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HomeMy WebLinkAboutPW CONT 13-05/Advance Construction 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: ADVANCE CONSTRUCTION Date: April 4, 2013 2141 Woodale Avenue Project: Concrete Paving & Utilities Green Bay WI 54313 From: Carol Marchant, Adm. Assistant Re: Contract 13-05 Attn: Glenn Joski Please find: ® Attached ❑ Under Separate Cover ❑ Copy of Letter ® Contracts ❑ Amendment ❑ Report ❑ Agenda ❑ Meeting Notes ❑ Photos ❑ Mylars El Change Order ❑ Plans ❑ Specifications ❑ Estimates ❑ Diskette ❑ Zip Disk ❑ Other Quantity Description 1 Signed Construction Contract- City Contract 13-05 These are being transmitted as indicated below: ❑ For Approval ® For Your Use ❑ As Requested El For Review& Comment Remarks: Signed: aG'�Lc-�-°e'► Carol Marchant cc: City Clerk (original) Public Works, Engineering (original) City Attorney (copy) CONSTRUCTION CONTRACT THIS AGREEMENT, made on the 13th day of March, 2013, by and between the CITY OF OSHKOSH, party of the first part, hereinafter referred to as CITY, and ADVANCE CONSTRUCTION, INC., 2141 Woodale Avenue, Green Bay, WI 54313, party of the second part, hereinafter referred to as the CONTRACTOR, WITNESSETH: That the CITY and the CONTRACTOR, for the consideration hereinafter named, agree as follows: ARTICLE I. SCOPE OF WORK The CONTRACTOR hereby agrees to furnish all of the materials and all of the equipment and labor necessary, and to perform all of the work shown on the plans and described in the specifications for the project entitled or described as follows: Public Works Contract No. 13-05 for Various Concrete Paving & Utility Projects — South Side, for the Public Works Department, pursuant to Resolution 13-107 adopted by the Common Council of the City of Oshkosh on the 12th day of March, 2013, 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 Special 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 $6,084,775.64, adjusted by any changes as provided in the Specifications, 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 Specifications. ARTICLE IV. CONTRACTOR TO HOLD CITY HARMLESS The CONTRACTOR covenants and agrees to protect and hold the CITY 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 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. 2 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 Presence of: CONTRACTOR ADVANCE CONSTRUCTION, INC. ��iC�' i���fG�'�- " By: c�� y,.,.— 2+— ��% P. =3tPi_/Y7" (Specify Title) if-a-Gerperation ) /%/`A- By: (Specify Title) CITY OF OSHKOSH 2 fC/ By: i Ma lA. Rohloff, City Manager Witn ss) C ► (6- '1D/ , c 4 / And. ��'��� (Witness) Pamela R. Ubrig, City erk APPROVED: I hereby certify that the necessary provisions have been made to pay ' the liability which will accrue under this contract 11 r1=1 IY a orney JO_0 fipf City Co rlfller 3 i ACORD rw CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DDIYYYI') 03/26/2013 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Safeguard Insurance Group, LLC ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE TS CERTIFICATE DOES NOT 1142 Mountain Bay Dr. ALTER THE COVERAGE AFFORDED BY T EMPOLIICIES FLOW. I Pulaski, WI 54162 I INSURERS AFFORDING COVERAGE NAIL# i INSURED Advance Construction, Inc. W SURERA Wilson Mutual 19950 ' G&J Management, LLC INSURER B: j 2141 Woodale INSURER C: , Green Bay,WI 54313 • INSURERS; I _INSURER E: COVERAGES THE POUCJES OF INSURANCE us-TED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POUCY PERIOD INDICATED.NOTWITHSTANDING I ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR I MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS.EXCLUSIONS AND CONDITIONS OF SUCH POUCIES.AGGREGATE UMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ! INSRADO' POLICY EFFECTIVE POLICY EXPIRATION I LTR INS-. TYPEOF INSURANCE POLICY NUMBER OATEfMMIDDIYYI DATE1MMIDD/YYl LIMITS GENERAL LIABILITY EACH OCCURRENCE S 1,000,000 i DAMAGE TO RENT ED II COMMERCIAL GENERAL 50,000 I UABILITY PREMISES $ II CLAIMS MADE ©OCCUR MED EXP(Anyone person) S 5,000 A X © X,C,U 3200344700 6118/12 6/18113 PERSONAL le ADV INJURY s 1,000,000 ■ GENERAL AGGREGATE f 2.000.000 I GENT.AGGREGATE UMITAPPU ES PER: PRODUCTS-COMP/OP AGG S 2,000,000 X POLICY n n JFCT LOC I AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT I 1,000,000 ©ANY AUTO - (Ea accident) I©ALL OWNED AUTOS BODILYINJURY I III SCHEDULED (Per( person) S incl. A x 3200344700 6/18/12 6/18/13 - ©HIRED AUTOS . BODILY I Q NON-OWNED AUTOS (PerwwWwY) incl. ■ PROPERTY DAMAGE (Per accident) S Incl. ' GARAGE LIABILITY AUTO ONLY-EAACCIDENT f I ■ANY AUTO EAACC S I OTHER THAN