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Silver Spur Construction AgreementCONSTRUCTION AGREEMENT THIS AGREEMENT is ma de and entered i nto as of t h is _ l day of Qc..Tal?c/ __ , 2019, by an d between PARK CITY MUNICIPAL CORPORATION, a m uni ci pal corpora ti on, P .O. Box 1480, Park City, UT 84060 . (here i nafter "City"), and SI LVER SPUR CONSTRUCTION L.L.C., a Utah li mit ed liabil ity company, w hose post of f ice add ress is 392 East 12300 South, Suite 1, Draper , UT , 84020, (hereinafter "Co ntra ct or"). PURPOSE: For the project known as th e 3 KWTP & Hwy 248 T ra nsmission Lin es Proj ect (project name) (here inafter "Proj ect"), wh ich consis ts of in st allation of wa ter pipeline fro m Wyatt Earp way t o Park Ci ty Golf Cou rse i n Park C ity, Ut ah. NOW, TH ERE FORE , i n co nsideration of th e mu tual promises con tai ne d herein, the parties hereby ag ree as follows : SECTION 1. SCOPE OF WORK . Contractor shall furnish all labor, materials and equipment to complete the Projec t, cons isti ng of th e wo rk described i n th e Informatio n for Bid ders as th e Basic Bid, and t he fo llowing additive alternates: B id Alternati ve 1, and Bid addi ti ve 1 , as spec ifi cally set o ut in th e contract specifications, which is made a part hereof by reference , herein called t he "Proj ect." The P ro ject will be bou nd by the speci fications re ferenced he rei n, according to the Advertiseme nt for Bid , the Information for B id ders, t he General Project Requ i rements and Specificat ions provided by C ity , the Bid of t h e Contracto r , Bid Bond, Drawin gs, Notice o f Award and Not i ce t o P roceed, collect ive ly ref erred to as the Contract Documents, all of which are incorporated herein by re ference and on fi le in the Pub l ic Utilities Departm ent. To the extent that th is Agreement con fl ic ts in any way wit h a proposed form agreement wh ich may have been submitted as part of the bid specificati ons, th i s Agreement shall co ntrol. If any of t he wo rk p erform ed by Contractor in any phase of the Project does not meet City st andards as o utl i ned in the bid documents and spe cificat ions, the n Contrac tor shall im med iately re pair or correct the wo rk at no additi onal cost to City. A. SUBCONTRACTORS. No part of t his contract shall be sub co ntracted by the Contractor without prior written approval by C i ty through t he Project Manager/E ngineer. The Contractor shall be fully respons ible to the C ity fo r the acts and om i ss ions of it s S ubco ntracto rs and of persons either di rectly or ind irectly employed by t hem, as it is for the ac ts and om is sions of persons directly e mployed by it. If written approval i s granted to subcontract a part of th i s contract, the Contract or shall requ ire each s ubcontract or that physi cally performs serv ices w ithi n Uta h to su bm i t a n affid avit to t he Contract or stating that the subcont ractor has used E- Cons truct i o n Agr ee m en t PCMC Rev ised 2.15.18 3KWTP & Hwy 248 Tr ansm iss i on Lin es Proj ect Veri fy, or an equivalen t program, to ve rify th e emplo yment st atus of each new emp loyee . Th e Contrac tor shall, withi n t en (1 0) d ays of submittal of req ues t for fi nal payment, include an affidavi t showing satisf actory evidence t hat all cla i ms of sub co ntract ors, labo rers and materi al men wh o s uppli ed servi ces or materials to the Project have been fully paid , di scha rged, o r wa ived. The Contractor shall submit lien wa ivers for each pay release. If the C i ty reaso nab l y believes t ha t Contrac tor has f ail ed to pay Subcontract ors, mate ri a lmen, o r laborers for work on the Project w ith in a reasonable time of when paymen t is d ue, th en City may, after havi ng notifi ed t he Contractor, eith er pay unpa id bills or with hold f rom the release of Con tractor's payment bond fo r this Project, a s um of money deemed reasonabl y suff icient to pay a ny and all such lawful clai ms until sa ti sfactory evidence is furnished that all liabi li ties have been full y discharged and a ten percent (1 0%) f ee for adm i nistering such c lai ms. B . S TANDARDS O F WORKMANS HI P. Contracto r sha ll demo nstrate w or kmanship equal t o or be tte r t han current indust ry st an dard s fo r thi s Project. W h ere Park City specifica ti o ns ex ist (for example, aspha lt, concrete, i rri ga ti on, sprinkl ing system a nd landscapin g}, t hey shall provide the benchmark fo r dete rminatio n of accept abili ty. C. INSPECTION AND TE STIN G. All mat eri a ls and equi pment used i n the constructio n shall be subject to inspecti o n by th e Proj ect Man ager/E ngi neer. If laws, o rdi nances, ru les or regu la ti ons of any public au thori ty havi ng j uri sd iction requ ire a ny wo rk to spec if ica ll y be i nspecte d , test ed or ap proved by som eone other th an Proj ect Manager/En gin eer, t he Contractor s ha ll give the P roject Manager/Engineer t imely notice of read iness. Inspecti ons, te sts or approva ls by t he C ity or a ppropri ate a ut ho riti es will not rel ieve th e Contractor f rom ob liga ti o ns to perform t he work in accordance w i th the re quirement s of the Contract Do cu m ent s an d /o r provis ion s. The Project Manager/Engi neer and oth er designat ed pe rsons w i ll at all t imes have access to the w ork. A ll wo r k shall ulti mately be i n sp ect ed f or f i na l acceptance by the Project Manager/En gineer w it hin a reasonable time upon receipt of notice from the Contractor t hat work is complete and ready for fi na l i nspecti o n. During construction, th e wo rk w ill be i nspected and o bserved by the P roject Ma n ager/E ng ineer or hi s designat ed rep resentati ve. All wo rk th at is defic ient or does not meet specifi cat ions s hall be removed and replaced w ith proper mater ia l at Cont ractor's expense. D. W ARRANTY. Contractor warra nts that all ma teri als and suppl ies used in th e construction of t he Project shall be new, excep t as ot herwise agreed to in wri ting by the Ci ty 's Representati ve . All ma terials, eq ui pment, parts and labor a nd a ny n ecessa ry corrections to t he P roject sha ll be g uara nteed fo r a period of at least one (1) yea r f oll owing th e dat e of s ubstantia l completion of the Project under the te rm s Construct i on Agreement PCivlC Rev ised 2.15.18 3KWTP & Hwy 248 Transm iss i on Lines Project 3 of t he performance bond or as provid ed i n the project specifications and constr uction documents, wh ichever is longer. E. ADOPTED CODES. All work shall be completed at a m1n 1mu m i n accordance with a ll b uild ing, electric and ene rgy codes adopted by Park City. SECTION 2. PERFORMANCE AND PAYMENT BONDS . Contractor shall f urni sh to the City payment and performance bonds sa ti sf actory t o the C ity guaranteeing Contractor's payment and performance, in the amount, fo r each separately, of one hundred percent (100%) of th e Contract Amount. SECTION 3 . INSURANCE . Unless otherwise spec ifi ed i n the bi d documents, the Contractor s hall procu re and ma intain for the durati on of the Agreement, i nsurance ag ai nst claim s for inju ries to persons or damage to property which may arise from or in conn ection w i th t he performance of the work here under by the Contracto r, the i r agents. rep resen t ati ves, employees, or su bcontractors. Th e Contractor shall provide Park City Munici pal Corporation a Certificate of Insurance ev id encing: A. Genera l Liab ili ty insurance writte n on an occurrence basis w it h li m its no less than Two Million Doll ars ($2,000,000) combined single l imi t per occurrence and Three Million Do lla rs ($3,000,000) aggregate for personal injury, bod ily injury and property damage . Coverage shall i nc lude but not be limited to: blanket contractu al; prod uc ts/completed operations; bro ad form property damage; explos i on, collapse and underg round (XCU) if speci fi cally requested; and e mployer's pract ices . The Contractor shall increase the l imits of such insurance to at le ast th e amount of the Lim itation of Judgments desc ri bed in Section 63G-7-604 of the Governmental Immu nity Ac t of Utah, as ca lc ul ated by t he state ri sk ma na ger every two years and state d in Utah Admin . Code R37-4-3. B. Automob ile Liabi li ty insurance w ith li mits no l ess th an Two Million Dolla rs ($2,000,000) combined si ng le limit pe r acc ident for bodi ly inj ury and property damage . C. Worker s Compensation insurance li mi ts w r itten as follows: Bod il y Injury by Accident Five H und re d Thousa nd Dolla rs ($500,000) each accid ent; Bodi ly I nj ury by Di sease F ive Hundred Thousand Dollars ($500 ,0 00) each employee, Five Hundred Thousand Dolla r ($500,000) policy l im it. Pa rk C ity Muni cipa l Corporation shall be named as an add iti onal i nsu red on genera l li abil ity and auto liabi li ty in surance pol icies an d a copy of t he endorsement nam ing t he C ity as an add iti onal i ns ure d s hall be attac hed to the C ert if icate o f Insurance. The City reserves the Co nstructi o n Agreem ent PCM C Revi se d 2.1 5.18 3 KWTP & Hwy 248 Trans mi ss ion Li ne s ProjC!ct 4 r ig ht t o reques t certified cop ies of any required policies. Should any of the above described pol icies be cancelled before the expiration date thereof, n otice will be del ive red in accord ance w i th the po li cy provisions. The Contractor's i n surance sh all contain a clause statin g that coverage shall apply separately to each insured aga inst whom claim is made or suit is brought, except w ith respect to t he li mits of t he ins u rer's l iability. SEC TION 4 . CONTRACT AMOUNT, A CCEPTANCE OF WHO LE, ADD ITIONS. City s hall pay Contractor a tot al su m not to exceed E IGHT MILLION TWO HUNDRED FORTY FOUR THOUSAND TWO HUNDRED FIFTYSIX DOLLARS, ($8,244,2 56.00) (''Contract Amount") for all work and materials expend ed to complete this P roject. which shall include th e cost of all bonds, in su rance , and all ch arges, fees, perm i ts (i ncluding water and sewer fees, un less waived}, expenses or assessments of whateve r kind o r ch aracter t hat are or may be necessary to complete th is Project, i ncluding any addi tive al ternates l isted w ith in t he Scope of Work described i n Section 1. SECTI ON 5 . PERMITS AND FEES. As set out in Secti on 4 above, the Contract Amount in cludes the price of all normally appli cable fees and permi ts . T he C ity may, at its discret io n, arrange for t he waive r of certa in fees, permi ts and expenses. SECTI ON 6. TERMS OF PAYMENT. The City shall pay fo r services provided hereunder according to a n d in an aggregat e amoun t n ot to exceed th e Co n tract Amou nt or as detai led in an attached payment schedule (if attached, w i ll be Attachment A) and only upon Contractor's request on forms approved by and submi tted to the Project Manager. The Ci ty shall make payment w i th in t h irty (30} days t hereafter. Requests for a more rap id paym ent may be considered if a d is count is offered for early payment. At no ti me shall the aggregate amount of money pa id to the Con tractor in proport ion to the Contract Amount be greater than t he proportion of the work p erform ed at that poin t to the tota l Proj ect work. No payment shall be made for any service rendered by the Contractor except for services set fo rth and identifi ed in thi s Ag reement. The Ci ty reserves the right to with hold payment i n w hole or part from the Contractor for non -comp li ance w ith the provisions of the Contract Documents . A. RETAINAGE. The C ity may, in its so le d iscretion; (1} reta in f ive perce nt (5%) of t he va lue of all work done a nd materials o r equ ipmen t suppli ed as part security for the fu lfill m ent of the Agreement by the Contractor; or (2) re ta i n the fina l paymen t of up to f ive percent (5%} of the to tal project amount. As work nears completion and solely at th e Ci ty 's discretion, the City may reduce the ret ain age to a n amount more i n lin e w it h th e work remain i ng. T he C it y reserves the right to retai n all amounts previously withheld or due, i ncl uding any l iquida ted damages, u nti l all services specif ied herein are co mplete. A ny money w it hheld pursuant to th is section shall be p laced i n an i nterest bearing account and t he interest shall a lso be payable to t he Con t ractor upon final payment. Constructi on Ag ree ment PCMC Rev ised 2.1 5 .18 3 KW TP & Hwy 248 Tra n sm ission Lines Proj ec t 5 Before fina l payment is made, the Contractor m ust subm i t evidence sa ti sfacto ry t o the C ity tha t all payrolls, ma