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HomeMy WebLinkAboutPW CNT 04-04/Gustafson Cons , ~a-cL CONSTRUCTION CONTRACT THIS AGREEMENT, made on the 12th day of May, 2004, by and between the CITY OF OSHKOSH, party of the first part, hereinafter referred to as CITY, and GUSTAFSON CONSTR. CORP., 178 N. Roual Ave., Belgium, WI 53004, party of the second part, hereinafter referred to as the CONTRACTOR, WITNESSETH: That the City and the Contractor, for the consideration hereinafter named, agree as follows: ARTICLE I. SCOPE OF WORK The Contractor hereby agrees to furnish all of the materials and all of the equipment and labor necessary, and to perform all of the work shown on the plans and described in the specifications for the project entitled or described as follows: Public Works Contract No. 04..()4 for utility work, pursuant to Resolution 04-150 adopted by the Common Council of the City of Oshkosh on the 11th day of May, 2004, all in accordance and in strict compliance with the Contractor's proposal and the other contract documents referred to in ARTICLE V of this contract. ARTICLE II. TIME OF COMPLETION The work to be performed under this contract shall be commenced and the work completed within the time limits specified in the General Conditions and/or Contractor's proposal. ARTICLE III. PAYMENT (a) The Contract Sum. The City shall pay to the Contractor for the performance of the contract the sum of $1,521,284.20, adjusted by any changes as provided in the General Conditions, or any changes hereafter mutually agreed upon in writing by the parties hereto, provided, however, in the event the proposal and contract documents are on a "Unit Price" basis, the above mentioned figure is an estimated figure, and the City shall, in such cases, pay to the Contractor for the performance of the contract the amounts determined for the total number of each of the units of work as set forth in the Contractor's proposal; the number of units therein contained is approximate only, and the final payment shall be made for the actual number of units that are incorporated in or made necessary by the work covered by the contract. 1 \. (b) Progress Payments. In the event the time necessary to complete this Contract is such that progress payments are required, they shall be made according to the provisions set forth in the General Conditions. ARTICLE IV. CONTRACTOR TO HOLD CITY HARMLESS The Contractor covenants and agrees to protect and hold the City of Oshkosh harmless against all actions, claims and demands of any kind or character whatsoever which may in any way be caused by or result from the intentional or negligent acts of the Contractor, his agents or assigns, his employees or his subcontractors related however remotely to the performance of this Contract or be caused or result from any violation of any law or administrative regulation, and shall indemnify or refund to the City all sums including court costs, attorney fees and punitive damages which the City may be obliged or adjudged to pay on any such claims or demands within thirty (30) days of the date of the City's written demand for indemnification or refund. ARTICLE V. COMPONENT PARTS OF THE CONTRACT This contract consists of the following component parts, all of which are as fully a part of this contract as if herein set out verbatim, or if not attached, as if hereto attached: 1. General Conditions 2. Advertisement for Bids 3. Instructions to Bidders 4. Specifications, including any addenda 5. Plans 6. Contractor's Proposal 7. This Instrument I n the event that any provision in any of the above component parts of this contract conflicts with any provision in any other of the component parts, the provision in the component part first enumerated above shall govern over any other component part which follows it numerically except as may be otherwise specifically stated. IT IS HEREBY DECLARED, UNDERSTOOD AND AGREED that the word "Contractor" wherever used in this contract means the party of the second part and its/his/their legal representatives, successors and assigns. 2 IN WITNESS WHEREOF, the City of Oshkosh, Wisconsin, has caused this contract to be sealed with its corporate seal and to be subscribed to by its City Manager and City Clerk and countersigned by the Comptroller of said City, and the party of the second part hereunto set its, his or their hand and seal the day and year first above written. In the Presence of: Ó7r~ (Seal of Contractor if a Corporation.) ~~v~ ity Atto ' By: ?1~~5 By: (Specify Title) I hereby certify that the necess- ary provisions have been made to pay the liability which will accrue under this contract. 6~ (1 \f4,~ City Comptroller 3 From:Robertson Ryan - .A.ccounti~ 1 414 271 9468 05/13/2004 10:29 #224 P .001/001 ACORD. CERTIFICATE OF LIABILITY INSURANCE PRO"UCOR Robertson Ryan & Assoc.. Inc . Two Plaza East. Suite 650 330 East Kilbourn Avenue Milwaukee WI 53202 Phone. 414-271-3575 Fax.414-2n-03.96 Gus Att fson Construction Corp. Bob Gustafson rt~I~~ð4Avenue INSURERS AFFORDING COVERAGE NAiC # INSURERIC WEST BEND MUTl7AL INS CO 15350 INSURERB: The Cincinnati Casualty Co. 28665 INSURER'" P'RANK1!NMUTII MUTl7AL INS CO INSURERO: INSUR." INSURER E: COVERAGES THE POUCIES OF INSI.JFU\NCE USTED6ELOW HAVEB'" ISSUEOTO mE INSURED NAMEDABOVEFOR THE I'OLICY PERJOO INDiCATED, NOTWITHSTANDING ANY REQUIREMENT, TERM DR CONomON OF - CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHI(:HTHISCERTIFICATE MAY BE I$SUEDDR MAYPERTAI,,- THE INSURANCEAFFDRDED BYTHE POUCIES DESCRIBED HERSN ISSUBJECTTOAlL THE TERMS, EXCUJSIDNS AND CONDmONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAlDCI.AIM5. LTR NSR TYPE OF INSURANCE POLICY NUMGER DATE MOOD "ATE MIND UMITS GENERAL UABferrv EACH ClCC\JAAENCE 01000000 - CPW0664679 00 03/0],/04 03/0],/05 A .!.. 3MMERCIAL GENERAL LIAB""Y PREMISES.. """"00) $ 200000 - ClAIMSMADE [!] OCCUR MEDEXP"""""""~,,,) $10000 X $],000 Ded-PD PERSONAL' AOV INJURY $1000000 GENERAL AGGREGATE 01000000 ;""~ AGGn ~ APPñ ;ER' PRODUCTS, COMPJOP AGG $1000000 POLICY JECT LOC EBL 1000000 ~DMOBfeE I.IAIOUTY COMBINED SJNGLE LIMIT $ 500000 A .!.. ANY AUTO CPW0664679 00 03/01/04 03/0],/05 (Ea,""""') - ALL OWNED AUTOS BOO" Y INJURY SCHEDULEDAUTas ",....",.,) $ X "REOAUras BODILY INJURY ~ $ + NON.QWNED AUTOS """""""'} $500 Ded-Camp PROPERTY DAMAGE X $500 Ded-Co3.3. (P""'dd.",) S =fE UAmUTY AUTO ONLY, fA ACCIDENT $ ANY AUTO OTHER THAN fA />IX; $ AUTO ONLY: AGG $ fJ~UMBRELLA UABICnY EACH aceU""E""" $ 5000000 B X aceUR 0 CUJM6MADE PENDING 03/01/04 03/0],/05 AGGREGATE $ 5000000 -- $ ;rl ~IJCTIBLE $ X RETENTION $3.0000 0 WORKE" COMPENSATION AND X ITtmtü'u¡¡§ IV..' C EMPLOYERS' LIAOIUTY WC],928202 [WI] 03/03./04 03/01/05 E.L EACH ACCIDENT 0100000 ANY PROPRIETORiPARTNE"""""'UTIVE OFFICERIMEMBER EXCLUDED? E.L. DISEASE. EA EMPLOYE! $100000 g~:",,~v'¡'J,'\1'Ns """" E.L. DISEASE, POLICY UMIT 0500000 ornER OESCRJPTION OF OPERATIONS I LOCATIONS t veHICLES' 1!XCL\J$IONS ..,.,.. BY ENDORSEMENT I SPeCIAL PRCVIS1ONO TBJ:S CERTIFICATE IS ONLY J:SS= FOR PROJECT SOUTH WEST INDUSTRJ:AL PARK UNDER CONTRACT #0404 (Note- Origin.,,], + 3 copies sent to certholder) . Fax #262-548-9392 Brian Fischer @ Gustafson Construction Fax #920-236-5068 Scott Erickson <!II City of Oshkosh Phcne #920-236-5042 CITYOSH CANCELLATION SHOUU> - OF mE ABOVE