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HomeMy WebLinkAboutPW CNT 10-03/Advance Construction, Inc CONSTRUCTION CONTRACT THIS AGREEMENT, made on the 10th day of February, 2010, by and between the CITY OF OSHKOSH, party of the first part, hereinafter referred to as CITY, ADVANCE CONSTRUCTION, INC., 2141 WOODALE AVE., GREEN BAY, WI 54313, 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 Public Works Contract 10 -03, USH 41 corridor utilities CTH K (20th Avenue), pursuant to Resolution 10 -40, adopted by the Common Council of the City of Oshkosh on the 9th day of February, 2010, 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 $224,317.00, 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, 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. The City's Approved Plans 3. Specifications, including any addenda 4. City of Oshkosh Standard Specifications 5. Instructions to Bidders 6. Advertisement for Bids 7. Contractor's Proposal The contract documents are complementary; what is required by one is as binding as if required by all. Before undertaking each part of the work, the Contractor shall carefully study and compare the Contract Documents and check and verify all pertinent figures and measurements required therein. Contractor shall promptly report in writing to the Engineer any conflict, error, ambiguity or discrepancy which Contractor may discover and shall obtain written clarification from the Engineer before proceeding with any work affected thereby. 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. 2 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. 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 ADVANCE CONTRUCTION, INC. BY: 1+ r (,Seal of Contractor (Specify Title) if a Corporatian By: (Specify Title) CITY OF OSHKOSH �/ By: 1-- '/( :��' M rk A. Rohloff, City anager (/' itness) r, ,. i j ► a a OA .. ..�..�- And: � • 4d (Witness) Pamela R. Ubrig, City C -rk APPROVED: I hereby certify that the necessary provisions have been made to pay the liability which will accrue " under contract. -City Attorrroy Ciptroller 3 ACORD,. CERTIFICATE OF LIABILITY INSURANCE DATE(MM1DLINTY" 02/19/10 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Safeguard Insurance Group ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 1142 Mountain Bay Plaza HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Pulaski, WI 54162 INSURERS AFFORDING COVERAGE . NAIC # INSURED A: WiISOn MUAAaI IIISUrafCe 19950 Advance Construction, Inc. T 2141 Woodale Ave. INSURER B: INSURER C: Green Bay, WI 54313 INSURER D: 1 INSURER E: 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 K3E 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 CLAI INSRKNY1.1 PQLIQYEFFECTIVE POLJCYEXPIRATION LTR WAD TYPFOFINWIRANCP POLICY NUMBER DATEfMMIDD1Y1Q OATFfMM/OWYr uIITT GENERAL LIABILITY - EACH OCCURRENCE $ 1,000,000 © COMMERCIAL GENERAL LIABILITY DAMAGETO RENTED PREMISES (Ea ticcurmrcl $ 50,000 A MI . CLAIM$MADE I X , OCCUR MED EXP (Any one parson} $ 5,000 II BC223691 6/18/2009 6/18/2010 PERSQNALLACV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000.000 '• GEM_ AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ 2,000,000 ' I POLICY � 1 ,71 7 LOC AUrOMOEULE LABILITY X ANY AUTO COMBINED � SINGLE LIMIT g 1,000,000 accide • ALL OWNED AUTOS , BODILY INJURY $ A A _. SCHEDULED AUTOS (Per person) y H,REDAUros CA223692 6/18/2009 6/18/2010 BODILY INJURY 3 NON -OWNED AUTOS (Per accident) • PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY- EA ACCIDENT S ANY AUTO EA OTHER THAN ACC 5 AUTO ONLY: AGG $ EYCESS)IIMBRELLA LIABILITY Eget., OCCURRENCE $ 7.000,000 X I OCCUR CLAIMS MADE AGGREGATE $ 7,000,000 A _ i CU223694 6/18/2009 6/18/2010 s DEDUCTIBLE $ RETENTION $ $ WORKERS COMPENSATION AND X TORYIIMITS Eft WC STATU- I OTH- EMPLOYERS'UABIUTY A ANY I'ROPRIETOR/PARTNERf67cEGUTIVE EL. EACH ACCIDENT $ 500,000 OFFICERMIEMBEREXCLUDEDT WC223693 6/15 /2009 6/18/2010 EL DISEASE - EAeMPLOYCe 5 500,000 Ryes. describe under SPECIAL PROVISIONS bd El. DISEASE - POLX)YLIMIT $ 500,000 A °T Installation Floater BC223691 6/18/2009 6/18/2010 $500,000 I I IDE$RIPTION OF OPERATIONS/ LOCATORS /VEHICLES! EXCLUSIONS ADDED BY ENDORSEIAENT! SPECIAL PROVISIONS City of Oshkosh, and its officers, council members, agents, employees and authorized volunteers. This does not apply to Worker's Compensation Policies. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES B$ CANCEU,ED BEFORE THE EXPIRATION Cla Of Oshkosh DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN City Hall NOTICE TO THE DERTIFTCATE HOLDER NAMED TO Tim LEFT, BUT FAILURG TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS 012 P.O. Box 1130 REPRES$NTATIVES. Oshkosh, WI 54903 -1130 AUTHORIZED R / ACORD 25 (2001/08) - @ ACORD CORPORATION 1988 CITY HALL 215 Church Avenue PO. Box 1 130 Oshkos 54903-1130 City of Oshkosh OfHKO/H City Attorney's Office Phone: (920) 236 -5115 Fax: (920) 236 -5106 http;//www.ci.oshkosh.wi.us February 19, 2010 Brian Wasilew VIA FACSIMILE: (920) 822 -2402 Safeguard Insurance Group 1142 Mountain Bay Drive Pulaski, WI 54162 Re: Insured - Advance Construction City of Oshkosh Contract 10 -03 Dear Mr. Wasilew: received a revised Certificate of Liability Insurance from you this morning. Thank you. This is being accepted with the understanding that there are no other, new changes or limitations / exclusions to the Insured's policy such as the GL -113 or similar endorsement based upon the City being identified as an additional insured. Thank you for your cooperation. Please contact me if you have any questions. Si7erely, IT`S If O: KOSH 1 David Praska Asst. City Attorney DJP:lz cc: Steve Gohde Pete Gulbronson 0 02/17/2010 13:02 FAX Q0001 * * ** **** * * *********** * ** TX REPORT **a ** * ** ***** ** * * *** ** TRANSMISSION OK TX /RX NO 0034 RECIPIENT ADDRESS 919208222402 DESTINATION ID ST. TIME 02/19 13:02 TIME USE 00'16 PAGES SENT 1 RESULT OK THE AMERICAN INSTITUTE OF ARCHITECTS 3 of 4 originals Bond No.1924502 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): SURETY (Name and Principal Place of Business): Advance Construction, Inc. The Hanover Insurance Company 2141 Woodale Avenue 333 West Pierce Road, Suite 300 Green Bay, WI 54313 Itasca, IL 60143 OWNER (Name and Address): City of Oshkosh 215 Church Avenue Oshkosh, WI 54903 CONSTRUCTION CONTRACT Date: February 10, 2010 Amount: (S 224,317.00 ) Two Hundred Twenty Four Thousand Three Hundred Seventeen Dollars and 00/100 Description (Name and Location):Public Works Contract 10 -03, USH 41 Corridor Utilities CTH K (20th Avenue) BOND Date (Not earlier than Construction Contract Date): February 10, 2010 Amount: ($224,317.00 ) Two Hundred Twenty Four Thousand Three Hundred Seventeen Dollars and 00 /100 Modifications to this Bond: ® None E II See Page 3 r CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: orporate Seal) Advance Const io , Inc. The Hanover lr ur.,1 e Comp: I �` I V 1 •. Signature: Signature: L . ��1AL ,1 Name and Title: Name and Ti e: Richard J. De r -s Attorney -in -Fact (Any additional signatures appear on page 3) (FOR INFORMATION ONLY —Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or 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 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, O.C. 20006 A312-1984 1 THIRD PRINTING • MARCH 1987 1 The Contractor and the Surety, jointly and severally, which it may be liable to the Owner and, as bind themselves, their heirs, executors, administrators, soon as practicable after the amount is deter - successors and assigns to the Owner for the performance mined, tender payment therefor to the of the Construction Contract, which is incorporated herein Owner; or by reference. .2 Deny liability in whole or in part and notify the 2 If the Contractor performs the Construction Contract, Owner citing reasons therefor. the Surety and the Contractor shall have no obligation 5 lithe Surety does not proceed as provided in Paragraph under this Bond, except to participate in conferences as 4 with reasonable promptness, the Surety shall be deemed provided in Subparagraph 3.1. to be in default on this Bond fifteen days after receipt of an 3 If there is no Owner Default, the Surety's obligation additional written notice from the Owner to the Surety under this Bond shall arise after: demanding that the Surety perform its obligations under this Bond.. and the Owner shall be entitled to enforce any 3.1 The Owner has notified the Contractor and the remedy available to the Owner. If the Surety proceeds as Surety at its address described in Paragraph 10 below provided in Subparagraph 4.4, arid the Owner refuses the that the Owner is considering declaring a Contractor payment tendered or the Surety has denied liability, in Default and has requested and attempted to arrange a whole or in part, without further notice the Owner shall be conference with the Contractor and the Surety to be entitled to enforce any remedy available to the Owner. held not later than fifteen days after receipt of such notice to discuss methods of performing the Construe- 6 After the Owner has terminated the Contractor's right tion Contract. 