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HomeMy WebLinkAboutMichels Corportion/Concrete & Asphalt Crushing CITY OF OSHKOSH LEGAL DEPARTMENT 215 CHURCH AVENUE, P.O. BOX 1130, OSHKOSH, WI 54903-1130 PHONE: (920)236-5115 FAX(920)236-5106 LETTER OF TRANSMITTAL To: Michels Corporation Date: September 6, 2011 817 W. Main St. Project: Concrete & Asphalt Crushing Brownsville, WI 53006-0128 From: Carol Marchant, Adm. Assistant Re: Contract 11-26 Attn: Please find: ® Attached ❑ Under Separate Cover El Copy of Letter ® Contracts ❑ Amendment ❑ Report El Agenda ❑ Meeting Notes ❑ Photos ❑ Mylars ❑ Change Order ❑ Plans ❑ Specifications El Estimates ❑ Diskette ❑ Zip Disk ❑ Other Quantity Description 1 Signed Construction Contract— City Contract 11-26 These are being transmitted as indicated below: ❑ For Approval ® For Your Use El As Requested ❑ For Review&Comment Remarks: Signed: e e 4-'- '/ ')6Li v±) cc: City Clerk (original) Public Works, Engineering (original) File Copy (copy) CONSTRUCTION CONTRACT THIS AGREEMENT, made on the 11th day of August, 2011, by and between the CITY OF OSHKOSH, party of the first part, hereinafter referred to as CITY, and MICHELS CORPORATION, 817 W. Main Street, Brownsville, WI 53006-0128, 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: Public Works Contract No. 11-26 for Concrete and Asphalt Crushing, for the Public Works Department, pursuant to Resolution 11-355 adopted by the Common Council of the City of Oshkosh on the 10th day of August, 2011, 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 $154,630.00, 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. INSURANCE The Insurance required by the City of Oshkosh as specified in the City's specifications, including addenda, or plans, or instructions, or advertisements, shall be primary coverage and that any insurance or self insurance maintained by the City of Oshkosh, its officers, council members, agents, employees or authorized volunteers will not contribute to a loss. All insurance shall be based upon the occurrence of an event, and not based on claims made. All insurance shall be in full force prior to commencing work and remain in force until the entire job is completed and the length of time that is specified, if any, in this contract, the specifications, whichever is longer. ARTICLE VI. 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 2 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. 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 Presen e of: CONTRACTOR MICHELS CORPORATION igAllif Vie 0 By: 47 ' Division Manager (Seal of Contractor (Specify Title) if a Corporation.) By: :.i AG.i.tant SPcrPtary (Specify Title) ti ri , i CITY OF OSHKOSH By:% A �L . Mirk A. Roh loll, City Manager (Witness) j / �y 7 And: itnes- � _hA ����i� -• 1 ly Clerk APPROVED: I hereby certify that the necessary r the provisions liability have which will been accrue made under to pay ,--- this contract VV 1,C),C Ci Attorney � J I° 4 City Com trblffr 3 R71® CERTIFICATE OF LIABILITY INSURANCE OP ID TD DATE(MMIDDIYYW) 08/17/11 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed. If SUBROGATION IS 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). PRODUCER LUN I Al.I NAME: Weible & Cahill ((A/C No,Ext): FAX No): EIL 2300 Cabot Drive, Suite 100 ADDRESS: Lisle IL 60532 CUSTOMERRID#: MICHE07 Phone:630-245-4600 Fax:630-245-4601 INSURER(S)AFFORDING COVERAGE NAIC# INSURED INSURER A: Arch Insurance Company 11150 Michels Corporation INSURER B: Ironehore specialty Ins. Co. 25445 P.O. Box 128 817 W. Main Street INSURERC: Brownsville WI 53006 INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: 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. INSI( AWL,aft PULIUY EH- HULIUY EXP LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER (MMIDD/YYYY) (MM/DD/YYYY) LIMITS GENERAL LIABILITY EACH OCCURRENCE $1,000,000 A X COMMERCIAL GENERAL LIABILITY 41PKG2354002 02/01/11 02/01/12 PRE MMISES(Ea occurrence) $300,000 1 CLAIMS-MADE X OCCUR MED EXP(Any one person) _ $1 0,000 X XCU Included X PERSONAL&ADV INJURY $1,000,000 X Includes Stop Gap GENERAL AGGREGATE $2,000,000 _ GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $2,00 0,000 —1 POLICY jEa LOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT A X ANY AUTO 41PKG2354002 02/01/11 02/01/12 (Ea accident) $2,000,000 BODILY INJURY(Per person) $ ALL OWNED AUTOS BODILY INJURY(Per accident) $ SCHEDULED AUTOS X HIRED AUTOS PROPERTY DAMAGE $ (Per accident) X NON-OWNED AUTOS $ $ B UMBRELLA LIAB X OCCUR 000113201 02/01/11 02/01/12 EACH OCCURRENCE $10,000,000 X EXCESS LIAB CLAIMS-MADE AGGREGATE $10,000,000 DEDUCTIBLE $ X RETENTION $ 0 $ A WORKERS COMPENSATION 41WC12353902 02/01/11 02/01/12 X WCSTATU- OTH- AND EMPLOYERS'LIABILITY Y/N TORY LIMITS ER ANY PROPRIETOR/PARTNER/EXECUTIV E.L.EACH ACCIDENT $ 1 000 000 OFFICER/MEMBER EXCLUDED? N [N/A r r (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $1,000,000 If yes,describe under _ DESCRIPTION OF OPERATIONS below E.L.DISEASE•POLICY LIMIT $1,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (Attach ACORD 101,Additional Remarks Schedule,If more space Is required) Re: Public Works Contract #11-26 Additional Insured on General Liability: City,of Oshkosh, its officers, council members, agents, employees