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Home My WebLink About20061216.tiff RESOLUTION RE: APPROVE SERVICE AGREEMENT FOR UNDERGROUND FACILITIES LOCATING AND MARKING AND AUTHORIZE CHAIR TO SIGN -ONE CALL LOCATORS,LTD,DBA ELM LOCATING AND UTILITY SERVICES WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board has been presented with a Service Agreement for Underground Facilities Locating and Marking between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Phone Services, and One Call Locators, LTD, dba ELM Locating and Utility Services, commencing April 26, 2006, with further terms and conditions being as stated in said agreement, and WHEREAS, after review,the Board deems it advisable to approve said agreement, a copy of which is attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Service Agreement for Underground Facilities Locating and Marking between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Phone Services, and One Call Locators, LTD, dba ELM Locating and Utility Services, be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 1st day of May, A.D., 2006, nunc pro tunc April 26, 2006. J % BOARD OF COUNTY COMMISSIONERS 4 'S WELD CO , COLORADO ATTEST: iitaM j �� gp 1- �f . J. ile, Chair Weld County Clerk to the ,• r ' cAA1 &LT/ w 1 . i David E. Long, Pro-Tem BY: I D uty Clerlto the Board Wil ' m H. Jerke AP V AS TO Rob rt D. Mas en Att ney 511( ICS, Glenn Vaadc_i__ _ ate of signature: 2006-1216 CM0016 r?� ', 1% ONE , etc-/..2 -eiC UNDERGROUND FACILITIES LOCATING AND MARKING SERVICE AGREEMENT THIS AGREEMENT made this 26th day of April, 2006 (the "Effective Date") by and between ONE CALL LOCATORS, LTD. d/b/a ELM LOCATING & UTILITY SERVICES, a Montana corporation having an address at P. O. Box 16780, Missoula, MT, 59808 (hereinafter referred to as "Contractor") and Weld County Government having an address at P.O. Box 758, Greeley, CO, 80632 (hereinafter referred to as"Company"). WITNESSETH: WHEREAS, Company owns and operates underground facilities in certain areas of the state of Colorado; and, WHEREAS, Company desires Contractor to provide the labor and equipment necessary to provide certain services relative to locating and marking Company's underground facilities in certain areas where Company provides underground service, and, WHEREAS, Contractor is willing and able to provide locating and marking services for Company. NOW THEREFORE, in consideration of the mutual covenants, terms and conditions herein contained the receipt and sufficiency is hereby acknowledged, the parties do mutually covenant and agree as follows: 1. Definitions "Agreement": This Agreement and any all future amendments, modifications, supplements or addenda thereto. "Business Day": Any day other than Saturday, Sunday or any legal federal, state or local holiday. "Business Hours": The hours between the hour of 8:00 a.m. and 5:00 p.m. local time of a Business Day. "Confidential Information." (a) Means nonpublic information that Company or Contractor designates as being confidential or which, under the circumstances surrounding disclosure ought to be treated as confidential by Recipient. (b) Recipient may disclose Confidential Information in accordance with a judicial or other governmental order, provided that Recipient either (i) gives Company or Contractor reasonable notice prior to such disclosure to allow them a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. "Excavation/Excavate": Any operation in which earth, rock or other material on or below the surface of the ground is moved or otherwise displaced by any means (except the tiling of sod less than twelve inches in depth for agricultural purposes, or road and ditch maintenance that does not change the original road grade or ditch flow line). 2006-1216 "Excavation Site": The area where an Excavator intends to Excavate or actually performs Excavation. "Excavator": Any person who engages directly in Excavation and/or the design of Excavation, and who requests the location of the Company's Underground Facilities. "Excavator Notification": Notification given to the Excavator that Underground Facilities are not present at the Excavation Site. "Facility Owner": The owner of a specific Underground Facility. "Identified, But Unlocatable": An Underground Facility, the presence of which is known, but which cannot be field marked with Reasonable Accuracy. "Locatable Underground Facility": An Underground Facility which can be field marked with Reasonable Accuracy by using devices capable of identifying and locating the Underground Facilities within the required range of accuracy. "Field Locate/Locating Services": The process of detecting Underground Facilities through the use of inductive or conductive equipment, and marking the surface of the ground to identify the existence and location of Underground Facilities or Underground Plant. A Field Locate means each 1,000 lineal feet of Company owned utility will be billed as a locate. Locates in excess of 1,000 lineal feet shall be billed as multiple locates. Regular dispatch during business hours (8:00 a.m. to 5:00 p.m. Monday through Friday local time). Locates in excess of 5000' or extended projects will be billed at the hourly rate with Company authorization. "Marking": The use of flags or paint strips of a minimum of two inches by twelve inches, or other clearly identifiable