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HomeMy WebLinkAboutPW CNT 10-09 Miron Const . :, AGREEMENT o r\- -— /U q THIS AGREEMENT is dated as of the day of in the ` ..i tip h, S./ The City of Oshkosh (OWNER) and Miron Construction Co., Inc. (CONTRACTOR). � OWNER and CONTRACTOR, in consideration of the mutual covenants set forth herein, agree as follows: ARTICLE 1 - WORK _ 1.01. CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: Melvin Avenue Storm Water Pump Station ARTICLE 2 - PROJECT 2.01. The Project for which the Work under the Contract Documents may be the whole or only a part of is generally described as follows: Melvin Avenue Storm Water Pump Station — Contract 10 -09 for the City of Oshkosh, Wisconsin ARTICLE 3 - ENGINEER 3.01. The Project has been designed by AECOM (ENGINEER) who is to act as OWNER's representative, assume all — duties and responsibilities, and have the rights and authority assigned to ENGINEER in the Contract Documents in connection with completion of the Work in accordance with the Contract Documents. ARTICLE 4 - CONTRACT TIMES 4.01. Time is of the Essence A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for final payment as stated in the Contract Documents are of the essence of the Contract. 4.02. Dates for Substantial Completion and Final Payment A. The Work will be substantially completed on or before August 30, 2010, and completed and ready for final payment in accordance with Paragraph 14.07 of the General Conditions on or before October 31, 2010. 4.03. Liquidated Damages _ A. CONTRACTOR and OWNER recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not completed within the times specified in Paragraph 4.02 above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. The parties also recognize the delays, expense, and difficulties involved in proving in a legal or arbitration proceeding the actual loss suffered by OWNER if the Work is — not completed on time. Accordingly, instead of requiring any such proof, OWNER and C SST TOR agree that as liquidated damages for delay (but not as a penalty), CONTRACTO *Ea n 1 ,' 111 1$ for each day that expires after the time specified in Paragraph 4.02 for Substant 7 :.. ■ • or is s • II tially complete. OCA 122010 R \'q OFF`CE CONTRACT 10 -09 00520-1 C1 C� Oshkosh Storm PS-60145509 B. After Substantial Completion, if CONTRACTOR shall neglect, refuse, or fail to complete the remaining Work within the Contract Time or any proper extension thereof granted by OWNER, CONTRACTOR shall pay OWNER $100.00, for each day that expires after the time specified in Paragraph 4.02 for completion and readiness for final payment until the Work is completed and ready for final payment. C. In addition to liquidated damages set forth above, CONTRACTOR shall be liable for all additional costs for ENGINEER's services beyond substantial and final completion dates. OWNER will deduct these costs from any monies due or that may become due CONTRACTOR or Surety and pay ENGINEER for said services. 4.04. Permitting CONTRACTOR or Surety to continue and finish the Work or any part of the Work after the times specified for completion, or after the date to which the times for completion may have been extended, shall in 110 way operate as a waiver on the part of OWNER of its rights under the Contract. ARTICLE 5 - CONTRACT PRICE 5.01 OWNER shall pay CONTRACTOR for completion of the Work in accordance with the Contract Documents an amount in current -funds determined below: A. For all Work, a Lump Sum of: Three Million, Twenty Nine Thousand, Eight Hundred Sixty Dollars ($ 3,029,860.00 ) (use words) (numerals) B. OWNER accepts the following alternates as described in Section 01230 and indicated on the Bid Form and the Contract Price above includes the accepted alternate: Alternate 1 — Deduct for Pre- Planted Modular Vegetated Trays $ 38,140 ARTICLE 6 - PAYMENT PROCEDURES 6.01 Submittal and Processing of Payments A. CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed by ENGINEER as provided in the General Conditions. 6.02 Progress Payments; Retainage A. OWNER shall make monthly progress payments on account of the Contract Price on the basis of CONTRACTOR's Applications for Payment each month during performance of the Work as provided below. All progress payments will be measured by the schedule of values established as provided in paragraph 2.07.A of the General Conditions (and in the case of Unit Price Work based on the number of units completed) or, in the event there is no schedule of values, as provided in the General Requirements: 1. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below but, in each case, less the aggregate of payments previously made and less such amounts as ENGINEER may determine or OWNER may withhold, including but not limited to liquidated damages, in accordance with paragraph 14.02 of the General Conditions: a. 95% of the Work completed (with the balance being retainage) until 50% of Work has been completed. Remaining progress payments shall be in an amount equal to 100% of Work completed. Payments shall be made unless the ENGINEER certifies that the job is not proceeding satisfactorily. At 50% completion or any time thereafter when progress of the Work is not satisfactory, additional amounts may be retained but in no event shall the total retainage be more than 10% of the Work completed. CONTRACT 10 -09 00520 -2 Oshkosh Storm PS- 60145509 2. Upon Substantial Completion, the amount retained may be reduced. When the Work has been Substantially Completed, OWNER may make additional payments, less such amounts as Engineer shall determine in accordance with Paragraph 14.02.B.5 of the General Conditions and less an amount sufficient to cover the ENGINEER's estimated value of the work to be completed or corrected as shown on the tentative list of items to be completed or corrected attached to the certificate of Substantial Completion. 