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HomeMy WebLinkAbout10/1/09 Grand Opera House-Boldt-TR Karrels- Document A101 - 2007 Standard Form of Agreement Between Owner and Contractor where the basis of payment is a Stipulated Sum AGREEMENT made as of the 1st day of October in the year 2009 (In words, indicate day, month and year.) ADDITIONS AND DELETIONS: The author of this document has BETWEEN the Owner: added information needed for its OVame, legal status, address and other information) completion. The author may also have revised the text of the original City of Oshkosh AIA standard form. An Additions and 215 Church Avenue' Deletions Report that notes added P. 0. Box 1130 information as well as revisions to Oshkosh, Wl 54903 -1130 the standard form text is available from the author and should be and the Contractor: reviewed. A vertical line in the left (Name, legal status, address and other information) margin of this document indicates where the author has added The Boldt Company necessary information and where 2525 N. Roemer Road the author has added to or deleted P. O. Box 419 from the original AIA text. Appleton, WI 54912 This document has important legal consequences. Consultation with an for the following Project: attorney is encouraged with respect (Name, location and detailed description) to its completion or modification. AIA Document A201 T m - 2007, City of Oshkosh General Conditions of the Contract Oshkosh, Wisconsin for Construction, is adopted in this The Grand Opera House document by reference. Do not use 100 High Avenue with other general conditions unless Oshkosh, WI 54901 this document is modified. The Architect: (Name, legal status, address and other information) TR Karrels & Associates, S.C. 1934 Algoma Blvd. Oshkosh, WI 54901 The Owner and Contractor agree as follows. Init. AIA Document A101TM — 2007. Copyright ®1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This Al a Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the I maximum extent possible under the law. This document was produced by AIA software at 09:01:09 on 10/01/2009 under Order No.423687731 01 which expires on 09/10/2010, and is not for resale. User Notes: (793594993) 4 r OCT 0 6 2099 � 6 Init. AIA Document A101TM — 2007. Copyright ®1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This Al a Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the I maximum extent possible under the law. This document was produced by AIA software at 09:01:09 on 10/01/2009 under Order No.423687731 01 which expires on 09/10/2010, and is not for resale. User Notes: (793594993) TABLE OF ARTICLES 1 THE CONTRACT DOCUMENTS 2 THE WORK OF THIS CONTRACT 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 4 . CONTRACT SUM 5, PAYMENTS 6' DISPUTE RESOLUTION 7 . TERMINATION OR SUSPENSION 8 MISCELLANEOUS PROVISIONS 9 ENUMERATION OF CONTRACT DOCUMENTS 10 INSURANCE AND BONDS ARTICLE 1 THE CONTRACT DOCUMENTS The Contract Documents:; consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement, all of which form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Contract Documents, other than a Modification, appears in Article 9. ARTICLE 2 THE WORK OF THIS CONTRACT The Contractor shall fully execute the Work described in the Contract Documents, except as specifically indicated in the Contract Documents to be the responsibility of others. ARTICLE 3 DATE OF COMMENCEMENT,AND SUBSTANTIAL COMPLETION § 3.1 The date of commencement of the Work shall be the date of this Agreement unless a different date is stated below or provision is made for the date to be fixed in a notice to proceed issued by the Owner. (Insert the date of commencement if it differs from the date of this Agreement or, if applicable, state that the date W11 be fixed in a notice to proceed:) Date to be fixed in Owner provided Notice to Proceed If, prior to the commencement of the Work, the Owner requires time to file mortgages and other security interests, the Owner's time requirement shall be as follows: I N/A § 3.2 The Contract Time shall be measured from the date of commencement. § 3.3 The Contractor shall achieve Substantial Completion of the entire Work not later than 179 ( ) days from the date of commencement, or as follows: (Insert number of calendar days. Alternatively, a calendar date may be used when coordinated with the date of commencement. If appropriate, insert requirements for earlier Substantial Completion of certain portions of the Work.) Ink Institute Document WIT" — 2007. Copyright 01915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 2 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:01:09 on 1010112009 under Order No.4236877310 1 which expires on 09/10/2010, and is not for resale. User Notes: (793594993) Portion of Work Substantial Completion Date subject to adjustments of this Contract Time as provided in the Contract Documents. (Insert provisions, if any, for liquidated damages relating to failure to achieve Substantial Completion on time or for bonus payments for early completion of the Work.) No Liquid Damages ARTICLE 4 CONTRACT SUM § 4.