materials at distances of every ten feet, and at each divergency from a straight line in accordance with the current marking standards of the American Public Works Association to show the field of Underground Facilities with Reasonable Accuracy. "One-Call Locator Service/One-Call Hotline": A service through which a Person can notify a Facility Owner, its agent or representative, of proposed Excavation and request field marking of Underground Facilities. "Person": Any individual, partnership, franchise holder, association, corporation, limited liability company, state, city, county or any subdivision or instrumentality of a state and its employees, agents or legal representatives. "Reasonable Accuracy": Locating within legally defined limits for the state of Colorado of the outside dimensions of both sides of an Underground Facility or Underground Plant "Standby Time." Additional protection services provided for high-profile buried plant as defined by the Company and billed on an hourly basis. All standby Time will be worked only with the prior authorization of the Company. "Underground Facility" or "Underground Plant": Any item buried or placed below the surface of the ground for use in connection with the storage or conveyance of water, sewage, electronic communications, cablevision, electric energy, petroleum products, gas, gaseous vapors, hazardous liquids or other substances, including but limited to pipes, sewers, conduits, cables, valves lines, wires, manholes,attachments and those parts of poles or anchors below ground. 2 • "Unlocatable Underground Plant." An unlocatable underground plant which is one that is not locatable by the normal business process, used by Contractor in tracing underground plants. 2. Drawings, Scope of the Work, and Confidentiality (a) Contractor agrees to perform locating and marking services for Company's Underground Facilities located within the following territory as requested by Company: Weld County, Colorado and any other areas that the parties may agree to in writing; such services to be performed according to the terms and conditions contained herein—including those contained in Exhibit A attached hereto, which by this reference is incorporated herein. Contractor agrees to receive transmittals directly from the One- Call Hotline for the dispatching of requests. Company will incur no additional cost for this receiving service. (b) Prior to Contractor commencement of locating services, Company shall provide Contractor with accurate and up-to date system maps. Failure to provide such information may, in Contractor's sole discretion, be grounds for Contractor to refuse to perform locating and marking services under the Agreement. Company will continue to provide all subsequent updates to the system maps as they become available. (c) Any such maps, drawings, sketches, or other technical information either oral, written or otherwise furnished or disclosed to or obtained by Contractor in the performance of this Agreement shall be deemed Confidential Information and shall remain the property of Company. All copies of such information shall be returned to Company upon written request or at the completion of this Agreement. This obligation of confidentially shall survive the termination of this Agreement. (d) Contractor shall provide 24-hour protection with call given by the One-call Center or Company. 3. Term of Agreement. The term of this Agreement shall remain in effect from the Effective Date hereof for a period of one (1) year, unless sooner terminated as provided herein. Automatic one (1) year renewals with a 3% annual price increase will occur unless notification is provided in writing by either party. 4. Payment for Services. (a) Contractor shall submit invoices to Company at the beginning of each month for services rendered during the previous month. Such invoices shall be due and payable upon presentation, but in no event later than thirty (30) days from invoice date. Unless otherwise prohibited by applicable law, any invoice which remains outstanding for more than thirty (30) days shall accrue a late fee equal to one percent(1%) per month or fraction thereof until paid in full. (b) Each invoice shall include notations of all completed locate requests and a summary of charges. Copies of the tickets shall be available to Company upon request. Company shall, after reviewing such invoice and verifying that the work has been done according to the Company's specifications, pay each undisputed invoice within thirty (30) days of receipt of the invoice. 3 • (c) In the event of a dispute as to the accuracy of any invoice, Company shall promptly return such invoice to Contractor with a detailed explanation of the nature of the dispute, and request that a corrected invoice be submitted. If Contractor does not agree with Company's contention that such invoice is incorrect, Contractor shall so notify Company, in writing, and further explain the reasons for its assertion that the invoice is correct. It is agreed that the parties shall use their best efforts to resolves such dispute among themselves within thirty(30) days from the date of Contractor's response. If the dispute is not resolved within the thirty (30) day period, Contractor may consider Company's failure to pay to be a material breach of this Agreement. (d) All invoices shall be sent to