6.03 Final Payment A. Upon final completion and acceptance of the Work in accordance with Paragraph 14.07 of the General Conditions, OWNER shall pay the remainder of the Contract Price as recommended by ENGINEER as provided in said Paragraph 14.07. ARTICLE 7 - INTEREST 7.01 All moneys not paid when due as provided in Article 14 of the General Conditions shall bear interest at the maximum rate allowed by law at the place of the Project. ARTICLE 8 - CONTRACTOR'S REPRESENTATIONS 8.01 In order to induce OWNER to enter into this Agreement CON TRACTOR makes the following representations: A. CONTRACTOR has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents. B. CONTRACTOR has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. C. CONTRACTOR is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work. D. CONTRACTOR has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) which have been identified in the Supplementary Conditions as provided in Paragraph 4.02 of the General Conditions and (2) reports and drawings of a Hazardous Environmental Condition, if any, at the Site which has been identified in the Supplementary Conditions as provided in paragraph 4.06 of the General Conditions. E. CONTRACTOR has obtained and carefully studied (or assumes responsibility for having done so) all such additional or supplementary examinations, investigations, explorations, tests, studies, and data conceming conditions (surface, subsurface, and Underground Facilities) at or contiguous to the Site which may affect cost, progress, or performance of the Work or which relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to be employed by CONTRACTOR, including any specific means, methods, techniques, sequences, and procedures of construction expressly required by the Bidding Documents, and safety precautions and programs incident thereto. F. CON TRACTOR does not consider that any further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents. G. CONTRACTOR is aware of the general nature of work to be performed by OWNER and others at the Site that relates to the Work as indicated in the Contract Documents. H. CONTRACTOR has correlated the information known to CONTRACTOR, information and observations, obtained from visits to the Site, reports, and drawings identified in the Contract Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents. CONTRACT 10 -09 00520 -3 Oshkosh Storm PS- 60145509 I. CONTRACTOR has given ENGINEER written notice of all conflicts, errors, ambiguities or discrepancies that CONTRACTOR has discovered in the Contract Documents, and the written resolution thereof by ENGINEER is acceptable to CONTRACTOR. J. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. K. In connection with the performance of Work under this Contract, CONTRACTOR agrees not to discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition or developmental disability as defined in s. 51.01(5), Wisconsin Statutes or national origin. This provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training including apprenticeship. CONTRACTOR further agrees to take affirmative action to ensure equal employment opportunities for persons with disabilities. CONTRACTOR agrees to post in conspicuous places, available for employees and applicants for employment, notices setting forth the provisions of the nondiscrimination clause. Form of notice is included in the Appendix. ARTICLE 9 - CONTRACT DOCUMENTS 9.01 Contents A. The Contract Documents consist of the following: 1. This Agreement (pages 1 to 6, inclusive). 2. Performance Bond (pages 1 to 2, inclusive 3. Payment Bonds (pages 1 to 2, inclusive). 4. General Conditions (Pages 00700 -1 to 00700 -41, inclusive). 5. Supplementary Conditions (Pages 00800 -A1 to 00800 -A14, inclusive.) 6. Specifications as listed in the General Table of Contents of the Project Manual. 7. Drawings, consisting of a cover sheet and sheets numbered 1 through 54, inclusive, with each sheet bearing the following general title: Melvin Ave. Storm Water Pump Station, not attached hereto. 8. Addendum Number 1 dated February 23, 2010. 9. Wage Rates. 10. Appendix Forms and Drawings. 11. Federal, State, and Local Forms. 12. The following which may be delivered or issued after the Effective Date of the Agreement and are not attached hereto: a. Notice to Proceed; b. Work Change Directives; c. Change Order(s). CONTRACT 10 -09 00520 -4 Oshkosh Storm PS- 60145509 B. The documents listed in paragraph 9.01.A are attached to this Agreement (except as expressly noted otherwise above.) C. There are no Contract Documents other than those listed above in this Article 9. D. The Contract Documents may only be amended, modified or supplemented as provided in Paragraph 3.04 of the General Conditions. ARTICLE 10 - MISCELLANEOUS 10.01. Terms A. Terms used in this Agreement will have the meanings stated in the General Conditions and the Supplementary Conditions. 10.02. Assignment of Contract A. No assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.03. Successor and Assigns A. OWNER and CONTRACTOR each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 10.04 Severability A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and CONTRACTOR, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. CONTRACT 10 -09 00520 -5 Oshkosh Storm PS- 60145509 1N WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in triplicate. One counterpart each has been delivered to OWNER, CONTRACTOR, and ENGINEER. All portions of the Contract Documents have been signed or identified by OWNER and CONTRACTOR or on their behalf This Agreement will be effective on , 2010, (which is the effective Date of the Agreement). CONTRACTOR: Attest: Miro ,.., onstruction Co. I AM b3& Avier (Signature (Signs ) Address for giving notices: David G. Voss, Jr., Presid - nt (Typed Name and Title) 1471 McMahon Drive Neenah. WI 54956 (If CONTRACTOR is a corporation, attach evidence of authority to sign.) CONTRACTOR'S License No. (If required by state or municipal law) OWNER: /A: City of Oshkosh (OWNER) - eilil Ai ke-41-■ I I,/ A.