents of Contractor for all purposes. The contractor shall make no representation that it is a Town employee for any purposes. IX. INSURANCE A. Contractor agrees to procure and maintain, at its own cost, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by Contractor pursuant to this Construction Contract. At a minimum, Contractor shall procure and maintain, and Page 3 of 8 shall cause any subcontractor to procure and maintain, the insurance coverages listed below, with forms and insurers acceptable to the Town. 1. Worker's Compensation insurance as required by law. 2. Commercial General Liability insurance with minimum combined single limits of $1,000,000 each occurrence and $2,000,000 general aggregate. The policy shall be applicable to all premises and operations, and shall include coverage for bodily injury, broad form property damage, personal injury (including coverage for contractual and employee acts), blanket contractual, products, and completed operations. The policy shall contain a severability of interests provision, and shall include the Town and the Town's officers, employees, and contractors as additional insureds. No additional insured endorsement shall contain any exclusion for bodily injury or property damage arising from completed operations. B. Such insurance shall be in addition to any other insurance requirements imposed by law. The coverages afforded under the policies shall not be canceled, terminated or materially changed without at least 30 days prior written notice to the Town. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Any insurance carried by the Town, its officers, its employees, or its contractors shall be excess and not contributory insurance to that provided by the Contractor. The Contractor shall be solely responsible for any deductible losses under any policy. C. Contractor shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Construction Contract, X. INDEMNIFICATION The Contractor agrees to defend, indemnify and hold harmless the Town and its officers, insurers, volunteers, representative, agents, employees, heirs, and assigns from and against all claims, liability, damages, losses, expenses, and demands, including attorney fees, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this Construction Contract if such injury, loss, or damage is caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, recklessness or other faults of the Contractor, any subcontractor of Contractor, or any officer, employee, representative, or agent of Contractor, or which arise out of a worker's compensation claim of any employee of Contractor or of any employee of any subcontractor of Contractor. XI. CONTRACT DOCUMENTS The Contract Documents, which comprise the entire Agreement between the Town and Contractor concerning the Scope of Services, consist of the following: A. Exhibit to this Construction Contract: 1. Exhibit A: Scope of Services 2. Exhibit B: Bid Tab Page 4 of 8 B. Performance Bond and Labor & Material Payment Bond. C. Notice of Award. D. Notice to Proceed. E. "Specifications" bearing the title: Town of Firestone Engineering Standards and Specifications, Latest Edition. F. "Drawings" consisting of: Firestone Neighbors Point HAWK Signal Design, As -Advertised, November 2024 G. Addendum numbers: 1. Addendum #1: Dated November 18, 2024 H. The following may be delivered or issued after the Effective Date of the Construction Contract and are attached hereto: All written amendments and other documents amending, modifying, or supplementing of the Contract Documents. XII. CHANGE ORDERS A. A Change Order is a written instrument issued after execution of the Agreement signed by Town and Contractor, stating their Agreement, as applicable, upon all of the following: 1. The scope of the change in the Work; 2. The amount of the adjustment to the Contract Price; and 3. The extent of the adjustment to the Contract Times(s). B. All changes in the Work authorized by applicable Change Order shall be performed under the applicable conditions of the Contract Documents. Town and Contractor shall negotiate in good faith and as expeditiously as possible the appropriate adjustment such changes. XIII. MISCELLANEOUS A. Governing Law and Venue, This Construction Contract shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Weld County, Colorado. B. No Waiver. Delays in enforcement or the waiver of any one or more defaults