Company at the following address: Weld County Government Attn: Susan Quick P.O. Box 758 Greeley,CO 80632 5. Schedule of Service Charges. Contractor shall charge for services rendered hereunder in the following manner: 2006-2007 pricing: CHARGES UNIT PRICE Field Locate $14.75 Site Visit/Clear $9.75 HOURLY CHARGES UNIT PRICE Hourly Rate (Two hour minimum) $44.55 After Hours/Hourly (Two hour $44.55 Minimum) All prices outlined above shall remain in full force and effect with respect to all work performed during the initial term of this Agreement. Thereafter,the rates set forth above will be reviewed annually. Hourly Rate: projects, site surveillance, stand-by & monitor during normal business hours (8:00 a.m. to 5:00 p.m. Monday through Friday). After Hours / Hourly Rate: any locate request that is required to be performed outside normal business hours, which would be after 5:00 p.m. or before 8:00 a.m. including recognized call-center holidays. A minimum one (1) hour charge will be invoiced on all After-Hour Locates. 6 Independent Contractor. Contractor represents and warrants to Company that Contractor is free to enter into this Agreement and that Contractor has no other contractual commitments or obligations which will conflict or interfere with the performance of Contractor's obligations hereunder. 4 • It is further understood and agree that the Contractor is an independent contractor, and not an employee of Company, and Contractor hereby represents and agrees that it will perform said work as an Independent Contractor; that it has and hereby retains the right to exercise control and supervision of the work and full control over the employment, direction, compensation and discharge of all persons assisting it in the work; that it will be solely responsible for the payment of its employees and for the payment of all federal, state, county and municipal taxes and contributions pertaining thereto; and that it will be responsible for its own acts. Any representations to the contrary shall be invalid and non-binding as to the parties. 7. Subcontractor's Requirements. Contractor shall not subcontract the work to be performed hereunder, or any part of said work, unless it has first obtained the written approval of Company, and Company shall have full and complete discretion in withholding or granting said approval. Any such approved Subcontractor is required to provide evidence of insurance substantially equivalent to that required by this Agreement, or which is otherwise acceptable to Company prior to commencing any work. Upon requests Contractor shall provide Company with copies of any subcontract agreements entered into pursuant to the provisions of this section,prior to approval of any proposed Subcontractor. 8. Indemnification. Contractor's total liability to Company shall be limited to$2,000 per incident for any claims, losses, actions, liabilities, or damages incurred by Company arising out of or resulting from damages to Company's underground facilities that are proximately caused by Contractor; provided, however, that Company shall indemnify and hold Contractor harmless from and against any claims, losses, actions,liabilities, or damages resulting from Contractor's good faith use of out-of-date, incorrect, inaccurate or misleading maps, drawings, sketches or other records supplied by Company. Contractor shall indemnify and save harmless the Company, its officers, agents and employees against and from any and all actions, suits, claims, demands or liability of any character whatsoever, brought or asserted for injuries to or death of any person or persons, or damages to property arising out of, resulting from or occurring in connection with the negligent performance of the services herein specified; provided, however, that Contractor shall not be liable to the Company when such damage, injury or death result from negligence or other breach of legal duty of the Company. The term"costs" shall include, but not be limited to, attorneys' fees and other litigation costs incurred by Company. 9. Solicitation of Employees. Company understands and agrees that Contractors' employees are high skilled and specially trained individuals who are of great value and importance to Contractor. Company understands and agrees that it would be a difficult and expensive undertaking for Contractor to replace its employees. Company further understands and agrees that the measure of damages for the loss of a Contractor employee would be difficult to ascertain; such damages are, therefore presumed to exist. Company agrees not to infringe upon or interfere with the employer-employee relationship between Contractor and any of its employees. Such infringement and interference would include, though not by way of limitation, the solicitation for employment of Contractor employees, the inducement or encouragement of Contractor employees to leave their employment with Contractor or any of its affiliated companies or entities, or the direct employment of Contractor employees by Company or any of its affiliated companies. IN THE EVENT THAT ANY CONTRACTOR EMPLOYEE IS EMPLOYED BY COMPANY OR ANY OF ITS AFFILIATES OR MEMBER COMPANIES WITHIN ONE (1) YEAR FROM THE TERMINATION DATE OF THIS AGREEMENT, COMPANY AGREES TO PAY CONTRACTOR, IN AND AS 5 LIQUIDATED DAMAGES, A SUM OF MONEY EQUAL TO THE GREATER OF THE DEPARTING EMPLOYEE'S TOTAL ANNUAL COMPENSATION BEING PAID BY CONTRACTOR AT THE TIME OF DEPARTURE or THE TOTAL COMPENSATION TO BE PAID BY COMPANY. For the purposes of this Agreement, "Total Compensation" shall include regular wages, bonuses and the total value of any employee benefits package. 