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HomeMy WebLinkAboutFischer-Ulman construction contract 09-107 (2009)2 CONSTRUCTION CONTRACT THIS AGREEMENT, made on the 9_ day of April, 2009, by and between the CITY OF OSHKOSH, party of the first part, hereinafter referred to as CITY, and FISCHER- ULMAN CONSTRUCTION, INC., 1115 S. Theodore St., Appleton, WI 54915, 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: for concrete sidewalk (new & reconstruction), pursuant to Resolution 09 -107 adopted by the Common Council of the City of Oshkosh on thel4th day of April, 2009, 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 $488,870.10, 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. This Instrument 2. Contractor's Proposal 3. Plans 4. Specifications, including any addenda 5. Instructions to Bidders 6. Advertisement for Bids 7. General Conditions In 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. w 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: CONTRACTOR FISC R -ULMAN NSA' UCTION, INC. (Seal of Contractor (Specify Title) if a Corporation.) By: (Specify Title) CITY OF OSHKOSH Mark A. Rohloff, City Manager ( ness) And: (Witness) f' Clerk APPROVED: I hereby certify that the necess- ary provisions have been made to pay the liability which will accrue under this contract. ity Attorne CitA �trer 3 FISCULM -01 BRBA ACORD CERTIFICATE OF LIABILITY INSURANCE DA 4122120 9 YY) PRODUCER (920) 739 -7711 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Willis of Wisconsin, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 122 E. College Avenue ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. P.O. Box 877 Appleton, WI 54912 -0877 INSURERS AFFORDING COVERAGE NAIC # INSURED Fischer Ulman Construction Inc wsURERA: SECURA Insurance Company 1115 S Theodore INSURER B: Appleton, WI 54915 -3905 INSURER C: INSURER D: 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. _ - POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION', TYPE OF INS RANCE INSR ADD'L L R LIMITS GENERAL LIABILITY EACH OCCURRENCE $ - 1,000,00 ! A X MMERCIAL GENERAL LIABILITY CP3122476 2/20/209 2/20/2010 CO EMISES( a $ 100,00 I CLAIMS MADE X OCCUR' M ( y erson) $ 1 0,00 I - - ( PERSONAL & ADV INJURY $ 1 000, 00 , - - -- . __._ -_ -' -- -- - GENERAL_AGGREGATE $ .__ 2,000,00 GEN'L AGGREGATE LIMIT APPLIES PER: -_ PRODUCTS COMP /OPAGG $ 2,000,00 ! POLICY ! X PRO- LOC i AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT ' $ 1,90,00 A X !ANY AUTO IA3122477 2/20/2009 2/2012010 Ea accident ( ) ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS { (Per person) X HIRED AUTOS BODILY INJURY $ X NON -OWNED AUTOS (Per accident) PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY I AUTO ONLY EA ACCIDENT $ _ -- - I ANY AUTO i OTHER THAN EA ACC $ AUTO ONLY: AGG $ ! I _ EACH OCCURRENCE $ 2 000,00 A EXCESSlUMBRELLA LIABILITY X r CU3122479 2/20/2009 2/20/2010 � f - AGGREGATE $ — _ 2,000,00 , OCCUR I CLAIMS MADE -. - $ DEDUCTIBLE X I RETENTION $ 10,000 $ WC STATU- OTH -! X WORKERS COMPENSATION AND TORY LIMITS ! ER A EMPLOYERS' LIABILITY ( WC3122478 2/20/2009 2/20/2010 E L EACH ACCIDENT $ 100,00 ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICERIMEMBER EXCLUDED? E.L DIS_E_ASE EA E_ MPLOYEE, $ 100,00 If yes, describe under E.L. DISEASE POLICY LIMIT $ 500,00 SPECIAL PROVISIONS below - OTHER a b a 1 St fi I� 41 kl- i (VISIONS 1 ` t mom# DESCRIPTION OF OPERATIONS ! LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT 1 SPECIAL PR 3 `I ' £ I s See attached page. I APR 2 2 �; �9 ,.� rN : RTIFICATE HOLDER City of Oshkosh Attn: City Clerk 215 Church Avenue Oshkosh, WI 54903- ACORD 25 (2001108) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATIO DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 3 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE © ACORD CORPORATION 1988 - FISCULM -01 BRBA PAGE 1 OF 1 DESCRIP'�ION OF OPERATIONS - _...__ Fischer Ulman Construction Inc City of Oshkosh 1115 S Theodore Attn: City Clerk Appleton, WI 54915 -3905 215 Church Avenue Oshkosh, WI 54903- I Commercial General Liability Includes Additional Insured Wrap Endorsement ILE1037 (When Required in a Written Contract or 'Agreement) it 30 day notice of cancellation except in the event of non - payment of premium then only a 10 day notice applies. This limitation does not apply to Workers Compensation. Re: Concrete Sidewalk Work 'The City of Oshkosh, it's officers, council members, agents, employees, and authorized volunteers are additional insureds under the Commercial General Liability per ILE1037 and Auto Liability per policy language. THE AMERICAN INSTITUTE OF ARCHITECTS AIA Document A312 t► � Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): Fischer - Ulman Construction, Inc. 1115 South Theodore Street