11 the Owner, the Contractor and the to complete the Construction Contract, and if the Surety Surety agree, the Contractor shall be allowed a reason - elects to act under Subparagraph 4.1, 4.2, or 4.3 above, able time to perform the Construction Contract, but then the responsibilities of the Surety to the Owner shall such an agreement shall not waive the Owner's right, if nut be greater than those of the Contractor under the any, subsequently to declare a Contractor Default; and Construction Contract, and the responsibilities of the 3.2 The Owner has declared a Contractor Default and Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the formally terminated the Contractor's right to complete amount of this Bond, but subject to commitment by the the contract. Such Contractor Default shall not be de- Owner of the Balance of the Contract Price to mitigation of stared earlier than twenty days after the Contractor and costs and damages on the Construction Contract, the Sure - the Surety have received notice as provided in Sub- ty is obligated without duplication for: paragraph 3.1; and 6.1 The responsibilities of the Contractor for correc- 3.3 The Owner has agreed to pay the Balance of the tion of defective work and completion of the Construc- Contract Price to the Surety in accordance with the tion Contract; terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accor- 6.2 Additional legal, design professional and delay dance with the terms of the contract with the Owner. costs resulting from the Contractor's Default, and re- sulting from the actions or failure to act of the Surety 4 When the Owner has satisfied the conditions of Para- under Paragraph 4; and graph 3, the Surety shall promptly and at the Surety's ex pense take one of the following actions: 6.3 Liquidated damages, or it no liquidated damages are specified in the Construction Contract, actual dam - 4.1 Arrange for the Contractor, with consent of the ages caused by delayed performance or non- perfor- Owner, to perform and complete the Construction mance of the Contractor. Contract; or 7 The Surety shall not be liable to the Owner or others for 4.2 Undertake to perform and complete the Construe- obligations of the Contractor that are unrelated to the Con- don Contract itself, through its agents or through inde- struction Contract, and the Balance of the Contract Price pendent contractors; or shall not be reduced or set off on account of any such 4.3 Obtain bids or negotiated proposals from unrelated obligations. No right of action shall accrue on qualified contractors acceptable to the Owner for a this Bond to any person or entity other than the Owner or contract for performance and completion of the Con- its heirs, executors, administrators or successors. struction Contract, arrange for a contract to be pre- 8 The Surety hereby waives notice of any change, includ- pared for execution by the Owner and the contractor ing changes of time, to the Construction Contract or to selected with the Owner's concurrence, to be secured related subcontracts, purchase orders and other obliga- with performance and payment bonds executed by a lions. qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the 9 Any proceeding, legal or 'equitable, under this Bond amount of damages as described in Paragraph 6 in ex- may be instituted in any court of competent jurisdiction in cess of the Balance of the Contract Price incurred by the the location in which the work or part of the work is located Owner resulting from the Contractor's default; or and shall be instituted within two years after Contractor 4,4 Waive its right to perform and complete, arrange Default or within two years after the Contractor ceased for