and authorized volunteers CERTIFICATE HOLDER CANCELLATION OSHKO-2 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Oshkosh P.O. Box 1130 AUTHORIZED REPRESENTATIVE 215 Church Street Oshkosh WI 54903-1130 © 8-2009 RD CORPORATION. All rights reserved. ACORD 25(2009/09) The ACORD name and logo are registered marks of ACORD Bond No. 929535738 It .sAIA Document A312.n" - 2010 Performance Bond CONTRACTOR: SURETY: (Name,legal status and address) (Name, legal status and principal place Michels Corporation of business) Continental Casualty Company 817 West Main Street 333 S.Wabash Ave.41st Floor This document has important legal Brownsville WI 53006 Chicago IL 60604 consequences.Consultation with OWNER: an attorney is encouraged with (Name,legal status and address) respect to its completion or City of Oshkosh modification. 215 Church Avenue,P.O.Box 1130 Any singular reference to Contractor,Surety,Owner or Oshkosh WI 54903-1130 other party shall be considered CONSTRUCTION CONTRACT plural where applicable. Date: August 12,2011 AIA Document A312-2010 combines two separate bonds,a Amount:($154,630.00)One Hundred Fifty Four Thousand Six Hundred Thirty Dollars Performance Bond and a and NO/100 Cents Payment Bond,into one form. Description: This is not a single combined (Name and location) Performance and Payment Bond. Contract No. 11-26 Crushing Contract BOND Date: August 17,2011 (Not earlier than Construction Contract Date) Amount:($154,630.00)One Hundred Fifty Four Thousand Six Hundred Thirty Dollars and NO/100 Cents Modifications to this Bond: {c7 None ❑See Section 16 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Michels Core.rat n Continental Casualty Company c Signature: /y, ��� Signature: (AI/ . lii Name Name Esther C.Jime ez and Title. and Title: Attorney-in-Fact (Any, itional signatures appear on the last page of this Performance Bond.) (FOR INFORMATION ONLY—Name,address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: (Architect,Engineer or other party:) Weible&Cahill 2300 Cabot Drive Suite 100 Lisle IL 60532 (630)245-4600 init. AlA Document A3121"—2010.The American Institute of Architects. 061110 1 t §1 The Contractor and Surety,jointly and severally,bind themselves,their heirs,executors,administrators,successors and assigns to the Owner for the performance of the Construction Contract,which is incorporated herein by reference. §2 If the Contractor performs the Construction Contract,the Surety and the Contractor shall have no obligation under this Bond,except when applicable to participate in a conference as provided in Section 3. §3 If there is no Owner Default under the Construction Contract,the Surety's obligation under this Bond shall arise after .1 the Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring a Contractor Default.Such notice shall indicate whether the Owner is requesting a conference among the Owner,Contractor and Surety to discuss the Contractor's performance.If the Owner does not request a conference,the Surety may,within five(5)business days after receipt of the Owner's notice, request such a conference.If the Surety timely requests a conference,the Owner shall attend.Unless the Owner agrees otherwise,any conference requested under this Section 3.1 shall be held within ten (10)business days of the Surety's receipt of the Owner's notice.If the Owner,the Contractor and the Surety agree,the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right,if any,subsequently to declare a Contractor Default; .2 the Owner declares a Contractor Default,terminates the Construction Contract and notifies the Surety; and .3 the Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perform the Construction Contract. §4 Failure on the part of the Owner to comply with the notice requirement in Section 3.1 shall not constitute a failure to comply with a condition precedent to the Surety's obligations,or release the Surety from its obligations,except to the extent the Surety demonstrates actual prejudice. §5 When the Owner has satisfied the conditions of Section 3,the Surety shall promptly and at the Surety's expense take one of the following actions: §5.1 Arrange for the Contractor,with the consent of the Owner,to perform and complete the Construction Contract; §5.2 Undertake to perform and complete the Construction Contract itself,through its agents or independent contractors; §5.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract,arrange for a contract to be prepared for execution by the Owner and a contractor selected with the Owner's concurrence,to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract,and pay to the Owner the amount of damages as described in Section 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default;or §5.4 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,make payment to the Owner;or .2 Deny liability in whole or in part and notify the Owner,citing the reasons for denial. §6 If the Surety does not proceed as provided in Section 5 with reasonable promptness,the Surety shall be deemed to be in default on this Bond seven 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 Section 5.4,and the Owner refuses the payment 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. qtk AlA Document A312"'—2010.The American Institute of Architects. 