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's performance of the Contract. The Contract Sum shall be One Million Three Hundred Seventy Nine Thousand and 00/100 Dollars ($ 1,379,000 ), subject to additions and deductions as provided in the Contract Documents. § 4.2 The Contract Sum is based upon the following alternates, if any, which are described in the Contract Documents and are hereby accepted by the Owner: (State the numbers or other identification of accepted alternates. If the bidding or proposal documents permit the Owner to accept other alternates subsequent to the execution of this Agreement, attach a schedule of such other alternates showing the amount for each and the date when that amount expires) Base Bid $1,529,000 Alternate #2 Remove Work Associated with Wood Soffits Deduct $150,000 Total Contract with deduct Alternate 92 = $1,379,000 (See Exhibit A for other Possible Alternates) § 4.3 Unit prices, if any: (Identify and state the unit price; state quantity limitations, if any, to which the unit price will be applicable) Item Units and Limitations Price Per Unit ($0.00) i None § 4.4 Allowances included in the Contract Sum, if any: (Identify allowance and state exclusions, if arty, from the allowance price.) Item Price None ARTICLE `5 PAYMENTS § 5.1 PROGRESS PAYMENTS § 5.1.1 Based upon Applications for Payment submitted to the Architect by the Contractor and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents. § 5.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, § 5.1.3 Provided that an Application for Payment is received by the Architect not later than the 10th day of a month, the Owner shall make payment of the certified amount to the Contractor not later than the 10th day of the following month. If an Application for Payment is received by the Architect after the application date fixed above, payment shall be made by the Owner not later than 30 ( ) days after the Architect receives the Application for Payment. (Federal, state or local laws may require payment within a certain period of time.) Init. AIA Document A101 TM — 2007. Copyright ®1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and Intemational Treaties. Unauthorized 3 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 09:01:09 on 10/0112009 under Order No.4236877310_1 which expires on 09/10/2010, and is not for resale. User Notes: (793594993) § 5.1.4 Each Application for Payment shall be based on the most recent schedule of values submitted by the Contractor in accordance with the Contract Documents. The schedule of values shall allocate the entire Contract Sum among the various portions of the Work. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Contractor's Applications for Payment. § 5.1.5 Applications for Payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. § 5.1.6 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: .1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Contract Sum allocated to that portion of the Work in the schedule of values, less retainage of five percent ( 5 %). Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included as provided in Section 7.3.9 of AIA Document A201T -2007, General Conditions of the Contract for Construction; .2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing), less retainage of five percent( 5 %); 3 Subtract the aggregate of previous payments made by the Owner; and 4 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 9.5 of AIA Document A201 -2007. §5.1.7 The progress payment amount determined in accordance with Section 5.1.6 shall be further modified under the following circumstances: 1 Add, upon Substantial Completion of the Work, a sum sufficient to increase the total payments to the full amount of the Contract Sum, less such amounts as the Architect shall determine for incomplete Work, retainage applicable to such work and unsettled claims; and (Section 9.8 S ofAL4 Document A201-2007 requires release of applicable retainage upon Substantial Completion of Work with consent of surety, if arty.) .2 Add, if final completion of the Work is thereafter materially delayed through no fault of the Contractor, any additional amounts payable in accordance with Section 9.10.3 of AIA Document A201 =2007. § 5.1.8 Reduction or limitation of retainage, if any, shall be as follows: (If it is'intende4 prior to Substantial Completion of the entire Work, to reduce or limit the retainage resulting from the percentages inserted in Sections 5.1.61 and 5.1, 6.2 above, and this is not explained elsewhere in the Contract Documents, insert here provisions for such reduction or limitation.) No Additional Retainage to be Held @ 50% Completion § 5.1.9 Except with the Owner's prior approval, the Contractor shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. 