10. Termination. (a) Convenience: This Agreement may be terminated by either party at any time and for any reason upon giving thirty (30) days' prior written notice to the non-terminating party. In the event of such termination for convenience by Company, the Contractor shall be paid for all amounts due to Contractor under this Agreement to the termination date. In the event of termination by Contractor, all work in progress shall be completed by termination date. (b) Breach: Should either party hereunder fail to perform any of the obligations or responsibilities which have been assumed hereunder, the non-offending party shall have all remedies available to it at law or in equity, at such party's option, including but not by way of limitation, recession, termination and specific performance. Notwithstanding the foregoing, however, the party asserting the breach must notify the offending party, in writing, of its intent to assert a claim for breach of the Agreement and specify therein the basis for the claim. The offending party shall then have fifteen (15) working days from the date of receipt of such notice to cure the breach. 11. Contractor Responsibilities. (a) Labor, Materials and Equipment: Contractor shall furnish and pay for all labor, supervision, tools, materials, warehousing, transporation and equipment necessary to perform underground facilities locating and marking services as requested by Company. (b) Insurance/Losses: Contractor, at Contractor's sole cost and expense, shall be responsible for insuring losses or damages relating to all equipment, tools, supplies and materials belonging to Contractor, any subcontractor, or any utility company upon whose facilities Contractor may be working. It is specifically understood and agreed that Contractor releases and holds Company forever harmless from any and all responsibility resulting from negligence or otherwise for damages to, misappropriation or theft or any other loss or damage sustained by the above-referenced equipment and supplies and other personal property belonging to others unless caused by the negligence of the Company. (c) Permits: Contractor shall obtain and comply with the provisions of all applicable permits and licenses relative to the services to be performed hereunder as may be required by the local j uri sdic ti on. (d) Payment of liens: Contractor agrees to promptly pay and discharge any liens, claims, or charges filed or asserted against Company by or on behalf of any of Contractor's employees, subcontractors, suppliers or any other third party with respect to the performance of services under this Agreement. If any lien claim, or threatened lien claim or charge is not paid or discharged, Company may, but shall not be obligated to, withhold payment in an amount equal to one and one half(1.5) times the total amount of any such lien, claim or charge until the same has been dismissed of record or satisfied, or alternatively a lien claim may be discharged by direct payment from Company, and such payment may be set off against any funds held by Company or owed to Contractor; provided, however, Contractor may, at its own cost and expense, post an appropriate cash or surety bond for purposes of dismissing any recorded lien or claim and 6 proceed thereafter to contest such lien or claim without cost or expense to Company. Company shall thereupon release any funds withheld pursuant to this subsection. (e) Contractor agrees that in its execution of the work, it shall utilize only trained personnel knowledgeable in locating and marking Underground Facilities. 12. Liability: (a) Contractor shall be liable for damages to the property and facilities of Company that result from errors or omissions on the part of Contractor in locating and marking said facilities according to the standards contained herein, provided that contractor is promptly notified of said damages within 2 hours of learning of the damage. Notification will be to the company's dispatch desk at 888-728-9343 with a claim number provided to the company at the time of the call. Failure to notify contractor of a damage shall relieve contractor of any liability. In the event of such loss, Company shall submit a detailed invoice to Contractor setting forth, in specific terms, a description of the loss, including the time and place of the occurrence leading to said damages and a detailed accounting of the costs associated with the repairs to the property and facilities of Company. If Contractor does not dispute Company's claim for damages, it_shall promptly reimburse Company for any and all reasonable costs incurred by or on behalf of Company to repair such damages. Company must notify Contractor, in writing, of such claim for damage within forty eight (48) hours following Company being notified that damage to their property or facilities has resulted from an alleged error or emission by Contractor. Unless Contractor is so notified, Contractor shall be deemed released from any liability for such damage. (b) If Contractor disputes a claim for damages under this section, it