terial bi lls, subcontracts and all outstanding indebtedness i n connection with the P rojec t have been paid for. The City may w ithhold a rea sonable amount of the payment bond sufficient to cover any outstanding i ndebt ed ness or monies owed or cla i med by any person who suppli ed work or materials to the Project plus ten percent (10 %} of such in debted ness as the City's cost of administering such cla ims unti l Contra ctor suppl ies a release satisfactory to the C it y, signed by all persons who have supplied labor or materials to the Project or, at the City's option if no cla i m is made , until one hundred f ive (1 05) days after the dat e on which any person performed the last of the labor or supplied the last of th e materia l fo r the Project and upon written request from t he Contractor . The Contractor shall supply to the Proj ect Manager/Engineer with i n a reasonab le time after h is request a signed statement verifyi ng all the suppl iers, subcontractors and ot her persons who have supplied labor or materials to the Project. B . FINAL PAYMENT. Acceptance by the Con t ractor of t he f inal payment fro m t he C ity sha ll release the C ity of all cla ims, demands and liabi li ty of the Contractor, its officers, agents, employees and s ubcon tra ctors, whether commun icated or not by the Contractor, except with respect t o those matters re ferred to i n wri ting deli vered to the Contractor and approved in a signed w ri ti ng by the Project Manager. SECTION 7. COMPLETION TIME . The work on this Projec t shall commence w i thin ten days of receipt of t he Notice to Proceed and shall be completed by October 15, 2021. Work stoppage due to in c lement weather condi t ions and other factors must be approved in wri ti ng by t h e P roject Man ager. Incle men t weather shall not otherwise constitute cause for delay. Unless otherwise agreed by t he C ity by Change Order, no damages shall become due to Contractor for C it y caused delay. A C hange Order for delay w i ll generally be accepted for delay so excessive and unreasonable that it is beyond the scope of t he Contract o r delay attribut ed to di rect, active or willful interference by the C i ty. The Change Order must be based upon actual damages sustained by the Cont ractor wh ich are di rectly attribu ted to t he delay. In the event th at Con t racto r f ails to complete all of t he work requ ired herein within th e time li mi t set out above, then for each partia l or complete day d uring wh ich the work rema i ns uncomplelejl (h~reafter , the Contractor agrees to pay the Ci ty One Hundred Dollars ($100.00), ~(Contractor Initials) wh ich the parties bel i eve, due to \he diffic ulty of actu all y assessin g t he damages th e City will suffer i n th e event of such a delay, i s a fair esti m ate of the loss the C ity w ill suffer. The parti es agree that the daily li quid ated damages p rovided fo r herein is reasonable and fa i r, and i s not a penalty . TIM E IS OF TH E ESSENCE IN THIS AGREEMENT. Cons t ru ctio n Agreem ent PCMC Revi sed 2.15.1 8 3 KWTP & Hwy 248 Tr ansmissio n lines Proj ect 6 S E CTION 8. AD DIT IO NAL W ORKJCHANGE ORDERS. Th e City may en large o r reduce t he wo rk to be performed by Contractor hereunder by written noti fication to Contractor, in cl ud ing changes to the plans and specifications. The City shall pay Contracto r for any add it ional wo rk so requested, and shall reduce t he payment to the Contractor for any red uctio n in labor, materials, overhead and profi t margin res ulting from t he reduction i n the wo rk . Except as t he C ity sha ll so notify t he Contractor i n wri ting, it is underst ood and agreed by the parti es hereto tha t no money w ill be paid t o the Co ntract or f or any new or additional labor or materials furn ished unl ess a written modification is ag ree d to in a document signed by both parties. The value of any work cove red by a change o rder o r of any clai m for in crease or decrease i n the co nt ract pri ce shall be determined by o ne or mo re of the following methods i n order of precedence listed below: A. An agreed lump sum; or i n the event t he parties can not agree; t hen B. The unit rate for t he work bid by the Contract or, if applicable, o r in t he event the re was no suc h rate bid; t he n C. Th e actual cost for: (1) labor; (2) materials; (3) s uppl ies; (4) eq ui pment; (5) d irect overhead (not to exceed 5% of the s um tota l of items 1-4, unless approved by th e City); and (6) oth er services necessary and approved by t he C ity to co mplete the work. In the event of a net increase in the Contract Amount f or a change o rder as a whole , th e Ci ty shall allow a payment to the Contractor of an ad ditional te n percent (1 0%) of the actual cost of the wo rk , not in c ludin g di rec t ove rhead or bond cost s, to cover the cost of general overh ead and profit. The Contractor may also charge t he Ci ty for actu al cost of the net in c rease in bond costs as a result of t he overall change to t he Contract Amount. T he C i ty specifically rese rves the ri ght to req uest documentation, i ncl udi ng but not l i mited to payro ll stubs , bond bil ls , and in vo ices, to val idate t he Contract or's calculations. SE CTION 9 . DI SPUTES . Except as otherwise provided in thi s Ag reement. any d ispu t es concern i ng a question of fact ari sing un der thi s Agreement which i s not disposed of by Agree me nt shall be decided by t he C i ty. The decision of the C ity shall be f i nal and conc lusive unl ess, withi n th irty (30) days f rom t he da te of receipt of such decision, t he Con tractor s hall ma il or otherwise f urnish the Ci ty a written s igned appeal addressed to the Project Manager/Engi neer. In connecti on with any appeal proceed ing under t his clause, t he Contractor will be afforded an opportunity to be heard and to offer evidence in support of i ts appeal. Pendi ng f inal decision of a dispute hereunder, the Con tractor wi ll proceed dil igently w it h the performance of the contract and in accordance wit h the C ity's decis ion . The decision of the C ity shall be final and conclusive, but s ha ll not be arbitrary or un reasonabl e. A lt hough this Contrac t has been drafted by the C ity, the Con t ractor expressly agrees that any amb igui ty herei n sha ll be reso lved in favor of the Ci ty. Construc t ion Ag reement PCM C Rev ised 2.15.18 3 1(WTP & Hwy 248 Tr ansm i ssion Lines Proj ect 7 SE CTION 10. DEFAULT. REME DY AND TERM INATION . The C ity may term inate th i s agreement upon the occurrence of one or more of t h e follow ing events: A . If Contractor o r any S u bcon tracto r sh ou ld su b stantiall y vi olate any of the provisions of th is Ag reement; B. If Contractor subst antially fails to perform any part of this Agreement; C. If Contractor repeated ly fa i ls or becomes u n abl e to p erform t he se rvices u nder t his Ag reemen t as requi red h erein, or substan tially fai ls to provide se rvices und er t hi s Agree ment fo r a p eriod of seventy t wo (72) hours; D. If Con tracto r (1) shall become insolvent in a bankruptcy case; (2) s hall be generally not payi ng its deb ts as t h ey become due . o r with i n a reasonable t ime thereafter; (3 ) sha ll suffer, voluntari ly o r involu ntarily, the e ntry of a n order by any court o r gove rn mental a uth or ity authorizing t he appointment of or app oi ntin g of a custod ian (as tha t term is def i n ed i n 11 U.S.C. §1 0 1 (11 )), receive r . tru stee , or other officer w ith si milar pow ers with respect to i t or any portio n of it s prop erty whic h rema ins undismissed for a period of n i nety (90) days; (4) shall su ffe r , volu n tarily o r i nvolun ta ri ly, w it h or wit hou t judicia l or govern mental authori za ti on, any suc h custodian, receiver, t rustee , or other office r w i th similar powers to take possession of any p art of i ts p roperty which t h ird part y remain s in possession for a n excess of n in ety (9 0) days; (5) shall suffer, vol u ntaril y or i nvoluntari ly, t he f il in g of a peti tion respect ing an assi gnment for t h e ben efi t of cred ito rs which is not d ismissed for a p eriod of ni n ety (90) days ; (6) shall be di ssolved ; (7 ) shall become the subj ect of any proceedi ng, su i t, o r action at law or in equity under or relating t o an y bankru p tcy, reorganizati on o r arrangement of deb t, insolvency, readj ustment of debt, receive rsh i p, li qui dation , or d issolution law or st atu te o r amendments thereto to be com menced by o r agai n st it or against any of its p rop erty w hi ch re mai n s un dism issed for a period of nin ety (90) days; (8) shall vol un ta ri ly su sp en d s u bst an t iall y a ll of its b usi ness op erati o n s; (9 ) sha ll b e merged with, acquired by, or ot herwise absorbed by any individual, corporation, or other b us in ess e nti ty o r o rga nization of any kind except for an y in d ivid ual co rporati on or other busi ness e nti ty or organization whic h is con t rolled by, controll ing, or under common control w i th th e C on tractor; o r (1 0 ) shall take acti on fo r th e p u rpose of a ny of t he f oregoing . After servi ng ten (10 ) days written noti ce on the Contracto r an d its su rety of it s i ntention to termi nate t he servi ces of Contracto r, an d i f w i thi n ten (1 0 ) days after se rvi ng such noti ce, t he vio lation is not corrected to C i ty's reasonable sa ti sfaction , the City th en may t ake over t he work and p rosecu te i t t o completion by contra c t or b y any ot her method it may d eem advisable a t t h e ex p ense of the Con tractor . Th e Con tracto r a nd t he bondi ng company sh all be l iable t o th e Ci ty f or any reason ab l e cos t occasioned by t he Ci ty in excess of the amou n t agreed for the service herein. T he Contractor shall be entitled to a hea r ing b efore a C ity h earing officer upon the issue o f te rm in ation if it subm its a w ritten request t herefo re w it h in seven (7) days of t h e service of Cons t ruct ion A gr eement PCMC Revi se d 2 .15.18 3KWTP & Hwy 248 T r ansmission Lin es Project 8 the notice of the City's i ntent to t erm inate. The Contractor sha ll be entitl ed to be heard at s uch hearing on the issue of term in ation . The Contractor sha ll not bri ng an acti on agai nst t he C ity, its officers, agen t s or emp loyees arisi ng out of or re la ting to the termina t ion of this Agreement before the decis ion is issued by the City's hearing office r(s ). Waiver of any default shall not be deemed to be a waive r of any subsequent default. Waiver of any provisi on of this Agreement shall not be construed to be mod ifi cation of the terms of th i s Agreement, unless st ated to be such in writing , signed by the City's authorized rep resentative. The Contractor sha ll continue the performance of this Agreement to t he extent not term inated under the provisions of th is section. Th e rights and remed ies of the City prov ided in t his clause shall not be exclusive and are i n add itio n to any other ri ghts and remed ies provi ded by law or under thi s Agreement. SECTION 11. HOLD HARMLESS IN DEM N IFICATION. The Contractor c learly and unequivocally agrees to indemnify and to hold the City and its agents, employees, and officers, ha rm less from and shall process and defend at i ts own expense any and a ll claims, demands, s uits, at law or equity, actions, pena lt ies, losses, damages, or costs, of whatsoever kind or nat ure , brought against the City ar ising out of, in connection w it h, or i ncident to t he execution of this Agreement and/or the Contractor's perfo rmance or fai lure to perfo r m any aspect of this Agreement; prov id ed, however, that if suc h cla ims are caused by or resul t from the concurrent negligence of the City, i ts agents, employees, and officers, th is indemnity provi sio n sha ll be val id and enforceable only to the ext ent of the neg ligence of the Contractor or others; and provided f urther, that nothi ng herein shall require t he Contractor to hold harmless or defend th e City, it s agents, employees and/or officers from any clai ms arising from t he sole negli gence of the City, its agents, employees, and/or officers. The Cont ractor expressly agrees that t he indemnifi cat io n p rovid ed h ere i n constitutes th e contractor's waive r of i mmunity under Utah Code Section 34A-2-1 05 for the purposes of th is Agreement. Th is wa iver has been mutu ally negotiated by the parties. The provisions of this section shall survive t he expirat ion or term ination of th is Agreement. No li ability