or breaches of this Construction Contract by the Town shall not constitute a waiver of any of the other terms or obligation of this Construction Contract, C. Integration. This Construction Contract and any attached exhibits constitutes the entire Agreement between the Parties, superseding all prior oral or written communications. D. Third Parties. There are no intended third -party beneficiaries to this Construction Contract. Page 5 of 8 FIRESTONE.......... E. Notice. Any notice under this Construction Contract shall be in writing, and shall be deemed sufficient when personally presented or sent pre -paid, first class U.S. Mail to the Party at the address set forth on the first page of this Agreement. F. Severability. If any provision of this Construction Contract is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect. G. Modification. This Construction Contract may only be modified upon written Agreement of the Parties. H. Assignment. Neither this Construction Contract nor any of the rights or obligations of the Parties shall be assigned by either Party without the written consent of the other. I. Governmental Immunity. The Town and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town and its officers, attorneys or employees. J. Rights and Remedies. The rights and remedies of the Town under this Construction Contract are in addition to any other rights and remedies provided by law. The expiration of this Construction Contract shall in no way limit the Town's legal or equitable remedies, or the period in which such remedies may be asserted, for Work negligently or defectively performed. K. Subiect to Annual Appropriation. Nothing herein shall constitute a multiple fiscal year obligation pursuant to Article X, § 20 of the Colorado Constitution. Any financial obligation of the Town is subject to annual appropriation by its Board of Trustees. Any failure of a Board of Trustees to annually appropriate adequate monies to finance the Town's obligations under this Agreement shall terminate the Agreement upon expenditure of the appropriated funds. IN WITNESS WHEREOF, the Parties have executed this Construction Contract as of the Effective Date. Page 6 of 8 Al1 EST: Missy Carranco, Deputy Town Clerk STATE OF COLORADO } 7 TOWN LUMIN8 TRANSPORTATION TECHNOLOGIES, LLC tYi GVS«E+ery am. By: Jason Vrry «fit ir: ss. COUNTY OF e" } The foregoing instrument was subscribed, sworn to and acknowledged before me this day of 2024 by as of My commission expires: (S E A L) ST TE C LO DO Not Public d IY co t ISSIOIS EXPIRES IULY i2,'3025 Page 7 of 8 EXHIBIT SCOPE OF WORK Contractor's Duties During the term of this Construction Contract, Contractor shall perform the following duties, as directed by the Town: Contractor shall perform: i. HAWK Signal location at Sable Ave and Buffalo Street: Installation of HAWK signal poles and mast arms, signal heads, pedestrian signals and push buttons, signage, pavement markings, and associated wiring and equipment. Traffic control, resident notification (Vehicle Message Boards), and Stormwater BMP compliance are required. All Towns Standards and Specifications are to be followed. ii. HAWK Signal location at Birch Street and Monarch Drive/Neighbors Parkway: Installation of HAWK signal poles and mast arms, signal heads, pedestrian signals and push buttons, signage, pavement markings, and associated wiring and equipment. Traffic control, resident notification (Vehicle Message Boards), and Stormwater BMP compliance are required. All Towns Standards and Specifications are to be followed. Page 8 of 8 UNIT -PRICE BID FORM TI vn of Firestone - i ig bors Paint HA'a Signal onst�Project item Code Desctiptlryn Unit Qty,cost 203 00000 208-00113 UNCLASSIFIED EXCAVATION REMOVAIAND DISPOSAL OFSEDIMENT (LALi4R) C'f NR 5 15 $295 00 90.00 $1,475 00 1, 350.00 208.00105 RtMOVALANO DISPOSAL OF SCOIMCNT (IEOUIPMLNT) MR 15 $120 .00 $ $1, 800.00 210.00110 RESET GROUND SIGN LA 4 480. 00 $1, 920 . 00 210-00815 RESET SIGN PANEL EA 2 $310.00 $620. 00 503 DRILLED CAISSON (36 INCH) LF 80 $675.00 $54, 000.00 503 DRILLED CAISSON (18 INCH) LF 10 $540. 00 $51 400 .00 613•DD20D 2INCHELECTRICALCONDUIT LF 140 $25.00 $3,500.00 613-00206 2 INCH ELECTRICAL CONDUIT IBORED) LF 340 $ 43. 613-00300 613.00306 930.03 3INCH ELECTRICAL CONDUIT 3 INCH ELECTRICAL CONDUIT IBORED) PULLBOX(24°X36"X11#') LF LF EA 140 340 4 5 4 7. 