shall promptly notify Company, in writing, of such dispute. Said notice shall specify the reasons for the dispute. It is agreed that the parties shall use their best efforts to resolves such dispute among themselves within thirty (30) days from the date of Contractor's response. If the dispute is not resolved within the thirty (30) day period, Company may consider Contractor's failure to pay to be a material breach of this Agreement. (c) To the extent permitted by law, and subject to the limitations set forth in this section, Contractor shall save Company harmless from, and indemnify it against all claims, actions, demands, liens, fees and expenses on account thereof, for injury or damage to any person or property whatsoever, including death, which may arise out of, or result from, the negligent performance by Contractor of the services subject to this agreement. Nothing contained herein, however, shall imply or be construed to mean that Contractor cannot assert any claim for contribution or comparative negligence against Company as may be permitted by law. (d) If any person or entity threatens to sue, makes a written or oral demand or claim, sues or initiates any legal proceeding against Company on account of any provision of this indemnity agreement, then Company shall immediately notify Contractor of such pending or threatened litigation and such notification shall be made by Company no later than 30 days after Company learns of said pending litigation, lawsuit, claim or demand. It is expressly agreed that the failure of Company to provide Contractor with timely notice as stated above shall release and absolve Contractor of any liability to Company under this provision. The notice to Contractor by Company shall be made in writing. (e) If a claim is made against Company under paragraph (d) above, Contractor or its insurance carrier shall have the right to defend such proceeding by hiring legal representatives selected and chosen by Contractor or its insurance carrier, and Contractor and its insurance carrier 7 • shall have the right to negotiate settlement of said claim or alleged claim directly with claimant without the approval or consent of Company, but with prior notice to Company. If Contractor fails to provide a defense or diligently pursue settlement for an indemnified event, Company shall have the right to withhold payment to Contractor in an amount equal to the total amount of any such liens, claims, actions, demands or other charges until the same has been dismissed of record or satisfied, or alternatively the same may be discharged by direct payment from Company and said payment shall be set-off against funds held by Company or owed to Contractor. 13. Compliance with All Laws. Contractor shall comply with all laws, ordinances and regulations of the United States, the state of Colorado, and any unit of local government asserting jurisdiction thereto, applicable to the work hereunder (including, but not limited to Worker's Compensation, Unemployment Insurance and Social Security); and shall be responsible for obtaining all licenses, permits, inspections and other authorizations required for the Contractor's performance of this Agreement. 14. Taxes. The Contractor shall pay all applicable State and Federal Social Security, unemployment insurance, and other taxes, assessments, or contributions due by Contractor and payable to the State of Colorado and/or the United States in connection with the work to be performed under this Agreement, and the Contractor shall hold the Company harmless from any liability on account of any such taxes or assessments 15. Equal Employment. Contractor acknowledges that it is an equal opportunity employer. No provisions or application of this Agreement shall cause or result in discrimination against any employee or applicant for employment in his or her hiring, tenure, or condition of employment because of race, color, religion, sex or national origin. 16. Amendments, Modifications and Supplements. Written amendments, modifications and supplements to this Agreement are allowed and will be binding upon Company and Contractor, provided they are in writing and signed by an authorized representative of both parties. The term "this Agreement" as used herein shall be deemed to include any future amendments, modifications and supplements. All such amendments, modifications and supplements shall not, unless specifically referred to, be construed to adversely affect vested rights or causes of action which have accrued prior to the effective date of such amendments, modification or supplement. 8 17. Ownership of Documents. Upon completion of the services or termination of this Agreement for any reason, all documents, reports, patents, copyrights, work in progress and all data gathered or developed in connection with the work under this Agreement, upon the request by the party originally owning such documents, shall be turned over to requesting party. 