2 §7 If the Surety elects to act under Section 5.1,5.2 or 5.3,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.Subject to the commitment by the Owner to pay the Balance of the Contract Price,the Surety is obligated,without duplication,for .1 the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; .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 Section 5;and .3 liquidated damages,or if no liquidated damages are specified in the Construction Contract,actual damages caused by delayed performance or non-performance of the Contractor. §8 If the Surety elects to act under Section 5.1,5.3 or 5.4,the Surety's liability is limited to the amount of this Bond. §9 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 set off on account of any such unrelated obligations.No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs,executors,administrators,successors and assigns. §10 The Surety hereby waives notice of any change,including changes of time,to the Construction Contract or to related subcontracts,purchase orders and other obligations. §11 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 a declaration of Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond,whichever 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. §12 Notice to the Surety,the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. §13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed,any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein.When so furnished,the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. §14 Definitions §14.1 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. S 14.2 Construction Contract The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and changes made to the agreement and the Contract Documents. §14.3 Contractor Default.Failure of the Contractor,which has not been remedied or waived,to perform or otherwise to comply with a material term of the Construction Contract. §14.4 Owner Default.Failure of the Owner,which has not been remedied or waived,to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. §14.5 Contract Documents.All the documents that comprise the agreement between the Owner and Contractor. §15 If this Bond is issued for an agreement between a Contractor and subcontractor,the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. MIL MA Dowrmat A3127e—2010.The American Institute of Architects. 3 f §16 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 CAUTION:You should sign an original AIA Contract Document,on which this text appears in RED.An original assures that changes will not be obscured. MiG AIA Document A312^'—2010.The American Institute of Architects. 4 Bond No.929535738 I Document A312"" - 2010 Payment Bond CONTRACTOR: SURETY: (Name,legal status and address) (Name, legal status and principal place Michels Corporation of business)Continental Casualty Company 817 West Main Street 333 S.Wabash Ave.41st Floor This document has important legal Brownsville WI 53006 Chicago IL 60604 consequence.Consultation with OWNER: an attorney is encouraged with (Name,legal status and address) respect to its completion or City of Oshkosh 215 Church Avenue,P.O.Box 1130 Any singular reference to Oshkosh WI 54903-1130 Contractor,Surety,Owner or other party shall be considered CONSTRUCTION CONTRACT plural where applicable. Date: August 12,2011 MA Document A312-2010 combines two separate bonds,a Amount:($154,630.00)One Hundred Fifty Four Thousand Six Hundred Thirty Dollars Performance Bond and a and NO/100 Cents Payment Bond,into one form. Description: This is not a single combined Performance and Payment Bond. (Name and location) Contract No. 11-26 Crushing Contract BOND Date:August 17,2011 (Not earlier than Construction Contract Date) Amount:($154,630.00)One Hundred Fifty Four Thousand Six Hundred Thirty Dollars and NO/100 Cents Modifications to this Bond: l3None ❑See Section 18 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Michels Corp•ration �/ Continental Casualty Company Signature:_ _ signature:ditiftl ec/4 -4 i/Name Name Esther C.Jim and Titl . and Title: Attorney-in-Fact (Any itional signatures appear on the last page of this Payment Bond.) (FOR INFORMATION ONLY Name,address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: (Architect,Engineer or other party:) Weible&Cahill 2300 Cabot Drive Suite 100 Lisle IL 60532 (630)245-4600 AIA Document A312•—2010.The American institute of Architects. 061110 5 §1 The Contractor and Surety,jointly and severally,bind themselves,their heirs,executors,administrators,successors and assigns to the Owner to pay for labor,materials and equipment furnished for use in the performance of the Construction Contract,which is incorporated herein by reference,subject to the following terms. §2 If the Contractor promptly makes payment of all sums due to Claimants,and defends,indemnifies and holds harmless the Owner from claims,demands,liens or suits by any person or entity seeking payment for labor,materials or equipment furnished for use in the performance of the Construction Contract,then the Surety and the Contractor shall have no obligation under this Bond. §3 If there is no Owner Default under the Construction Contract,the Surety's obligation to the Owner under this Bond shall