0 0 $2, 160.00 4, 970.00 $15 980.00 $ $8, 640.00 930,03 PULs.BOX(I7"X30°X17.5 EA 2 $1,450.00 $2, 900.00 930.05 WIRING LS 1 $15, 510.00 $15,510.00 614.00216 ST>rI ISIGNPOST (2X2 INCH TURINGI LF 5[t $69. 0 $ 3 450 . 00 614.10160 SIGNALILEADUACKPLATE EA 11 $285.00 $3, 135..0 614.70150 PEDESTRIAN SIGNAL FACE (16) (COUNTDOWN) EA 4$755 141 IS 2 . 00 $3, 020 . 00 614-70336 HAWK BEACON INDICATOR SIGNAL FACE EA $1,385, 00 $20, 775.00 930.13 TRAFFIC SIGNALCONTROLLER EA $7,230.00 $14,460.00 930.13 TRAFFICSIGNALCABINET EA 2 $39, 100.00 $78, 200.00 930.09 PEDESTRIAN PUSH BUTTON EA 4 $ l 835.00 $7, 340.00 930.18 PEDESTRIAN PUSH BUTTON POLE EA 2 $2,875.00 $5,750.00 930.16 TRAFFIC SIGNAL POLE(1-3SFOOTMA.STARM) EA 1 $22,100.00 $22, 100.00 930.16 TRAFFIC SIGNAL POLE (1-45 FOOT MAST ARM) EA 2 $24, 300.00 $48,600.00 930,16 TRAFFICSIGNALPOLEII-55FOOT MAST ARM) EA 1 $25,500.00 $25,500.00 614.00011 SIGN PANEL(CASS1) SF 100 $40.00 $4, 000 . 00 930.19 627 00002 --- DSTREETNAh,1ESIGN iLLUMIN.ATED STREET ME SIGN THERMOPLASTIC PAVEMENT MARKING EA 5F 4 1220 $5, 100.00...$20, 2 400.00.. $31, 110 . 00 627.00005 EPDXY PAVEMENT MARKING GAL 6 $850.00 $5 100.00 SUBTOTAL $425,625.00 LUMP SUM _ 201.00000 CLEARING AND GRUBBING LS 1 $4,575.00 $4,575.00 208 ERCISIONCONTROL LS 1 $9,500.00 $9,500.00 212.01200 LANDSCAPE RESTORATION LS 1 $4, 900.00 $4 900.00 625.00000 CONSTRUCTION SURVEYING LS 1 $5, 600.00 $5, 600.00 626-00000 MOBILIZATION LS 1 $45,250.00 $45,250.00 630 TRAFFICGONTROL 15 1 $62,250.00 $62,250.00 FORCE ACCOUNT 700 UTILITY RELOCATIONS F/A 1 S 39.000.00 5 39.000.00 700-70010 MINOR CONTRACT REVISIONS F/A 1 539,000,00 $ 39,000.00 700.70082 FURNISH & INSTALL ELECTRIC SERVICE F/A 1 $ 45,000.00 5 45,000.00 1,X1.70170 POTHOLE UTILITIES F/A 1 $ 10,000.00 $ 10,000,00 TOTAL $690,700.00 Please note any exceptions you take to this bid, e.g., minimum quantity requirements: NONE JAddendum #1 -November 18, 2024 Page 7 of 15 FIRESTONE ( o 1, U 13 , 0 ,) BIDDER'S INFORMATION: Company Name: Mailing Address: Telephone Number: Lumin8 Transportation Technologies, LLC 5920 Lamar St. Arvada, CO. 80003 7 0219 089 Email: chris.hanson@lumin8.com The bidder hereby acknowledges receipt of Addendum Nos. 2 , , to these specifications. (Insert number of each addendum received.) Name and Title of Authorized Company Representative: Chris Hanson Name (Plea 'nt) Signature Dated this 21 day of November BARBARA WRIGHT— NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20004034696 MY COMMISSION EXPIRES JANUARY 8.2029 Page 8 of 15 VP Operations Western Region Title 2024, PAYMENT BOND Contractor Surety Name: Name: Address (principal place of business): Address (principal place of business): Owner Contract Name: Town of Firestone, Colorado Description (name and location): Mailing address (principal place of business): NEIGHBORS POINT HAWK TRAFFIC SIGNAL PROJECT 9950 Park Avenue Firestone, CO 80504 Contract Price: Effective Date of Contract: Bond Bond Amount: Date of Bond: (Date of Bond cannot be earlier than Effective Date of Contract) Modifications to this Bond form: ® None ❑ See Paragraph 18 Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth in this Payment Bond, do each cause this Payment Bond to be duly executed by an authorized officer, agent, or representative. Contractor as Principal Surety (Full formal name of Contractor) (Full formal name of Surety) (corporate seal) By: By: (Signature) (Signature)(Attach Power of Attorney) Name: Name: (Printed or typed) (Printed or typed) Title: Title: Attest: Attest: (Signature) (Signature) Name: Name: (Printed or typed) (Printed or typed) Title: Title: Notes: (1) Provide supplemental execution by any additional parties, such as joint venturers. (2) Any singular reference to Contractor, Surety, Owner, or other party is considered plural where applicable. EJCDC® C-615, Payment Bond. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page l of 4 1. The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors, and assigns to the Owner to pay for labor, materials, and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference, subject to the following terms. 