18. Background and Drug Testing. Contractor, at its sole cost and expense, shall ensure that all personnel of the Contractor performing under the Agreement are prohibited from the use of illegal drugs and/or alcohol. Unless otherwise prohibited by collective bargaining agreements, employment contracts, or applicable law, Contractor shall request its employees performing under this Agreement to submit to illegal drugs and/or alcohol screening on a voluntary basis, and shall request said employees to sign a drug testing consent and release form which shall indemnify and hold harmless from liability Contractor, Company and their agents. A negative drug screen will be prerequisite to employment of any person by Contractor who will perform on the project hereunder. Contractor shall not permit the introduction or use of intoxicating liquor or any drugs not prescribed for use by the individual, upon the job site, or upon any of the grounds, equipment, or vehicles occupied or controlled by Contractor. 19. Insurance. Before commencing any of the Work provided for herein, Contractor shall submit to Company certificates evidencing that insurance of the types and amounts specified below has been obtained by Contractor. (a) Workers Compensation Insurance in compliance with the laws of the state where work is to be performed; this requirement shall also be imposed upon any subcontractors performing any portion of the construction required herein. (b) Contractor shall also have employer's liability insurance covering all its employees with Employer's Liability Insurance with a limit not less than One Million Dollars ($1,000,000.00). (c) Comprehensive Public Liability Insurance written on a standard liability policy form including; (a) Comprehensive General Liability Insurance covering Premises Operations, Independent Contractors Product Completed Operations for all services and products supplied for the work for a period of not less than one year from the completion of the work, Broad Form Property Damage, and Personal Injury Hazards with an employee exclusion excluded; and (b) Contractual Liability Insurance specifically insuring the liability assumed by Contractor under this Agreement, including, without limitation, the indemnities provided for herein. Minimum limits of liability shall be Two Million Dollars ($2,000,000.00) per occurrence/aggregate combined single limit for Bodily Injury and Property Damage liability. (d) Automobile Liability Insurance written on a comprehensive automobile form, insuring all owned, non-owned, and hired or leased automobiles with minimum limits of liability of One Million Dollars ($1,000,000.00) per occurrence for Bodily Injury and Five Hundred Thousand Dollars ($500,000.00) per occurrence for Property Damage, with a fleet automatic endorsement and such other endorsements as that which may be required or offered from time to time. 9 (e) All such insurance certificates accepted by Company shall; (a) provide that said insurance will not be canceled, modified or changed until at least thirty (30) days after written notice of such cancellation has been given to Company via registered or certified mail; (b) the coverage provided to Company shall continue in full force and effect under the policy by the Name Insured except with respect to non-payment of premium. Company, and any utility company upon whose facilities Contractor may be working in the scope of its performance for Company, shall be named as additional insured under all such policies; (c) contain provisions waiving any rights of subrogation in favor of Company and against Contractor, Contractor's representative or any subcontractor; (d) be endorsed to name Company, and any above-referenced local utility company, as an additional insured except as to Worker's Compensation; (e) the insurance applicable to Company shall be primary and not contributing to or in excess of any insurance which may be maintained by Company for its own benefit; (f) failure to provide the required certificates of insurance shall not operate to invalidate the insurance requirement under this Agreement; and(g) all insurance shall be written by a company having an AM Best rating of A- or better. 20. Company Right to Audit Records. For a period of one (1) year after the completion of the work covered by this Agreement, the Company, its auditor or other authorized representative shall have reasonable access to any accounting records of Contractor relating to the work covered by this Agreement. 21. Severability. If any term or provision of this Agreement is declared void or unenforceable by any court having jurisdiction, the remaining terms and provisions shall not be affected thereby but shall continue in full force and effect. 22. Force Majeure. Neither party shall be deemed in default of this Agreement or any order hereunder to the extent that any delay or failure in the performance of its obligations results from any reasonably unforeseeable cause beyond its reasonable control and without its fault or negligence, such as but not limited to, acts of God, acts of civil or military authority, embargoes, epidemics, wars, riots, insurrections, fires, explosions, earthquakes, floods, unusually severe weather conditions or strikes. If either party is prevented in whole or in part from performing its obligations under this Agreement by unforeseeable causes beyond its reasonable control and without its fault or negligence then the party so prevented shall be excused from whatever performance is affected by such cause, to the extent the performance is actually affected; provided that such party provides written notice to the other party of such condition within thirty(30)calendar days from the onset of such condition. 