DESCRIBED PQUCIES BE CANCELLED "FORE THE EXPIRATION DATETHERI!OF. TliEISSUUtG ",SU"""W1LL ENDEAVDR TO MAIL ~ DAYS WRITTEN NaTICE TO THE C .. IMPOS.E NO OBUGA'f ~.ANY ~ UPON THE INSURER, ITS AGENTS Oft.. REPRESENTATIVES. " '" AIITHORJZE1""P""""ITAT/vE .. "" ~.: ':..' ," ;;,.,. Brian K],einmann 1- CERTIFICATE HOLDER City of o..hkosh City Hall- Oshkosh. WI Attn. Scott Erickson 2],5 Church Avenue o..hkosh WI 54903-3.130 ACORD 25 (2001lOB) @ACORD CORPORATION 198B ; - , Bond No. 08722945 Performance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): Gustafson Construction Corp. 178 N. Royal Avenue Belgium, WI 53004 OWNER (Name and Address): City Df Oshkosh 215 Church Ave. Oshkosh. WI 54903 CONSTRUCTION CONTRACT SURETY: Fidelity & Deposit Company of Maryland 3910 Keswick Rd., Baltimore MD 21211 Date: May 12th, 2004 Amount: $ 1,521,284,20 One Million Five Hundred Twenty One Thousand Two Hundred Eighty Four & 20/100--- DOLLARS Description (Name and Location): Public Works Contract No. 04-04 BOND Date (Not earlier than Construction Contract Date): May 13th, 2004 Amount: $ 1,521,284,20 One Million Five Hundred Twenty One Thousand Two Hundred Eighty Four & 20/100--- DOLLARS Modifications to this Bond: X None 0 See Page 3 CONTRACTOR AS PRINCIPAL Company: SURETY Company: Fidelity & Deposit Company of Maryland . n I Î / /J 0 Corporate Seal Slguature: /f l./\. (/'7 ~ ,-T ()"'-~Î~ F:>o,", -ç¡(f) Name and Title: BradleyR. Van Swol, Attorney-in-fact Corporate Seal (Any additionalsiguatures appear on page 3) (FOR INFORMATION ONLY-Name, Address and Telephone) AGENT Dr BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or The Brehmer Agency, Inc. other party): 12800 W, Silver Spring Dr, Bntler, WI 53007-0498 262-781-3714 Printed in coo~rntion with the American Institute of Arebitects (AlA) by Fidelity & Deposit Company of Maryland . Fidelity & Deposit Company of Maryland voucbes that the language in the document confonns exactly to the language used in AlA Document A-312, December 1984 Edition. PRF76002ZZ0601f Without Modifiestions 1 The Contractor and the Surety, jointly and severslly, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contrsct, which is incorporated herein by reference. 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to participate in conferences as provided in Sub- paragraph 3.1. 3 If there is no Owner Default, the Surety's obligation under this Bond shall srise sfter: 3.1 The Owner has notified the Contractor and the Surety st its address described in Parsgrsph 10 below thst the Owner is considering declaring s Contractor Defsult snd has requested and attempted to arrange a conference with the Contractor and the Surety to be held not 1ster than fifteen dsys after receipt of such notice to discuss methods of performing the Construction Contract. If the Owner, the Contrsctor and the Surety agree, the Contractor shall be allowed s ressonable time to perform the Construction Contrsct, but such sn agreement shall not wsive the Owner's right, if any, subsequently to declares Contractor Default; and 3.2 The Owner has declared a Contractor Default snd for- mally tenninsted the Contractor's right to complete the con- trsct. Such Contrsctor Default shall not be declared earlier than twenty dsys sfter the Contractor and the Surety hsve received notice as provided in Sub-paragraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the Contrsct Price to the Surety in sccordance with the terms of the Construction Contract or to s contractor selected to perform the Construction Contrsct in accordance with the terms of the contrsct with the Owner. 4 When the Owner has satisfied the conditions ofpsragraph 3, the Surety shall promptly and at the Surety's expense take one of th. following actions: 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contrsct; or 4.2 Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors; or 4.3 Obtain bids or negotiated proposals from qualified con- tractors scceptable to the Owner for a contract for perfor- mance and completion of the Construction Contrsct, arrange for s contract to be prepared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performsnce and psyment bonds executed by a quslified surety equivalent to the bonds issued on the Construction Contrsct, and pay to the Owner the amount of damsges as described in Parsgraph 6 in excess of the Balance of the Contrsct Price incurred by the Owner resulting from the Contrsctor's default; Dr 4.4 Waive its right to perform and complete, srrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation, determine the smount for which it may be liable to the Owner and, ss soon as prsc- ticable after the smount is determined, tender pay- ment therefor to the Owner; or .2 Deny liability in whole or in part and notify the Owner citing reasons therefor. 5 If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen dsys after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations und.r this Bond, and the Owner shsll be entitled to enforce sny remedy available to the Owner. If the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tend.red Dr the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy availsble to the Owner. 6 After the Owner has terminated the Contrsctor's right to com- plete the Construction Contract, snd if the Surety elects to set under Subparagraph 4.1, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner shsll not be greater than those of th. Contrsctor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the smount of this Bond, but subject to commitment by the Owner of the Bslance of the Contrsct Price to mitigstion of costs and dsmages on the Construction Contract, the Surety is obligated without duplication for: 6.1 The responsibilities of the Contractor for correction of defective work snd completion of the Construction Contrsct; 6.2 Additional legsl, design professional and delsy costs resulting from the Contractor's Defsult, and resulting from the actions or failure to act of the Surety under Paragrsph 4; and 6.3 Liquidated dsmages, or if no liquidsted damsges are specified in the Construction Contrsct, sctua1 dsmages caused by delsyed performance or non-performsnce of the Contractor. 7 The Surety shall not be lisble to the Owner or others for obliga- tions of the Contractor that sre unrelated to the Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on sccount of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators Dr successors. 8 The Surety hereby waives notice of sny change, including changes of time, to the Construction Contrsct or to related sub- contractors, purchsse orders and other obligstions. 9 Any proceeding, legal or eqnitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or psrt of the work is located and shall be instituted within two years sfter Contrsctor Default or within two yesrs after the Contrsctor ceased working Dr within two years after the Surety refuses Dr fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by Isw, the minimum period of limitation svsilable to sureties ss s defense in the jurisdiction Printed in cooperation with the American Institute of Architects (AlA) by Fidelity & Deposil Company of Maryland . Fidelity & Deposit Company ofMarvland vouches that the language in the document confonns exaccly to the language used in AlA Document A-3 12, December 1984 Edition. shall be applicsble. 