5.2 FINAL PAYMENT § 5.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when 1 the Contractor has fully performed the Contract except for the Contractor's responsibility to correct Work as provided in Section 12.2.2 of AIA Document A201 -2007, and to satisfy other requirements, if any, which extend beyond final payment; and c2 a final Certificate for Payment has been issued by the Architect. § 5.2.2 The Owner's final payment to the Contractor shall be made no later than 30 days after the issuance of the Architect's final Certificate for Payment, Init AIA Document A101 TO — 2007. Copyright ®1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document Is protected by U.S. Copyright Law and Intemational Treaties. Unauthorized 4 reproduction or distribution of this AIA Document, or any portion of It may result in severe civil and criminal penalties, and will be prosecuted to the t maximum extent possible under the law. This document was produced by AIA software at 09:01:09 on 10/01/2009 under Order No.423687731 01 which expires on 09/1012010, and is not for resale. User Notes: (793594993) 2 7 -16 -09 18 3 7 -23 -09 65 4 7 -27 -09 9 Portions of Addenda relating to bidding requirements are not part of the Contract Documents unless the bidding requirements are also enumerated in this Article 9. § 9.1.7 Additional documents, if any, forming part of the Contract Documents: .1 .2 Other documents, if any, listed below: (List here any additional documents that are intended to form part of the Contract Documents. AIA Document A201 2007 provides that bidding requirements such as advertisement or invitation to bid, Instructions to Bidders, sample forms and the Contractor's bid are not part of the Contract Documents unless enumerated in this Agreement. They should be listed here only if intended to be part of the Contract Documents.) See Exhibit C ARTICLE 10 INSURANCE AND,BONDS The Contractor shall purchase and maintain insurance and provide bonds as set forth in City of Oshkosh Contractors Insurance and Bond Requirements (State bonding requirements, if any, and limits of liability for insurance required in Article I I of ALA Document A201-2007.) Type of insurance or bond Limit of liability or bond amount ($0.00) This Agreement entered` into as of the day and year first written above. AN 2_ 0 (Signature) C ONTR A TOR (Sig ture (Printed name and title) John M. Fitzpatrick Assistant City Manager/Director of Admin. Services I hereby certify that the necessary provisions have been made to pay the liability which will Y- ry acc nder this contr ac t. Pamela R.Ubri - 'City Clerk = &WY Comptroller PROV D ITY ATT RNEX 0914KOSH. WI Ink. AIA Document A101 2007. Copyright Q 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This Ale Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 7 reproduction or distribution of this Ale Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 09:01:09 on 10/01/2009 under Order No.4236877310_1 which . expires on 09/10/2010, and is not for resale. User Notes: (793594993) Wd,�I•��:b 604Zitrz16 "�F?'k?�45 alkt G 906Or"°'lbuiure� �oo� asr�oH.�,,ado v�� =go5owl�wr r�0otimaaue�aos�wo,dt�an,�as'4� �,s d° Grand Opera House Exhibit C - Other Documents 9.1.7.2 Other Documents: 09/25/09 a. 004113 Bid Form — Stipulated sum (single — prime contract), submitted by Boldt Construction. b. 002113 Instructions to Bidders bound in specification. c. City of Oshkosh contractor's insurance & bond requirements bound in specification. d. Prevailing Wage Rates determination #200901246 issued 7/16/09. 1 of 1 AIA Document A201 -2007 Supplementary Conditions to AIA Document A201 -2007 (61�Ft- C.. cz�jDlnCMs� The following supplements modify, delete from and add to the General Conditions of the Contract for Construction AIA Document A201 -2007. ARTICLE 1. GENERAL PROVISIONS Change 1.1.8 to read "The Initial Decision Maker shall be the Architect." Add 1.2.3.1 as follows: "1.2.3.1 — In general, the Drawings are intended to nominate and establish the location, quantity and relationship of work, and the Specifications are intended to define the type and quality of materials and workmanship requirements of the work shown. In cases of conflict between the Drawings and Specifications or with either, the Contractor shall submit prompt request for direction before proceeding. The requirements for the greatest quantity or the highest