s ha ll attach to the C ity by reason of entering into this Agreement except as expressly provided h erein . SECTION 12. CONTROLLING LAW AND ATTORNEY FEES AND COSTS. Th ese general conditions shall be construed in accordance with and en fo rced under the laws of the State of Utah. Any ac t io n of l aw, su it in equity, or judicia l proceed i ng for the enforcement of th e Ag reement, or any prov isions th ereof, s hall be institute d and ma i ntai ned only in any of the courts of compet ent jurisdiction in Summi t County, Utah. If any legal proceed i ng is brought for th e enfo rcem e nt o f this Agreement, or because of a dispute, breach, def ault, or misrepresentatio n in con nec tion with any of the provisions of this Agreement, the prevai ling party shall be entit led to recover from t he othe r party, in addition to any o th er rel ief to which such party may be entitled, reasonab le attorney's fees and o th er costs in c urred in connection w ith that action or procee di ng. Const r uction Agree ment PCMC Revis ed 2 1 5.18 31<W TP & Hwy 248 Transmiss ion Li nes Proje ct 9 SECTI ON 13 . A SS IGNMENT. The Contract or shall not assign nor tra nsf er any in t erest in this agreement w ith o ut the pri or w ritten co n sen t o f the City, provi ded however, tha t c laims for compensation due or to become due the Contract or f rom t he Ci ty und er th is Ag reement may b e assigned to a bank , trust company, or other f inancial institution w i thout such approval. Wri tte n notice of any s uch assignmen t shall be p rom pt ly f urnis hed to City. SECTION 14 . S AFETY AN D TRA FFI C CONTROL. Contrac tor shall take all reason able precauti ons to p rot ec t the sa f ety of pedestrians , school ch i ld ren, motori sts, and others who may use or come near to the Project si te, inclu d ing but not l imited to compli an ce w it h the Manu al of Uniform Traff ic Control Devi ces. SECTION 15 . SAFETY AND PROTECTION OF T HE W ORK. Contrac tor shall be respon si b le f o r i niti ati ng, maintaining and supervi sing all safety p recauti ons and p rogra ms in co n nection w it h t h e project work. Contractor shall p rovid e reasonable p rotecti o n to p revent damage, inj ury or loss to employees on the Proj ect work and all other persons w h o may be affected thereby, materials and equipment, w hether on or off t he site, and other p ro perty at t he work s ite or adj acent thereto, i ncludin g t rees, shrubs, lawns, walks, p avement s, road ways, structures an d uti lities n ot designat ed f or removal, re locati on or replacement in t he course of constructi on . In additi on, t h e Contractor shall give a ll n ot ices and comply w i th all appli cable laws, ord i nances, r u les. regulati ons a nd lawf u l orders of any publ ic auth o rity beari ng o n t he safety of person s o r p roperty or the i r protection f ro m d amage, i nj ury or lo ss . The Contractor s hall erect and maintain , as requ ired b y the existi ng cond iti o ns and progress of th e work , all reasonable sa f egua rds for safet y and p rot ection, including posting danger signs and other warn ings against hazards, setting safety regulations, and no tifyi ng o w ners and user of adjacen t u ti lities. The Contractor sh all promptly remedy all damage or loss t o any propert y referred t o in th is Secti o n cau se d i n w hole or in party by the Co ntractor, a ny subcontractor , or anyone directly or indirectly employed b y any o f t hem, or b y anyone for whose acts any of them may be liable and for w h i ch th e Contract or is responsible, except for acts or om issions by the C ity or anyone di rectl y or in directly empl oyed by it, or by anyone f or whose acts it may be li able, and not a ttri b ut able to t he fa u lt or neg li gence of t he Contractor. Con tractor shall remove from the site all c u tt ings, deb ris, equi pment and unused materi al. SE CTION 16. UN ENFORCEABLE CO NTRACT, WAIVE RS. In th e event th at any provision of t hi s Agreement shall be ru led inval id and un en forceable, the remai ning provision s sh all be va li d and b i nd ing u pon t he parti es. One or more waivers by either party of any provision , term , or covena n t s h all not be con str ued b y the ot her party as a waiver of a su bseq u ent b reach of th e sa m e p rovision by t h e ot her party . SE CTION 17. E NTIRE AGREE MENT. This Agreemen t represents t h e e nti re integrat ed agreement between C ity an d Con tractor and supersedes a ll pr ior negotiations, represe ntati o ns or agreemen ts , ei ther writte n or oral. Thi s Ag reemen t may be amended only b y w ritten mod ificat ion sig n ed by both parties. Const ruct ion Agreem ent PCMC Rev is ed 2 .15 .1 8 3KWTP & Hwy 248 Transm issi on Line s Pro ject 10 SECTION 18. COMMENC EM ENT O F WO RK. Contracto r w i ll com m ence work as req uired by t he speci ficat ions w it h in ten (10} calendar days after rece ivi ng t he NOTICE T O PROCEED. SECTION 1 9. UTILITI ES . T he rig h t is rese rved to t he owners of public utili t ies a nd f ranchi ses to en te r upon t he street o r work site f or t he purpose o f m aking repairs or changes of th e i r property that may become necessary b y t he work. The C ity shall also have the privilege o f e nte r in g upon the street o r work site for th e purpose o f repairi ng culverts, storm drains, water system re p a i rs or adj ustments, a n d a n y and a ll other n ecessary City work. The Cont ractor takes t h e w hole risk, responsibi li ty and exp e nse with respect to the locatio n of uti li ti es , and i n worki ng wi th util ity o w ne rs a b o ut locating, m o ving. re p a i ring, a nd m o d ifyin g uti liti es. All util ity locatio ns s hown on the p lans and specifications are a pproxim ate and are mar ked o n the p lans , if a t all, only fo r conven ience. The City makes no representatio n about the loca ti on of an y such u ti lities, and Contractor is e ncouraged to cont act utility compa ni es a nd owners about th e locati on o f all utili ties that may be impacted by or i m pact t he Proj ect work. SECTI ON 20. H OURS AN D DAYS O F WORK. All work p erformed b y the Contract o r , its subco n tract o rs , mat e r ialm en , agents and employees sha ll be perform ed duri ng work h o urs of 7 :00 a.m. to 9:00 p.m. Mon day through Saturday u n less o th e rwi se specifi ed in a Co nditional U se Perm it o r Con struc ti on Mitigation P lan. In individu a l Construct ion Mitigatio n P lans, the Buil d in g Offic ial may furthe r re d uce th e hours o r d ays of work f or Special Eve n ts or as other circum s ta n ces may reasonably warrant. When work is prohi b ited , no exterior constru c tio n, excavation or delivery of s upplies and conc ret e are allowed. Inte ri or w o r k , h o weve r, m ay be a ll owed Monday through S un day, w ith no l im it a ti on o n hours for th e f o ll owing types of con struction: A. Interi or work on ind ividual sin gle-f a m ily home con st r ucti o n o r addition p roj ect s not i nvolvi ng mat e ri a ls or supply deli ve ries B . Constru ction o f d ecks, p ati os, land scape walls less tha n 4 f eel in heig h t, and fences o n in dividua l single-f amily lots C. Non-mechanized exte ri o r painti n g on in d ivid ual single-famil y residences D. Non-m echanized landscaping o n i n d ivi d u a l sin g le-famil y residences E. Survey work not involvi ng g radin g o r use of power e q uipm e nt to cut vegetati o n. Extended Hours Speci al Perm i t. The B uild in g Offici a l m ay a uthorize ext ended hours fo r construction o p e ration s o r p rocedures which, by the i r nature, re q uire con t in uous operati on, or modify or waive the hours of work on p rojects in gen e ra ll y isolated areas where the exte n ded ho u rs do not im pact u pon adjoin i ng property Constr uction Agree m ent PCMC Revi sed 2 .15.18 3KWTP & Hwy 248 Tr ansmiss i o n Li nes Project 11 occupants. In such cases, the Bu ildi ng Officia l shall iss ue a Special Perm it identi fy ing the extended hou rs. Contractor shal l display t he specia l pe r mi t on site. Special Event Regulations . The Bu i ld ing Official and/or Po li ce Ch i ef may, at the i r discretio n, restrict construct io n act ivity , i nclud ing government al or special improvement agencies, in orde r to assu re the public safety during s pecial events within the C ity. Special eve nts shall i nclude, but not be limited to the Art Festival, Film Festival, ski events, and hol iday events . SECTI ON 21. CONSTRUCTION PLAN S. Con t ractor shall submit a Construction Mit igation P lan to be app roved by the City Enginee r or his designee, for all bu ild ing permits. T he Community Deve lopment Department may wa ive this requ irement for minor remode ls , add iti ons a nd i nterio r constructi on where the impact o n adjacent property is mi nim a l. Th is plan shall be written and shall address, to the satisfaction of the C ity Eng ineer or hi s designee: A. H o u rs and Days of Oper ati on. The Constructi on Miti gation Plan shall specify the daily constructi on start and f inish t imes. Constructi on activi ty occurring o uts i de o f the ti mes specified in Secti on 11-14-6 of the Park C ity Municipal Code may only be allowed by Special Perm i t issued by the Bu il ding Officia l o r the C ity Engineer. B. Parking. The Cons t ruction Mitigati on Plan shall i ncl ude a parking plan. Constructi on vehicle pa rki ng may be restr icted at constr uction s ites so as to not block reasonab le publ ic and safety veh icl e access along streets and sidewalks . Constructi on pa rki ng in pa id or permit only park ing areas requ ire t he Publi c Wor ks Department to review and approve a park ing plan. The plan shall also i ncl ude anticipated tempo rary park ing, e.g . delivery ve hi cles, a nd large equ i pment parki ng. C. Deli veries . The Construct ion Mi t igati on P lan shall identify proposed delivery locations and routes. Delive r ies of construction material s and supplies including concrete may be regula ted as t o time and rout ing if such deliveri es w i ll cause unreasonable noise , park ing, or access issues . In order to reduce t he number of delivery trips to construction si tes, the stockpilin g of materials on or near the sit e may be req ui red . In th e case of multipl e construct ion sites in close proxi mi ty , a common materials storage an d s tag i ng si te may be req ui red . D. Construction Phasing. Due to the narrow streets, small lot configura t ion , topograp hy, traffic circulation , w eather , constructi on parki ng and mate rial staging problems, projects i n the H isto ric D istrict and other ar eas of the City may be requi red to be phased if more than on e project is unde r co nstruction i n c lose enough prox imity to create publi c safety or nu isance problems . In cases where phasi ng is deemed necessary by the C ity Engineer or his designee, the f irst project to rece ive a building pe r mit sha ll have pri ority, however, the Bu il di ng Official shall have the authority to phase projects a s necessary to assure eff icien t, ti mely and safe construction. Const r uc tion Agree m ent PCM C Re v ised 2.15.18 3 KWTP & Hwy 248 T r a n sm ission Lin es Pr oject 12 E. Trash Management and Recycling. Construction sites shall provide adequate storage and a program fo r trash removal. F. Control of Dust and Mud on Streets. A program for the control of d ust or other airborne debris sha ll be required. Provision must be made to el i mi nate the tracki ng of m ud o n streets and a program shall be required to remove any such mud da i ly. G. Noise. Construction activity shall not exceed th e noise standards as specified in Sect ion 6-3-9 of th e Park City Municipal Code. H. Grading and Excavation. Because of the truck hauling i nvolved in grad i ng and excavation, restrict ions o n truck ing ro utes as well as th e hours of operation may be necessary to mi tiga te the adverse impacts from such operations. Desti nation and total cubic yards of excavated material shall be noted. I. Construction Sign Requirements. A sign , ind icat ing the name of the party res ponsibl e for the Project shall be posted i n a location where such sign is readab le from th e street or driveway to the construction sit e . Th e sign shall not exceed 12 square f ee t i n size , six feet in height and sha ll not exceed a letter type of 4". I nfo rmation on the sign shall include, at a mi nimum : 1. Na me, address and phone number of contrac tor; 2. Name, address, and phone number of person responsib le for the project; and 3. Phone number of party to call in case of emergency. No