AUTO ONLY: AGG S EXCESS/UMBRELLA UABILITY EACH OCCURRENCE S 10,000,000 X OCCUR E CLAIMSMADE AGGREGATE S 10,000,000 A X 3200344700 6/18/12 6/18/13 s ■ DEDUCTIBLE I RETENTION I $ 1 WORKERS COMPENSATION AND X I FORYLIMITS I X 1041. I EMPLOYERS'IJABILITY A ANY PROPRIETORIPARTNERIEXECUTIVB 3200344700 6/16/12 6/1$113 E.L.EACH ACCIDENT S 500,000 OFFICER/MEMBEREXCLUDED7 E.L.DISEASE-EA EMPLOYEE S 500,000 IT yea,describe under • L SPECIAL PROVISIONS below - E DISEASE-POUCYUMIT ,I - 500,000 A OTHER Contractor's Installation 3200344700 6118/12 6/18/13 $ 500,000. A Floater MCS-90 3200344700 6/18/12 6/18/13 $1,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/EXC W SIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS Re: Various Concrete Paving &Utility Projects-South Side Additional Insureds include:The City of Oshkosh, its Officers, Council members, agents, employees and authorized volunteers. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BECANCELLED BEFORE THE EXPIRATION City of Oshkosh DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN j City Hall NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT.BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER.ITS AGENTS OR P.O. Box 1130 REPRESENTATIVES. Oshkosh, WI 54903-1130 AUTHORIZED RESENTA 8 0 .' � ? 'V I an ■•RD CORPORATION 1988 ACORD 25(2001!08} �' IVI.ERC HANTSp BONDING COMPANY.. MERCHANTS(BONDING COMPANY(MUTUAL) • MERCHANTS NATIONAL BONDING.INC_ 2101)FLEUR DRIVE•DES MOINES.IOWA 50321-1153-(800)678-1171 -4515)243.3854 FAX Performance Bond o2 of.1 on�gc1�IC Bond loo.W IC 54712 CONTRACTOR: SURETY: (Name,legal status and address) (Name.legal status and principal place of business) Advance Construction, Inc. Merchants Bonding Company(Mutual) 2141 Woodale Avenue, Green Bay, WI 54313 2100 Fleur Drive.Des Moines.FA 50321-1158 OWNER: (Name,legal status and address) City of Oshkosh 215 Church Avenue, Oshkosh,WI 54901 CONSTRUCTION CONTRACT This document has Important legal Date: March 13, 2013 consequences.Consuttationwith an attorney Is encouraged with Six Million Eighty Four Thousand Seven $6,084,775.64 respect to its completion or Amount: Hundred Seventy Five Dollars and 64!100 ntpaiflCation. Any singular reference to (Nameian location) Contractor.Surety.Owner or (Montt and focatian) than be considered Public Works Contract No. 13 05, Various Concrete Paving & Utility Projects other party plural where applicable. -South Side This document combines two BOND separate bonds.a Performance Dote: March 15, 2013 Bond and a Payment Bond.Into (Not earlier than Construction Contract Date) one form.This Is not a single combined Performance and Payment Bond, Six Million Eighty Four Thousand Seven Amount: Hund;ed Seventy Five Dollars and 641100 $6,084,775.64 Modifications to this Bond: Ill None CI See Section 16 CONTRACTOR AS PRINCIPAL SURETY •iyt k',Go. ;°• Corn party: (Corporate Seal) Company: (Co/b,m leg ;•, Advance Constr tion, Inc Merchants Bonding Company(ludalil) a r. Signature 7 �1J Signature QM�1j Q� •'Y Name c jL '1;� Name Nameo L. ohs I�� • and Title: (}� ( and Title:Attorney-ln-pact (Any additionalsignaiures appear on the last page of this Performance Bond.) (FOR INFORMATION ATION ONLY—None,address nnd telephone) AGENT or t3RO(ER: OWNER'S REPRESENTATIVE: (Architect.Engineer or other party) Willis City Center East, 122 E College Avenue(2nd floor) Appleton,WI 54911 920 739-7711 Printed In cooperation with American Institute of Architects(MA). The language in this document conforms exactly to the language used in AIA Document A312•Payment Bond-2010 edition. . 1 CON 0656(6112) §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 obiligation 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 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 ofthe 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. 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. §I0 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 here from 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 Iaw bond. §14 Definitions §14.1 Balance of the Contract Price.The total amount payable by the Owner 10 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. § 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. 