23. Confidential Information. Any Confidential Information provided by either party to the other pursuant to this Agreement shall not be disclosed to any third party except with prior written consent of the providing party. Neither party shall use the Confidential Information of the other for its own benefit, or for the benefit of any third party, without the prior written consent of the providing party. Any unauthorized disclosure or use of the information in violation of this provision will conclusively be deemed a material breach of this Agreement. This provision shall survive the termination of this Agreement. 10 • 24. Company's Representative. The Company's Representative for the purpose of this Agreement shall be Susuan Quick or such other person as the Company shall designate in writing. Whenever approval or authorization from or communication or submission to the Company is required by this Agreement, such communication or submission shall first be directed to the Company's Representative. 25. No Assignment. Neither party shall assign this Agreement in whole or in part without the prior written consent of the other, which consent shall not be unreasonably withheld. 26. Controlling Law. This Agreement shall be governed by and interpreted under the laws of the State of Illinois. All legal disputes arising out from this Agreement shall be adjudicated in the Circuit Court of Peoria County, Illinois, or the Federal District Court for the Northern District of Illinois. The parties hereto specifically waive any objections to the personal jurisdiction of such courts in these matters. 27. Warranty. Contractor warrants that all services performed herein shall be performed using that degree of skill and care ordinarily exercised in and consistent with generally accepted practices for the nature of the services and shall conform to all requirements of this Agreement. 28. Entire Agreement. This Agreement and any and all amendments, modifications or supplements, shall constitute the entire agreement between the parties with respect to the subject matter. Both parties hereto represent they have read this Agreement, agree to be bound by all terms and conditions stated herein, acknowledge receipt of a signed, true and exact copy of this Agreement. This Agreement constitutes the entire agreement of the parties. Covenants or representation not contained in this Agreement shall not be binding upon the parties. This Agreement may not be modified in any, unless such modification is in writing and agreed to by all parties. 29. Binding Effect. All covenants, agreements, representations, and warranties of the parties contained herein shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns, heirs and legal representatives. 30. Incorporation by Reference. The paragraphs beginning "Whereas" and any Exhibits referred to in this Agreement are hereby made a part of this Agreement 11 31. Notices. All notices, requests, demands, and other communications to be given to any party hereunder shall be in writing and shall be deemed to have been duly given if delivered in person or sent by registered or certified mail, postage prepaid, to the last known place of business, or such place as either shall periodically designate in writing, as set forth below. If to Company: with a copy to: Weld County Government Attn: Susan Quick P.O. Box 758 Greeley, CO 80632 If to Contractor: ELM Locating & Utility Services President 4500 Majestic Drive P.O. Box 16780 Missoula, MT 59808 Facsimile: 406-327-2942 Mobile Telephone: 406-396-0396 Email: matt.quinn@elmlocating.com or such other address as either party may, from time to time, advise the other of by notice in writing in accordance with the provisions hereof. 32. Survival of Representations and Warranties. All covenants, agreements, and warranties made herein and in any documents and instruments delivered on closing or hereafter pursuant to this Agreement shall be deemed material, and to have been relied upon by the parties notwithstanding any investigation heretofore or hereafter made by or on behalf of any of the parties, and shall survive the closing. 33. Attorneys' Fees. In the event either party breaches any of the terms and conditions of this Agreement and it is necessary to institute court proceedings, then the prevailing party, in addition to any damages awarded, shall be awarded its attorney's fees and costs. 34. Warranty of Execution. The undersigned do hereby warrant that they have the power and authority to execute this Agreement for and on behalf of each respective party. 12 35. Execution of Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers or representatives. COMPANY CONTRACTOR Weld County,i ___ olorado ELM Locating& Utility Services By: / � �L✓ - by: (Signature) (Signature) Print Name: M. J. Geile Print Name: Matt Ouinn Print Title: Chair, Board of County Commissio¢ jM Title: President Date: 05/01/2006 Date: yZd/4. 13 EXHIBIT A DESCRIPTION OF WORK For the Contract between WELD COUNTY GOVERNMENT and One Call Locators,Ltd. d/b/a ELM LOCATING & UTILITY SERVICES For the performance of locating Company's underground utilities and facilities prior to excavation, Contractor shall: 1. Assume full responsibility for the electronic locating of all locatable below ground and adjacent plant belonging to company. Contractor shall utilize the data provided by Company, such as maps or field notes, as an aid in locating the below-ground plant. 