10 Notice to the Surety, the Owner or the Contrsctor shall be mailed Dr delivered to the sddress shown on the signature page. II When this Bond has been furnished to comply with s ststutory or other legal requirement in the locstion where the construction was to be performed, any provision in this Bond conflicting with said ststutory Dr legal requirement shsll be deemed deleted herefrom and provisions conforming to such statutory Dr other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed ss s ststutory bond and not ss a common lsw bond. 12 DEFINITIONS 12.1 Balance of the Contrsct Price: The totslsmount payable by the Owner to the Contrsctor under the Construction Contract afrer all proper adjustments have been made, including allowance to the Contrsctor of any smounts received or to be received by the MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: (Space is provided below for additional signatures of added CONTRACTOR AS PRINCIPAL Compsny: Signature: Name and Title: Address: Owner in settlement of insurance or other claims for dsmsges to which the Contractor is entitled, reduced by all valid and proper payments made to Dr on behalf of the Contractor under the Construction Contract. 12.2 Construction Contrsct: The sgreement between the Owner and the Contractor identified on the signature page, including all Contrsct Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which hss neither been remedied nor wsived, to perform or otherwise to comply with the terms of the Construction Contrsct. 12.4 Owner Defsult: Failure of the Owner, whic ss neither been remedied nor waived, to psy the Contr tor as required by the Construction Contrsct or to pert; and complete or comply with the other terms thereof. ies, other than those appearing on Ihe cover page). (Corporate Seal) Signature: Name and Title: Address: Nit Printed in cooperstion with the Am"ican Institute of Architects (AlA) by Fidelity & Deposit Company ofMarvland . Fidelity & Deposit Company of Maryland vouches that the language in the documentconfonnsexaotly to the language used in AlA Document A-312, Decemb" 1984 Edition. Bond No. 08722945 Payment Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): Gustafson Construction COIro 178 N. Royal Ave. Belgium, WI 53004 OWNER (Name and Address): City of Oshkosh 215 Church Ave. Oshkosh, WI 54903 CONSTRUCTION CONTRACT Date: May 12th, 2004 Amount: $ 1,521,284.20 OneMillionFiveHundredTwenty One Thousand Two HundredEightyFour & 201I00 Description (Name and Location): Public Works Contract No. 04-04 SURETY: Fidelity & Deposit Company of Maryland 3910 Keswick Rd., Baltimore MD 2121 I DOLLARS BOND Date (Not earlier than Construction Contract Date): May 13th, 2004 Amount: $ 1,521,284.20 OneMillionFiveHundredTwentyOneThousandTwoHundredEightyFour & 201I00 Modifications to this Bond: IRJ None D See Page 3 DOLLARS CONTRACTOR AS PRINCIPAL -~R£'" SURETY Company: Fidelity & D;~Company of Maryland . ;f'2-( F~ Corporate Seal Slgnature: Name and Title: Bradley R. Van Swol, Attomey-in-fact Signature: Name and Title: Corporate Seal (Any additional signatures appear on page 3) (FOR INFORMATION ONLY-Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or The Brehmer Agency, Inc, other party): 12800 W. Silver Spring Dr. Butler, WI 53007-0498 262-781-3714 Feinted in coopmtion with The Ameeican Institute of Architects (AlA) by Fidelity & Deposit Company of Maryland . Fidelity & Deposit Company of Maryland vouches thatthe language in the document conforms exactly to the language used in AlA Document A-312, Decemb" 1984 EDITION. PAY76002ZZ050lF Without Modifications 1 The Contrsctor snd the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successor and sssigns to the Owner to psy for labor, materials and equipment furnished for use in the performance of the Construction Con- tract, which is incorporated herein by reference. 2 With respect to the Owner, this obligation shsll be null and void if the Contrsctor: 2.1 Promptly makes payment, directly or indirectly, for sll sums due Claimants, and 2.2 Defends, indemnifies and holds harmless the Owner from clsims, demands, liens Dr suits by any person or entity whose clsim, demand, lien Dr snit is for payment for labor, materials or equipment furnished for use in the performance of the Construction Contract, provided the Owner has promptly notified the contractor and the SuretY (at the address describedin psragraph 12) of any claims, demands, liens Dr suits and tendered defense of such claims, demands, liens Dr suits to the Contractor and the Surety, provided there is no Owner Default. 3 With respect to Clsimants, this obligstion shall be null and void if the Contractor promptly makes payment, directly or in- directly, for all sums due. 4 The Surety shsll hsve no obligation to Clsimants under this Bond until: 4.1 Clsimsnts who ore employed by or have a direct contract with the Contractor have given notice to the Sur.ty (at the address described in Psragraph 12) and sent s copy, or notice thereof, to the Owner, stating that a clsim is being msde under this Bond and, with substsntial sccuracy, the smount of the clsim. 4.2 Clsimants who do not have a direct contrsct with the Contrsctor: .1 Have furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner, within 90 days sfter having lsst performed labor or last furnished materials or equipment included in the clsim ststing, with substantialaccurscy, the amount of the clsim and the nsme of the psrty to whom the materials were furnished or supplied Dr for whom the lsbor was done or performed; and .2 Hsve either received a rejection in whole or in part from from the Contrsctor, Dr not received within 30 days of furnishing the sbove notice any communication from the Contractor by which the Contractor has indicated the claim will be paid directly Dr indirectly; and .3 Not having beeu paid within the above 30 days, have sent a written notice to the Surety (at the address described in Parsgraph 12) and sent s copy, or notice thereof, to the Owner, stating that a claim is being msdeunder this Bond and enclosing a copy of the previous written notice furnished to the Contractor. 5 If a notice required by Psrsgraph 4 is given by the Owner to the Contrsctor or to the Surety, that is sufficient complisnce. 6 When the Clsimant has sstisfied the conditions ofPsrsgrsph 4, the Surety shall promptly and at the Surety's expense take the following actions: 6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days sfter receipt of the claim, ststing the amounts thst sre undisputed and the bssis for chsllenging sny smounts thst ore disputed. 6.2 Pay Dr arrange for psyment of any undisputed smounts. 7 The Surety's total obligstion shall not exceed the smount of this Bond, and the smount of this Bond shall be credited for any payments made in good faith by the Surety. 8 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performsnce of the Construction Contract snd to satisfy claims, if any, under any Construction Performance Bond. By the Contractor furnishing and the Owner accepting this Bond, they agree thst sll funds earned by the Contractor in the performance of the Construction Contract sre dedicated to sstisfy obligations of the Contrsctor and the Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. 