2. If the Contractor promptly makes payment of all sums due to Claimants, and defends, indemnifies, and holds harmless the Owner from claims, demands, liens, or suits by any person or entity seeking payment for labor, materials, or equipment furnished for use in the performance of the Construction Contract, then the Surety and the Contractor shall have no obligation under this Bond. 3. If there is no Owner Default under the Construction Contract, the Surety's obligation to the Owner under this Bond will arise after the Owner has promptly notified the Contractor and the Surety (at the address described in Paragraph 13) of claims, demands, liens, or suits against the Owner or the Owner's property by any person or entity seeking payment for labor, materials, or equipment furnished for use in the performance of the Construction Contract, and tendered defense of such claims, demands, liens, or suits to the Contractor and the Surety. 4. When the Owner has satisfied the conditions in Paragraph 3, the Surety shall promptly and at the Surety's expense defend, indemnify, and hold harmless the Owner against a duly tendered claim, demand, lien, or suit. 5. The Surety's obligations to a Claimant under this Bond will arise after the following: 5.1. Claimants who do not have a direct contract with the Contractor 5.1.1. have furnished a written notice of non-payment to the Contractor, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were, or equipment was, furnished or supplied or for whom the labor was done or performed, within ninety (90) days after having last performed labor or last furnished materials or equipment included in the Claim; and 5.1.2. have sent a Claim to the Surety (at the address described in Paragraph 13). 5.2. Claimants who are employed by or have a direct contract with the Contractor have sent a Claim to the Surety (at the address described in Paragraph 13). 6. If a notice of non-payment required by Paragraph 5.1.1 is given by the Owner to the Contractor, that is sufficient to satisfy a Claimant's obligation to furnish a written notice of non-payment under Paragraph 5.1.1. 7. When a Claimant has satisfied the conditions of Paragraph 5.1 or 5.2, whichever is applicable, the Surety shall promptly and at the Surety's expense take the following actions: 7.1. Send an answer to the Claimant, with a copy to the Owner, within sixty (60) days after receipt of the Claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed; and 7.2. Pay or arrange for payment of any undisputed amounts. 7.3. The Surety's failure to discharge its obligations under Paragraph 7.1 or 7.2 will not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim, except as to undisputed amounts for which the Surety and Claimant have reached agreement. If, however, the Surety fails to discharge its obligations under Paragraph 7.1 or 7.2, the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. EJCDC® C-615, Payment Bond. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 of 4 8. The Surety's total obligation will not exceed the amount of this Bond, plus the amount of reasonable attorney's fees provided under Paragraph 7.3, and the amount of this Bond will be credited for any payments made in good faith by the Surety. 9. Amounts owed by the Owner to the Contractor under the Construction Contract will be used for the performance of the Construction Contract and to satisfy claims, if any, under any construction performance bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfying obligations of the Contractor and Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. 10. The Surety shall not be liable to the Owner, Claimants, or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligation to make payments to or give notice on behalf of Claimants, or otherwise have any obligations to Claimants under this Bond. 11. The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders, and other obligations. 12. No suit or action will be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date (1) on which the Claimant sent a Claim to the Surety pursuant to Paragraph 5.1.2 or 5.2, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) first occurs. 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 State of Colorado will be applicable. 13. Notice and Claims to the Surety, the Owner, or the Contractor must be mailed or delivered to the address shown on the page on which their signature appears. Actual receipt of notice or Claims, however accomplished, will be sufficient compliance as of the date received. 14. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement will be deemed deleted here from and provisions conforming to such statutory or other legal requirement will be deemed incorporated herein. When so furnished, the intent is that this Bond will be construed as a statutory bond and not as a common law bond. 15. Upon requests by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor and Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made. 16. Definitions 16.1. Claim —A written statement by the Claimant including at a minimum: 16.1.1. The name of the Claimant; 16.1.2. The name of the person for whom the labor was done, or materials or equipment furnished; 16.1.3. A copy of the agreement or purchase order pursuant to which labor, materials, or equipment was furnished for use in the performance of the Construction Contract; 16.1.4. A brief description of the labor, materials, or equipment furnished; EJCDC® C-615, Payment Bond. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 3 of 4 16.1.5. The date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; 16.1.6. The total amount earned by the Claimant for labor, materials, or equipment furnished as of the date of the Claim; 16.1.7. The total amount of previous payments received by the Claimant; and 16.1.8. The total amount due and unpaid to the Claimant for labor, materials, or equipment furnished as of the date of the Claim. 16.2. Claimant —An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials, or equipment for use in the performance of the Construction Contract. The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located. The intent of this Bond is to include without limitation in the terms of "labor, materials, or equipment" that part of the water, gas, power, light, heat, oil, gasoline, telephone service, or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials, or equipment were furnished. 16.3. Construction Contract —The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and all changes made to the agreement and the Contract Documents. 16.4. Owner Default —Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. 16.5. Contract Documents —All the documents that comprise the agreement between the Owner and Contractor. 17. If this Bond is issued for an agreement between a contractor and subcontractor, the term Contractor in this Bond will be deemed to be Subcontractor and the term Owner will be deemed to be Contractor. 18. Modifications to this Bond are as follows: None EJCDC® C-615, Payment Bond. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 4 of 4 PERFORMANCE BOND Contractor Surety Name: Name: Address (principal place of business): Address (principal place of business): Owner Contract Name: Town of Firestone, Colorado Description (name and location): Mailing address (principal place of business): NEIGHBORS POINT HAWK TRAFFIC SIGNAL PROJECT 9950 Park Avenue Firestone, CO 80504 Contract Price: Effective Date of Contract: Bond Bond Amount: Date of Bond: (Date of Bond cannot be earlier than Effective Date of Contract) Modifications to this Bond form: © None ❑ See Paragraph 16 Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth in this Performance Bond, do each cause this Performance Bond to be duly executed by an authorized officer, agent, or representative. Contractor as Principal Surety (Fullformal name of Contractor) (Fullformal name of Surety) (corporate seal) By: By: (Signature) (Signature) (Attach Power of Attorney) Name: Name: (Printed or typed) (Printed or typed) Title: Title: Attest: Attest: (Signature) (Signature) Name: Name: (Printed or typed) (Printed or typed) Title: Title: Notes: (1) Provide supplemental execution by any additional parties, such as joint venturers. (2) Any singular reference to Contractor, Surety, Owner, or other party is considered plural where applicable. EJCDC® C-610, Performance Bond. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 1 of 4 1. The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors, and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 2. If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except when applicable to participate in a conference as provided in Paragraph 3.1, below. Otherwise, the Surety and Contractor shall have the following obligations. 