--- .. (Signature) (Signature) Mark A. Rohloff, City Manager Address for giving notices: (Typed Name and Title) City Hall 215 Church Avenue P. O. Box 1130 Oshkosh. WI 54903 -1130 (If OWNER is a corporation, attach evidence of authority to sign. If OWNER is a public body, attach evidence of • authority to sign and resolution or other documents authorizing execution of Agreement.) Approved as to form and execution this day of I_. o... i 2010. J _+ A L. 4 ° - 1 i ( , . rney f. • •R) Countersigned By: l y C _ J / S :L"h, Comp ller (or other designated official) CONTRACT 10-09 00520 -6 Oshkosh Storm PS- 60145509 RESOLUTION Adopted at Board of Directors Meeting of December 30, 2002 be it resolved that David G. Voss, Jr., the President of the Corporation, is hereby authorized and empowered to execute contracts on behalf of the Corporation, and that this resolution shall continue in force and effect until modified or rescinded by subsequent action of the stockholders or of the Board of Directors of the Corporation. K --- - Tim Kippenhan,ce President MIRON CONSTRUCTION CO., INC. Attested By: 5a..(MKa� 1, State of Wisconsin County of Winnebago Subscribed and rn to before me this/7/ day of Wiffdh' , 2010 Notary Public,, `'% f� ylo. � . My Commission Expires: 01/22/2012 A COR D 4. TM r .. .. �,.. 04/14/10 �vv) PRODUCER HIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND Aon Ri sk Servi ces Central , Inc. ONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE Green Bay WI Office U OES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE 111 N. Washington Street, Suite 300 I. OLICIESBELOW. P. 0. Box 23004 Green Bay wI 54305 -3004 USA COMPANIES AFFORDING COVERAGE COMPANY Zurich American PHONE•(920) 437 -7123 FAX- (920) 431 -6345 A INSURED COMPANY L. Miron Construction Co., Inc. B P.O. BOX 509 COMPANY i . 111 APR 23 ZU1U NEENAH WI 54957 USA C fl L. g. COMPANY t 8 _.;, wxi „gym "a ".d� .., ::x .. ,.. tl,: te,"- ... �¢a m:- ='1�.. :5�}". °',°„ : �sl"-.t7 ..-.a ku4 � %��, 2.. ..X: 1 THIS IS TO CERTIFY THAT 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. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE ?OLICY EXPIRATION COVERED PROPERTY LIMITS LTR DATE ( MM/DD/YY) DATE (MM/DD/YY) PROPERTY - BUILDING CA USES OF LOSS PERSONAL PROPERTY - BASIC - BUSINESS INCOME - Extra Expense BROAD EXTRA EXPENSE - SPECIAL BLANKET BUILDING BLANKET PERS PROP EARTHQUAKE FLOOD BLANKET BLDG & PP — o A X INLAND MARINE MBR 5323142 -03 04/15/10 04/15/11 x Limit $75,000,000 TYP E OF POLICY Master Builders Risk Polic - SIR /Deductible $10,000 .. Builders Risk - CAUSES OF LOSS E - NAMED PERILS Z _ a> OTHER CRIME Z1 - TYPE OF POLICY BOILER & MACHINERY OTHER LOCATION OF PREMISES \ DESCRIPTION OF PROPERTY RE: MELVIN AVENUE STORM WATER PUMP STATION, OSHKOSH, WISCONSIN. ADDITIONAL INSURED ON THE BUILDERS RISK: THE CITY OF OSHKOSH AND ITS OFFICERS, COUNCIL MEMBERS, AGENTS, EMPLOYEES & AUTHORIZED VOLUNTEERS & AECOM. SPECIAL CONDITIONS / OTHER COVERAGES SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY OF OSHKOSH EXPIRATION DATE THEREOF THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 215 CHURCH STREET 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, OSHKOSH WI 54903 USA BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY k OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE g2 A 9p w n e O b � 'a' Uzi ; �� .... k.°' ... "'�� .°'.,. 3 +� ...,. -' - , . � s`_ 7 _ . :w , E ( 1 ,'w '" r ,„ r , u i� ,i8 off, r ,.. '.. ... t # x / � CORD � � _ 4 q ' � � ' DATE 03 W) PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Aon Risk Services Central, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Green Bay WI Office HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 111 N. Washington Street, Suite 300 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. P. 0. Box 23004 Green Bay WI 54305 - 3004 COMPANIES AFFORDING COVERAGE COMPANY Zurich American Ins Co i.: PHONE - (920) 437 - 7123 FAX - (920) 431 - 6345 A �, INSURED COMPANY Insurance Company of the State of PA e MIRON CONSTRUCTION CO., INC. B -o 1471 MCMAHON DRIVE COMPANY P 0 BOX 509 ..o NEENAH WI 54957 -0509 USA C O COMPANY D a rr a g eId P,,4'I t d tts ts f hP THIS IS TO CERTIFY THAT 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. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LIMITS SHOWN ARE AS REQUESTED CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS LTR DATE (MM/DD/YY) DATE (MM/DD/YY) ko 0 A GENERAL LIABILITY GLO 9259229 - 04/15/09 04/15/10 GENERALAGGREGATE 52,000,000 r GENERAL LIABILITY 6l © COMMERCIAL GENERAL LIABILITY PRODUCTS - COMP /OP AGG 52,000,000 NI oo ■ CLAIMS MADE © OCCUR PERSONAL & ADV INJURY $1,000,000 0 ■ OWNER'S & CONTRACTORS PROT EACH OCCURRENCE $1,000,000 N. © AGGREGATE PER PROJ FIRE DAMAGE(Anv one fire) $300,000 C X CONTRACTUAL LIAB MED EXP (Any one person) $10,000 Z d A AUTOMOBILE LIABILITY BAP 9259228 -02 04/15/09 04/15/10 R COMBINED SINGLE LIMIT 51,000,000 © U ANY AUTO BUSINESS AUTOMOBILE 4' L ■ ALL OWNED AUTOS BODILY INJURY U ■ SCHEDULED AUTOS (Per person) © HIRED AUTOS "R L" v , _ ` , r � t ,. BODILY INJURY © NON -OWNED AUTOS dated ' .10 4 (Per accident) ■ lA �.