9 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that sre unrelsted to the Construction Contrsc\. The Owner shall not be lisble for pay- ment of any costs or expenses of any Claimant under this Bond, and shall hsve under this Bond no obligations to mske payments to, give notices on behalf of, or otherwise hsve obligations to Claimants under this Bond. 10 The Surety hereby waives notice of any change, including changes of time, to the Construction Contrsct or to relsted sub- contrscts, purchase orders snd other obligstions. II No suit or sction shall be commenced by s Clsimant under this Bond other thsn in a court of competent jurisdiction in the location in which the work or part of the work is located Dr after the expiration ofoneyesr from the date (1) on which the Claim- ant gave the notice required by Subparagraph 4.1 or Clause 4.2.3, Dr (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contrsct, whichever of(1) or (2) first occurs. If the provisions of this Psragraph ore void or prohibited by law, the minimum period of limitation availsble to sureties ss a defense in the jurisdiction of the suit shall be applicable. 12 Notice to the Surety, the Owner or the Contractor shall be mailed Dr delivered to the sddress shown on the signature page. Actual receipt of notice by Surety, the Owner or the Contractor, however sccomplished, shall be sufficient compliance as of the date received at the address shown on the signature page. 13 When this Bond has been fumished to comply with s statutory or other legs! requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such ststutory or other legal requirement shall be deem.d incorporsted herein. The intent is that this Bond shall be construed as s ststutory bond and not as a common law bond. Printed in coopemtion with The American Institute of Architects (AlA) by Fidelity & Deposit Company of Maryland . Fidelity & Deposit Company of Msry!and vouches that the language in the document confonns exactly to the language used in AlA DocumentA-12, December 1984 Edition. 14 Upon request by any person or entity appesring to be s poten- tial beneficiary of this Bond, the Contractor shsll promptly fur- nish a copy of this Bond Dr shall permit a copy to be made. IS DEFINITIONS 15.1 Claimant: An individual or entity having a direct con- tract with the Contractor or with s subcontractor of the Con- tractor to furnish labor, materials Dr equipment for use in the performance of the Contract. The intent of this Bond shall be to include without limitation in the terms "labor, materisls or equipment" that part of wster, gss, power, light, heat, oil, gasoline, telephone service Dr rental equipment used in the Construction Contract, srchitectural and engineering services MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: required for performance of the work of the Contractor and the Contractor's subcontrsctors, and all other items for which s mechanic's lien may be ssserted in the jurisdiction where the lsbor, materials or equipment were furnished. 15.2 Construction Contract: The agreement between the Owner and the Contrsctor identified on the signature psge, including all Contract Documents and changes thereto. 15.3 Owner Defsult: Failure of the Owner, which has neither heen remedied nor wsived, to pay the Contractor ss required by the Construction Contract or to perform and complete or comply with the other terms thereof. (Space is provided below for additional signatures of added arties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company: Signature: Name and Title: Address: SURETY: Company: (Corporate Sesl) Signature: Name and Title: Address: ~ I r Printed;n cooperstion with The Amedcan Institute of A"h;tects (AlA) by Fidelity & Deposit Company of Marvland . Fidelity & Deposit Company of Maryland vouches thalthe language in the documentconfonnsexactly to the language used;n AlA Document A-312, December 1984 EDITION. ~ ZURICH THIS IMPORTANT DISCLOSURE NOTICE IS PART OF YOUR BOND Fidelity and Deposit Company of Maryland, Colonial American Casualty and Surety Company, Zurich American Insurance Company, and American Guarantee and Liability Insurance Company are making the following infonnational disclosures in compliance with The Terrorism Risk Insurance Act of2002. No action is required on your part. Disclosure of Terrorism Premium The premium charge for risk ofloss resulting from acts ofterrorism (as defined in the Act) under this bond is $ waived This amount is reflected in the total premium for this bond. Disclosure of Availability ofCovera!:e for Terrorism Losses As required by the Terrorism Risk Insurance Act of2002, we have made available to you coverage for losses resulting from acts of terrorism (as defined in the Act) with tenns, amounts, and limitations that do not differ materially as those for losses arising from events other than acts of terrorism, Disclosure of Federal Share ofInsurance Companv's Terrorism Losses The Terrorism Risk Insurance Act of 2002 establishes a mechanism by which the United States government will share in insurance company losses resulting from acts of terrorism (as defined in the Act) after a insurance company has paid losses in excess of an annual aggregate deductible, For 2002, the insurance company deductible is 1% of direct earned premium in the prior year; for 2003, 7% of direct earned premium in the prior year; for 2004, I 0% of direct earned premium in the prior year; and for 2005, 15% of direct earned premium in the prior year, The federal share of an insurance company's losses above its deductible is 90%, In the event the United States government participates in losses, the United States government may direct insurance companies to collect a terrorism surcharge from policyholders. The Act does not currently provide for insurance industry or United States government participation in terrorism losses that exceed $1 00 billion in anyone calendar year. Definition of Act of Terrorism The Terrorism Risk Insurance Act defines "act of terrorism" as any act that is certified by the Secretary ofthe Treasury, in concurrence with the Secretary of State and the Attorney General of the United States: 1. to be an act of terrorism; 2. to be a violent act or an act that is dangerous to human life, property or infrastructure; 3. to have resulted in damage within the United States, or outside of the United States in the case of an air carrier (as defined in section 40102 of title 49, United 17 States Code) or a United States flag vessel (or a vessel based principally in the United States, on which United States income tax is paid and whose insurance coverage is subject to regulation in the United States), or the premises of a United States mission; and 4, to have been committed by an individual or individuals acting on behalf of any foreign person or foreign interest as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States Government by coercion, But, no act shall be certified by the Secretary as an act of terrorism if the act is committed as part of the course of a war declared by Congress (except for workers' compensation) or property and casualty insurance losses resulting nom the act, in the aggregate, do not exceed $5,000,000. These disclosures are