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<br />'. <br /> <br />. <br /> <br />. <br /> <br /># <br /> <br />7. Plaintiff has to date performed fully and completely <br /> <br />) <br /> <br />under the terms of the contract. <br /> <br />8. Defendant has br:eached the contract by failing to <br /> <br />make payment as agreed and owes Plaintiff approximately <br />$77,743.08 for work completed, as evidenced by the copies of <br /> <br />bills submitted to Defendant, marked as Exhibits B, C, D and <br /> <br />by this reference made a part hereof. <br /> <br />9. Defendant by letter dated August 28, 1979, has <br /> <br />demanded that Plaintiff obtain a bond pursuant to Section <br /> <br />38-26-106, C.R.S. 1973, and has refused to make further: <br /> <br />payment until said bond is furnished. <br />10. Plaintiff, upon r:eceipt of said demand, has initiated <br />actions to obtain the necessary bond, but has been advised <br />that in excess. of six weeks will be required before said <br /> <br />bond can be fur:nished. <br /> <br />11. Plaintiff believes and therefor:e alleges that <br />Defendant intends to declar:e Plaintiff in default under: the <br /> <br />contract for failure to perform. <br /> <br />12. Plaintiff stands ready and is prepared to fully <br /> <br />perform its remaining obligations under the agreement but is <br /> <br />unable to do so without periodic payments from the Defendant <br />as required by said contract. <br /> <br />13. In suppor:t of .the foregoing, attached is an affidavit <br />by Carmen Alessi marked'; Exhibit E, and by this reference <br /> <br />made a par:t hereof. <br />ffiIERE,ORE, Plaintiff, Car:men Alessi, Sr., d/b/a Sleeping <br />Giant Gr:avel Company, prays for a declar:atory judgment <br /> <br />determining and declaring that: <br />(a) No labor and materialmens bond is required, <br />the Defendant being barred from demanding same by estoppel <br /> <br />and laches and said demand constitutes an attempted modification <br /> <br />of the contract by Defendant after its execution and that <br />any alleged breach in per:formance by the P~aintiff is justified <br />by the failur:e of the Defendant to make payment as r:equired <br /> <br />under the said contract; <br /> <br />(b) If the Court finds that any bond is necessary, <br /> <br />that the amount of said bond shall not be based upon the <br /> <br />original contract amount but rather based upon that amount <br /> <br />-?- <br />