Appleton, WI 54915 -3906 OWNER (Name and Address): SURETY (Name and Principal Place of Business): Ohio Farmers Insurance Company P.O. Box 5001 Westfield Center, OH 44251 -5001 City of Oshkosh 215 Church Avenue Oshkosh, WI 54903 CONSTRUCTION CONTRACT Date: April 22, 2009 Amount: ($ 488,870.10 ) Four Hundred Eighty Eight Thousand Eight Hundred Seventy Dollars and 10/100 Description (Name and l..dcation):Public Works Contract 09 -06, Concrete Sidewalk New & Reconstruction BOND Date (Not earlier than Construction Contract Date): April 22, 2009 Amount: ($488,870.10 ) Four Hundred Eighty Eight Thousand Eight Hundred Seventy Dollars and 10/100 Modifications to this Bond: ® None 0 See Page 3 CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) Fischer - Ulmapr onstruct ion Signature: Name and Title: (Any additional signatures appear on page 3) SURETY Compan ( corporate Seal) Ohio Farme Ins. e C c Signature: Name and Title: Richard J ries W 6 y�FRTE*,e ' 'w Attorney in- act a 185 (FOR INFORMATION ONLY—Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or Willis other party): City Center East, 122 E College Avenue (2nd floor) Appleton, WI 54911 920 739 -7711 AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA QE THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-19M 'I THIRD PRINTING • MARCH 1987 I The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to participate in conferences as provided in Subparagraph 3.1. 3 if there is no Owner Default, the Surety's obligation tinder this Bond shall 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 Default and has requested and attempted to arrange a 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 Construc- tion Contract. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reason- able time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; and 3.2 The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete the contract. Such Contractor Default shall not be de- dared earlier than twenty days 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 Balance of the Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accor- dance with the terms of the contract with the Owner. 4 When the Owner has satisfied the conditions of Para- graph 3, the Surety shall promptly and at the Surety's ex- pense take one of the following actions: 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract; or 4.2 Undertake to perform and complete the Construc- tion Contract itself, through its agents or through inde- pendent contractors; or 4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Con- struction Contract, arrange for a contract to be pre- pared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 6 in ex- cess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or 4,4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is deter- mined, tender payment 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 days after receipt of an additional written notice from the Owner to the Surety demanding that the Surely perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the Owner Shall be entitled to enforce any remedy available to the Owner. 6 After the Owner has terminated the Contractor's right to complete 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 shall riot be greater than those of the Contractor 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 amount of this Bond, but subject to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Sure- ty is obligated without duplication for: 6.1 The responsibilities of the Contractor for correc- tion of defective work and completion of the Construc- tion Contract; 6,2 Additional legal, design professional and delay costs resulting from the Contractor's Default, and re- sulting from the actions or failure to act of the Surety under Paragraph 4; and 6.3 Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual dam- ages caused by delayed performance or non-perfor- mance of the Contractor. 7 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Con- struction Contract, and the Balance of the Contract Price shall not be reduced or set off on account 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 or successors. 8 The Surety hereby waives notice of any change, includ- ing changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obliga- tions. 9 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which thexvork- or part of the work is located and shall be Instituted within two years after Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever oc. curs first, If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation avail- AtA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND - DECEMBER 1984 ED. • AIA -,S THE AMERICAN INSTITUTE OF ARCHIIECTS, 17.15 NEw YORK AVE., N.W., WASHINGTON. D C. 2W,6 A312-1984 2 THIRD FRtNTING • MARCH 1987 able to sureties as a defense in the jurisdiction of the suit shall be applicable. 