informational only and do not modify your bond or affect your rights under the bond. Copyright Zurich American Insurance Compauy 2003 Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND KNOW ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a corporation of the State of Maryland, by PAUL C. ROGERS, Vice President, and T, E, SMITH, Assistant Secretary, in pursuance of authority granted by Article VI, Section 2, of the By-Laws of said Company, wh' set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof d s ~ . nate, constitute and appoint Randy L. BREHMER, Lawrence A. MICHAEL, Cynthia J. rt TZ, Terence R. GESZV AIN, Bradley R. VAN SWOL and Tracy FROST and lawful agent and Attorney-in-Fact, to make, execute, seal and deli act and deed: any and all bonds and undertakings and the . e of these presents, shall be as binding upon said Company, as fully bad been duly executed and acknowledged by the regularly electe timore, Md" in their own proper persons, This power of attorney revokes tha , REHMER, Lawrence A, MICHAEL, Cynthia J, BREHMER, Robert W. LENTZ, Terence R. . VAN SWOL, dated April 18, 2003. The said Assistant r does hereby certify that the extract set forth on the reverse side hereof is a nue copy of Article VI, Section 2, of the By-Laws of said Company, and is now in force. IN WITNESS WHEREOF, the said Vice-President and Assistant Secretary have hereunto subscribed their names and affixed the Corporate Seal of the said FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 29th day of March, A.D,2004, ATIEST: FIDELITY AND DEPOSIT COMPANY OF MARYLAND ~v~ By: ~ Assistant Secretary Paul C. Rogers Vice President T, E. Smith State of Maryland }ss. City of Baltimore' On this 29th day of March, A.D. 2004, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, came PAUL C. ROGERS, Vice President, and T, E. SMITH, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and they each acknowledged the execution of the same, and being by me duly sworn, severally and each for himself deposeth and saith, that they are the said officers of the Company aforesaid, and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said Corporate Seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above written. ~}¿(,J Dennis R, Hayden Notary Public My Commission Expires: February I, 2005 POA-F 184-2525 From:Robertson RYan - .A.ccounti~ 1 414 271 9468 05/13/2004 10:29 #224 P .001/001 ACORD. CERTIFICATE OF LIABILITY INSURANCE OPID.2w1 DATE(MlNDDII'YYI') GD'STA-2 051],3/04 PROOUCER THIS CERTIFICATE IS ISSUED AS AMATTER OF INFORMATION Robertson Ryan & Assoc.. Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Two plaza East. SUite 650 HOLDER, THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 330 East Kilbourn Avenue AI. TER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Milwaukee WI 53202 Phone; 414-271-3575 Fax.414-271-03.96 INSURERS AFFORDING COVERAGE NAlC# INSURED INSURERIC WEST SEND MUTl7AL INS CO 15350 INSURER'" The Cincinnati Casual tv Co. 28665 Gustafson Construction Corp. INSURERC, P'RANK1!NMUTII!4!JTUAL INS CO At¡n. Bob Gustafson 17 North R°3"al Avenue INSURER '" Belgium WI 5 004 INSURER E: COVERAGES THE I'OLICIES OF INSI.JFU\NCE USTED BELOW HAVE BEEN ISSUED TO mE INSURED NAMED ABOVE 'DR mE PQUCY PERIOD INO",^TED, NOTWTHSTANOING /WY REQUIREMENT, TERM DR CONDITION OF /WY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE 'NSURANCEAFFORDEO BY mE POLICIES DESCRIBED HERSN ISSUSJECTTO AlL THETERMS, EXCLUSIONS AND CONDmONSOF SUCH POLICIES. AGGREGATE UMITS SHOWN MAY HAVE BEEN REDUCED BY PAlO CI.AIM5. erR NSR TYPE OF INSURANC. POLICYNUMIIER DATE OOD DATE IND UMITS ~ENERAL UABICnY EACH OCCURRENCE 01000000 A ~ 3'ilMERCIAL GENERAL LlABUTY CPW0664679 00 03/0],/04 03/01/05 PREMISES Ea """""", $ 200000 '- CLAIMS MADE [!] OCCUR MED"""_""',,~) $10000 X $],000 Ded-PD PERSONAL' AOV INJURY $ ],000000 GENERAL AGGREGATE 0 ],000000 ñ, AGG~ ;:: n PER, PRODUCTS - COMPIOP AGG $1000000 I'OLICY JECT LOC EBL ],000000 ~~E IJA! UTY COMBINED SINGLE LIMIT .500000 A ";"/WYAUTO CPW0664679 00 03/0],/04 03/01/05 (Ea so"""") - AlLOWNEDAUTOS BOD~YINJURY SCHEDULED AUTOS (1'«"",,') S X HIRED AUTOS BODILY INJURY -= 0 .!- NON.QWNED AUTOS (P,,""tIent) X $500 Ded"Comp PROPERTY DAMAGE X $500 Ded-Con (""""""u $ =FE UAmUTY AUTO ONLY. EA AOOIDENT S ANY AUTO OTHER THAN EA ACe S AUTO ONLY: AGG 0 5~M'.ELLA UABlCrrY ËACHOCCURRENCE .5000000 B X OCCUR 0 CLAIMS MADE PENDING 03/0],/04 03/0],/05 AGGREGATE 05000000 0 ~ DEDUCTIBLE 0 X RETENTION $3.0000 . WORKE... COMPENSATION AND X IT~.\',S,j~ ER C EMPLOYERS' LIASIUTY WCJ.928202 [WI] 03/0],/04 03/01/05 EL EACH ACCIDENT 0],00000 AoN PRDPRJETORIPARTNERÆXECUTIVE OFFlCERlMEMBER EXCLUDED? EC. DISEASE - EA EMPLOYEE $ ],00000 ~:'r'.M,~NS ,""ow E.L. DISEASE - POLICY UMIT $ 500000 OTHER OESCRJP11DN OF OPERATIONS I LOCATIONS I veHICLES I IOO:LUSlONS ADD'" BY ENDORSEMENT I SPECIAL PROVISIONS TIiIIS CERTIFICME IS ONLY ISS1JED FOR PROJECT SOUTH WEST :INDUSTRIAL PARK UNDER CONTRACT #0404 (Note- Origin.,,], + 3 copies sent to certholder). Fax #262-548-9392 Brian Fischer @ Gustafson Construction Fax 11920-236-5068 Scott Erickson @ City 'of Oshkosh Phone 11920-236-5042 CITYOSH CANCELLATION SHOULD /WY OF THE ABOVE DESCI!IBED PDUCIES BE CANCE!.1.ED BEFORE THE """!RATIO DA", THERI!OF, THE ISSIJINQ ""'U""" W1LL ENDEAVOR TO MAIL ~ DAYSWRJTTEN NcmCETOlHS tMf>OSE NO OBUGA"f 0B.I.IABII.ttX.. . REPRESENTATIVES. :., AUTHD"JZED ..,. RESeJ!T A rIVE Brian Kleinmann CERTIFICATE HOLDER City of Oshkosh City Hal]'- Oshkosh. WJ: Attn. Scott Erickson 2.],5 Church Avenue oshkosh WI 54903-3.3.30 ACORD 25 (2001/08) Bond No. 08722945 Performance Bond Ar,y singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): Gustafson Construction Corp. 178 N. Royal Avenue Belgium, WI 53004 OWNER (Name and Address): City of Oshkosh 215 Church Ave. Oshkosh. WI 54903 CONSTRUCTION CONTRACT SURETY: Fidelity & Deposit Company of Maryland 3910 Keswick Rd., Baltimore MD 21211 Date: May 12th, 2004 Amount: $ 1,521,284.20 One Million Five Hundred Twenty One Thousand Two Hundred Eighty Four & 2011 00--- DOLLARS Description (Name and Location): Public Works Contract No. 04-04 BOND Date (Not earlier than Construction Contract Date): May 13th, 2004 Amount: $ 1,521,284,20 One Million Five Hundred Twenty One Thousand Two Hundred Eighty Four & 20/100--- DOLLARS Modifications to this Bond: X None 0 See Page 3 CONTRACTOR AS PRINCIPAL Company: ction Corp. Corporate Seal SURETY Company: Fidelity & Deposit Company of Maryland . M /J ~ ß r? Corporate Seal Slguature: í q ~ Name and Title: Bradley R. Van Swol, Attorney-in-fact (Any additional signatures appear on page 3) (FOR INFORMATION ONLY-Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or The Brehmer Agency, Inc. other party): 12800 W. Silver Spring Dr. Butler, WI 53007-0498 262-781-3714 Printed incoo!!"nltion with the American Inslitute of Architects (AlA) by Fidelity & Deposit Company of Maryland . Fidelity & Deposit Company of Maryland vouches that the langusge in the document confonus exactly to the language u,.d in AlA Do,,"ment A-312, Decemb" 1984 Edition. PRF76002ZZ060H Without Modificalions I The Contractor and the Surety, jointly and severslly, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for tbe performance of the Construction Contract, which is incorporated herein by reference. 