•1 � �V. " PROPERTY DAMAGE II GARAGE LIABILITY AUTO ONLY - EA ACCIDENT ■ ANY AUTO OTHER THAN AUTO ONLY °fir ( - EACH ACCIDENT AGGREGATE B EXCESS LIABILITY BE 23649353 04/15/09 04/15/10 EACH OCCURRENCE 510,000,000 © UMBRELLA FORM UMBRELLA LIABILITY AGGREGATE $10,000,000 ■ OTHER THAN UMBRELLA FORM Retained Limit Amoun 510,000 A WORKER'S COMPENSATION AND WC 9259230-02 04/15/09 04/15/10 X i OR RY ST LIM ATU ITS FR I I nTH =i k s- TO EMPLOYERS' LIABILITY WORKERS' COMPENSATION EL EACH ACCIDENT $5500, 000 THE PROPRIETOR/ ri INCL EL DISEASE- POLICY LIMIT $500, 000 PARTNERS /EXECUTIVE _ OFFICERS ARE EXCL EL DISEASE -EA EMPLOYEE $500,000 • 2 DESCRIPTION OF OPERATIONS /LOCATIONSNEHICLES/SPECIAL ITEMS RE: MELVIN AVENUE STORM WATER PUMP STATION, OSHKOSH, WISCONSIN. MIRON PROJECT #102210. ADDITIONAL INSURED ON THE GENERAL LIABILITY THE CITY OF OSHKOSH AND ITS OFFICERS, COUNCIL MEMBERS, AGENTS, EMPLOYEES & AUTHORIZED VOLUNTEERS & AECOM AS RESPECTS THE PROJECT NAMED ABOVE PER BLANKET ADDITIONAL INSURED ENDORSEMENT. - . te-; = ` , z..3`, . .. .' :. A : -- SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE CITY OF OSHKOSH EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 215 CHURCH STREET 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, S OSHKOSH WI 54903 USA BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY. ITS AGENTS OR REPRESENTATIVES. Il lgi AUTHORIZED REPRESENTATIVE Jiu4i..# e-�s�n A 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 Address of Principal Place of Business): Miron Construction Co., Inc. Continental Casualty Company 1417 McMahon Drive, Neenah, WI 54956 333 S. Wabash Ave. OWNER (Name and Address): Chicago, IL 60604 City of Oshkosh City Hall, 215 Church Avenue P. O. Box 1130 Oshkosh, WI 54903 -1130 CONTRACT Date: 3/15/10 Amount $3,029,860.00 . Description (Name and Location): Melvin Avenue Storm Water Pump Station BOND Bond Number: 929495008 Date (Not earlier than Contract Date): 3/15/10 Amount: $3,029,860.00 Modifications to this Bond Form: None. Surety and Contractor, intending to be legally bound hereby, subject to the terms printed on the reverse side hereof, do each cause this Performance Bond to be duly executed on its behalf by its authorized officer, agent, or representative. CONTRACTOR AS P ' 1 CIPAL SURETY Company: Miro I nstruction Co., • Signature: , _ / ,`21 I ‘e/YD ,_ '(Seal) Continental Casualty Company (Seal) Name and Ti e: David G. Voss, Jr., P jsident Surety's Name an o. • . to /Seeal By: Signature and T tle Kelly C • . y, Attomey -Fact (Attach Power of Attorney) (Space is provided below for signatures of additional parties, if required.) 12Cw� �Sl<- Signature and Title Witness CONTRACTOR AS PRINCIPAL SURETY Company: Signature: (Seal) (Seal) Name and Title: Surety's Name and Corporate Seal BY: Signature and Title (Attach Power of Attorney) Attest: Signature and Title: CONTRACT 10 -09 00610 -1 Oshkosh Storm PS- 60145509 1. Contractor and Surety, jointly and severally. bind themselves, their heirs, 6. After Owner has terminated Contractoes right to complete the Contract, and if Surety elects to executors, administrators, successors, and assigns t o Owner f o r the performance of ad under Paragraph 4.1, a2, or 43 above, then the responsibilities of Surety to Owner shall not the Contract, which is incorporated herein by reference. be greater than those of Geometer under the Contract, and the responsibilities of Owner to Surety shall not be greater than those of Owner under the Conrad. To a limit of the amount of 2. If Contractor performs the Contract, and Contractor have no obligation this Bond, but subject to commitment by Owner of the Balance of the Contract Price to tract, Surety B mitigation of costs and damages on the Contract, Surety is obligated without duplication for under this Bond, except to participate in conferences as provided in Paragraph 3.1. 6.1. The responsibilities of Contractor for correction of defective Work 3. If there is no Owner Default, Surety's obligation under this Bond shall arise after. and completion of the Contract; 3.1. Owner has notified Contractor and Surety, at the addresses described in 6.2. Additional legal, design professional, and delay costs resulting from Paragraph 10 below, that Owner is considering declaring a Contractor Contractor's Default, and resulting from the actions or failure to act Default and has requested and attempted to arrange a conference with of Surety under Paragraph 4; and Contractor and Surety to be held not later than 15 days after receipt of such notice to discuss methods of perfomfing the Contract. If Owner, 6.3. Liquidated damages, orifno liquidated damages are specified in the Contractor and Surety agree, Contractor shall be allowed a reasonable Contract, actual damages caused by delayed performance or non - time to perform the Contract, but such an agreement shall not waive performance of Contractor. Owner's tight, if any, subsequently to declare a Contractor Default; and 3.2. Owner has declared a Contractor Default and formally terminated 7. Surety shall not be liable to Owner or others for obligations of Contractor Contractor's right to complete the Contract Such Contractor Default that are unrelated to the Contract, and the Balance of the Contract Price shall shall not be declared earlier than 20 days after Contractor and Surety not be reduced or set off on accountofany such unrelated obligations. No right have received notice as provided in Paragraph 3.1; and of action shall accrue on this Bond to any person or entity other than Owner or 3.3. Owner has agreed to pay the Balance of the Contract Price to: its heirs, executors, administrators, or successors. 