10 Notice to the Surety, the Owner orthe Contractor shall be mailed or delivered to the address shown on the sig- nature page. 11 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 deleted herefrom and provisions con- forming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a, statutory bond and not as a common law bond. 12 DEFINITIONS 12.1 Balance of the Contract Price: The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Con- MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: tractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, re- duced by all valid and proper payments made to or on behalf of the Contractor under the Construction Con- tract. 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the sig- nature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to per- form or otherwise to comply with the terms of the Construction Contract. 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Con- tractor as 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 parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Name and Title: Address: Signature: Name and Title: Address: A1A DOCUMENT A312 - PERFORMANCE BOND AND PAYMENT BOND - DECEMBER 1984 ED. - AIA S THE AMERICAN INSTITUTE Of ARCHITECTS, 1735 NEW YORK AVE., N.W.. WASHINGTON, D.C. 20006 A312 -1984 3 THIRD PRINTING • MARCH 1987 THE AMERICAN INSTITUTE OF ARCHITECTS AIA Document A312 !k Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): Fischer- Ulman Construction, Inc. 1115 South Theodore Street Appleton, WI 54915 -3908 OWNER (Name and Address): City of Oshkosh 215 Church Avenue SURETY (Name and Principal Place of Business): Ohio Farmers Insurance Company P.O. Box 5001 Westfield Center, OH 44251 -5001 Oshkosh, WI 54903 CONSTRUCTION CONTRACT Date: April 22, 2009 Amount: (6488,870.10 ) Four Hundred Eighty Eight Thousand Eight Hundred Seventy Dollars and 10/100 Description (Name and Location): Public Works Contract 09 -06, Concrete Sidewalk New & Reconstruction BOND Date (Not earlier than Construction Contract Date): April 22, 2009 Amount: ($ 488,870.10 ) Four Hundred Eighty Eight Thousand Eight Hundred Seventy Dollars and 101100 Modifications to this Bond: CJ None P9 See Page 6 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Com ny: (Corpo , Si Fischer - Ulma Constructi c Ohio Far171� 4 uARic�'41. p ny 1 * Signature: Signature: K 2 * - - Name and Title: Name an Title: DeVries ., I 0 46 Attorney - in - Fact ' (Any additional signatures appear on page 6) (FOR INFORMATION ONLY — Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or Willis other party): City Center East, 122 E College Avenue (2nd floor) Appleton, WI 54911 920 739 -7711 AIA DOCUMENT A312 - PERFORMANCE BOND AND PAYMENT BOND - DECEMBER 1984 ED. • AIA l$ THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE,, N.W., WASHINGTON, D,C. 20006 A312.1984 4 THIRD PRINTING • MARCH 1967 I 'The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executers, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the perfor- mance of the Construction Contract, which is incorpo- rated herein by reference. 2 With respect to the Owner, this obligation shall be null and void if the Contractor: 2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants, 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 the payment for labor, materials or equipment fur- nished for use in the performance of the Construction Contract, provided the Owner has promptly notified the Contractor and the Surety (at the address described in Paragraph 12) of any claims, demands, liens or suits and tendered defense: of such claims, demands, liens or suits to the Contractor and the Surety, and provided there is no Owner Default, 3 With respect to Claimants, this obligation shall be null and void if the Contractor promptly makes pay- ment, directly or indirectly, for all sums due. 4 The Surety shall have no obligation to Claimants under this Bond until: 4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim. 4.2 Claimants who do not have a direct contract with the Contractor: .1 Have furnished written notice to the Con- tractor and sent a copy, or notice thereof, to the Owner, within 90 days after having last performed labor or last furnished materials or equipment included in the claim stating, with substantial accuracy, the amount of the claim and the name of the party to whom the materials were furnished or supplied or for whom the labor was done or performed; and .2 Have either received a rejection in whole or in part from the Contractor, or not received within 30 days of furnishing the above no- tice any communication from the Contractor by which the Contractor has indicated the claim will be paid directly or indirectly; and .3 Not having been paid within the above 30 days, have sent a written notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to the Contractor. 