completion, or obtain a new contractor and with working or within two years after the Surety refuses or fails reasonable promptness under the circumstances: to perforrn its obligations under this Bond, whichever oc- curs first. If the provisions of this Paragraph are void or .1 After investigation, determine the amount for prohibited by law, the minimum period of limitation avail- . . ALA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA •.3 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEw' YORK AVE., N.W., WASHINGTON, D C. 20005 A312 -1984 2 THIRD PRINTING • MARCH 1987 able to sureties as a defense in the jurisdiction of the suit tractor of any amounts received or to be received by shall be applicable. the Owner in settlement of insurance or other claims 10 Notice to the Surety, the Owner or the Contractor shall for damages to which the Contractor is entitled, re- be mailed or delivered to the address shown on the sig- behalf by all valid and c proper payments made to or on nature of the Contractor under the Construction Con - page. tract. 11 When this Bond has been furnished to comply with a 12.2 Construction Contract: The agreement between statutory or other legal requirement in the location where the Owner and the Contractor identified on the sig- the construction was to be performed, any provision in this nature page, including all Contract Documents and Bond conflicting with said statutory or legal requirement changes thereto. shall be deemed deleted herefrom and provisions con- forming to such statutory or other legal requirement shall 12.3 Contractor Default: Failure of the Contractor, be deemed incorporated herein. The intent is that this which has neither been remedied nor waived, to per - Bond shall be construed as a statutory bond and not as a form or otherwise to comply with the terms of the common law bond. Construction Contract. 12 DEFINITIONS 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Con - 12.1 Balance of the Contract Price: The total amount tractor as required by the Construction Contract or to payable by the Owner to the Contractor under the Construction perform and complete or comply with the other terms onstruction Contract after all proper adjustments thereof. have been made, including allowance to the Con- MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: (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: Signature: Name and Title: Name and Title: Address: 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 3 of 4 originals Bond No. 1924502 AIA Document A312 Payment Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY (Name and Principal Place of Business): Advance Construction, Inc. The Hanover Insurance Company 2141 Woodale Avenue 333 West Pierce Road, Suite 300 Green Bay, WI 54313 Itasca, IL 60143 OWNER (Name and Address): City of Oshkosh 215 Church Avenue Oshkosh, WI 54903 CONSTRUCTION CONTRACT Date: February 10, 2010 Amount: ($224,317.00 ) Two Hundred Twenty Four Thousand Three Hundred Seventeen Dollars and 00/100 Description (Name and Location): Public Works Contract 10 -03, USH 41 Corridor Utilities CTH K (20th Avenue) BOND Date (Not earlier than Construction Contract Date): February 10, 2010 Amount: ($ 224,317.00 ) Two Hundred Twenty Four Thousand Three Hundred Seventeen Dollars and 001100 Modifications to this Bond: ❑ None See Page b CONTRACTOR AS PRINCIPAL SURET 1 Company: (Corporate Seal) Company ' �� Cor ,Wrote Seal) z:: n Constructio zlnc. The Hanover 1 race Com��,. r : �– _ �- Signature: � .� _ /� .11r /� Name and Titl y y t is Name and Ti e: Richard J. es Attorney - in - Fa (Arty additional signatures appear an 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 !D THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312 -1984 4 THIRD PRINTING • MARCH 1987 • 1 The Contractor and the Surety, jointly and severally, 6 When the Claimant has satisfied the conditions of bind themselves, their heirs, executors, administrators, Paragraph 4, the Surety shall promptly and at the successors and assigns to the Owner to pay for labor, Surety's expense take the f ollowing actions: materials and equipment furnished for use in the perfor- mance of the Construction Contract, which is incorpo 6.1 Send an answer to the Claimant, with a copy to rated herein by