1. Surety in accordance with the terms of the Contract; 8. Surety hereby waives notice of any change, including changes of time, to 2. Another contractor selected pursuant to Paragraph 4.3 to perform Contract or to related subcontracts, purchase orders, and other obligations. the Contract 9. Any proceeding, legal or equitable, under this Bond may be instituted in any 4. When Owner has satisfied the conditions of Paragraph 3, Surety shall promptly court of competent jurisdiction in the location in which the Work or part of the and at Surety's expense take one of the following actions: Work is located and shall be instituted within two years after Contractor Default or within two years after Contractor ceased working or within two years after 4.1. Arrange for Contractor, with consent of Owner, to perform and complete Surety refuses or fails to perform its obligations under this Bond, whichever the Contract or 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 4.2. Undertake to perform and complete the Contract itself; through its jurisdiction of the suit shall be applicable. agents or through independent contractors; or 10. Notice to Surety, Owner, or Contractor shall be mailed or delivered to the 4.3. Obtain bids or negotiated proposals from qualified contractors address shown on the signature page. acceptable to Owner for a contract for performance and completion of the Contract, arrange for a contract to be prepared for execution by 11. When this Bond has been furnished to comply with a statutory Owner and Contractor selected with Owner's concurrence, to be secured requirement in the locatio■ where the Contract was to be performed, any with performance and payment bonds executed by a qualified surety provision in this Bond conflicting with said statatory requirement shall be equivalent to the bonds issued on the Contract, and pay to Owner the deemed deleted herefrom and provisions conforming to such statutory amount of damages as described in Paragraph 6 in excess of the Balance requirement shall be deemed incorporated herein. The intent is that this of the Contract Price incurred by Owner resulting from Contractor Bond shall be construed as a statutory bond and riot as a common law Detente or bond. 4.4. Waive its tight to perform and complete, arrange for completion, or 12. Definitions. obtain a new contractor and with reasonable promptness under the circumstances: 12.1 Balance of the Contract Price: The total amount payable by Owner to Contractor under the Contract all proper adjustments have I. After investigation, determine the amount for which it may be been made, including allowance to Contractor of any amounts liable to Owner and, as soon as practicable after the amount is received or to be received by Owner in settlement of insurance or determined, tender payment therefor to Owner, or other Claims for damages to which Contractor is entitled, reduced 2 Deny liability in whole or in part and notify Owner citing reasons by all valid and proper payments made to or on behalf of Contractor therefor. under the Contract. 5. If Surety does not proceed as provided in Paragraph 4 with reasonable 122. Contract: The agreement between Owner and Contractor identified promptness, Surety shall be deemed to be in default on this Bond 15 days after on the signature page, including all Contract Documents and receipt of an additional written notice from Owner to Surety demanding that Surety changes thereto. perform its obligations under this Bond, and Owner shall be entitled to enforce any remedy available to Owner. If Surety proceeds as provided in Paragraph 4.4, and 12.3. Contractor Default Failure of Contractor, which has neither been Owner refuses the payment tendered or Surety has denied liability, in whole or in remedied nor waived, to perform or otherwise to comply with the part, without further notice Owner shall be entitled to enforce any remedy available terms of the Contract. to Owner. 12.4. Owner Default: Failure of Owner, which has neither been remedied nor waived, to pay Contractor as required by the Contract or to perform and complete or comply with the other tens thereof FOR INFORMATION ONLY — Name, Address and Telephone Ken htlsx services t;entral, Inc. P.O. Box 23004 Surety Agency or Broker: Green Bay, WI 54305 -3005 Owner's Representative (engineer or other party): AECOM 800- 437 -0555 CONTRACT 10 -09 00610 -2 Oshkosh Storm PS- 60145509 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 Address of Principal Place of Business): Miron Construction Co., Inc. Continental Casualty Company 1417 McMahon Drive, Neenah, WI 54956 333 S. Wabash Ave. OWNER (Name and Address): Chicago, IL 60604 City of Oshkosh City Hall, 215 Church Avenue P. O. Box 1130 Oshkosh, WI 54901 -1130 CONTRACT Date: 3/15/10 Amount $3,029,860.00 Description (Name and Location): Melvin Avenue Storm Water Pump Station BOND Bond Number. 929495008 Date (Not earlier than Contract Date): 3/15/10 Amount $3,029,860.00 Modifications to this Bond Form: See Attached Amendment No. 1 Surety aid Contractor, intending to be legally bound hereby, subject to the terms printed on the reverse side hereof, do each cause this Payment Bond to be duly executed on its behalf by its autho ' • d officer, agent, or representative. CONTRACTOR AS P ' I OPAL , SURETY CemPanY: Miro s structi• • C.., ' • Signature: , / — / (Seal) Continental Casualty Company (Seal) Name and Title: David G. Voss, Jr., P : sident Surety's Name and /1 e tleal By: Signature and Titl Kelly Cody, ttomey -in -Pact (Attach Power of Attorney) (Space is provided below for signatures of additional parties, if required.) ta= Signature and Title Witness CONTRACTOR AS PRINCIPAL SURETY Company: Signature: (Seal) (Seal) Name and Title: Surety's Name and Corporate Seal By: Signature and Title (Attach Power of Attorney) Attest Signature and Title: Originally prepared through the joint efforts of the Surety Association of America, Engineers Joint Contract Documents Committee, the Associated General Contractors of America, the American Institute of Architects, the American Subcontractors Association, and the Associated Specialty Contractors. • CONTRACT 10 -09 00615 -1 Oshkosh Storm PS- 60145509 1. Contractor and Surety, jointly and severally, bind themselves, their heirs, 8. Amounts owed by Owner to