additiona l fee is requi re d for this sign. SECTION 22. TOILET FACILITI ES AND CONTAINERIZED TRASH SERVICE REQU I RED. A. The Contractor shall obta in and ma i ntain on the site a conta iner of suitable size and des ign to hold and confine trash , scraps, and other construction related re fuse created or accumulated o n the s it e. All such construction refuse sha ll be maintained in a closed contai ne r at all times, until transferred to the landfi ll. Containers may be placed in setback areas, provided that the placement of the conta iner does not obstru ct th e view of motorists on adjo i ni ng streets and thereby create traffic hazards . Contractor shall not permit accumu lated deb ris, l itter, or trash on the construct ion site to blow or scatter onto adj oin in g properties, inc lu ding the pub li c stree t or to accumu late on the site outside of the con ta ine r, or in trans it to th e landfill or dum p. The owner or contractor s hall service the container as frequently as needed to prevent trash from ove r-fl owing. B. T he Project sit e sha l l have permanent to ilets , or an approved temporary to il et fac ility positioned i n a location approved by the B uildin g Department, at th e Co nstructio n Agreement PCMC Revi sed 2.15.18 3KWTP & Hwy 248 Transmi ssio n Lines Proj ect 1J rate of one to ilet per fifteen on-site employees ( 1-15 employees = one toilet, 16-3 0 employees= two to ilets and so on). SECTION 23. OBEY LAWS . A. The Contractor s hall obey all laws, ord i nances and regu latio ns ofthe Un i te d Sta t es, the Stat e of Utah, and Park C ity i n performing th is Agreement. B. The Contractor shall regist er a nd participate i n E-Ve r ify, or an equ ivalent program. The Contractor agrees to verify employment el igibility through E-Veri fy, or an equivalent program, fo r each new employee that is emp loyed with in Utah, unless exempted by Utah Code Ann .§ 63G-12-302. SECTI ON 24. NONDISCRIMINATI ON . A. The C ity is a n equal opportunity employer. B. In the performance of this Agreement, Contractor w i ll not discrim inate against any quali f ied person i n matters of compensati on and other terms, privileges, and condit i ons of employm ent beca use of: race, color, rel igion, sex (incl uding pregnancy, chi l dbirth, pregnancy-related cond i tions, b reastfeed i ng , or med ical cond i t ions related to b reastfeed ing ), national o rig i n, age {40 or older), di sability, genetic inform ation , sexua l ori entati on, gender iden t i t y, or protected expressions. Contr actor shall ta ke such act ion with resp ect to this Agreement as may be required to ensure f ull compli ance with local, Stat e and federa l l aws proh ibiting discrimination in employment. C . Contract or will no t discrimi na te against any rec ipi ent of any se rvices or benefits prov ided fo r in th is Agreement on the grounds of race, color, relig i on, sex (i ncluding pregnancy, chil dbirth, preg nancy-re lated condit ions, breas tfeed ing, or med ical cond i t ions re lated t o breastfeed i ng}, nati onal orig i n, age (40 or older), disab ility, genetic information, sexual orientation, gen de r identity, or protected express ions . D. If any assignment or subcontracting has been authorized by the City, said assignment or subcontract shall inclu de appropriate safeguards agai nst d i scri mination. The Contractor shall take such action as may be required to ensure full compl iance w it h the provisions i n the immediat ely preceding paragraphs herein. SECTI ON 25. TH I RD PARTY RIGHTS . Nothing herein is i ntended to confer rights of any kind in any t hird party. No member , officer, o r employee of the C i ty shall have any i nterest, direct or indi rect, in t his Agreement or th e proceeds thereof. Cons truction Agreement PCMC Rev ised 2 .1S.l8 3KW rp & Hwy 248 Transm i ss io n Lines Projec t 14 SECTION 26. PROJECT MANAGERJENGINEER. The Project Manager/Engineer for this Project is Public Utili ties Project Manager, or such other person designated by th e Ci ty Engineer or Public Works Di rector to t he Contractor orally or i n writing . SEC TIO N 27. PARTI ES' REPRESENTATIVES. For purposes of notice requ ired or desired by the parties, or communication i nvo lvi ng the serv ices under th is Agreement, such noti ce or co m munica ti on s hall be dee med to have been g iven when personally delivered or mailed cert if ied mai l, postage pre-pa id, o r sent by facsi mile t ransmission , to the parties at the fo ll owing addresses: Contractor: Brandon S toddard, or such other person designated in wri ti ng by the Contractor's ch ief ad m inistrati ve officer, at the Contractor's add ress set out f i rst above : Pa rk C ity : Project Manager/Engineer. at the address set out fi rst above for t he City, or when given to such other person as e ithe r of the above representa ti ves shall designate i n writ ing. The design ation of any add ress may be chan ged by notice give n in the same manner as provided i n this paragraph. SECTION 28. SEVERABILITY. Should any part of th i s Ag reement fo r any reason be declare d invalid , such decis ion shall not affect the valid i ty of any remain i ng provi sions , wh ich remain i ng p rovisions shall remain in force a nd effect as if th is Ag reement had been executed with th e i nvalid portion t hereof e li mi nated , and i t is hereby decl ared the i ntention of the parties that they wou ld have executed t he rema i ning portion of this Agreement w ithout includ ing any such part, part s, or porti ons which may, fo r any reason, be hereafter declared i nval id . If any provisi on of th is Agreement is held i nva li d or unenforceable wit h respect to particul ar ci rcumstances, such p rovision sha ll nevertheless remai n in full force and effect in all other circumstances. IN W ITNESS WHEREOF, the parties have entered into th is ag reement on the day and year set out at the top of this Agreement. ATTE ST: Co nstruct ion Agr ee m ent PCMC PARK CITY MUNICIPAL CORPORATION, a Utah muni ci pal c Di _.4'"· Revi sed 2.15.1 8 3 KWTP & Hwy 248 Tr~nsm i ss i o n Li nes Project _.....,._..:......,..___,.-..,..-) I S SILVER SPU R CONSTRUCTION L.L.C., a Utah li mited l iabi lity company 1232 1 South 392 Eas t Suite 1 Drape r , Utah 84023 584 1209-5501 Utah Contractor License No. TaxiD#: 'bl\-)Q;b(ob-')Q Printed name Pr CGicl ev1 -b: Tit l e COUN TY OF LG\tL Onthi s lldayof ,2019, ~\11Cl~~\~±\~y\NClVd (name of document signer} perso ally appeared before me , whose id e'nt ity is personally known to me or proven on the basis of sati acto ry evidence, and who by me duly sworn /affirmed. did say tha t he/she i s t he . \::-(T itl e or Office) of S ILVER SPUR CONSTRUCT ION, L.L.C .. a U tah lim it ed l iability company, and that said document was sig ned by him/her on behalf of sa id li mi ted li ability company by authority of its Operating Ag reement o r Resolution of its Members , and he/she acknowledged t o me that he/she executed th e Constructi on Agreement o n behalf of the l i mit ed li abili ty co mpany. ® BAILY LUPEAMANU NOTARY P\JBUC·STATE Of liTAH MyComm. Exp. 10/31/2022 commission# 703136 Con st ruction Agree ment PCMC Revised 2.15.18 3KWTP & Hwy 248 Trans m issio n Line s Project Constructio n Agr eemen t PCMC Attachment A SID Tol~n &>l l.ll019 3.0000 PM PA~CifY MU~IC'PAI. CoHPORA I101i JKWI P' 4 ...... )' 2 48 Wlltor 1rlVIImt.iiOtl U'\Ofo PfOie!~ 16 I i Rev ised 2.15.1 8 31<WTP & Hwy 248 Transm issi on Line s Project Se ptember 18, 2019 Bra ndon Stoddard Es timator Sliver Spur Construction L.L.C. 392 East 12300 South, Suite 1 Draper, Utah 84020 SubJect: Insurance Asreement Mr. Stoddard, Thi s letter is to serve as a supplement al agreem e nt t hat w i ll be attached and executed w it h the original contract. 1. For any claims related to this Construction Agreement, the Contractor's insurance cove ra ge shall be p r imary Insurance coverage as respects to Park Ciry Municipal Corporation, its offocers, officials, employees, and volunteers. Any insurance or self-insurance maintained by Park City Municipal Corporation, its officers, officials, employees, or volunteers shall be excess of the Co ntractor's Insur ance and shall not contribute with i t. 2 . The Workers' Compensat ion policy sha ll be endorsed with a waiver of subrogation In f avor of Park City M u ni cipa l Corporatio n for all w o rk performed by the Contractor, Its employees, age nts and subcontractors. 3. During the course o f this Contract. Contractor shall maintain In f orce, at Its own expense, Builder's risk insurance utilizing an "all ri sk" (specia l perils) coverage f orm, Inc luding earthquake and flood, with limits equal to the completed value of the project and no coinsurance penalty provisions. Such coverage shall name Park City Municipal Corporation as a loss payee as its interest may appear. I N W ITNESS WHEREOF, the parties have entered into t hi s agree ment on the day and y ear set out at the top of t hi s Agre em ent. PARK CITY MUNICIPAl CORPORAT ION, a Utah municipal~ ;tb ~ Griffin Lloyd Public Utilities Engineer Park City Municipal Corp NSTRUCTION l.l.C., a Utah Brandon Stoddard, Silver Spur Construction Park City Mun icipal Corporation -10531ron Horse Drive -P.O. Box 1480-Park City, UT 84060-1480 (4 35)615-5301 {PH)· (435) 615·4905 (FAX) The Guarantee Company of North America USA One Towne Squa re , Suite 1470 Southfield, M ichigan 48076 Phon e: 248-281 -0281 Fax : 248-750-0431 www .qcna.com Bond No 11178200 PERFORMANCE BOND CONTRACTOR (Nomo.lfJgol swtos aod addtess) S i l v~.:r S pur Construction LLC 109M IV . Sout h Jordmt Pkwy. Su ite I l l South .lllrdan, UT 840'15 OWNER (Nsme. Legal Status and address) l~rk City Munieip.1l Corporation PO Box 1480 Pall< City, UT 84060 CONSTRUCTION CONTRACT Da te: Septcm her 5, 211 19 Amount: ($ 8.224,256.00 SURETY (Name. legal stows and pl)'oclpal piEJco oluustmtss) The Guara ntee Company of'Nol'th Am cl'ica US A One To wne Square. S uite 147 0 Sou thlleld. Mich i ~"'' 48076 This document has tmpottant legal consequences. Consultatton w~h an attorney is encouraged with respect to its completion or modificabon. Any singula r reference to Contract, Surety, Owner or Olher party shall be considered plu ra l where applicable. ciuht mi ll ion two hundred twcnt::,Hb ur thousan d two hund t•ed ti t1y-!\tX Al A Document A3 12-2010 combtnes two sepa rate bonds. a Perfo rmanco Bond and a Payment Bond . into one form. This is not a si ngle comb ined Performan ce an d Paymen t Bond . Oescrtptl on (Name and Location): 3K WTP & S R248 W~1h.:r T ransmiss ion Lines BOND Date (Not ea~l8r than Construction ConiJact Date)· .;.;S.:;•P'=.,.;;n=.b•:c.'r.;.S.:... 2=.0:..:1..:.9 ______________ _ Amount eight million two bundr>Cd l\\'Ctlty·four thou.\and 1wo hunctred lifly-!>--h ($ K.m ,2S6.00 Modi fications to this Bond : ijJ None CONTRACTOR AS PRINCIPAL Com pany (Corpo rate Soa l) 0 See Section 1 6 SURETY Company: (Corporate Sea l) Si lvc r Sput' ( '(U)~II'UCt i (lll 1.1 ,( ~ The Ciuaranree (:.Om J)UIIY or Nvt•(h Am~.:ri ca , USA 1098 IV. Sou th Jordo n l'kwy, Suite I l l One Towne Sq uare, Sui te 1470 So ut h .I OrYIMt, UT X4095 Southfield, M I 4~0 76 Srgna l<tre: r) • ,/ "-'----~ -S-ig-na-tu-re_:.:...._?'-7-.:..Jh...:...,.-,-;<"'7""2-r----- Name & TiUe: ...::;<..L..WL~t-L-....z=.,.,=<.U.-4-,/-.L/~,( ~~etT-c-Name & Ti tle . M ict>;;;;i\\Cde. Auorncy in Fu ct (Any 9ddt~onat signarures appear on the last page ot this Performance Bond) (FOR IN FORMATION ONLY Name, Address and Telephone) AGENT or BROKE.R : 6967 S. Ri ver Clate Dr. S te .. 200 Soh L.nkc City, UT 84047 OWNER'S REPRESENTATIVE (Architect. Engrnaer or other party). 