quality shall govern unless otherwise directed." Add 1.2.3.2. as follows: "1.2.3.2 When a requirement is made by the Contract Documents that is not possible to meet, such as the requirements for an unavailable material, the Contractor shall submit prompt notice to the Architect for direction under Article 4.2.1." ' Add 1.2.4 as follows: "1.2.4 Before ordering any material or doing any work, each contractor shall verify all measurements and conditions, existing and new, at the jobsite and be responsible for the correctness of the same. ARTICLE 2 OWNER Delete 2.1.2 in its entirety. Delete 2.2.1 in its entirety. Delete 2.2.3 in its entirety Add 2.5 as follows: "2.5.1 The Contractor shall keep full and accurate records of all costs incurred and items billed in connection with the performance of the Work, including records of subcontractors, which records shall be open to inspection by the authorized representative of the Owner or the Owner during the performance of the Work and for three years after Final Payment." ARTICLE 3 CONTRACTOR Add 3.1.1.1 as follows: "The Contractor is responsible for determining that all of the Contractor's subcontractors are duly licensed in accordance with the federal, state and local licensing laws." Add 3.4.2.1 as follows: "3.4.2.1 By making requests for substitutions as provided above, the Contractor represents that the Contractor has personally investigated the proposed substitute and determined that it is equal or superior in all respects to that specified, represents that the Contractor will provide the same warranty for the substitution that the Contractor would for that specified; and waives all claims for additional costs related to the substitution that subsequently become apparent; and will coordinate the installation of the accepted substitute, making such changes as may be required for the Work to be completed in all respects." Change 3.7.3 to read `,`If the Contractor performs Work that the Contractor knows or reasonably should know to be contrary to applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, the Contractor shall assume appropriate responsibility for such Work and shall bear the costs attributable to correction. 3.7.4 Change "21 days" to "7 business days ". ARTICLE 4 — ADMINISTRATION TO THE CONTRACT §4.2.13 Change "Architect's" to "Owner's" ARTICLE 5 — SUBCONTRACTORS Delete 5.2.3 the second and third sentences. ARTICLE 6 — CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 6.1.4 Omit the reference to Article 11. 6.3. Omit the words "the Architect ". ARTICLE 7 — CHANGES IN THE WORK Add to §7.3.3 Change Orders affecting contract price shall be approved by the Common Council. Delete last sentence of 7.3.9 G944D .?' 1, Z-1, 07 ARTICLE 8 — TIME 8.3.1 Add the following sentence. "The Contractor shall give the Owner written notice of any delay, including delay caused by the Architect, as soon as possible but in any event within seventy two (72) hours of the beginning of the delay." Omit 8.3.3 in its entirety. ARTICLE 9 — PAYMENTS AND COMPLETION 9. 1.1 add "with supplemental conditions" after "AIA Document A101- 2007" 9.1.2 add "with supplemental conditions" after "AIA Document A101- 2007" 9.1.3 Identify these Supplementary Conditions Delete 9.1.7.1 Delete 9.3.1.1 Delete 9.10.4 ARTICLE 10 — PROTECTION OF PERSONS AND PROPERTY Modify 10.3.4 to read "The Owner shall not be responsible for materials and substances brought to the site by the Contractor." ARTICLE 11 — INSURANCE AND BONDS Modify 11.1.1 to read "The Contractor shall abide by the Document `City of Oshkosh Contractor's Insurance and Bond Requirements'." Delete 11. 1.2 in its entirety. Delete everything after the first sentence in 11.1.3 Modify 11.3.1 to read "Contractor shall provide insurance as required in the Document `City of Oshkosh Contractor's Insurance and Bond Requirements'. Insurance shall have a maximum deductible amount of $5000 or less. Contractor shall be responsible to pay any claims or portion thereof within deductible limits. " Delete 11.3.1.1, 11.3.1.2, 11.3.1.4, and 11.3.1.5 in their entirety. Change "Owner" to "Contractor" in 11.3.1.3 � D `/F 5 Delete 11.3.3, 11.3.4, 11.3.5, 11.3.6, 11.3.7, 11.3.8, 11.3.9 and 11.3.10 in their entirety. 