3 §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: 4 MERCHANTS BONDING COMPANY. MERCHANTS BONDING COMPANY(MUTUAL) - MERCHANTS NATIONAL BONDING, INC. 2100 FLEUR DRIVE •DES MOINES, IOWA 5032L-1158•(800)678-8171 '(515)243-3854 FAX of 3 originals Payment Bond Bond No.WIC 54712 CONTRACTOR: SURETY: (Name,legal status and address) (Name,legal status and principal place of business) Advance Construction, Inc. Merchants Bonding Company(Mutual) 2141 Woodale Avenue, Green Bay, WI 54313 2100 Flour Drive,Des Moines,IA50321-1158 OWNER: (Name,legal status and address) City of Oshkosh 215 Church Avenue, Oshkosh,WI 54901 CONSTRUCTION CONTRACT This document has Important legal Date: March 13, 2013 consequences.Consultation with an attorney is encouraged with Six Million Eighty Four Thousand Seven Amount; Hundred Seventy Five Dollars and 64/100 $6,084,775.64 respect to its completion or modification. Description: Any singular reference to (Name and location) Contractor,Surety,Owner or Public Works Contract No. 13-05, Various Concrete Paving&Utility Projects other party shall be considered South Side plural where applicable, This document combines two BOND separate bonds,a Performance Date: March 15,2013 Send and a Payment Bond,into (Met earlier than Construction Contract Dale) one form.This is not a single combined Performance and Payment Bond. Six Million Eighty Four Thousand Seven Amount: Hundred Seventy Five Dollars and 64/100 $6,084,775.64 Modifications to this Bond: ®None ❑ See Section 18 < t'4/c • CONTRACTOR AS PRINCIPAL SURETY `o^ t'gPir g•.;a^. Company: (Corporate Seal) Company: (CorporateWl Advance Constru ion, Inc. Merchants Bonding Company (g an utuat ;� F Y tsa3 :y� Signature; �J}-- %Y1 L-- Signature:' V0 Name � Name Pamela L. Ronski and Title: b"`•/Ir\M I '' and Title:Attorney-In-Fact (Any additional signatures appear on the last page of this Payment Bond) (FOR INFORMATION ONLY—Name.address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: Willis (Architect,Engineer or other party:) City Center East, 122 E College Avenue(2nd floor) Appleton,WI 54911 920 739-7711 Printed in cooperation with American institute of Architects(AIA). The language in this document conforms exactly to the-language used in AlA Document A312-Payment Bond-2010 edition. $ §I 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 I3) 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.I.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. 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 suitor 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 last 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. 7 §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. §iS 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: MERCHANTS BONDING COMPANY,. POWER OF ATTORNEY Know All Persons By These Presents,that MERCHANTS BONDING COMPANY(MUTUAL)and MERCHANTS NATIONAL BONDING, INC.,both being corporations duly organized under the laws of the State of Iowa(herein collectively called the"Companies"), and that the Companies do hereby make,constitute and appoint,individually, Pamela L. Ronski its true and lawful Attorney-in-Fact,with full power and authority hereby conferred to sign,execute and acknowledge,at any place within the United States,the following surety bond: Surety Bond#:WIC 54712 Principal: Advance Construction, Inc. Obligee: City of Oshkosh and to bind the Companies thereby as fully and to the same extent as if such bond or undertaking was signed by the duly authorized officers of the Companies,and all the acts of said Attorney-in-Fact, pursuant to the authority herein given,are hereby ratified and confirmed. This Power-of-Attorney is made and executed pursuant to and by authority of the following By-Laws adopted by the Board of Directors of the Merchants Bonding Company(Mutual)on April 23,2011 and adopted by the Board of Directors of Merchants National Bonding,Inc.,on October 24,2011. "The President,Secretary,Treasurer,or any Assistant Treasurer or any Assistant Secretary or any Vice President shall have power and authority to appoint Attorneys-in-Fact,and to authorize them to execute on behalf of the Company,and attach the seal of the Company thereto,bonds and undertakings,recognizances,contracts of indemnity and other writings obligatory in the nature thereof. The signature of any authorized officer and the seal of the Company may be affixed by facsimile or electronic transmission to any Power of Attorney or Certification thereof authorizing the execution and delivery of any bond,undertaking,recognizance, or other suretyship obligations of the Company,and such signature and seal when so used shall have the same force and effect as though manually fixed." In Witness Whereof,the Companies have caused this instrument to be signed and sealed this 1st day of January,2012. ,,,,, 10,l,Q�'''a; ••• s G Co/1-447. * • MERCHANTS BONDING COMPANY(MUTUAL) �PO�q. 00: , O,.ORP099.g . MERCHANTS NATIONAL BONDING,INC. . •y •• V 2003 r.n ;