Contractor under the Contract shall be used for the executors, administrators, successors, and assigns to Owner to pay for labor, performance of the Contract and to satisfy claims, if any, under any performance materials, and equipment furnished by Claimants for use in the performance of the bond. By Contractor furnishing and Owner accepting this Bond, they agree that all Contract, which is incorporated herein by reference. funds tamed by Contractor in the performance of the Contract are dedicated to satisfy obligations of Contractor and Surety under this Bond, subject to Owner's 2. With respect to Owner, this obligation shall be null and void if Contractor priority to use the funds for the completion of the Work. 2.1. Promptly makes payment, directly or indirectly, for all suns due Claimants, and 9. Surety shall not be liable to Owner, Claimants, or others for obligations of Contractor that are unrelated to the Contract Owner shall not be liable for 22. Defends, indemnifies, and holds harmless Owner from all claims, payment of any costs or expenses of any Claimant under this Bond, and shall demands, liens, or suks alleging non - payment by Contractor by any have under this Bond no obligations to make payments to, give notices on person or entity who furnished labor, materials, or equipment for use in behalf of, or otherwise have obligations to Claimants under this Bond. the performance of the Contract, provided Owner has promptly notified Contractor and Surety (at the addresses described in Paragraph 12) of any 10. Surety hereby waives notice of any change, including changes of time, to the claims, demands, liens, or suits and tendered defense of such claims, Contract or to related Subcontracts, purchase orders and other obligations. demands, liens, or suits to Contractor and Surety, and provided there is no • Owner Default. 11. No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the location in which the Work or part of the 3. With respect to Claimants, this obligation shall be null and void if Contractor Work is located or after the expiration of one year from the date (I) on which the promptly makes payment, directly or indirectly, for all sums due. Claimant gave the notice required by Paragraph 4.1 or Paragraph 4.2.3, or (2) on which the last labor or service was performed by anyone or the last materials or 4. Surety shall have no obligation to Claimants under this Bond until: equipment were furnished by anyone under the Constriction Contract, whichever of (1) or (2) first occurs. If the provisions of this paragraph are void or prohibited by 4.1. Claimants who are employed by or have a direct contract with law, the minimum period of limitation available to sureties as a defense in the Contractor have given notice to Surety (at the addresses described in jurisdiction of the suit shall be applicable. Paragraph 12) and sent a copy. or notice thereof to Owner, stating that a claim is being made under this Bond and, with substantial accuracy, the 12. Notice to Surety, Owner, or Contractor shall be trailed or delivered to the amount of the claim. addresses shown on the signature page. Actual receipt of notice by Surety, Owner, or Contractor, however accomplished, shall be sufficient compliance as of the date 4.2. Claimants who do not have a direct contract with Contractor received at the address shown on the signature page. 1. Have furnished written notice to Contractor and sent a copy, 13. When this Bond has been furnished to comply with a statutory requirement in or notice thereof to Owner, within 90 days after having last performed the location where the Contract was to be performed, any provision in this Bond labor or last furnished materials or equipment included in the claim conflicting with said statutory requirement shall be deemed deleted herefrom and stating, with substantial accuracy, the amount of the claim and the provisions conforming to such statutory requirement shall be deemed incorporated name of the patty to whom the materials or equipment were furnished herein_ The intent is that this Bond shall be construed as a statutory Bond and not as or supplied, or for whom the labor was done or performed; and a common law bond. 2. Have either received a rejection in whole or in part from 14. Upon request of any person or entity appearing to be a potential beneficiary of Contractor, or not received within 30 days of furnishing the above this Bond, Contractor shall promptly furnish a copy of this Bond or shall permit a notice any communication from Contractor by which Contractor had copy to be made. indicated the claim will be paid directly or indirectly; and 15. DEFINITIONS 3. Not having been paid within the above 30 days, have sent a written notice to Surety and sent a copy, or notice thereof, to Owner, 15.1. Claimant: An individual or entity having a direct contact with stating that a claim is being made under this Bond and enclosing a Contractor, or with a first -tier subcontractor of Contractor, to furnish copy of the previous written notice furnished to Contractor. labor, materials, or equipment for use in the performance of the Contract. The intent ofthis Bond shall be to include without limitation in the terms 5. If a notice by a Claimant required by Paragraph 4 is provided by Owner to "labor, materials or equipment" that part of water, gas, power, light, beat, Contractor or to Surety, that is sufficient compliance. oil, gasoline, telephone service, or rental equipment used in the Contract, architectural and engineering services required for performance of the 6. When a Claimant has satisfied the conditions of Paragraph 4, the Surety shall Work of Contractor and Contractor's Subcontractors, and all other items promptly and at Surety's expense take the following actions: for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials, or equipment were finmished. 