11.4.1 and 1 1.4.2 shall be amended to read: "11.4 The Contractor shall furnish performance and payments bonds covering faithful performance of the Contract and payment of the obligations arising thereunder. Bonds must be obtained through companies licensed to do business in the State of Wisconsin and the cost thereof shall be included in the Contract Sum. The amount of each bond shall be equal to 100 percent of the Contract Sum." ARTICLE 12 — UNCOVERING AND CORRECTION OF WORK Delete 12.2.2.3 in its entirety. ARTICLE 13 — MISCELLANEOUS PROVISIONS Modify 13.1 to read "The Contract shall be governed by the law of the State of Wisconsin." In § 13.2.1 delete the phrase "Except as provided in Section 13.2.2" Delete 13.2.2 Delete 13.7 ARTICLE 14 — TERMINATION OR SUSPENSION OF THE CONTRACT Delete 14.1.1.4 Modify 14.1.3 to read "If one of the reasons described in Section 14.1.1 or 14.1.2 exists, the Contractor may, upon seven days' written notice to the Owner and Architect, terminate the Contract and recover from the Owner for payment for Work executed, including reasonable overhead and profit." In Section 14.2.1 delete the word "repeatedly" from subparagraphs .1 and .3 14.2.2 Delete the phrase "upon certification by the Initial Decision Maker that sufficient cause exists to justify such action" from the first sentence." 14.4.3 Delete the phrase "on the Work not executed." ARTICLE 15 - CLAIMS AND DISPUTES 15.1.2 Change both "21 days" to "14 calendar days ". 15.2: Change numbered clause (3) to read: "forward the claim to Owner with a recommendation that the claim be approved ". 15.2.3 Add this sentence to the end of the paragraph: "The Owner may consider but is not required to authorize the retention of additional persons with expertise if requested under this paragraph." 15.2.4 Change the last sentence to read: "Upon receipt of the response or supporting data, if any, the Architect will either reject the claim or forward the Claim to the owner with recommendation that the claim be approved in whole or part." 15.2.5 Change the first sentence to read: "The Architect will evaluate claims by written decision and notify parties of any recommended changes to Contract Sum or Contract Time or both. Delete 15.4 Arbitration and all of its subparts. THE AMERICAN INSTITUTE OF ARCHITECTS r aw . Zf 3 originals Bond No. 105247295 AIA Document A312 Performance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): The Boldt Company 2525 N Roemer Road, PO Box 419 Appleton, WI 54912-0419 OWNER (Name and Address): City of Oshkosh 215 Church Avenue Oshkosh, WI 54903 CONSTRUCTION CONTRACT Date: August 28, 2009 Amount: $1,379,000.00 One Million Three Hundred Seventy Nine Thousand Dollars and 00/100 Description (Name and Location): Purchase Order No. 0000112517, Roof / Attic Framing Repair & Fire Protection System - The Grand Opera House BOND Date (Not earlier than Construction Contract Date): September 1, 2009 Amount: $1,379,000.00 One Million Three Hundred Seventy Nine Thousand Dollars and 00/100 Modifications to this Bond: ® None ❑ See Page 3 CONTRACTOR AS PRINCIPAL Company: The Boldt Company SURETY (Corporate Seal) Company: (Corporate Seal) Signature: r' Name and Title: Jeff Johnson VP - HR and Risk Management SURETY (Name and Principal Place of Business): Travelers Casualty and Surety Company of America One Tower Square Hartford, CT 06183 Travelers Casualty and Surety Company of America 01 S�Rfry Signature: Name and Title:Toni chinke Nt + Attorney -in -Fact �1 CONN. (Any additional signatures appear on page 3) (FOR INFORMATION ONLY- Name, Address and Telephone) OWNER'S REPRESENTATIVE (Architect, � 'F1her AGENT or BROKER: pa Willis T.R. Karrels & Associates City Center East, 122 E College Avenue (2nd floor) 1934 Algoma Blvd. Appleton, WI 54911 Oshkosh, WI 54901 920 739 -7711 AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312 -1984 9 THIRD PRINTING • MARCH 1987 T The Contractor and the Surety, jointty 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 under this Bond shall arise after; 3.1 The Owner has notified the Contractor and the Surely 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 per' form 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- clared 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 Surety 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 Surely 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 not 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 Ownerof 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.. a 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 the work 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- AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312- 1984 2 THIRD PRINTING. MARCH 1987 able to sureties as a defense in the jurisdiction of the suit shall be applicable. 