reference. the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis 2 With respect to the Owner, this obligation shall be for challenging any amounts that are disputed. null and void if the Contractor: 6.2 Pay or arrange for payment of any undisputed 2.1 Promptly makes payment, directly or indirectly, amounts. for all sums due Claimants, and 7 The Surety's total obligation shall not exceed the 2,2 Defends, indemnifies and holds harmless the amount of this Bond, and the amount of this Bond shall be Owner from claims, demands, liens or suits by any credited for any payments made in good faith by the Surety. person or entity whose claim, demand, lien or suit is for the payment for labor, materials or equipment fur- 8 Amounts owed by the Owner to the Contractor under nished for use in the performance of the Construction the Construction Contract shall he used for the perfor- Contract, provided the Owner has promptly notified mance of the Construction Contract and to satisfy claims, the Contractor and the Surety (at the address if any, under any Construction Performance Bond. By described in Paragraph 12) of any claims, demands, the Contractor furnishing and the Owner accepting this liens or suits and tendered defense of such claims, Bond, they agree that all funds earned by the Contractor demands, liens or suits to the Contractor and the in the performance of the Construction Contract are Surety, and provided there is no Owner Default. dedicated to satisfy obligations of the Contractor and the Surety under this Bond, subject to the Owner's prior - 3 With respect to Claimants, this obligation shall be ity to use the funds for the completion of the work. null and void if the Contractor promptly makes pay- ment, directly or indirectly, for all sums due_ 9 The Surety shall not be liable to the Owner, Claimants 4 The Surety shall have no obligation to Claimants or others for obligations of the Contractor that are unrelat- under this Bond until: ed to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claim - 4.1 Claimants who are employed by or have a direct ant under this Bond, and shall have under this Bond no obli- contract with the Contractor have given notice to the gations to make payments to. give notices on behalf of, or Surety (at the address described in Paragraph 12) and otherwise have obligations to Claimants under this Bond, sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and, with 10 The Surety hereby waives notice of any change, substantial accuracy, the amount of the claim. including changes of time, to the Construction Contract 4.2 Claimants who do not have a direct contract or to related subcontracts, purchase orders and other with the Contractor: obligations. .1 Have furnished written notice to the Con- 11 No suit or action shall be commenced by a Claimant tractor and sent a copy, or notice thereof, to under this Bond other than in a court of competent juris- the Owner, within 90 days after having last diction in the location in which the work or part of the performed labor or last furnished materials or work is located or after the expiration of one year from the equipment included in the claim stating, with date (1) on which the Claimant gave the notice required by substantial accuracy, the amount of the claim Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last and the name of the party to whom the labor or service was performed by anyone or the last mate - materials were furnished or supplied or for rials or equipment were furnished by anyone under the Con - whom the labor was done or performed; and struction Contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, .2 Have either received a rejection in whole or the minimum period of limitation available to sureties as a in part from the Contractor, or not received defense in the jurisdiction of the suit shall be applicable. within 30 days of furnishing the above no- tice any communication from the Contractor by which the Contractor has indicated the 12 Notice to the Surety, the Owner or the Contractor claim will be paid directly or indirectly; and shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the .3 Not having been paid within the above 30 Owner or the Contractor, however accomplished, shall days, have sent a written notice