2. Accomplish the aforementioned electronic locating by use of an electronic locating device approved by Company's representative. 3. Mark the location of Company's below-ground plant as follows: a. In earth,Contractor shall utilize orange paint for telecommunications; yellow paint for gas; red paint for electric;blue for water. b. The markings will be spaced to clearly show the route and any turns,bends, or deviations from the normal run of the pipe, wire or cable. c. We will designate each locate with your company assigned label. d. Where ground conditions, weather, or construction may cause the loss of the marks, stakes should be used. On locations where vegetation will obscure paint marks, stakes will be used& marked as above. e. At the discretion of Contractor, flags made for the purpose of marking utilities may be used in place of stakes. f. Every attempt will be made to avoid painting locating marks on private sidewalks or driveways. g. The marking paint shall be a type made for"marking". 4. Meet all locate requests within the time allotments specified by the Colorado state law concerning notification of intent to excavate. ELM Locating & Utility Services will receive all locating tickets electronically from Colorado One Call Center. 5. Notify Company representative immediately of any defects or errors found in the data, records, or maps provided by Company as an aid in performing the work. 6. Notify Company representative immediately of all damages to below-ground plant of the utilities. Notification is required to initiate repairs to damaged plant and provide Company notice so that a determination regarding the accuracy of the location and the responsibility for the damage can be ascertained. Should there be any conflict between the provisions of the foregoing guidelines and the provisions of the Agreement and such conflict cannot be reconciled, the provisions of the Agreement shall prevail. 14 ELMS Locating & Utility Services'" Accuracy,Reliability,Safety 4500 Majestic Drive P.O.Box 16780 Missoula,MT 59808 Office: 406-728-9343 Toll-free: 888-728-9343 Fax: 406-327-2940 April 27, 2006 Weld County Government Attn: Susan Quick PO Box 758 Greeley CO 80632 Dear Susan, Enclosed please find for your signature the Service Agreement between Weld County and ELM Locating & Utility Services. Please sign this document where indicated and return it to us at your earliest convenience. We look forward to working with you and Weld County. Sin rely, ich ds Executive Assistant ELM Locating & Utility Services ACORD,. DATE(MMIDDIYYYY), CERTIFICATE OF LIABILITY INSURANCE 04/27/2006 PRODUCER (309) 673-7648 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE ELM Insurance Services LLC HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 60 State St. Suite 201 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. , Peoria IL 61602- . INSURERS AFFORDING COVERAGE NAIC# INSURED INSURER A:LexingtOR Insurance Co. - One Call Locators, Ltd. dba ELM Locating INsuRER B.Hartford Casualty Co. , & Utility Services INSURER C Zurich 60 State St. Suite 201 INSURERDAIG Peoria IL 61602- INsuRER E Lexington Insurance Co. COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. __ INSR'ADO'L POLICY EFFECTIVE POLICY EXPIRATION LIMITS LTR IN SRO TYPE OF INSURANCE POLICY NUMBER DATE(MM/OD/YY) DATE(MM/DD/YY) A GENERAL LIABILITY 144-0883 01/01/2006 01/01/2007 EACH OCCURRCNCE $ 1,000,000 X COMMERCIAL GENERAL;.IABIUIY ,DAMAGE ES�a occ.0 renceL�3 50,000 1 CLAIMS MADE OCCUR / / / / MED EXP(Any one pe+son) $ PERSONAL&ADV INJURY $ 1,000,000 - / / / / GENERAL AGGREGATE $ 2,000,000 I GENT AGGREGATE LIMIT APPLIES PER PRODUCTS COMP/OP AGO S 2,000,000 POLICY JECT pi _ / / / / a AUTOMOBILE LIABILITY 84 UEN RZ5743 01/01/2006 01/01/2007 COMBINED SINGLELIMrT ca accident) S 2,000,000 ANY AUTO ALL OWNED AUTOS / / / / BCDILY INJURY (Per person) $ SCI ICDULED AUTOS X HIRFU AUTOS / / / / BODILY INJURY $ Pig accident) X NON-OWNED AUTOS / / / / PROPERTY DAMAGE IPnr accident) ` i GARAGE LIABILITY AUTO ONLY-EA ACCIDENT S �ANY AutO / / / / OTHER THAN EA ACC ` AJ ICJ ONLY. AGO E C EXCESSIUMBRELLA LIABILITY AUC-5917846 00 01/01/2006 01/01/2007 EACH OCCURRENCE S 9,000,000 X I OCCUR CLAIMS MADE AGGREGATE S 9,000,000 $ DEDUCTIBLE / / / / S _ RETENTION $ +V/ UU + 5 D WORKERS COMPENSATION AND I WC 328 7595/7596 CA 01/01/2006 01/01/2007 X TORYIIMITS I fOER EMPLOYERS'LIABILITY ANY PROPRIETOR/PARTNERIEXECUTIVE E L EACH ACCIDENT $ 1,000,000 OFFIGEWMEMBER EXCLUDED? / / / / E DISEASE-FA EMPLOYEES 1,000,000 II yes,describe under t SPECIAL PROVISIONS belay E L DISEASE-POLICY LIMIT IS 1,000,000, E OTHER 01/01/2006 01/01/2007 510,000,00a Prof Liability 0741723 / / / / / / _ / / DESCRIPTION OF OPERATION S.'LOCATIONSNEHICLE5/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS CERTIFICATE HOLDER CANCELLATION ( ) - ( ) - SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE Susan Quick EXPIRATION DATE THEREOF. THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT Weld County Government FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABIUTY OF ANY KIND UPON THE INSURER,I AGENTS OR REPRESENTATIVES. P.O Box 758 AUTHOR E5EN(7�IIVE Greeley, Co 80632- /�0✓/ ACORD 25(2001/08) ©ACORD CORPORATION 1988 fIt,,,-INS026(0/CE).05 ELECTRONIC LASER FORMS,INC.-(800)327-0545 Page'of 2 Hello