arise after the Owner has promptly notified the Contractor and the Surety(at the address described in Section 13) of claims,demands,liens or suits against the Owner or the Owner's property by any person or entity seeking payment for labor,materials or equipment furnished for use in the performance of the Construction Contract and tendered defense of such claims,demands,liens or suits to the Contractor and the Surety. §4 When the Owner has satisfied the conditions in Section 3,the Surety shall promptly and at the Surety's expense defend,indemnify and hold harmless the Owner against a duly tendered claim,demand,lien or suit. §5 The Surety's obligations to a Claimant under this Bond shall arise after the following: §5.1 Claimants,who do not have a direct contract with the Contractor, .1 have furnished a written notice of non-payment to the Contractor,stating with substantial accuracy the amount claimed and the name of the party to whom the materials were,or equipment was,furnished or supplied or for whom the labor was done or performed,within ninety(90)days after having last performed labor or last furnished materials or equipment included in the Claim;and .2 have sent a Claim to the Surety(at the address described in Section 13). §5.2 Claimants,who are employed by or have a direct contract with the Contractor,have sent a Claim to the Surety(at the address described in Section 13). §6 If a notice of non-payment required by Section 5.1.1 is given by the Owner to the Contractor,that is sufficient to satisfy a Claimant's obligation to furnish a written notice of non-payment under Section 5.1.1. §7 When a Claimant has satisfied the conditions of Sections 5.1 or 5.2,whichever is applicable,the Surety shall promptly and at the Surety's expense take the following actions: §7.1 Send an answer to the Claimant,with a copy to the Owner,within sixty(60)days after receipt of the Claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed;and §7.2 Pay or arrange for payment of any undisputed amounts. §7.3 The Surety's failure to discharge its obligations under Section 7.1 or Section 7.2 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim,except as to undisputed amounts for which the Surety and Claimant have reached agreement.If,however,the Surety fails to discharge its obligations under Section 7.1 or Section 7.2,the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. §8 The Surety's total obligation shall not exceed the amount of this Bond,plus the amount of reasonable attorney's fees provided under Section 7.3,and the amount of this Bond shall be credited for any payments made in good faith by the Surety. §9 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims,if any,under any construction performance bond.By the Contractor furnishing and the Owner accepting this Bond,they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and Surety under this Bond,subject to the Owner's priority to use the funds for the completion of the work. Unit AlA Document A312"'—20 Am 10.The American Institute of Architects. 6 §10 The Surety shall not be liable to the Owner,Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract.The Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond,and shall have under this Bond no obligation to make payments to,or give notice on behalf of,Claimants or otherwise have any obligations to Claimants under this Bond. §11 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. §12 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date(1)on which the Claimant sent a Claim to the Surety pursuant to Section 5.1.2 or 5.2,or(2)on which the last labor or service was performed by anyone or the Iast materials or equipment were furnished by anyone under the Construction Contract,whichever of(1)or(2)first occurs.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. §13 Notice and Claims to the Surety,the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears.Actual receipt of notice or Claims,however accomplished,shall be sufficient compliance as of the date received. §14 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed,any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein.When so furnished,the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. §15 Upon request by any person or entity appearing to be a potential beneficiary of this Bond,the Contractor and Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made. §16 Definitions §16.1 Claim.A written statement by the Claimant including at a minimum: .1 the name of the Claimant; 2 the name of the person for whom the labor was done,or materials or equipment furnished; .3 a copy of the agreement or purchase order pursuant to which labor,materials or equipment was furnished for use in the performance of the Construction Contract; .4 a brief description of the labor,materials or equipment furnished; .5 the date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; .6 the total amount earned by the Claimant for labor,materials or equipment furnished as of the date of the Claim; .7 the total amount of previous payments received by the Claimant;and .8 the total amount due and unpaid to the Claimant for labor,materials or equipment furnished as of the date of the Claim. §16.2 Claimant.An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor,materials or equipment for use in the performance of the Construction Contract.The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located.The intent of this Bond shall be to include without limitation in the terms"labor,materials or equipment"that part of water,gas,power,light,heat,oil, gasoline,telephone service or rental equipment used in the Construction Contract,architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors,and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor,materials or equipment were furnished. §16.3 Construction Contract.The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and all changes made to the agreement and the Contract Documents. toil AlA Document A312"'—2010.The American Institute of Architects. 