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HomeMy WebLinkAboutPW 09-07 Carl Bowers and Sonsi CONSTRUCTION CONTRACT THIS AGREEMENT, made on the 26th day of June, 2009, by and between the CITY OF OSHKOSH, party of the first part, hereinafter referred to as CITY, and CARL BOWERS & SONS CONSTR. CO. INC., N1844 Maloney Road, Kaukauna, WI 54130 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 Sawyer Creek Sanitary Interceptor and Water Main, Public Works Contract No. 09 -07, pursuant to Resolution 09 -233, adopted by the Common Council of the City of Oshkosh on the 23rd day of June, 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 $3,534,641.00, 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, payto 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 Contractor 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. 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: CONTRACTOR CARL BOWERS & SONS CONSTR. CO. INC. 1 _ By. V� J� (Seal of Contractor (Specify Title) if a Corporation.) By: (Specify Title) CITY OF OSHKOSH By:-,° ou M rk A. Rohloff, City Manager ( Wjt ness) co And: ( it ess) Pamela R. Ubrig, tity Cl 4k_ AP OVED: I hereby certify that the necess- ary provisions have been made to pay the liability which will accrue under this contract. ity AtfornW City Comp oiler 3 VI / UZ /ZVUZO IV:uu ran UZU3245U57 SIA INSURANCE SERVICES m THE POLICIES OF INSURANCE LISTED BCLOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OP ANY CONTRACT OR OTHER DOCUMENT WITH RE SPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DF- SOPMED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGG - kTE LIMIT allQMN MAY HAVE IS N R EDUCED INSR ADD'L INSR TYPE OF INSURANCE: POLICY NUMBER POLICY EFFECTIVE DATE MMiODIYY POLICY EXPIRATION DATE MM DDIM I,IMrr$ A GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY CLAIMS MADE OCCUR CC10700$91 4/1/2009 4/1/2010 -EACH OCCURRENOF S 1,000,400 DRMAdE TO RENTED SES $ 100 000 MEDEXP ( Any one arson $ 5,000 PERSO V INJURY $ 1,000,000 TE $ 2,000,000 GEN•L AGGREGATE LIMIT APPLIES PER R F OLICYL PRO- LOC $ 2,000,000 8 AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS CEA0 700590 4/1/2C09 4/1/2010 COMBINED SINGLE LIMiT (En pcddcnt) S 1,000,000 X BODILY INJURY (Per Parson) $ BODILY INJURY (Per accident) PROPERTY DAMAGE (Peratddwd) GARAGE LIABILITY ANY AUTO AUTO ONLY EA ACCIDENT � OTHER THAN EA ACC AUTO ONLY: A130 S B EXCESSRIMSRELLA LIABILITY OCCUR CLAIMS MADE p DEOUOTIBLE X RETENTION 14 OqQ CCU0700588 4/1/2009 4/1/2010 $ 5, 000, 000 AGGREGATE S 5, 0 00,000 $ A WORKERS COMPENSAMON AND EMPLOYERS' LIABILITY ANY PROPRIETORIPARTNERIEXECUTIVE OFFICEWMEMBEREXCLUDE07 11 yea,deserbe under SPECIAL PROVISIONS b CWC0700589 4/1/2C09 4/1/2(>10 E.L. EACH ACCIDENT $ 5O0 , 000 E.L. DISEASE• EA EMPLOYEES 500,000 E.L.-DISEASE - POLICY LIMIT S 500 OTHER DESCRIPTION OF OPERATION WLOCATIONS IVEHICLESIEXCLUSIONS ADDED BY ENDORSEMENTISPECIAL PROVISIONS The City of Oshkosh is add *d as an additional insured, n9 required by written contract, to the GOnOral Liability per CC 8102 with rospeot to work per£o=ned by the insured - Project: Contrast 09 -07 Concrete Paving /Utilities ;1;4 CITY OF OSHKOSH 215 Church Avenue Po Box 1130 Oshkosh, WS 54903 -1130 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRA'fFON DATE THEREOF, THE ISSUING INSURER WIL1, ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILUR)i TO DO SO SHALL IMPOSE NO 01JUGATION OR LIABILITY OF ANY KIND UPON THE AUTHORIZE? REPRESENTATIVE Dan Z arats ky AUUKU ea (ZUV11U0) (DACORO CORPORATION 1988 INS025 (010a).Oaa PagO 1 of 2 U1/.UZ�zuua iU:U6 IAX UZUSZ45U57 SIA INSURANCE SERVICES X002 M I M PQ RTAN'r if the - certificate holder is an ADDITIONAL INSURED, the poll ;y(les) must be endorsed. A statement on this certiflcate does not confer rights to the certificate holder in lieu of s ach endorsement(s). If SUBROGATION 15 WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s).. DISCLAIMER The Certificate of lnsuranct� on the reverse side of this form dons not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does It affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. PkCORD 25 (2001108) Page 2 of 2 INS025 tofoapaa * * * Bond # 1181465 ylr * PERFORMANCE BOND The American Institute of Architects, >k * * AIA Document No. A312 (December, 1984 Edition) * * Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): OWNER (Name and Address): Carl Bowers & Sons Construction Co, Inc City Clerk's Office - City of Oshkosh N1844 Maloney Road 215 Church Street, P O Box 1130 Kaukauna WI 54130 