2 If the Contrsctor performs the Construction Contrsct, the Surety and the Contractor shall have no obligation under this Bond, except to participste in conferences ss provided in Sub. paragrsph 3.1. 3 Ifthere is no Owner Default, the Surety's obligstion under this Bond sholl arise after: 3.1 The Owner has notified the Contractor and the Surety at its address described in Paragraph 10 below that the Owner is considering declaring a Contractor Defsult snd has requested and attempted to arrsnge s conference with the Contractor and the Surety to be held not later than fifteen days after receipt of such notice to discuss methods of performing the Construction Contract. If the Owner, the Contractor and the Surety agree, the Contractor sholl be sllowed a reasonable time to perform the Construction Contract, but such an agreement shsll not wsive the Owner's right, if sny, subsequently to declare a Contractor Default; and 3.2 The Owner has declared s Contractor Default and for- mally terminated the Contrsctor's right to complete the con- tract. Such Contractor Default shall not be declsred earlier than twenty dsys after the Contractor and the Surety have received notice as provided in Sub-paragraph 3.1; and 3.3 The Owner has agreed to pay the Balsnce of the Contract Price to the Surety in sccordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contrsct in sccordance with the terms of the contrset with the Owner. 4 When the Owner has satisfied the conditioos ofParsgrsph 3, the Surety shsll promptly and st the Surety's expense take one of the following setions: 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract; or 4.2 Undertske to perform and complete the Construction Contract itself, through its sgents or through independent contrsctors; or 4.3 Obtain bids Dr negotiated proposals from quslified con- trsctors acceptable to the Owner for s contract for perfor- mance and completion of the Construction Contrsct, arrange fors contract to be prepsred for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance snd psyment bonds executed by a qualified surety equivslent to the bonds issued on the Construction Contract, and pay to the Owner the smount of dsmages as described in Paragraph 6 in excess of the Bslance of the Contract Price incurred by the Owner resulting from the Contrsctor's defsult; or 4.4 Waive its right to perform and complete, srrange for completion, Dr obtsin s new contractor snd with reasonable promptness under the circumstances: .1 After investigation, determine the amount for which it may be liable to the Owner and, ss soon as prsc- ticsble after the smount is determined, tender psy- ment therefor to the Owner; or .2 Deny liability in whole Dr in psrt and notify the Owner citing reasons therefor. 5 If the Surety does not proceed as provided in Parsgrsph 4 with reasonable promptness, the Surety sholl be deemed to be in default on this Bond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding thst the Surety perform its obligstions under this Bond, and the Owner shsll be entitled to enforce sny remedy avsilsble to the Owner. If the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or the Surety hss denied liability, in whole or in psrt, without further notice the Owner sholl be entitled to enforce any remedy available to the Owner. 6 After the Owner has terminated the Contractor's right to com- plete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner sholl not be greater than those of the Contrsctor under the Construction Contrsct, snd the responsibilities of the Owner to the Surety sholl not be greater than those of the Owner under the Construction Contrsct. To the limit of tbe smount of this Bond, but subject to commitment by the Owner of the Bslance of the Contrsct Price to mitigstion of costs snd dsmsges on the Construction Contract, the Surety is obligsted without duplication for: 6.1 The responsibilities of the Contractor for correction of defective work snd completion of the Construction Contrsct; 6.2 Additional legal, design professionsl and delsy costs resulting from the Contrsctor's Default, and resulting from the actions or failure to act of the Surety under Paragraph 4; and 6.3 Liquidated dsmages, or if no liquidated dsmages are specified in the Construction Contract, actnal damsges csused by delayed performance or non-performsnce of the Contrsctor. 7 The Surety shsll not be liable to the Owner or others for obliga- tions of the Contractor that are unrelated to the Construction Contrsct, and the Balance of the Contract Price shsll not be reduced or set off on account of any such unrelated obligations. No right of action shsll accrue on this Bond to sny person or entity other than the Owner or its heirs, executors, sdministrstors or successors. 8 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to relsted sub- contractors, purchase orders and other obligations. 9 Any proceeding, legal Dr equitable, under this Bond msy 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 instituted within two years after Contrsetor Default or within two years after the Contractor ceased working or within two years after the Surety refuses Dr fails to perform its obligations under this Bond, whichev.r occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction Printed in coope<ation with the American Institute of Mchitects (AlA) by Fidelity & Deposit Company of Maryland . Fidelity & Deposit Company of Maryland vouches that the language in the document confouns exactly to the language used in AlA Document A-312, Decembe; 1984 Edition. shsll be applicable. 10 Notice to the Surety, the Owner Dr the Contractor shsll he msiled or delivered to the sddress shown on the signsture psge. 11 When this Bond has been furnished to comply with s ststutory or other legsl requirement in the location where the construction was to be perfonned, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions confonning to such statutory or other legal requirement shall be deemed incorporsted herein. The intent is that this Bond shall be construed as a ststutory bond and not ss a common law bond. 12 DEFINITIONS 12.1 Balance of the ContrsctPrice: The totsl smountpayable by the Owner to the Contractor under the Construction Contract after all proper sdjustments have been made, including allowsnce to the Contrsctor of any smounts received or to be received by the MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contrsct Documents and changes thereto. 12.3 Contrsctor Default: Failure of the Contractor, which hss neither been remedied nor waived, to perfonn or otherwise to comply with the tenus of the Construction Contract. 