10 Notice to the Surety, the Owner or the 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: AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND . DECEMBER 1984 ED. • AIA 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 i IIYYIf1• Bond No. 105247295 A1A Document A311 Labor and Material Payment Bond THIS BOND IS ISSUED SIMULTANEOUSLY WITH PERFORMANCE BOND IN FAVOR OF THE OWNER CONDITIONED ON THE FULL AND FAITHFUL PERFORMANCE OF THE CONTRACT KNOW ALL MEN BY THESE PRESENTS: that The Boldt Company (Hero insert 6A namo and address ortegal We of Contractor) 2525 N Roemer Road, PO Box 419 Appleton, WI 54912 -0419 as Principal, hereinafter called Principal, and, Travelers Casualty and Surety Company of America (Hero insert rut! namo and address or legal We of Surety) One Tower Square, Hartford, CT 06183 as Surety, hereinafter called Surety, are held and firmly bound unto City of Oshkosh (Hero insert h4 name and address or legal title of owner) 215 Church Avenue Oshkosh, WI 54903 as Obligee, hereinafter called Owner, for the use and benefit of claimants as hereinbelow defined, in the amount of One Million Three Hundred Seventy Nine Thousand Dollars and 00/100 (Here insert a sum equal to at Last ono-half of the contract price) Dollars ($ 1,379,000.00 for the payment whereof Principal and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, Principal has by written agreement dated August 28, 2009 , entered into a contract with Owner for (Here insert full nerve, address and description of prgocq Purchase Order No. 0000112517, Roof / Attic Framing Repair & Fire Protection System - The Grand Opera House in accordance with Drawings and Specifications prepared by T.R. Karrels & Associates (Here insert rut! aamo and address or legal tine of Ami tact) 1934 Algoma Blvd. Oshkosh, WI 54901 which contract is by reference made a part hereof, and is hereinafter referred to as the Contract. AtA DOCUMENT A311 • PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND • AIA 0 FEBRUARY 1970 ED. • THE AMERICAN INSTITUTE Of ARCHITECTS, 1735 N.Y. AVE, N.W, WASHINGTON, D.C. 20006 Y LABOR AND MATERIAL PAYMENT BOND NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that if Principal shall promptly make payment to all claimants as hereinafter defined, for all labor and material used or reasonably required for use in the performance of the Contract, then this obligation shall be void, otherwise it shall remain in full force and effect, subject, however, to the following conditions: 1. A claimant is defined as one having a direct contract with the Principal or with a Subcontractor of the Principal for labor, material, or both, used or reasonably required for use in the performance of the Contract, labor and 'material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the Contract 2. The above named Principal and Surety hereby jointly and severally agree with the Owner that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which the last of such claimants work or labor was done or performed, or materials were furnished by such claimant, may sue on this bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon. The owner shall not be liable for the payment of any costs or expenses of any such suit 3. No suit or action shall be commenced hereunder by any claimant: a) Unless claimant, other than one having a direct contract with the Principal, shall have given written notice to any two of the following: the Principal, the Owner, or the Surety above named, within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, or for whom the work or labor was done or performed. Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal, Owner or Surety, at any place where an office is regularly maintained for the transaction of business, or served in any manner in which legal process may be served in the state in which the aforesaid project is located, save that such service need not be made by a public officer. b) After the expiration of one (1) year following the date on which principal ceased Work on said Contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law. c) Other than in state court of competent jurisdiction in and for the county or other political subdivision of the state in which the Project, or any part thereof, is situated, or in the United States District Court for the district in which the Project, or any part thereof, is situated, and not elsewhere. d. The amount of this bond shall be reduced by and to the extent of any payment or payments made in good faith hereunder, inclusive of the payment by Surety or mechanics' liens which may be filed of record against said improvement, whether or not claim for the amount of such lien be presented under and against this bond. Signed and sealed this 1 St day of September, 2009. ATTEST: The Boldt Company {PrinNpaA (Sea!) B' Jud Van S1 r ien (Witness) By: {Title) Jeff Johnson, VP - HR and Risk Management WITNESS: r Travelers Casualty and Surety Company of America �o pt� SUR�rt- ( (SUMW (S' 4 o � ....•••ta'�.