6.1. Send an answer to that aaimant, with a copy to Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the 15.2. Contract The agreement between Owner and Contractor identified on basis for challenging any amounts that are disputed. the signature page, including all Contract Documents and changes thereto. 6.2. Pay or arrange for payment of any undisputed amounts. 15.3. Owner Default: Failure of Clymer, which has neither been remedied nor 7. Surety's total obligation shall not exceed the amount of this Bond, and the waived, to pay Contactor as required by the Contract or to perform and amount of this Bond shall be credited for any payments made in good faith by complete or comply with the other tenors thereof Surely. FOR INFORMATION ONLY — Name, Address and Telephone Aon Risk Services Central, Inc. Surety Agency or Broker: P.O. Box 23004 Representative (engineer or other party): AECOM Green Bay, WI 54305 -3004 Owner's Re P � � P rty)• Rfl0-437 -0555 CONTRACT 10-09 00615 -2 Oshkosh Storm PS- 60145509 AMENDMENT 1 Bond No. 929495008 Modification to EJCDC Payment Bonds: Paragraph 6 of this Bond is deleted in it entirety and replaced with the following provision: Within a reasonable time (1) after the Claimant has satisfied the conditions of Paragraph 4 and (2) after the Surety has reviewed all supporting documentation it requested to substantiate the amount of the claim, the Surety shall pay or arrange for payment of any undisputed amounts. Failure of the Surety to satisfy the above requirements shall not be deemed a forfeiture or waiver of the Surety's or the Contractor's defenses under this Bond or their right to dispute such claim. However, in such event the Claimant may bring suit against the Surety as provided under this Bond. POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -IN -FACT Know All Men By These Presents, That Continental Casualty Company, an Illinois insurance company, National Fire Insurance Company of Hartford, an Illinois insurance company, and American Casualty Company of Reading, Pennsylvania, a Pennsylvania insurance company (herein called "the CNA Companies "), are duly organized and existing insurance companies having their principal offices in the City of Chicago, and State of Illinois, and that they do by virtue of the signatures and seals herein affixed hereby make, constitute and appoint Jeffrey R. Meisinger, Kelly Cody, Kent Arps, Roxanne Jensen, Individually of Green Bay, Wisconsin, Individually Trudy A. Szalewski, Christopher H. Kondrick, Brian Krause, Cheryl Siem, Individually of Milwaukee, Wisconsin their true and lawful Attorney(s) -in -Fact with full power and authority hereby conferred to sign, seal and execute for and on their behalf bonds, undertakings and other obligatory instruments of similar nature - In Unlimited Amounts - and to bind them thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of their insurance companies and all the acts of said Attorney, pursuant to the authority hereby given is hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By -Law and Resolutions, printed on the reverse hereof, duly adopted, as indicated, by the Boards of Directors of the insurance companies. In Witness Whereof, the CNA Companies have caused these presents to be signed by their Senior Vice President and their corporate seals to be hereto affixed on this 26th day of August, 2009. pAsw Continental Casualty Company ` ,� � Rr National Fire Insurance Company of Hartford iI a°"'ORA American Casualty Company of Reading, Pennsylvania Z is JULY 11. fi t) SEAL � s (A n 1097 NAIAf k� ` t L.rQ • Jac1t� yne . Belcastro Senior Vice President State of Illinois, County of Cook, ss: On this 26th day of August, 2009, before me personally carne Jacquelyne M. Belcastro to me known, who, being by me duly sworn, did depose and say: that she resides in the City of Chicago, State of Illinois; that she is a Senior Vice President of Continental Casualty Company, an Illinois insurance company, National Fire Insurance Company of Hartford, an Illinois insurance company, and American Casualty Company of Reading, Pennsylvania, a Pennsylvania insurance company described in and which executed the above instrument; that she knows the seals of said insurance companies; that the seals affixed to the said instrument are such corporate seals; that they were so affixed pursuant to authority given by the Boards of Directors of said insurance companies and that she signed her name thereto pursuant to like authority, and acknowledges same to be the act and deed of said insurance companies. CIMAL SEAL. ISM f3.QA PRICE .. IDtMYI EOft1M01E C:5),"14.0.4 00111•111110N 011 My Commission Expires September 17, 2013 Eliza Price Notary Public CERTIFICATE I, Mary A. Ribikawskis, Assistant Secretary of Continental Casualty Company, an Illinois insurance company, National Fire Insurance Company of Hartford, an Illinois insurance company, and American Casualty Company of Reading, Pennsylvania, a Pennsylvania insurance company do hereby certify that the Power of Attorney herein above set forth is still in force, and further certify that the By -Law and Resolution of the Board of Directors of the insurance co printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said insuranc c ompanies this / 3 day of Marc , ZOO �s t2� tT yµ,q Continental Casualty Company ' �� � �+� National Fire Insurance Company of Hartford c p gP0 _ T e 1.