7 1 §16.4 Owner Default.Failure of the Owner,which has not been remedied or waived,to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. §16.5 Contract Documents.All the documents that comprise the agreement between the Owner and Contractor. §17 If this Bond is issued for an agreement between a Contractor and subcontractor,the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. §18 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 CAUTION:You should sign an original AlA Contract Document,on which this text appears in RED.An original assures that changes will not be obscured. blk MA Document A3127°—2010.The American Institute of Architects. 8 STATE OF ILLINOIS SS: COUNTY OF DUPAGE SURETY ACKNOWLEDGEMENT (ATTORNEY-IN-FACT) On this 17th day of August, in the year 2011 before me, Melissa M. Newman, a Notary Public in and for said County and state, residing therein, duly commission and sworn, personally appeared Esther C. Jimenez, known to me to be the duly authorized Attorney-in-Fact of the Continental Casualty Company, and the same person whose name is subscribed in the foregoing instrument as Attorney-in-Fact of the said Company and she duly acknowledged to me that she signed and sealed the said instrument for the Continental Casualty Company, thereto as Surety. IN WITNESS WHEREOF, I have hereunto set my official seal the day and year in this certificate first above written. l (Notary Public) ' s M.Newman in and for DuPage County State of Illinois My Commission expires: February 12, 2014 (Seal) " OFFICIAL SEAL" MELISSA M. NEWMAN NOTARY PUBLIC,STATE OF ILLINOIS MY COMMISSION EXPIRES 2/12/2014 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 Karen A Ryan, William P Weible, Esther C Jimenez, William Cahill, Kimberly Sawicki, Melissa Newman, Kimberly R Holmes,Deborah A Campbell,Mary Anne Sylos,Leigh Ann Francis,Individually of Lisle,IL,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 4th day of May,2011. 43.:„.onsuq<ry o4SUft44,_ rp4 Continental Casualty Company 2 Pofla o �+ National Fire Insurance Company of Hartford 'r ; 5,, °reOaTfa t American Casualty Company of Reading, Pennsylvania p JULY 71, oU SEAL •- �` 1902 �.a fir 1 ck.1897 •Ante • Stathy Darcy emor Vice President State of Illinois,County of Cook,ss: On this 4th day of May,2011,before me personally came Stathy Darcy to me known,who,being by me duly sworn,did depose and say: that she resides in the City of Glenview,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. OFFMCAL SEAL EUZA PRICE 4 NOTARY Plitt•STA7E LIMOS Ilf OCR18810A4DPNESA/113 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 companies 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 insurance companies this 17th day of August , 2011 . ��pyo►su i�tSURq,� ,viwro�� Continental Casualty Company �, `FG. -. 4' ,( National Fire Insurance Company of Hartford GosP•RATS a `-i�, ; I ocoReoR4 Q '' American Casualty Company of Reading,Pennsylvania cPi sJ SEAL r JULY 1, a coe.,....4„kz) 1 897 Nance • Mary A. R ika kis Assistant Secretary Form F6853-1/2011 Authorizing By-Laws and Resolutions ADOPTED BY THE BOARD OF DIRECTORS OF CONTINENTAL CASUALTY COMPANY: 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 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 Attorney is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of the Company at a meeting duly called and held on the 17th 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 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-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 Chairman of the Board of Directors,the President or any Executive or 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 by the authority of the following Resolution adopted by the Board of Directors of the Company at a meeting duly called and held on the 17th 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 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 VII—Execution of Documents Section 3. Appointment of Attorney-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-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 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 by the authority of the following Resolution adopted by the Board of Directors of the Company at a meeting duly called and held on the 17th day of February, 1993. "RESOLVED: That the signature of the President,an Executive Vice President or any Senior or Group Vice President and the seal of the 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."