5 if a notice required by Paragraph 4 is given by the Owner to the Contractor or to the Surety, that is suffi- cient compliance. 6 When the Claimant has satisfied the conditions of Paragraph 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 after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed. 6.2 Pay or arrange for payment of any undisputed amounts. 7 The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this [fond 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 perfor- mance of the Construction Contract and to satisfy claims, if any, under any Construction Performance Bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and the Surety under this Bond, subject to the Owner's prior- ity 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 are unrelat- ed to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claim- ant under this Bond, and shall have under this Bond no obli- gations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond. 10 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations, 11 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent juris- diction in the location in which the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last labor or service was performed by anyone or the last mate- rials or equipment were furnished by anyone under the Con - struction Contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the Tninimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 12 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be sufficient 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 deleted herefrom and provisions con- forming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this AIA DOCUMENT A312 • PWORMANCE BOND AND PAYMENT BOND • DEC €MBER 1484 ED.. AIA THE AMERICAN INSTITUTE Of ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINCTO^t, D.C. 200x16 A312 -1984 5 THIRD PRINTING " MARCH 1987 Bond shall be construed as a statutory bond and not as a common law bond. 14 upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be mane. 15 DEFINITIONS 15.1 Claimant: An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equip - ment for use in the performance of the Contract. The intent of this Bond shall be to include without limita- tion in the terms "labor, materials or equipment " that part of water, gas, power, light, heat, oil, gasoline, telephone service~ or rental equipment used in the MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: Paragraph 5 is deleted in its entirety. Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. 15.2 Construction Contract: The agreement between the Owner and the Contractor identified on the sig- nature page, including all Contract Documents and changes thereto. 15.3 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Con- tractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. Paragraph 6 is deleted in its entirety and replaced with the following: 6. When the Surety has received Notice as required in Paragraph 4 above, the Surety shall take the following action; 6.1) Send an acknowledgment letter to the claimant, with a copy to the Owner, requesting information and documentation necessary to investigate the claim. 6.2) As soon as reasonably practical under all circumstances, and after having received the requested documentation from the claimant, including a properly executed Affidavit of Claim, advise the claimant of the status of the claim. No provision of this bond shall be interpreted to waive or discharge any right or defense of the Surety or the Contractor_ No action or failure to act by the Surety or the Contractor shall be considered to be an admission of liability or a waiver of the Contractor or Surety's right to dispute a claim in whole or in part. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Marne and Title: Address: Signature: Name and Title: Address: A1A DOCUMENT A312 - PERFORMANCE BOND AND PAYMENT BOND - DECEMBER 14$4 ED_ • AiA 4k THE AMERICAN 1N5TITUTf Of ARCHITECTS, 1735 NEW YORK AVE., N.w., WASHINGTON, D.C. 2MO6 A312 -198 6 THIRD PRINTING * MARCH 1987 A e { General POWER NO. 4830252 01 Power Westfield Insurance Co. of attorney Westfield National Insurance Co. CERTIFIED COPY O hio Farmers Insurance Co. Westfield Center, Ohio Know All Men by These Presents, That WESTFIELD INSURANCE COMPANY, WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE COMPANY, corporations, hereinafter referred to individually as a "Company' and collectively as "Companies," duly organized and existing under the laws of the State of Ohio, and having its principal office