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor wsived, to y the Contractor as required by the Construction Cont or to perfonn and complete or comply with the other s thereof. ¡JIJr (Space is provided below for additional signatures CONTRACTOR AS PRINCIPAL Company: added parties, other than those appearing on the cover page). SURETY: Company: Signature: Name and Title: Address: (Corporate Seal) Signature: Name and Title: Address: P'¡nted in coopmtion with the American In,titute of Architect, (AlA) by Fidelitv & Deposit Company of Marvland . Fidelity & Deposit Company of Maryland vouche, thatlhe language in the document confOTID' exactly to the language u,edin AlA Document A-312, December 1984 Edition. Bond No. 08722945 Payment Bond Any singular reference to Contractor, Surety, Owner or other psrty shall be considered plural where applicable. CONTRACTOR (Name and Address): Gustafson Construction Corp. 178N.RoyaIAve. Belgium, WI 53004 OWNER (Name and Address): City ofOsbkosh 215 Church Ave. Oshkosh, WI 54903 CONSTRUCTION CONTRACT Date: May 12th, 2004 Amount: $ 1,521,284.20 OneMillionFiveHundredTwenty One Thousand Two HundredEightyFour & 201100 Description (Name and Location): Public Works Contract No. 04-04 SURETY: Fidelity & Deposit Company of Maryland 3910 Keswick Rd., Baltimore MD 21211 DOLLARS BOND Date (Not earlier than Construction Contract Date): May 13th, 2004 Amount: $ 1,521,284.20 OneMillionFiveHundredTwentyOneThousandTwoHundredEightyFour & 201100 Modifications to this Bond: IXJ None 0 See Page 3 DOLLARS CONTRACTOR AS PRINCIPAL Pi?IË~ SURETY Company: Fidelity ~ ~e~t Compan of Maryland ~t4 .-- Corporate Seal Signature: Name and Title: Bradley R. Van Swol, Attorney-in-fact Signature: Name and Title: Corporate Seal (Any additional signatures appear on page 3) (FOR INFORMATION ONLY-Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer Dr The Brehmer Agency, Inc, other party): 12800 W. Silver Spring Dr. Butler, WI 53007-0498 262-781-3714 P,inted in coopernoon with The Amedcan In,titute of A<chitects (AIA) by Fidelity & Deposit Company of Maryland . Fidelity & Deposit Company of Maryland vouch" that the language in the document confom" exactly to the language u"d in AlA Document A-312, Decembcr 1984 EDITION. PAY76002ZZ050lF Without Modification' 1 The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successor and assigns to the Owner to psy for lahor, materials and equipment fumished for use in the performance of the Construction Con- tract, which is incorporated herein by reference. 2 With respect to the Owner, this obligation shall be null and void ifthe Contractor: 2.1 Promptly mskes payment, directly or indirectly, for all sums due Clsimants, and 2.2 Defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity whose claim, demand, lien or suit is for payment for lahor, materials Dr equipment furnished for use in the performsnce of the Construction Contrsct, provided the Owner has promptly notified the contractor and the SuretY (at the address describedin parsgraph 12) of any clsims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to the Contractor snd the Surety, provided there is no Owner Default. 3 With respect to Claimants, this obligstion shsll be null snd void if the Contractor promptly makes payment, directly or in- directly, for all sums due. 4 The Surety shall have no obligation to Clsimants under this Bond until: 4.1 Clsimants who are employed by or have a direct contract with the Contrsctor have given notice to the Surety (at the address described in Psragraph 12) and sent s copy, or notice thereof, to the Owner, stating thst a clsim is being mode under this Bond and, with substantial accuracy, the smount of the claim. 4.2 Clsimants who do not hsve s direct contract with the Contractor: .1 Have furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner, within 90 days after having lsst performed labor or last fumished msterials or equipment included in the clsim stating, with substantial accuracy, the amount of the clsim snd the nome of the psrty to whom the materisls were furnished or supplied or for whom the labor was done Dr performed; and .2 Have either received s rejection in whole or in part from from the Contrsctor, or not received within 30 days of fumishing the sbove notice any communicstion from the Contractor by which the Contrsctor has indicated the claim will be psid directly or indirectly; and .3 Not hsving been psid within the sbove 30 days, have sent s written notice to the Surety (st the address described in Paragraph 12) snd sent a copy, or notice thereof, to the Owner, stating that a claim is being msdeunder this Bond snd enclosing s copy of the previous written notice furnished to the Contractor. 5 Ifs notice required by Psragrsph 4 is given by the Owner to the Contractor or to the Surety, that is sufficient compliance. 6 When the Clsimant has sstisfied the conditions ofpsragraph 4, the Surety shall promptly and at the Surety's expense tske the following actions: 6.1 Send an answer to the Clsimant, with s copy to the Owner, within 45 days after receipt of the clsim, stating the smounts that are undisputed and the basis for challenging any smounts that are disputed. 6.2 Payor arrange for psyment of any undisputed smounts. 7 The Surety's totsl obligation shall not exceed the smount of this Bond, and the smount of this Bond shall be credited for any psyments made in good faith by the Surety. 8 Amounts owed hy the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any Construction Performance Bond. By the Contrsctor furnishing and the Owner accepting this Bond, they agree that sll funds esmed by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligstions of the Contractor and the Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. 9 The Surety shsll not be liable to the Owner, Claimants or others for obligstions of the Contractor thst are unrelated to the Construction Contract. The Owner shall not be lisble for pay- ment of any costs or expenses of any Claimant under this Bond, and shall hsve under this Bond no obligstions to mske payments to, give notices on behalf of, or otherwise hsve obligations to Claimants under this Bond. 10 The Surety hereby waives notice of sny chsnge, including changes of time, to the Construction Contract or to related sub- contrscts, purchase orders and other obligstions. 11 No suit or sction shsll be commenced by s Clsimant under this Bond other than in s court of competent jurisdiction in the locstion in which the work or psrt of the work is locsted or sfter the expiration of one year from the dste (1) on which the Claim- ant gsve the notice required by Subparsgraph 4.1 or Clause 4.2.3, or (2) on which the last labor or service wss performed by anyone or the last materials Dr equipment were fumished by anyone under the Construction Contract, whichever of (I) or (2) first occurs. If the provisions of this Psrsgraph are void or prohibited by lsw, the minimum period oflimitation svsilable to sureties as a defense in the jurisdiction of the suit shall be spplicable. 12 Notice to the Surety, the Owner or the Contractor shsll be IlliIiled or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the Owner or the Contrsctor, however accomplished, shall be snfficient compliance as of the date received at the address shown on the signature page. 13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed del.ted herefrom and provisions conforming to such statutory or other legal requirement shsll be deemed incorporated herein. The intent is that this Bond shsll be construed as a statutory bond and not as a common Isw bond. Printed in cooperotion with The American Institute of Architects (AlA) by Fidelity & Deposit Company of Maryland . Fidelity & Deposit Company of Maryland vouches that the language in the documentconforms exactly to the languageusod in AlA DocumentA-12, Docember 1984 Edition. 