to the Surety be sufficient compliance as of the date received at the (at the address described in Paragraph 12) and address shown on the signature page. sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this 13 When this Bond has been furnished to comply with a Bond and enclosing a copy of the previous statutory or other legal requirement in the location where written notice furnished to the Contractor. the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement 5 If a notice required by Paragraph 4 is given by the shall be deemed deleted herefrom and provisions con - Owner to the Contractor or to the Surety, that is suffi- forming to such statutory or other legal requirement shall cient compliance. be deemed incorporated herein. The intent is that this AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • Ai/0 THE AMERICAN INSTITUTE Of ARCHITECTS, 1735 NEw YORK AVE., N.W . WASHINGTON, DC. 20006 A312 -1984 5 THIRD PRINTING • MARCH 1987 Bond shall be construed as a statutory bond and not as a Construction Contract, architectural and engineering common law bond. services required for performance of the work of the 14 Upon request by any person or entity appearing to be a Contractor and the Contractor's subcontractors, and ail other items for which a mechanic's lien may be potential beneficiary of this Bond, the Contractor shall asserted in the jurisdiction where the labor, materials promptly furnish a copy of this Bond or shall permit a copy or equipment were furnished. to be made. 15 DEFINITIONS 15.2 Construction Contract: The agreement between the Owner and the Contractor identified on the sig- 15.1 Claimant: An individual or entity having a direct nature page, including all Contract Documents and contract with the Contractor or with a subcontractor of changes thereto. the Contractor to furnish labor, materials or equip- 15.3 Owner Default: Failure of the Owner, which has meat for use in the performance of the Contract. The neither been remedied nor waived, to pay the Con - intent of this Bond shall be to include without limits- tractor as required by the Construction Contract or to tion in the terms "labor, materials or equipment" that perform and complete or comply with the other terms part of water, gas, power, light, heat, oil, gasoline, thereof. telephone service or rental equipment used in the MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: Paragraph 6 above is deleted in its entirety and the following is substituted in its place: 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 60 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. 6.3 The Surety's failure to discharge its obligations under this Section shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a claim. However, if the Surety fails to discharge its obligations under Section 6, the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs to recover any sums found to be due and owing to the Claimant. (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: Signature: Nance and Title: Name and Title: Address: Address: MA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA THE AMERICAN INSTITUTE OF ARCHITEC2S, 1735 NEW YORK AVE., N.W., WASHINGTON. D.C. 20006 A312 -1984 6 THIRD PRINTING • MARCH 1987 Certified Copy Void Without Hanover Watermark This Power of Attorney may not be used to execute any bond with an inception date after August 1, 2010 THE HANOVER INSURANCE COMPANY MASSACHUSETTS BAY INSURANCE COMPANY CITIZENS INSURANCE COMPANY OF AMERICA POWERS OF ATTORNEY CERTIFIED COPY KNOW ALL MEN BY THESE PRESENTS: That THE HANOVER INSURANCE COMPANY and MASSACHUSETTS BAY INSURANCE COMPANY, both being corporations organized and existing under the laws of the State of New Hampshire, and CITIZENS INSURANCE COMPANY OF AMERICA, a corporation organized and existing under the laws of the State of Michigan, do hereby constitute and appoint Richard J. DeVries, Toni Schinke, Pamela L. Hanagan, Timothy R. Nickles and /or Stacey L. Ryan of Appleton, WI and each is a true and lawful Attorney(s) -in -fact to sign, execute, seal, acknowledge and deliver for, and on its behalf, and as its act and deed any place within the United States, or, if the following line be filled in, only within the area therein designated any and all