� a American Casualty Company of Reading, Pennsylvania • SEAL 1 !197 .J ! ) 'f� • NAKO Mary A. ika s Assistant Secretary Form F6853- 5/2009 Authorizing By -Laws and Resolutions ADOPTED BY THE BOARD OF DIRECTORS OF CONTINENTAL CASUALTY COMPANY: This Power of Attomey is made and executed pursuant to and by authority of the following By-Law duly adopted by the Board of Directors of the Company. "Article IX— Execution of Documents Section 3. Appointment of Attorney -in -fact. The Chairman of the Board of Directors, the President or any Executive, Senior or Group Vice President may, from time to time, appoint by written certificates attorneys -in -fact to act in behalf of the Company in the execution of policies of insurance, bonds, undertakings and other obligatory instruments of like nature. Such attorneys -in -fact, subject to the limitations set forth in their respective certificates of authority, shall have full power to bind the Company by their signature and execution of any such instruments and to attach the seal of the Company thererto. The Chairman of the Board of Directors, the President or any Executive, Senior or Group Vice President or the Board of Directors, may, at any time, revoke all power and authority previously given to any attorney -in- fact." This Power of Attomey is signed and sealed by facsimile under and ly the authority of the following Resolution adopted by the Board of Directors of the Company at a meeting drly called and held on the 17 day of February, 1993. "Resolved, that the signature of the President or any Executive, Senior or Group Vice President and the seal of the Company may be affixed by facsimile on any power of attorney granted pursuant to Section 3 of Article IX of the By -Laws, and the signature of the Secretary or an Assistant Secretary and the seal of the Company may be affixed by facsimile to any certificate of any such power and any power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certified by certificate so executed and sealed shall, with respect to any bond or undertaking to which it is attached, continue to be valid and binding on the Company." ADOPTED BY THE BOARD OF DIRECTORS OF AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA: This Power of Attorney is made and executed pursuant to and by authority of the following By -Law duly adopted by the Board of Directors of the Company. "Article VI Execution of Documents Section 3 Appointment of Attorney -in -fact. The Chairman of the Board of Directors, the President or anyExecutive or Senior Vice President may, from time to time, appoint by written certificates attomeys -in -fact to act in behalf of the Company in the execution of policies of insurance, bonds, undertakings and other obligatory instruments of like nature. Such attorneys -in -fact, subject to the limitations set forth in their respective certificates of authority, shall have full power to bind the Company by their signature and execution of any such instruments and to attach the seal of the Company thereto. The President or any Executive, Senior Vice President or the Board of Directors may at any time revoke all power and authority previously given to any attorney -in- fact." This Power of Attomey is signed and sealed by facsimile under and ly the authority of the following Resolution adopted by the Board of Directors ofthe Company at a meeting duly called and held on the 17 day of February, 1993. "Resolved, that the signature of the President or any Executive, Senior or Group Vice President and the seal of the Company may be affixed by facsimile on any power of attorney granted pursuant to Section 2 of Article VI of the By -Laws, and the signature of the Secretary or an Assistant Secretary and the seal of the Company may be affixed by facsimile to any certificate of any such power and any power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certified by certificate so executed and sealed shall, with respect to any bond or undertaking to which it is attached, continue to be valid and binding on the Company." ADOPTED BY THE BOARD OF DIRECTORS OF NATIONAL FIRE INSURANCE COMPANY OF HARTFORD: This Power of Attomey is made and executed pursuant to and by authority of the following By -Law duly adopted by the Board of Directors of the Company. "Article VII — Execution of Documents Section 3. Appointment of Attomey -in -Fact. The Chairman of the Board of Directors, the President or any Executive or Senior Vice President may, from time to time, appoint by written certificates attorneys -in -fact to act in behalf of the Company in the execution of policies of insurance, bonds, undertakings and other obligatory instruments of like nature. Such attorneys -in -fad, subject to the limitations set forth in their respective certificates of authority shall have full power to bind the Company by their signature and execution of any such instruments and to attach the seal of the Company thereto. The Chairman of the Board of Directors, the President or any Executive, Senior Vice President or the Board of Directors, may, at any time, revoke all power and authority previously given to any attorney -in- fact." This Power of Attorney is signed and sealed by facsimile under and ly the authority of the following Resolution adopted by the Board of Directors ofthe Company at a meeting duly called and held on the 17 day of February, 1993. "RESOLVED: That the signature of the President, an Executive Vice President or any S;nior or Group Via President and the seal ofthe Insurance Company may be affixed by facsimile on any power of attorney granted pursuant to the Resolution adopted by this Board of Directors on February 17, 1993 and the signature of a Secretary or an Assistant Secretary and the seal of the Insurance Company may be affixed by facsimile to any certificate of any such power, and any power or certificate bearing such facsimile signature and seal shall be valid and binding on the Insurance Company. Any such power so executed and sealed and certified by certificate so executed and sealed, shall with respect to any bond or undertaking to which it is attached, continue to be valid and binding on the Insurance Company."