14 Upon request by any person or .ntity appearing to be s poten- tisl beneficisry of this Bond, the Contrsctor sball promptly fur- nish a copy of this Bond or shsll pennit a copy to be made. 15 DEFINITIONS 15.1 Clsimant: An individual or entity having a direct con- tract with the Contractor or with a subcontractor of the Con- tractor to furnish labor, materials Dr equipment for use in the perfonnance of the Contract. The intent of this Bond shsll be to include without limitation in the tenus "labor, materials Dr equipment" that part of wster, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contrsct, architectural and engineering services MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: required for perfonnance of the work of the Contractor and the Contractor's subcontractors, and all other items for which s mechanic's lien may be ass.rted in the jurisdiction where the labor, materisls or equipment were furnished. 15.2 Construction Contract: The sgreement between the Owner and the Contrsctor identified on the signature page, including sll Contract Documents snd changes thereto. 15.3 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perfonn and complete or comply with the other tenus thereof. (Space is provided below for additional signatures of ad d parties, other than those appearing on the cover page.) CONTRACTOR AS PRlNCIP AL Company: Signature: Name and Title: Address: SURETY: Company: (Corporste Seal) Signature: Name and Title: Address: ~/k Printed in cooperation with The American Institute of Architects (AlA) by Fidelity & Deposit Company of Maryland . Fidelity & Deposit Company of Maryland vouches that the language in the <Iocumentconforms exactly to the language used in AlA DocumentA-312, December 1984 EDITION. Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND KNOW ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a corporation of the State of Maryland, by PAUL C. ROGERS, Vice President, and T. E. SMITH, Assistant Secretary, in pursnance of authority granted by Article VI, Section 2, of the By-Laws of said Company, w ' set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof d s 1ij> . nate, constitute and appoint Randy L. BREHMER, Lawrence A. MICHAEL, Cyn TZ, Terence R. GESZV AIN, Bradley R. VAN SWOL and Tracy FROST lawful agent and Attorney-in-Fact, to make, execute, seal and deliver act and deed: any and all bonds and undertakings and the execu . s ø f these presents, shall be as binding upon said Company, as full an had been duly executed and acknowledged by the regularly elec timore, Md., in their own proper persons. This power of attorney revokes ER, Lawrence A, MICHAEL, Cynthia J. BREHMER, Robert W, LENTZ, Terence R. R. VAN SWOL, dated April 18, 2003. The said Assistant does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article VI, Section 2, of the By-Laws of said Company, and is now in force. IN WITNESS WHEREOF, the said Vice-President and Assistant Secretary have hereunto subscribed their names and affixed the Corporate Seal of the said FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 29th day of March, A,D.2004. ATTEST: FIDELITY AND DEPOSIT COMPANY OF MARYLAND ~v~ By: ~ Assistant Secretary Paul C. Rogers Vice President T, E, Smith State of Maryland }ss. City of Baltimore ' On this 29th day of March, AD, 2004, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, came PAUL C. ROGERS, Vice President, and T. E. SMITH, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and they each acknowledged the execution of the same, and being by me duly sworn, severally and each for himself deposeth and saith, that they are the said officers of the Company aforesaid, and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said Corporate Seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above written, w /--), J Dennis R. Hayden Notary Public My Commission Expires: February I, 2005 POA-F 184-2525 ~ ZURICH THIS IMPORTANT DISCLOSURE NOTICE IS PART OF YOUR BOND Fidelity and Deposit Company of Maryland, Colonial American Casualty and Surety Company, Zurich American Insurance Company, and American Guarantee and Liability Insurance Company are making the following informational disclosures in compliance with The Terrorism Risk Insurance Act of 2002, No action is required on your part. Disclosure of Terrorism Premium The premium charge for risk of loss resulting from acts of terrorism (as defined in the Act) under this bond is $ waived This amount is reflected in the total premium for this bond. Disclosure of Availability ofCovera!!e for Terrorism Losses As required by the Terrorism Risk Insurance Act of 2002, we have made available to you coverage for losses resulting from acts of terrorism (as defined in the Act) with terms, amounts, and limitations that do not differ materially as those for losses arising from events other than acts of terrorism. Disclosure of Federal Share ofinsurance Companv's Terrorism Losses The Terrorism Risk Insurance Act of 2002 establishes a mechanism by which the United States government will share in insurance company losses resulting from acts of terrorism (as defined in the Act) after a insurance company has paid losses in excess of an annual aggregate deductible, For 2002, the insurance company deductible is I% of direct earned premium in the prior year; for 2003, 7% of direct earned premium in the prior year; for 2004, 1 0% of direct earned premium in the prior year; and for 2005, 15% of direct earned premium in the prior year, The federal share of an insurance company's losses above its deductible is 90%. In the event the United States government participates in losses, the United States government may direct insurance companies to collect a terrorism surcharge from policyholders. The Act does not currently provide for insurance industry or United States government participation in terrorism losses that exceed $1 00 billion in anyone calendar year. Definition of Act of Terrorism The Terrorism Risk Insurance Act defines "act of terrorism" as any act that is certified by the Secretáry of the Treasury, in concurrence with the Secretary of State and the Attorney General of the United States: 1. to be an act of terrorism; 2. to be a violent act or an act that is dangerous to human life, property or infrastructure; 3, to have resulted in damage within the United States, or outside of the United States in the case of an air carrier (as defined in section 40102 of title 49, United 17 States Code) or a United States flag vessel (or a vessel based principally in the United States, on which United States income tax is paid and whose insurance coverage is subject to regulation in the United States), or the premises of a United States mission; and 4. to have been committed by an individual or individuals acting on behalf of any foreign person or foreign interest as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States Government by coercion. But, no act shall be certified by the Secretary as an act of terrorism if the act is committed as part of the course of a war declared by Congress (except for workers' compensation) or property and casualty insurance losses resulting from the act, in the aggregate, do not exceed $5,000,000. These disclosures are informational only and do not modify your bond or affect your rights under the bond. Copyright Zurich American Insurance Company 2003