�` By: Toni Schipke iue) Attorney -in -Fact u�mtiti�1� "�� ALA DOCUMENT A311 • PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND • AIA FEBRUARY 1870 ED. • THE AMERICAN INSTITUTE OFARCHITECTS,1735 N.Y. AVE, N.W, WASHINGTON, D.C. 20008 Z INVALID WITHOUT THE A61b, POWER OF ATTORNEY TRAVELERS Farmington Casualty Company St. Paul Guardian Insurance Company Fidelity and Guaranty Insurance Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company Attorney -In Fact No. 219965 Certificate No. 00306 KNOW ALL MEN BY THESE PRESENTS: That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York, that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, that Farmington Casualty Company, Travelers Casualty and Surety Company, and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies "), and that the Companies do hereby make, constitute and appoint Richard J. DeVries, Toni Schinke, Stacey L. Ryan, Timothy R. Nickels, Pamela L. Hanagan, Judy M. VerVoort, Trisha Kasper, and Troy Carlson of the City of Appleton , State of Wisconsin , their true and lawful Attorney(s) -in -Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or perxntfted in any a "crions or proceedings allowed by law. IN WITNESS WHEREOF, the Coies have caused this instrument to be stgned and their corporate seals to be hereto affixed, this 6t6th m May p L an 008 `l , f day of Farmington Casualty Company St. Paul Guardian Insurance Company Fidelity and Guaranty`Tnsurance Company ` ` St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance'`Underwr "ers, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company G�SU,� ^jURETy F1FE��4 u N IN •••' S N .. ` QTY AN MvM <�• u Y y � �* Sv a+ Ry .•• O" o N"°SUe� T�,STYA,ya �`j V , A y w 1TR4T� TL - m j(aORPOR•1 >t; 1W,'CoAPORATC .0 � 9 � 1982 0 ♦ j977 927 K = �: •ma ?f: .�= s HAarFOao, < wiRTFaw. � �cqS D O 1951 • SEAj. io`�j • °z CCNN, nOON.R y 1896 y........: a'rI v:.... i�A,.a A ' .� �'..+� 5........ r State of Connecticut City of Hartford ss. By: Georg Thompson, enJ. President On this the 6t11 day of May 2008 before me personally appeared George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. p.TET (� In Witness Whereof, I hereunto set my hand and official seal. C • ��V� My Commission expires the 30th day of June, 2011. � 'OtIBUG * Marie C. Tetreault, Notary Public 58440 -5 -07 Printed in U.S.A. WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUTTHE RED BORDER BOLDCOM -01 KATR ACORD OF LIABILITY INSURANCE DATE(MM1DD/YYYY) 8/3112009 PRODUCER (920) 739 -7711 Willis of Wisconsin, Inc. 122 E. College Avenue 9 P.O. Box 877 Appleton, WI 5491.2 -0877 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED The Boldt Company PO Box 419 Appleton, WI 54912 -0419 INSURER A: The Travelers Indemnity Company 25658 INSURER B: Travelers Property Casualty Company of 0282 INSURER c: Travelers Indemnity Company of America 5666 INSURER D: EACH OCCURRENCE INSURER E. PREMISES Eaoccurence CC)VFRAGES 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. SR LTR D'L INSRE P INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE M D POLICY EXPIRATION DATE IMMODIM LIMITS A GENERAL LIABILITY X COMMERCIALGENERALLIABILITY CLAIMS MADE FkI OCCUR X $500,000 Occurrence. Ded TC2K- CO- 3992B816 -IND -0 1/1/2009 1/112010 EACH OCCURRENCE $ 3,000,00 PREMISES Eaoccurence $ 500,000 MED EXP (Any one person) $ 10,00 PERSONAL & ADV INJURY $ 3 , 00 0,000 GENERAL AGGREGATE $ 3,000,00 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY F x — ]J PRO- ECT LOC PRODUCTS - COMP/OP AGG $ 3,000,00 B AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS VTJ- CAP- 3510A098 -TIL -09 1/112009 11112010 COMBINED SINGLE LIMIT (Ea accident) $ 2,000,000 X BODILY INJURY (Per person) $ X BODILY INJURY (Per accident) $ X PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC AUTO ONLY: AGG $ $ A EXCESS/UMBRELLA LIABILITY X OCCUR F_] CLAIMSMADE H x DE DUCTIBLE RETENTION $ 10,000 SMK- CUP- 3510A105 -IND 1/1/2009 1/1/2010 EACH OCCURRENCE $ 2,000,000 AGGREGATE $ 2, 000,000 $ $ $ `. WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETORIPARTNERIEXECUTIVE OFFICERIMEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below C2H- UB- 4688B552 -09 1/1/2009 11112010 X I WC STATU- OTH- TORY LIMITS I I ER E.L. EACH ACCIDENT $ 500 E.L. DISEASE - FA EMPLOYE 500 O $ , OO E.L. DISEASE - POLICY LIMIT $ 500,00 B B OTHER _ Workers Compensation Workers Compensation XJ- UB- 4986B487 -09 XJ- UB- 3512A762 -09 1/1/2009 1/1/2009 1/1/2010 1/1/2010 Oklahoma $500,000 Retention Wisconsin $500,000 Retention DESCRIPTION OF OPERATIONS / LOCATIONS /VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT/ SPECIAL PROVISIONS S ee attached page. �aGR11r�VI1rG nvLVGR t ANVCLLAI IUN SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION Oshkosh City Of DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 3 DAYS WRITTEN 215 Church Ave Oshkosh WI 54901 - 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 25 (2001/08) © ACORD CORPORATION 1988