1'h e lftnouage in this doa.tment con forms exactly to tho IMguago used in AfA Ooctnnent A3 12-Perfotmanoe Bond -2010 odlti()O. § 1 The Contractor a nd the Surety, jointly and severally, bind themse lve s. th eir 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 th is Bond. e xcept when applicable to participate in a conference as provided in Section 3. § 3 If there is no Ow ne r Default u nde r the Construction Contract. th e Surety's o bliga tion under t his Bond shall arise a fter: .1 the Owne r first provide s notice to th e Contracto r and the Surety tha t the Owner is consid erin g declar ing a Contractor Default. Such notice shall ind icate wheth e r the Owner Is req uesting a co nfer ence a mong the Ow ner, Contracto r a nd Surety to d iscus s the Contracto r's perfo rmance. If the Owner does no t requ est a conference, the Surety may, within five (5) busmess days a ft er receipt o f the Owner's notice. request such a conference. I f the Surety limely requests a conference. the Owner shall attend . Unless the Owner agrees otherwise. any conference requested under this Section 3.1 shall be held with1n ten (10) business days of lhe Surety's receipt of the Own91's notice. If the Owner, the Contractor and the Surety agree, the Contraclor shall be a ll owed a reasonable time to perfomn the Construction Contract. but such an agreement shall not wa ive t he Own e r's r ight. if any. subseque ntly to declare a Contractor Default; .2 the Owne r d eclares a Contractor Default. te rm ina tes the C o nstruction Contrac t and noti fies the Su rety : an d .3 th e Owne r has ag reed to pa y the Ba lance of the Contract Price in acco rda nce w ith the te rms of the C o nstr uctio n Contrac t to the Surety or to a contractor selecte d to perfomn the Co nstructio n Contract. § 4 Failure on the part of the Owner to comply with the notice requi rement in Section 3 .1 shall not cons titute a failure to comply w~h 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 'Mlen the owner has satisfied the colldihons of Section 3 , the Surety shall promptly and all he Surety's expense take one of the following actions: § 5.1 Arrange fo r the Cont ractor. with the consen t of th e Owner, to perform a nd compl ete the Construction Contrac t; § 5.2 U nd erta ke to pe rform and com plete the Construction Contract itself . th ro ug h its a ge nt s or in de pe ndent contractors: § 5.3 Ob tain bids o r nego tia ted p ro posals from q uali fied contra ctors acceptab le to the Own er for a con tract fo r performance and completion o f th e Construction Contract. arra nge for a contract to be prepared for execu tio n by the Owner and a con tractor selected with the O wner's concurrence. to b e secured with perfomnance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract. and pay to the Owner lhe amount of damages as described 1n Section 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 ijs right to perfomn and complete , arrange for completion , or obtain a new contractor and with reasonab le promptness under th e c ircumstances: .1 Aft er investigation, deter mi ne the amount for which it may be liable to the Owner and. as soon as p racticable a fte r the amoun t is de termin ed, make payment to th e Owner; o r The laog uago hl lhts document corlfomtS exac tly to the languogo used In AlA DocwnP.fll A3 12·PerloiTYIMte Bond -201 0 O(liiiM. .2 Deny liability in w ho le or in part and nohfy the Owner, citing the reasons for denial. § 6 If the Surety does not proceed as provided in Section 5 w~h reasonable promptness, the surety shall be deemed to be in defautt on this Bond seven days after receipt of an add~iooal wntten noloce from the Owner to the Surely demand1ng that the Surety perlorm 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 Section 5.4. and the Owner refuses the paymen t o r the Surety has denied liability, 1n who le or in part, wi thout further notice the Owner shall be en titled to enforce any re medy avail ab le to the Owner. § 7 If the Sure ty e lects to a c t u nd er Secti on 5.1, 5.2 or 5.3 , then the responsibilities of the Suna ty to th e Owner shall no t be g rea te r than those o f th e Contractor u nder th e Cons tructio n Con tract. and the respo nsibilities of the Own er to th e Surety shall not be g reater than those o f th e Ow ner u nder th e Co nstruction Contract. Subject to the commitment by the Ow ner to p ay the Balance of the Con tract Price, the Su rety is obliga ted, w ithout d uplication, for 1 the responsibilities of the Contractor for correction of defective w ork and completion of the Construction Contract: 2 additional legal, design professional and delay costs resutting from the Contractor's Default. and resultmg from the actions or failure to act of the Surety under Section 5; and .3 liquidated d a mage s, or n no liquidated damages are specified in the Construction Contract, actual damages caused by d elayed pe rformance or non•perfonmance of the Cont ractor. § 8 If the S ure ty elects to a ct u nd er Secti on 5.1, 5.3 o r 5.4 , the S urety's liability is li mited to the amount of this Bond. § 9 Th e Surety shall not be liab le to th e Owne r o r o th e rs fo r o bligation s of th e Co ntractor that a re unrela te d to the Co nstr uc tion Contract, and th e Ba la nce o f th e Contract P rice shall no t be red uced o r set o ff on accou nt o f a ny such unrela ted ob li ga ti ons. No rig ht o f actio n shall accrue on thi s Bo nd to an y pe rson o r enti ty o th er th an the Owner or Its heirs, executo rs, adminis tra tors. successors and assig ns. § 10 The Surety hereby waives notice of any change, oncluding changes of time , to the Construction Contract or to related subcontracts. punchase orders and other oblogations . § 11 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work Is located and shall be in st~uted wijhin lwo years after a declaration of Contractor Defau lt o r wit hin lwo years after the Contractor cea sed worki ng or within t wo years after the Sure ty refu ses or fa its to perlorm its obli gations under this Bond , whichever occurs f irst. If the provisions of th is Pa rag raph are void or proh ibited by law, the minimum pe riod of li mita tion available to sure ties as a d efense in the ju risdic tio n of th e suit shall be applicable. § 12 N oti ce to the Su rety , the Owner o r the Contracto r shall be maile d or delivered to th e address shown on the page on whic h their sig nature ap pears. § 13 When this Bond has be e n furnished to comp ly wi th a sta tutory or o ther lega l reQuirement in the location where the construction was to be perlormed. any provision in this Bond conflicting with said statutory or legal requorement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requorernent shall be deemed incorporated herei n . When so furnished , the intent is that thos Bond shalt be construed as a statutory bond and not as a common law bond. § 14 DEFINITIONS § 14 .1 Ba l a nce of the Contract Price. T he to ta l amoun t paya ble by the Owne r to the Contracto r under th e Cons tructi on Contract after all p roper adjustm en ts have been made, including allowance to the Co nt ractor of a ny 1'he language in 'his document COI'Ifonns exActly to !he lanouAge used in AlA Dacumellt AJ 12wPerlorrntH'Ice Bond 20 10 ~d ltloo. a mounts received o r to be receiv ed by the Ow ner in settlement of insurance or other c la ims for damages to w hich the Contractor is entitled. re duced by all valid and proper payments made to or on behalf of the Contractor unde r the Construction Contract. § 14 2 Const ruct i o n C o ntrac t. The agreement between the Owner and the Contractor identified on the cover page, including a ll Contract Documents and changes made to the agreement and the oontract Documents . § 14 .3 Contr act o r Defaul t. Fa ilure of the Contracto r, w hich ha s not been remedied or w a ived. to perfonm o r o th e rw ise to com ply w ith a material te rm of the Cons tr uctio n Contra ct. § 14.4 Owne r Defaul t. Failu re o f th e Ow ne r. which has no t been re med ied o r w aiv ed , to pay th e Contrac tor as req uire d under the Constr uction Con trac t or to perfo rm and c o mple te o r comply w ith the o ther m ateria l terms of the Co n str uc tion Contract. § 14 .5 Con t ra c t Doc uments. A ll th e docum ents that c ompris e th e a greement b e tween the Ow ner a nd th e Contractor. § 15 If this Bond is i ssu ed for a n agreement between a Contractor and subcontractor. the term Contractor in this Bond shall be deemed to be S ubcontractor and the term Owner s hall be de emed to be Contractor. § 16 Modifications to this bond are a s follows (Sp Mo is p iVvided b elow for addition al s ig na tures of Ddcled parties, other than th ose appoa riog Otlll'le cover page.) CONTRACTOR AS PRINCIPAL Company: (C orporate Seal) S1gnature· -------------- Nam e & Title:----------- Address ____________ _ SURETY Company: (Corporate Seal) S ig nature: ------------- Name & Title:------------ A ddress ____________ _ The language in thi s do cumcnl C".Oil for.ns exactl y to the tanguogc use-d In AlA Doc~u ne •~t A3 12-Pertofln ance Bo•ld -20 10 edition . The Guarantee Company of North Ameri ca USA One Towne Squa re, Sui te 1470 Southfield, Mich igan 48076 Pho ne: 24 8-281-028 1 Fax: 248-750-043 1 CONTRACTOR (Name , legal stelus aad .>ddmss) Sil\·cr Spur Construction LLC 1098 IV. South Jordmt Pkwy, Sui te I ll $01 11J1 .J ordon , UT ~4095 OWNER (Name. legal status and address) Pw·k Cily tvlunicipal Corpomtio n l'nrk Cit)', lJ I' 840(>() CO NS TR UCTION CONTRACT Date: Scp t"•nbi:r S . 20 I\) Amount: ($ ~.224,256.00 www.gcna .com Bond No. 11178200 PAYMENT BOND SURETY (Name, legal status ar1d p(lrtcipal place of business) The Guara ntee Compa ny ofNo n:h Ame rk:a l:SA One TO\vne Square , Su ite 1470 Sou thfie ld, Mic hignn 48076 This document has important leg al conse.q uences . Consultation w ith an a.tto mey is encouraged with respect to its completi on or mod ifi cation. Any sing ular reference to Contra ct, Surety, Owner or othe r party shall be consi dered plural where applicable. ei ght 1n i Ilion cwo hund red (Wenty-fnur Lhousand two ht1 nd•·et1 (i ll:y-six AlA DocumentA312-2010 combines two sepa rate bonos, a Performance Bond a nd a Pa}rm ent Bond , i nto one f orm. Thi s is not a single com bined Perlomta nce and Payment Bond . Description (Name and location): 3KWTP & S R2:4:\ \Vater Tran~mh::sio1 \ l .in~.s BOND Date (Not earlier lh8rt Conslmclion Conlracl Date): ~s:.:· •~P•:.:•:.:"':.:.b:.:.er:.:5:.:,.::2:.:.0:.:1 9 __________________ _ Amount: eight rnill ion two hundred twen ty -four thousand tw() hund red fifly -s i-.x ($ ~.224 ,256.00 Modificabons to this Bond: ljJ None CO NTRACTOR AS PRINCIPA L Company: (Co rporate Seal) Sil ver Spur Construdi un L L C 1098 W. So wh .l ord(l u Pkwy. Su ite I ll South Jordan , IJT R4095 Signatu re. Name & Till .::::::~ft~[11_j:l{,l\4W.utJ{LIJ_ D See Sectio n ·1a SURETY Company : (Corporate Sea l) 'I 'he Gu(lrantee CoJHpany o f North .A..mcric:a. \!SA One Towne Square, Su ite 14 70 Southfield, M Sig nature · ___ ::::::_-/--,.------- Name & Titl e: __ .:.c.._:.:.:.:.:.:...:.c.....:.o:.:.:.::.:.:.:.:.:.._ (Any additional signatures appear on Y1e las/ p ge of tllis Payment Bond.) (FOR IN FOR MATION ONLY-Name. Address and Telephone) AGENT o r BROKE R: OWNER 'S REPRESENTATIVE (Architect , Engineer or ott>er t>My): (ia ll aghcr 6967 S. Ri ver Ga te Dr. Stc . 200 Soll l.Alke Ci ty , UT 8•10 17 The language in this document confirms exactly to 1M ta •'lguage-used in AlA Document A 3 12-Payment Bond -2010 edition . § 1 The Contrac to r a nd Surety, j o intly and seve ra ll y, bind themse lves. the ir heirs, execu to rs, ad mi nistrators, successors and assig ns to th e Owner to pay fo r labor, mate ri als a nd equipment fu rni shed for use in the pe rforma nce of the Construction Contract. which is i nco rpora ted he re in by reference, subj ect to the fo llowing te rms. § 2 I f th e Contractor p romp tly mak es paymen t of all sums d ue to C la im a nts, and defends, in d emn ifies a nd holds harmless th e owner from cla ims, de mands, liens or suits by a ny person or entity seeking pay ment fo r labor. ma te ria ls o r equip men t f urni shed for use in t he performance o f the Constr uction Contract , then the Surety an d the Contractor shall have no o bligation u nde r thi s Bond . § 3 If the re is no Owner Default un der t he Construction Con tract, the Sure ty's obligatio n to the Owne r under th is Bon d sha ll ar ise after the Owner has p ro mptly noti fied the Contr ac to r and the Surety (a t the address describ ed in Section 13) of c laims, demands , lie ns or suits aga in st the Owne r or the Owne r's p rop erty by any person o r e n tity seek ing pay me nt fo r la bo r, material s o r equip ment furnished fo r use in the perfo rmance of the Constr uction Contract and tendered d efense of such claims, demands, lie ns or suit s to the Contractor and the Surety. § 4 When the Owner has sa tisfied the cond itions in Sectio n 3, the S ure ty shall p romptly a nd a t th e Surety's expe nse defend, indemnify and hold ha rmless the Owne r aga ins t a du ly te nd ered clai m, demand, lien or su it. § 5 T he Surety's ob li gations to a Claimant und e r th is Bond shall arise a fter the foll owing : § 5.1 Cla imants, who do not have a d irect cont ract with the contrac tor, .1 have furn ished a w ritte n not ice of no n-payme nt to the Contractor, sta tin g w ith substa ntial acc uracy the amount claimed and the na me of the party to w hom the materials were. o r equ ipment was, furnishe d o