in Westfield Center, Medina County, Ohio, do by these presents make, constitute and appoint RICHARD J. DE VRIES, TONI SCHINKE, STACEY L. RYAN, TIMOTHY R. NICKELS, PAMELA HANAGAN, JOINTLY OR SEVERALLY of APPLETON and State of WI its true and lawful Attorney(s) -in -Fact, with full power and authority hereby conferred in its name, place and stead, to execute, acknowledge and deliver any and all bonds, recognizances, undertakings, or other instruments or contracts of suretyship - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - -. LIMITATION: THIS POWER OF ATTORNEY CANNOT BE USED TO EXECUTE NOTE GUARANTEE, MORTGAGE DEFICIENCY, MORTGAGE GUARANTEE, OR BANK DEPOSITORY BONDS. and to bind any of the Companies thereby as fully and to the same extent as if such bonds were signed by the President, sealed with the corporate seal of the applicable Company and duly attested by its Secretary, hereby ratifying and confirming all that the said Attorney(s) -in -Fact may do in the premises. Said appointment is made under and by authority of the following resolution adopted by the Board of Directors of each of the WESTFIELD INSURANCE COMPANY, WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE COMPANY: "Be It Resolved, that the President, any Senior Executive, any Secretary or any Fidelity & Surety Operations Executive or other Executive shall be and is hereby vested with full power and authority to appoint any one or more suitable persons as Attorney(s) -in -Fact to represent and act for and on behalf of the Company subject to the following provisions: The Attorney -in -Fact. may be given full power and authority for and in the name of and on behalf of the Company, to execute, acknowledge and deliver, any and all bonds, recognizances, contracts, agreements of indemnity and other conditional or obligatory undertakings and any and all notices and documents canceling or terminating the Company's liability thereunder, and any such instruments so executed by any such Attorney -in -Fact shall be as binding upon the Company as if signed by the President and sealed and attested by the Corporate Secretary." "Be it Further Resolved, that the signature of any such designated person and the seal of the Company heretofore or hereafter affixed to any power of attorney or any certificate relating thereto by facsimile, and any power of attorney or certificate bearing facsimile signatures or facsimile seal shall be valid and binding upon the Company with respect to any bond or undertaking to which it is attached." (Each adopted at a meeting held on February 8, 2000). In Witness Whereof, WESTFIELD INSURANCE COMPANY, WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE COMPANY have caused these presents to be signed by their Senior Executive and their corporate seals to be hereto affixed this 19th day of SEPTEMBER A.D., 2007 . w•o•W.y„� .•.•.u ONAk lute Corporate " sUfl.�� "•� ��i 'vrs2•• WESTFIELD INSURANCE COMPANY Seals �1,,....... ,C�. ;� ;`�P,.• 1sG; a� ij� WESTFIELD NATIONAL INSURANCE COMPANY Affixed v W► L. O ? O r p ; fly,.• 4 .1�,''� w hy State of Ohio County of Medina ss.: LL: SEAL : 'o � '`,111►RTF1lfp.3 OHIO FARMERS INSURANC COMPANY :• 1848 ...aiwa•• " •• � ,• By: Richard L. Kinnaird, Jr., Senior Executive On this 19th day of SEPTEMBER A.D., 2007 , before me personally came Richard L. Kinnaird Jr. to me known, who, being by me duly sworn, did depose and say, that he resides in Medina, Ohio; that he is Senior Executive of WESTFIELD INSURANCE COMPANY, WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE COMPANY, the companies described in and which executed the above instrument; that he knows the seals of said Companies; that the seals affixed to said instrument are such corporate seals; that they were so affixed by order of the Boards of Directors of said Companies; and that he signed his name thereto by like order. Notarial Seal t_ Affixed 9 . s • ' William J. Kahelin, A rney at Law, Notary Public State of Ohio k u► do My Commission Does Not Expire (Sec. 147.03 Ohio Revised Code) County of Medina ss.: y r 0 1� T o F I, Frank A. Carrino, Secretary of WESTFIELD INSURANCE COMPANY, WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE COMPANY, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney, executed by said Companies, which is still in full force and effect; and furthermore, the resolutions of the Boards of Directors, set out in the Power of Attorney are in full force and effect. In Witness Whereof, I have hereunto set my hand and affixed the seals of said Companies at Westfield Center, Ohio, this c2a day of A.D. IVsua,& p�y, 1f i Secretary Frank A. Carrino, ecret BPOAC2 (combined) (06 -02) %t1SRA . M -- = ' :C * SEAL S S _ * ; 1848 i Secretary Frank A. Carrino, ecret BPOAC2 (combined) (06 -02)