bonds, recognizances, undertakings, contracts of indemnity or other writings obligatory in the nature thereof, as follows: Any such obligations in the United States, not to exceed Twenty Million and No /100 ($20,000,000) in any single instance and said companies hereby ratify and confirm all and whatsoever said Attorney(s) -in -fact may lawfully do in the premises by virtue of these presents. These appointments are made under and by authority of the following Resolution passed by the Board of Directors of said Companies which resolutions are still in effect: "RESOLVED, That the President or any Vice President, in conjunction with any Assistant Vice President, be and they are hereby authorized and empowered to appoint Attorneys -in -fact of the Company, in its name and as its acts, to execute and acknowledge for and on its behalf as Surety any and all bonds, recognizances, contracts of indemnity, waivers of citation and all other writings obligatory in the nature thereof, with power to attach thereto the seal of the Company. Any such writings so executed by such Attorneys -in -fact shall be as binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company in their own proper persons." (Adopted October 7, 1981 - The Hanover Insurance Company; Adopted April 14, 1982 - Massachusetts Bay Insurance Company; Adopted September 7, 2001 - Citizens Insurance Company of America) IN WITNESS WHEREOF, THE HANOVER INSURANCE COMPANY, MASSACHUSETTS BAY INSURANCE COMPANY and CITIZENS INSURANCE COMPANY OF AMERICA have caused these presents to be sealed with their respective corporate seals, duly attested by a Vice President and an Assistant Vice President, this 29th day of August, 2007. THE HANOVEI INSURANCE COMPANY MASSACHUSETTS BAY INSURANCE COMPANY e iii..4,,, ota., �1",q `r. _ cre2tw 1NCUflANCE COMPANY OP AMEtuc* u. am 6 u . 1 � tic «r7 kit Van Strionbur5h, V ra Proms dem ., . C 0,17 `..'✓9 I`,._ r - s.C..P1-2 _.. Robert K. G'ennan, Assistant Vice President THE COMMONWEALTH OF MASSACHUSETTS ) COUNTY OF WORCESTER ) ss. On this 29th day of August 2007, before me came the above named Vice President and Assistant Vice President of The Hanover Insurance Company, Massachusetts Bay Insurance Company and Citizens Insurance Company of America, to me personally known to be the individuals and officers described herein, and acknowledged that the seals affixed to the preceding instrument are the corporate seals of The Hanover Insurance Company Massachusetts Bay Insurance Company and Citizens Insurance Company of America, respectively, and that the said corporate seals and their signatures as officers were duly affixed and subscribed to said instrument by the authority and direction of said Corrpor NNW ►qk � :." / Now Notary Public My commission expires on November 3, 2011 I, the undersigned Assistant Vice President of The Hanover Insurance Company, Massachusetts Bay Insurance Company and Citizens Insurance Company of America, hereby certify that the above and foregoing is a full, true and correct copy of the Original Power of Attorney issued by said Companies, and do hereby further certify that the said Powers of Attorney are still in force and effect. This Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of The Hanover Insurance Company, Massachusetts Bay Insurance Company and Citizens Insurance Company of America. "RESOLVED, That any and all Powers of Attorney and Certified Copies of such Powers of Attorney and certification in respect thereto, granted and executed by the President or any Vice President in conjunction with any Assistant Vice President of the Company, shall be binding on the Company to the same extent as if all signatures therein were manually affixed, even though one or more of any such signatures thereon may be facsimile." (Adopted October 7, 1981 - The Hanover Insurance Company; Adopted April 14, 1982 Massachusetts Bay Insurance Company; Adopted September 7, 2001 - Citizens Insurance Company of America) GIVEN under my hand and the seals of said Companies, at Worcester, Massachusetts, this 1 D day of C�b C- lil. -si - � , 20 1D. THE HANOVER INSURANCE COME 4N MASSACHUSETTS BAY INSURANCE COMPANY CITIZENS INSURANCE COMPANY OF AWE =, Stepp { Brau, , A s stant Vic e Pres,t*tr7` Certified Copy Void Without Hanover Watermark J 8544