r supp lied o r fo r w hom the labor was done o r performed , w ith in ninety (90) d ays after having las t pe rformed tabor or la st fu rn ished materia ls o r equipment i nc lude d in the Cla im; a nd .2 have sent a C la im to the Surety (at the address descr ibed i n Section 13). § 5.2 C laimants. w ho a re employed by o r h ave a direc t cont ract with the Contractor. have sent a C laim to th e surety (at the address d escrib ed in Section 13). § 6 If a notice of non -pay ment requ ired b y Section 5.1 .1 is g iven by the Owner to the C on tracto r. th at is sufficient to sa tisfy a C lai ma nt's o b ligation to furn ish a wr~ten noti ce o f n o n-paym e nt under Secti on 5 .1 .1. § 7 W hen a Cla imant has satisfied the conditio ns o f Sections 5 .1 or 5.2. w hi chever is applicable, the Surety sha ll p romptly and at the Sure ty 's expe nse ta k e th e following actions: § 7 .1 Send an answer to the C laim a nt, w it h a copy to the Owner, w ith in sixty (60) days a fte r receip t of the C la im, sta ting the amou nts that are u nd ispu ted and the basis for challe nging any amou nts that a re dispu ted; and § 7.2 Pay o r arra ng e for payment of any u nd ispu ted amo unts . § 7.3 The Surety's fa ilure to d ischarge its obligations un de r Sec tion 7.1 o r Section 7.2 sha ll no t be d eemed to const itute a waiver o f defenses the Su re ty o r Co ntra cto r may have o r acq u ire as to a Claim , except as to u nd ispu ted amo unts fo r w hich the Surety and C laimant have rea ch ed agreemen t. II, how eve r, the S ure ty fails to discharge its obliga ti ons un der Sec tion 7.1 o r Sectio n 7.2, the sure ty shall indemni fy the C laim a nt for t he reasonable attorney's fees the C la im a nt incurs t her eafte r to recove r any sums found to be due and owing to the C la imant. § 8 T he Surety's tota l o bligatio n sh a ll not exceed the amo un t of thi s Bond, p lus the amo unt o f reasonable attorney's fees provided und e r Sectio n 7.3 , an d t he a mount of thi s Bond sha ll be cred ited fo r any payments made in good faith by the Surety. § 9 Amounts owed by the Owner to the Contractor under the Construction Contract shall be u sed for the perfo rmance of the Construction Contract and to sati sfy cla ims, if any , under a ny co nstruction performance bond. The languag e in this documenl confirms e xnctly to the language used in AlA Docul'nent A 31 2-Payment Bo nd -20 10 edition. By the Contrac to r furnishin g a nd the Owner acce pting th is B ond, they agree that a ll funds ea rned by the Contractor in the p erformance of the Constr uction Contract are ded icated to satis fy o bl igations of th e Contra c tor and the Surety under th is Bond, s ubject to th e Owne r's p riori ty to use th e fu nd s for th e c o mp letion of the w o rk. § 10 T he Sure ty shall not b e li able to th e Owner, C laimants or others for oblig ation s of the c on tra ctor th at are unrelated to the Construction Contract. The Owner s ha ll not be li able for th e paymen t o f any cos ts o r expe nses o f any C la imant under th is Bond, and sha ll have u nder th is Bond no o b lig ation to make paym ents to, o r g ive notice on beh alf o f. Claim ants o r o therwise hav e any ob li ga tions to C laimants under this B ond. § 11 The S ure ty hereby waives notice o f a ny c h ange, in cl uding c h ang es of time, to the Construction Co ntract or to related subco ntra c ts, pu rc hase o rde rs a nd othe r o b ligati ons. § 12 No su it or action s ha ll be oommence d by a Claimant u nde r thi s B on d o the r than in a court o f com pete nt j urisdiction in the state in which th e proj ec t t hat is the su bjec t of the Co ns truction Co ntract is located or after the expiration of on e y ear from the date (1) on w hich the C la imant sen t a Cla im to the Surety p urs ua nt to Sectio n 5 .1.2 or 5 .2 , o r (2 ) on wh ich the last labor o r service was performed by a nyone or the last mater ia ls o r eq uipm e nt were fu rn is hed by a nyone under the Construction Contract, w hi c hever of (1) or (2) fir st occurs. If the p rovision s of th is Pa ra g ra ph a re void or prohibited by law, the m i nimu m pe riod of limitation avail able to su reties as a defense in th e jurisdic tion of the s uit s ha ll b e appli cable . § 13 Notice and Claims to the Su re ty, the Owne r or the Contractor shall b e mailed o r deli vered to the ad dress s hown o n th e page on which their sig nature a ppears. Actua l receipt of notice o r Claim s , howeve r accomplis hed, s ha ll b e sufficient compliance as o f the date receiv ed. § 14 W hen th is Bond h as b een furn ished to comply w ith a statu tory o r o ther legal req u irement in the loca tion w here the construction w as to b e performed , any provision in this Bond confl icting w ith s aid statu to ry o r le ga l requirement s hall be deemed deleted herefrom a nd p rovisions confir ming to s uc h sta tutory o r o ther leg al requirement shall be deemed inoorp ora te d herein . When so furnished, the inte nt is that th is Bon d s ha ll be cons trued as a s tatutory bo nd and not a s a c ommon law bond. § 15 Upon requ est by any pers o n or entity a ppea ring to be a potent ia l b enefic iary of th is Bon d , the Contra ctor and Owner sha ll promptly fu r nish a c opy o f th is B ond o r s hall p er m it a copy to b e mad e. § 16 DEFINITIONS § 16 .1 Claim. A writt e n statem ent by the claimant including at a min im um: .1 the name of th e C laima nt; .2 the n ame of the p erso n fo r w h om the labor w a s done . o r mate ria ls or e qu ip m e nt furn ished ; .3 a oopy o f the agree ment or purchase o rder p ursuant to whic h labor. materials or equipment was f urn is hed for use in the perfonmance of th e Co nstr uctio n Contra c t; .4 a b rief descriptio n of the labor, m ateria ls or e quipm e nt furnis he d ; .5 the d ate on w hich the C laim ant last pe rformed labor or las t furnished mate rials o r equ ipment fo r use in the performance of the C on stru c tion C ontrac t; .6 the to tal a m ount earned by the C laimant for labor, m a te rials or equi pm ent furn ished a s of th e d ate of the Cla im; . 7 t he tota l amoun t of p rev ious payments received by t he C laimant; a nd .8 th e tota l am o un t d ue a nd unpa id to the Claimant fo r labor, materials o r equ ip m ent fu r nis he d as o f the d ate of the C la im. The languag e ln lhi s doc:ume111 C()l)finns exactly to 1he language us ed in AtA Oocume1)l A 3 12 -Pay!'nent Bond -2{11 0 edition. § 16 2 Claima nt. An individual or entity hav1ng a direct contract with the Contractor or w ith a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Construction Contract. The term Cla imant also includes any individual or enhty that has rightfully asserted a claim under an applicable mechanic's 6en or similar statute against the real property upon which the Project is located. The 1ntent of this Bond shall be to include withou t limitat ion in the terms •tabor. mate rials or equipment" that part of water, gas power light, heat, 011. gasolin e, telephone service or rental equipment used in the Constru ction Contract, architectu ra l and eng in ee ring services required for perform a nce of the work o f the Contractor a nd the Contractor's subcontracto rs, and a ll o ther ite ms for which a mec han ic's li en may be asserte d in th e j urisd iction wh ere the labor, materials or equ ipmen t w ere fur nished. § 16.3 Con struction Contract. The ag reement betw een the Owner and Contractor identi fied o n the cove r pa ge , includ ing all Contract D oc uments and a ll changes made to the agreeme nt and th e Contract Documents . § 16 4 Own er 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 Contr act Docu ments. An 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 tenn Contractor in this Bond shall be deemed to be Subc ontracto r and the tenn Owner shall be d eemed to be Contractor. §18 Mo dific ations to this bond are as f ollows: (Space Is provided bolow for adclilionol signatures of added parties, ol/1er than 1/Joso oppooriog on the cover page.) CONTRACTOR AS PRINCIPAL Company: (Corporate Sea l) SJgnaiUre Name & Title:------------ Address· SURETY Com pany: (Co rpora te Se al) Signature: ------------ Name & Title.----------- Address : Tho language lr'l I his document connnns exaclly to the language used in AlA Documco l A 3 12-Payme111 1:J011d -2010 editlon. fit( GUARANTEE$ The G uarantee Com pany of North America USA Southfield, Michigan POW ER OF ATTORNE Y NOW ALL BY THESE PRESENTS: Tha t TH E GUARANTEE COMPANY OF NORTH AM ERIC A USA, a coopooollon oroontled and cxlsllng under the taws o t Ill$ S tate ol Michig an, having its principal office in Southflold, MI CI,Igan, d oes ttereby constitute and appoint Michael 'Nad e, Kim Payto n, Della Zooh. At on Lord, .Jotln St.lllichte, Jan is Horn ran Arthur J. Gallagher Risk Mi'U'tttg ement Se.vices, Inc. its ttue ;and l:l\vful anor'f\ey(.S)·ln -fa ct to execvte . sea t ttnd deliver tor and on lis beh alf as surety . ()fly and an bOIKIS 8rld unclen~klngs. eMtracts of i ndcmnily an(l othet wrUings obligatory in the nature thereof. which are or may be ai!O\W.d, fequised or permttled by taw. stotuiO. rulo . mg utt'llion, contract or othetwlse The execution of su<:h instrumenc(s) ill pursuance of lto<lse p<esents. shall b<! as binding opon THE GUARANTEE COMPANY OF NORTH AMERICA USA as fuly ... 1 !Vropty, 10 al w~ents and puJpOSeS. 03 if the some had been duty exeeuted and acl<nowledged by rts regl.larty ot«tC<l ofroo,. at the prropal olfoce Tho Power or Attooney is exeooted and may be ce<tilied so. ond may be IOIIOked. put$Uant lo and by authority o1 Miele IX. Sect<>n 9 03 ol the By·laviS adopted by lhe Board of llireciOfS of THE GUARANTEE COMPANY OF NORTH AMERICA USA at a--~ l'dd on the 31" day ol December, 2003. The Pre1ldert. or tJnf Voce Prcsidcn, acling vtJilao>y S<lcretaoy or Assostant Seaetary, shal have power and autllOrlly: 1. To appOint Attomey(s) in-faa. and co aU!hortzo thom to oxecuto on b<!hal l of the Company. and auach the Seal oiiM Company chereto bonds and under1akings. conttac1s of tt"ldOOlnity and other' wrlli1'19S obli!)a tory In the na~ure thereof; aoo 2. To rovoko, at any time, an~· such At1orney·in -fad and revoke tho autl'lorny glveo, except as provided be-low 3. In connection with obligations in favor of the Florida Oopa 11moru of Transportation only. it is agreed that the power 91\d authority hereby given to l.he /\Uorney 111--r act includes any and all consents ror UlQ n.llease ol retained percentages and/or f inal csl hnal os on cngi naer ing and construction contracts req uired by 11'10 Sta te of I-lOrida Departm ent of Trans portation. It i s fu11y u1'1dcrstood I hal co rlsen hi"'IJ to the Stttte ot Florido Oe:parlmonl of Transportation rnf'klno payment o f the final estimate to the Contractor ::mel/or li s assig nee. shall not relieve this surety company o f m'ly of II~ obl !gstlons under i ts boml . 4 , In connecUon v.ith obligations in favor o f the Konl ucky DOpf~rtrnel\t o f Highways only, it is agreed tho ltho power nn<l autho11ty hereby given l o ll'le Attornoy~Jn -F ocl ca nno1 t)A mOdified Ol' f&\'Oked unless prior wri Hen personal notice of sucl\ lnte1'1l ha~; boon nwen to the CommissJono<-Department of Higllwflys of I he CQrnmQnweal th of Kentucky at least th1rty (30} ctoys priOr' 10 I he modificati on or revocation. Fu1ther. th•s Po .. ver of Attomey is signed and seated by facsimile p~.wsuant to resolution of ttte Board of Directors or tho Company adopted at a meelil lg d uly c:a llcd ond held Ol'l the 61h day ol December 2011, of which the foltovAng Is a u~ e:xcetpt: RFSOlVEO llllll lhe signature of any aUll>orized ofrccr and 11>0 soal of the Company may be affixed b\' facsimile 10 any Po-"" of AUomey or certifoeatJon thereof au1llorlzfng tho oxoeu!Jon aoo dei"""Y olany bOnd, undertaldng . comracts of indemnoty and Olher vdingS Ol>li!JO""Y In the nacuro lh<!reol, and such t~ptui'O onct seal when so used shal h(M3; the same ron:e and ettec:r as lhough tnal'lU8tly atixed IN WITNESS \\IIE.REOF. THE GUARANTEE COM PANY OF NORTH AMERICA USA has caused this insb\met11 to lle signed and Its co•por•le seol to be affixed by rts authorized olf100t.thls t• day ofMarl:h 2018. S TATE OF MICHIGAN County o f Oakl and THE GUARANTEE COMPANY OF NORTH AMERICA USA Stophon C . Ruschak, Pres l dont & C hief Ope rati n g Officer Rand all Mu ssol man. Secre tary On this 1 &t d ay o f March, 2018 before me came the l nd 1vldun ls \vt 1o tlXecu ted the precedi ng instrument , to 100 pe•aonH Uy known. and being by me d~Jty swom. said t hat oact'l is tile herein described and authQriZed oMcer o f The Guarantee Company ol North Amelica USA: th:it tt'lo seat arfixed to saki instrun"!ont IS lhe Corporate Seal of said Company; that the Corporti iC Scol ill'ld eactl signatl.lfe 'll'ere d1.lly affixed by order or th.o Boar<l ot Directors of said Company. Cy•thla A. Takal No/IJlY Public, State of Micllig~ Coooly of 0.