Oshkosh WI 54903.1130 CONSTRUCTION CONTRACT SURETY (Name and Principal Place of Business): Old Republic Insurance Company Date: June 26, 2009 Amount: $3,534,641 P0 Box 941 Brookfield WI 53008 -0941 Description (Name and Location): Public Works Contract No. 09 -07 - Sawyer Creek Sanitary Interceptor and Water Main BOND Date (Not earlier than Construction Contract Date): June 26, 2009 Amount: $3,534,641 Modifications to this Bond: ❑ See Page 2 CONTRACTOR AS PRINCIPAL Company. (Corporate Seal) Carl Bowers & Con tion Co, / J 7 Signature: `�? "esiQ 9 Name and Title: SURETY JO'c ;NS ..... Company: (Cc = ilEgL� s Old Republic Insurance Company * ' SYCVAMP Signature: Name and Title: Brady K Mayer - Power olalxmmey (Any additional signatures appear on page 2.) (FOR 1NFORMAT10N Only- Name, Address and Telephone) AGENT or BROKER: Vincent Group - PO Box 168 - Little Chute WI 54140 Phone: (920) 788 -3536 1 The Contractor and the Surety, jointly and severally, bind them- selves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 21f the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to par- ticipate 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 Surety at its address described in Paragraph 10 below that the Owner is con- sidering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor and the Surely 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 shalt be allowed a reasonable time to perform the Construction Con- tract, 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 Contra ctor's right t c omplete th c ontract. Su Contractor Default shall not be declared earlier than twenty days after the Contractor and Surety have received notice as provided in Subparagraph 3.1; and OWNER'S REPRESENTATIVE (Architect, Engineer or other part): 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 accordance with the terms of the contract with the Owner. 4 When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the Surety's expense 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 Construction Contract itself, through its agents or through independent contractors; or 4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and com- pletion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and the con tractor 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 excess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or ORSC 22119(10-93) Page 1 of 2 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 determined, tender payment therefor to the Owner, or .2 Deny liability in whole or in part and notify the Owner citing reasons therefor. 6 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 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 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 Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is obligated without duplication for: 6.1 The responsibilities of the Contractor for correction of defec- tive work and completion of the Construction Contract; 6.2 Additional legal design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Paragraph 4; and 6.3 Liquidated damages, or if no liquidated damages are speci- fied in the Construction Contract. actual damages caused by delayed performance or non - performance 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 Construction Contract and the Balance of the Contract Price shall not be reduced or setoff on account of any such unrelated obligations. No right of action shall MODIFiCATIONS TO THIS BOND ARE AS FOLLOWS: 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, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 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 Con- tractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever 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 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 signature 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 thts Bond conflicting with said statu- tory or legal requirement shall be deemed deleted herefrom and provisions conforming 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 Contractor 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, 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 Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform 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 Contractor 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 (Corporate Seal) SURETY (Corporate Seal) Company: Company: Address: Address: — - -- - -- - - - -- -- - - - - -- Name and Title: Name and Title: Signature: Signature: ORSC 22119 (10 -93) Page 2 of 2