3. If there is no Owner Default under the Construction Contract, the Surety's obligation under this Bond will arise after: 3.1. The Owner first provides notice to the Contractor and the Surety that the Owner intends to declare a Contractor Default and terminate the services of Contractor. Such notice may indicate whether the Owner is requesting a conference among the Owner, Contractor, and Surety to discuss the Contractor's performance. If the Owner does not request a conference, the Surety may, within five (5) business days after receipt of the Owner's notice, request such a conference. If the Surety timely requests a conference, the Owner shall attend. Unless the Owner agrees otherwise, any conference requested under this Paragraph 3.1 will be held within ten (10) business days of the Surety's receipt of the Owner's notice. If the Owner, the Contractor, and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement does not waive the Owner's right, if any, subsequently to declare a Contractor Default; 3.2. The Owner declares a Contractor Default, terminates the Construction Contract, and notifies the Surety; and 3.3. The Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perform the Construction Contract. 4. Failure on the part of the Owner to comply with the notice requirement in Paragraph 3.1 does not constitute a failure to comply with a condition precedent to the Surety's obligations, or release the Surety from its obligations, except to the extent the Surety demonstrates actual prejudice. 5. When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the Surety's expense take one of the following actions: 5.1. Arrange for the Contractor, with the consent of the Owner, to perform and complete the Construction Contract; 5.2. Undertake to perform and complete the Construction Contract itself, through its agents or independent contractors; 5.3. Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and a contractor selected with the Owners concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default; or 5.4. Waive its right to perform and complete, arrange for completion, or obtain a new contractor, and with reasonable promptness under the circumstances: EJCDC® C-610, Performance Bond. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 2 of 4 5.4.1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, make payment to the Owner; or 5.4.2 Deny liability in whole or in part and notify the Owner, citing the reasons for denial. If the Surety does not proceed as provided in Paragraph 5 with reasonable promptness, the Surety shall be deemed to be in default on this Bond seven days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Paragraph 5.4, and the Owner refuses the payment, or the Surety has denied liability, in whole or in part, without further notice, the Owner shall be entitled to enforce any remedy available to the Owner. 7. If the Surety elects to act under Paragraph 5.1, 5.2, or 5.3, then the responsibilities of the Surety to the Owner will not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety will not be greater than those of the Owner under the Construction Contract. Subject to the commitment by the Owner to pay the Balance of the Contract Price, the Surety is obligated, without duplication for: 7.1. the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; 7.2. additional legal, design professional, and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Paragraph 5; and 7.3. liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor. 8. If the Surety elects to act under Paragraph 5.1, 5.3, or 5.4, the Surety's liability is limited to the amount of this Bond. The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price will not be reduced or set off on account of any such unrelated obligations. No right of action will accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators, successors, and assigns. 10. The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders, and other obligations. 11. Any proceeding, legal or equitable, under this Bond must be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and must be instituted within two years after a declaration of Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this paragraph are void or prohibited by law, the minimum periods of limitations available to sureties as a defense in the State of Colorado will be applicable. 12. Notice to the Surety, the Owner, or the Contractor must be mailed or delivered to the address shown on the page on which their signature appears. 13. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement will be deemed deleted therefrom and provisions conforming to such EJCDC® C-610, Performance Bond. Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. Page 3 of 4