-.rJ My Commission Expire5 FelNvwy 11# ZOZ4 AttNtg in OoiJoml County IN WITNESS .,.,'HEREOF. I have hormooto set my hand ot The Gwroo~ee Comparty of No~h Ameiica USA ol1ices tho day and year abcwe •wrtten cy~ t). ~a..A-v·- 1. Randall Musselman. Socmtaoy ol lHE GUARANTEE COMPANY OF NORTH AMERICA USA, dO t>ereby eertify that the above and loregOing is a true and corroct copy of a Po'"" ot Attomey executed by THE GUARANTEE COMPA NY OF NORTH AMERICA USA, 1•ol1ic:h I$ $U! in fuD force and effecl. IN W ITNESS WHERtoOF. l llave U•ereunto set my hand and anachoo ll>& seal of sa•d Company lh os "7 th day of Sq>itW<\,if. 'U)\ ~ Ra nda ll M ussohnan. Secretary COMMERCIAL AUTO CL CA 01 49 06 17 THIS EN DORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COMMERCIAL AUTOMOBILE EXPANSION ENDORSEMENT-PLATINUM This endorsement modifies Insurance provided und er th e following : BUSIN ESS AUTO COVERAGE FORM With respect to the coverages provided by this endorsemen t. the provis ions or the Bu siness Auto Coverage Form apply un less mod ifi ed by this endorse ment. A. NEWLY ACQUIRED OR FORM ED ORGANIZ.ATIONS The following is added to Paragra ph A.1. Who Is An Insured of Section II • Covered Autos Liability Coverage: Any organization you newly acquire or form . other th an a partnership, joint ventu re or limited liability company or any organ ization excluded either by thi s Coverage Part or by endorsement, and over which you maintain ownership or majority interes t of more than 50 percent will qualify as a Named In sured. However: 1. This In surance does not apply to any newly acquired or formed organization that is an "insured' under any other automobile policy or would be an 'insured' und er such policy but for its termination or the exhaustion of its Limit of Insurance. 2 . Coverage does not apply to 'bodily injury" or 'property damage• that occurred before you acqu ired or formed the organization. 3 . Coverage unde r this provision is afforded only u ntil th e 180th day after you acquire or form the organiza tion or the end of the policy p eriod, whichever is earlier. B. ADDITIONAL INSURED BY CONTRACT OR AGREEMENT The following is added to Paragraph A.1 .. Wh o Is An Insured of Section It -Covered Autos Liability Coverage: When you have agreed in a written contract or agreement to include a person or organization as an addHional 'Insured", such person or organization is included as an 'insured" subject to th e following : 1. Such person or organ ization Is an addiliona l "insured' only to th e exte nt such person or organ iza tion Is li able l or "bodily injury· or •property damage•: because of the conduct of an 'insured' under Paragraphs a .. or b. under Paragraph A.1. Who Is An Insured of Section II -Covered Autos Liability Coverage, caused by an 'accident• and resu lting from the ownership, maintenance or use of a covered "'auto'": 2. The written contract or ag reement described above mu st have been executed prior to the "accident" thai ca used th e "bod ily Injury" or "prope rty damage" and be In effect at the time of suc h 'accident"; 3. The insurance afforded to any such additional "insured " does not app ly to any "accident" beyond the period of lime required by the written contract or agreement described above; 4. The most we will pay oo behalf of such additional 'insured(s)' is the lesser of: a. T he Limits of Insurance specified in the written contract or agreement described above ; or b. The Limits of ln sura nc,e shown in the Declaration s. This provision shall not Increase th e Limit of Insurance shown in th e Dec larations in this policy or coverage part; and 5. The following changes are made to Paragraph 5. Other Insurance of B. Gene ral Conditions und er Section IV -Business Auto Conditions: a. T he following is added to Paragraph 5.a .: If required by the written contract or agreement described above, the insurance afforded to lhe additional Insured under this provision will be prim ary to. and will not seek contribution from, the add itional insured's own in surance . CL CA 01 49 0617 Includ es copyrighted mate rial of In surance Services Office. In c .. with its per miss ion Page 1 of 5 b. Parag raph S.c. Is deleted In Its enti rety. 6. Paragraph A.1.c. under Section II • Covered Autos Liability Coverage is dele ted in its entirety. 7. The definition of "insured contract" under Section V • Defin it ions is amended to add the following: An "insu red contract" does no t include that part of any contract or agreement: That pe rtains to the ownersh ip, maintenance or use of an "auto• and which indemnifies a person or organization for o ther than the vicarious li ab ili ty of such person or organization fo r "bod il y inju ry" or "property damage• caused by your operation or use of a covered "auto•. However, a person or organizatio n is an add itional "insured" und er thi s provisio n only to the extent such person o r organization is not na med as an "insured" by separate endorsement to this policy. C. EMPLOYEES AS INSUREDS The followin g is added to Paragraph A.1. Who Is An Insured Section II • Covered Au tos liability Coverage: Any "e mployee" of yours is an "insured" while using a cove red •auto• you don 't own, hire or borrow in yo ur business or your persona l a ffa irs. D. IN C REA SE D COVERAGE ·BAI L BON DS T he Supplementary Payments Coverage Extension of Secti on II • Covered Au tos Liability Coverage is amended as follows: The Limit o f I nsurance In pa ragraph A.2.a.(2) is Increased to $5,000. E. INC REASED COV ERAGE LOSS OF E ARNING S Th e Supplementary Payments Coverage Extension of Section II • Covered Autos Liability Coverage is a mended as follows: T he Limit o f Insurance in paragraph A.2.a.(4) is increased to $1,000. F. FELLOW EMPLOYEE COV ERAGE The Fell ow Emp loyee Exclu sion conta ined in Section II-Covered Au tos Liability Coverage does not apply. This coverage is excess over any othe r collectab le insurance. G. COVERAGE EXTENSION· T RAN SPORTATIO N EXPEN SES Paragraph A.4.a. Transportation Expenses of Section Ill • Physical Damage Cove r age is amended as fo ll ows: 1. The Lim its of Insurance a re increased to $75 pe r day to a maximum of $2,500. 2. We will also pay reasonable and necessary expenses to facil itate the return of the stolen "au to " to you. 3. It is agreed and understood and it is o ur staled intent that expenses Incurred by you u nde r th e Transpo rt ation Expenses Coverage Extension will not also be covered or paid unde r the Rental Reimbursement Coverage provided by th is endorsement or any rental reimbu rse men t coverage added by separate endorsement to this policy. H. EXTENDED COV ERAGE • AIRBAGS The fo llowin g is added to Exclusion B.3.a. of Section Ill • Physical Damage Coverage: However. this exclusion does not apply to the uninte nded discharge of an a irbag. This coverage is excess over any other collectible in su ra nce or warran ty p rovid ing such air bag coverage. I. AU TO LOAN/LEASE GAP COVER AGE The following is added to Section Ill • Physical Da mage Coverage, Paragraph C. Lim its of I nsu rance. 4. In the event of a to tal "lo ss· to a cove red "a uto", we will pay the lesser of: a. Any unpaid amoun t due on the lease o r loan for a covered "auto•, less: (1) T h e amount under the Physical Da mage Coverage section o f the pol icy; and (2 ) Any: (a) Overd ue lease/loan payments at the time of the "loss•; (b) Financia l penalties imposed under a lease for excessive use, ab nonmal wear a nd tear or h igh mileage: (c:) Security deposits not re tu rned by the lessor ; (d) Cos ts for extended warranties, C red it Life Insurance, Health, Accident or Disab ili ty Insurance pu rchased with the loan or lease; and (e) Carry-over ba lances from previous loans or leases; or b. $5,000. However , t his provision does not apply to the extent loan/lease gap cove rage h as been provided by separate endorsement to this policy. Page 2 of 5 Includes copyrighted material of Insurance Services Office , Inc., wit h its permission CL CA 01 49 06 17 J. GLA SS REPAI R · NO DEDU CTI B L E The fo ll ow ing Is added to Pa rag raph D. Deducti ble o f Section Ill • Physical Damage Coverage : Any Comprehensive Coverage deductib le s hown In the D eclarations does not apply to "loss " to glas s whe n you e lect to patch or repa ir r ather than r ep la ce the g lass. K. IN C REA SED COVERAGE • ELECTRON IC EQ UIPME NT The $1,000 limR Indicated In Paragrap h C.1 .b. und er Section I ll • Physical Damage Coverage Is increased to $2,500. L. EXTE N DED COVERAGE PERSONAL P RO P ERTY The following Is added to Paragraph A .4. Co verage Extensions of Section Ill • Physical Damage Coverage: Physic a l Damag e Coverage on a cove red "auto" may b e extended to "loss" to your pe rsonal property or, If yo u are a n In dividua l, th e pers onal property of a fam il y me mbe r, that is in the covered "auto• at the ti me o f "loss" and ca us ed by a n "accident" and resulting fro m the owner s hip , maintenance o r use of a cove red "au to•. Th e in surance provided by this coverage exten sion is excess over any othe r c ollectible Ins urance . The mo s t w e wi ll p ay for an y o ne "loss" under this coverage e xte ns ion is $500. How eve r , our payment for "lo ss" to personal pro pe rty will only be fo r th e account of the o wn e r of the property. Under this pro vi sio n, pe rsonal prope rty does not Include a nd w e wi ll not pay fo r "loss" o f cu rren cy , coins , secu rities o r contraba nd. No deductible applies to this coverage e xtension. M. T OWIN G Paragraph A.2. Towing of Section Ill • Physical Damage Coverage, is replaced by the fo tl owfng: If a private passenger type ·auto" or light truck •auto• (0·1 0,000 Lbs. GVW) is provided both Comprehensive J!!!.S! Collision Coverage, we will pay up to $150 for towing and labor costs incurred each time such "auto" Is di sabled. If a medium, heavy or e x1ra-heavy truck or extra-heavy Truck - tractor "auto" (greater than 10.000 Lbs. GVW) is provided both Comprehensive ill!!! Collision Coverage, we will pay up to $250 for towing and labor costs incurred each time such "au to" is disabled. However, the labor must be performed a t the p lace o f disablement. N . FIRE E XTIN GUI SH ER R E CHARGE The foll owing Is added to Pa ragraph A.4. Coverag e Exten sions of Section IV • Physical D am age Cove rage: W hen fire extinguishers are kept in your covered "auto" a nd any a re d ischa rged in an attempt to extinguish a fire, w e wi ll pay the lesser of the actual cost of recha rging or rep lacin g such fire extinguisher(s ). N o deducti ble ap plies to this coverage. 0. HIRED A UTO PHYSICAL D AMAGE C OVERAGE The following is added to Paragraph A .4. Coverage Ex1ensions of Section Ill • Physical Damag e C overage: If hired •a utos· are covered "autos• for Covered Aut os U ability Coverage and if Physical Damage Coverage is provided for any "auto• you own, I hen the Physical Dam ag e coverages provided are extend ed to "autos• you lease, ren t, hire o r borrow from s omeone o ther than your "employees", partners or m embers of th eir house holds subject to the fo llowing : 1. T he most w e wi ll pay In an y o n e "loss" Is the lesser of: a. The actual cash va lue o f the "auto"; b. The c o s t to repair or repla ce lhe "a uto": o r c. $100 ,0 00. 2 . P aragraph 1. a bove Is subject to a d ed uc tible. T he deduc tible sha ll be equal to the amount of the hi ghes t deductib le shown for any owned "auto• of th e same c las sificati on for th at c ove ra ge. In the event there Is n o o w ned "auto" o f the same c lass ification, the highest deductible for any owned ·au to " w ill ap ply fo r that coverage. No d ed uctible will a pply to "loss· caused by fire or li ghtni ng. 3 . H ired Auto P hysical Damage Coverage is subj ect to the follow ing: a . If s ym bol 8 is shown In the Covered Auto s e ction of the Declara tions page for any of the Physical Damage coverages, then the Hired Auto Physical Damage coverage described in this endorsement does nol apply, b . O ther than indicated in Paragraphs a. directly above, coverage provided under this provision will be excess over any o ther collectible Insurance or coverage. 4. In a ddition to the limit set forth In Paragraph 1. above we will pay u p to $500 per day, to a maximum of $3,500 p er "loss" for: a. Any costs o r fees a ssociated with the "loss· to a hired "auto"; and b . Loss of use of th e hired "auto", provided It is the consequence o f a n "accid en t" l or which y ou a re leg ally liable, a nd as a C L C A 01 49 0 6 1 7 I ncludes c opyrighted mater ial o f Insura nce Services Office , Inc .. w ith i ts permission Page 3 o f 5 resu lt of which a monetary loss Is sustained by the leasing or rental concern. However, Paragraph A.4.b. Loss of Use Expenses under Section Ill -Physical Damage Coverage of the Business Auto Coverage Form does not apply. P. RENTAL REIM BURSEMENT COVERAGE We will pay for rental reimbursement expenses Incurred by you for the renta l of an "auto" because of "loss" to a covered "auto". 1. Payment appl ies in addition to the otherwise applicable amount of ea c h coverage you have on the covered "auto". 2. No deductible applies to this coverage. 3. We will pay on ly for those expenses incurred during the policy period beginning 24 hours after t he "loss" and ending, regardless of the expiration date of lhe policy, w ith the lesser of the fo llowing number of days: a. The nu mber of days when the covered "auto• has been repaired or replaced, or b. 45 days. 4. Our payment Is l imited to the lesser of the following amounts: a. Necessary and actual expenses incurred; or b. No t more than $75 for any one day; 5. We w ill pay up to an additiona l $300 for the reasonable and necessary expenses you incur to remove your materials and equipment from the covered "auto" and replace such mate rials and equipment o n the rental "auto". 6. This coverage does not apply while there are spare or reserve "a utos" available to you for your operations. 7. If "loss" results from the total theft of a covered "auto" of th e "private passenger type•, we will pay under this coverage only that amount of your ren tal reimbursement expenses which is not a lready provided for under the Physical Damage Coverage Extension of the Bus iness Auto Coverage Form or any endorsements thereto . However. this provision does not apply to the extent that rental reimbursement is provided by separate endorsement to this policy. Q. DRIVE OTHER CAR COVERAGE 1. The fo llowing is added to Section II -Covered Autos Liability Coverage: a. Any "auto" you don't own, hire or borrow is a covered "auto" for Liability Coverage while being used by: (1) You. if you are designated in the Declarations as an Individual; (2) Your partners o r members, if you are designated in the Declarations as a partnership o r joint venture; {3) Your members o r managers, if you are designated in the Declarations as a limited liability company; (4) Your execut ive officers if you are designated In the Declarations as an organization other than a n individual, partnership, joint venture or l imited li ability company; and (5) The spo use of any person named in Paragraphs 1.a.(1 ). through 1.a.(4) while a resident of the same household; Except: (a) Any "auto" owned by that individual or by any member of h is or her household. {b) Any ·auto" used by that individual or his or her spouse while working in a business of sell ing, se rvicing , repairing or parking "autos". 2. Changes In Auto Medical Payments And Uninsured And Underlnsured Motorists Coverages The following is added to Who Is An Insured: Any individual named in 1.a above and h is or her "family members· a re "i nsured" while •occupying· or while a pedestrian when being struck by any "auto• you don't own except: Any ·auto• owned by that Indivi dual or by any "family member". 3. Changes In Physical Damage Coverage Any p rivate passenger type "auto" you don't own, h ire or borrow is a covered "auto" while in the ca re, custody or control of a ny individual named in Q.1 .a. above or h is or her spouse whil e a res ident of the same house-hold except: a . Any "auto" owned by that individual or by any member of his or her household; or b. Any "auto" used by that individual or his or her spouse while working in a business of sell ing, servicing, repa iring or parking "autos". 4. The most we will pay for the total of all damages under Covered Autos Liability Unin sured Motorists Coverage and Underinsured Motorists Coverage is the limit Of Insurance shown in the Declarations as applicable to owned "autos". Page 4 of 5 Includes copyrighted material of Insurance Services O ffice, Inc., wi th its per mission CL CA 01 49 06 17 5. Our oblig ation to pay fo r, repair , re turn or rep lace damaged o r stolen property under Physical D amag e Coverage , will be reduced by a deductible equal to the amount of the highest deductible shown for any owned private passenger type •a uto· applicable to th at coverag e. If the re are no owned private pa sseng er type "autos·. the d eductible shall be $250 for Comprehensive Co verag e and $500 for Collision Coverage. No deducti ble will ap ply to "loss" caused by fire or lightni ng. 6. Additional Definition As used in this DRIVE OTHER C AR Provision: "Family me mber" means a p erson rela ted to th e Individual named In 1.a. by bl ood , marriag e o r a doption who is a resident o f the Individual's household , includi ng a ward or foste r child. R. K NOW LEDGE OF AN ACCIDENT, CLAIM, SUIT OR LOSS The f ollowing is added to Par ag raph A.2. of Section IV - Bus iness Auto Cond itions: Yo u r o bliga tio n to provide pro mpt no ti ce of a n "accid ent", claim, •suit" o r "loss" is satisfied If you or a pe rson designated by you to be respon sible for Insurance matters is notified of, or In any ma nne r made awa re of an "accident ", cla im , "s uit " or "los s" and provid es us such notice as soon as practica ble · S. WAIVER OF SUBROGATI ON BY CONTRACT OR AGREEMENT The following is add ed to Parag raph A.5 of &lction IV -Business Auto Condi tions: We waive an y right of recovery we may have against a person o r org anization because of payments we make for "bod ily Injury" or "property damage· When you and such person or o rgan izatio n have agreed in writin g in a con tract o r agreement to waive such right of recovery, p ro vid ed: 1. Su ch w ritten contract or agreem ent was: a. Made p rio r to the -accide nt " or "loss" re su lting in the covered "bodily injury" or "property damage"; and b . W as In e ffect at the time of the cove red "bod ily inju ry" or "prope rty damage". 2. The covered "bodily injury" or "property damage• must arise out of the operations specified In such written contract or agreement. 3. At our request you must provide us with a copy of the a fo re me nt io ned written contract or ag reement. T . UNINTENTION AL O MI SSIONS The following is added Paragraph B.2. of Section IV -Busin ess Auto Conditions: If you fail to disclose any hazards e xisting at the inception date of this policy, such failure will not prejudice the coverage provided to you. However. this provision d oes not affect our righ t t o collect add itiona l premium o r exercise o ur r ight o f cancellation or nonrene wa l. U. LIBERALIZATION If we revise this endorsement to provide g reater coverage without add itiona l premi um cha rge , we wi ll a utomatically provide th e additiona l coverage to a ll endorsement holders as o f the day the revision is effective In your sta te. CL CA 01 49 06 17 Inc lud es copyrig hted mate ri al of In surance Services O ffi ce. I nc., with its perm ission Page 5 of 5 CO MM ERCIAL GENERAL LI AB I LITY CL CG 20 7 1 09 16 T HIS ENDOR SEMEN T C HANGES T HE POLI CY. PLEA SE R EAD IT CAREFULLY. ADDITIONAL INSURED -OWNERS, LESSEES, CONTRACTORS OR OTHERS -COMPLETED OPERATIONS -AUTOMATIC STATUS, INCLUDING PRIMARY NONCONTRIBUTORY T hi s endorsement mod ifies Insurance provided under the following: CO MMERC IAL GENERAL LIAB ILITY COVERAGE PART For pu rposes of th is endorsement, throughou t the policy , the term s "you" and "your" refer to the Named Ins ured shown in the Declarations. A. SECTION II ·WHO I S AN INSURE D Is amended to include as an add itiona l insured any person(s) or organ ization(s) when you are obli gated by virtue of a written con tract or agree ment that such person or organ ization(s) be added as an add itional insu r ed to yo ur policy. B. Exclusion s Such person(s) or orga ni zatio n(s) is an add itiona l insured on ly with respect to li abilit y for "bodily injury• or "property damage " or "personal and advertisin g inj ury" caused, in whole or in part by: (1) Acts or omi ssions of the Named Insured ; or (2) The ac ts or omi ssions of those acting on behalf of the Named In su red; and included in the •produ cts-completed operations hazard" T hi s insu rance applies on ly when you are required to add the additional insured by v irtue of a written con tract or agreement, p rovided the contrac t or agreemen t is: 1. Currently in effect or becomes effective du ri ng the te rm of th is po li cy; and 2. Was executed prior to the "bod il y inj ury• or "property damage" or "person al and advertising injury". However: a. The in surance afforded to such addi tional insured only app lies to the extent perm itted by law; and b. If coverage provided to the additional insu red is required by a contract or ag reeme nt, the in surance afforded to such additiona l insured will not be broade r than that whi ch you are required by the contract or ag reem ent to prov ide for such add itional insured . W ith respect to the insurance afforded to these add itional insureds, the following additional exc lusions apply to "bod il y inj ury" and "p roperty damage" aris in g ou t of: 1. The renderi ng of or fa il ure to rende r an y professional services by you or on you r beha lf, but onl y wi th respect to either or both of the foll owing operations: a. Providing eng ineerin g, architectural or surveying services to others in you r capacity as an engineer, architect or surveyor; and b. Providing, or hiring independen t professionals to provide, engineering, archi tectural or surveying services in connection w ith co nstruction work you perform. This exc lus ion app lies even if the claims aga inst any insured allege negligence or other wrongdo in g in the supervision, h iring , emp loymen t, train ing or mo ni toring of others by that in sured , if the "occurrence" wh ich caused the "bod il y inju ry" or "p roperty damage", or the offense which ca used the "personal and advertis ing injury•, involved the rendering of, or the fail ur e to rende r, any p rofession al arc hi tec tural, engineering or surveying services. 2. Subj ect to Parag raph 3. below, professiona l services include: a. Prepar ing, approving, or failing to prepare or approve, maps, shop drawin gs, opin ions , reports , surveys, field orders, change orders, or drawings and specifica tions ; and CL CG 20 71 09 16 Includes copyrighted mate rial of Insurance Services Office , Inc., w ith its permission Page 1 of 2 b. Supervisory or inspection activilles perfonned as part or any related architectural or engineering activities. 3. Professional services do not include services wi thin construdion means. methods, techniques, sequences and procedures employed by you or perfonned by or lor the construc tion man age r, its employees or Its subcontractors in connection with your ongoing operatio ns. C. Limits of Insurance With respect to the insu rance afford ed to these add iti onal in su reds , the following Is added to Section Ill ·limits Of Insurance: If coverage provided to the additional Insured is required by a contract or agreement, the mo st we will pay on behalf of the add itional insured Is the amount of Insurance: 1. Required by the contract or agreement ; or 2. Available under the applicable Llm~s of Insurance shown in the Declarations: whichever is le ss. This endorsement shall not increase the appli ca ble Limits of Insurance shown In the Declarati ons. D. Other Insurance For purposes of this endorsement, the following is added to the Section IV • Commercial General Liability Conditi ons, 4 . Other Insurance condition and supersedes any provision to the contrary: This insuran ce is excess of all other insurance ava ilable to an additional insured whether on a prima ry, excess. co ntin gent or any other basi s. But, if required by a wri tten co ntract or wr itten agreement to be primary and noncontributory, th is insurance will be prim ary to and will not seek contribution from any Insurance on which the additiona l insured is a Named Insured. No other coverage or limi t In the policy applies to loss or damage ins ured by this coverage. Pago 2 of2 Includes cop yri ghted ma teria l of Ins urance Ser vices Offi ce, In c .. with its permission CLCG2071 0916