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HomeMy WebLinkAboutContract 1680Construction Performance Bond 400SM7046 Any singular reference to Contractor. Surety. Owner or other party shall be considered plural where applicable. CONIRACTOR (Name and Address) SURETY (Name and Principal Place of Business) O'MALLEY CONSTRUCTION, INC. 35799 241ST AVENUE LECENTER, MN 56057 FIDELITY AND GUARANTY INSURANCE COMPANY 385 WASHINGTON STREET, ST. PAUL, MN 55102 OWNER (Name and Address) CITY OF COLUMBIA HEIGHTS 590 40TH AVENUE NE_ COLUMBIA HEIGHTS, MN 55421 CONSTRUCTION CONTRACT Date: April 8th,2002 Amount: ELEVEN THOUSAND FIVE HUNDRED FORTY AND 20/100 ($ 11,540.20) Description (Name and Location): 2002 Miscellaneous Concrete Repairs and Installations City Project No. 0200 BOND Date (Not earlier than Construction Contract Date): April 19th, 2002 Amount: ELEVEN THOUSAND FIVE HUNDRED FORTY AND 20/100 ($ 11,540.2o) Modifications to this Bond Form: CONTRACTOR AS PRINCIPAL O'MALLEY CONSTRUCTION, INC. Company: Signature: C)~ff' ~/~"~~d Name and Title: .,/' ~. (Co~.' Seal) SURETY FIDELITY AND GUARANTY INSURANCE COMPANY Company: (Corp/~ Seal) Signature: ,,~ Name and-Title: Gary McBride, Attorney-in-Fact CONTRACTOR AS PRINCIPAL Company: (Corp. Seal) SURETY Company: (Corp. Seal) Signature: Name and Title: Signature: Name and Title: EJCDC No. 1910-28A (1984 Edition) Prepared through the joint efforts of The Surety Association of America, Engineers' Joint Contract Documents Committee, The Associated General Contractors of America, and the American Institute of Architects. The Contractor and the Surety, jointly and severally, bind themselves ~heir heirs, executors, administrators, successors and assigns to the Owner lbr the performance of the Coutmctiou Contract, which is incorporated herein by reference 2. [f the Contractor performs the Constmctionor Contract, the Surety and the Contractor shall have no obligation under this Bond, except to par- ticipate in conferences as provided in Subparagraph 3.1. 3. If there is no Owner Default, the Surety's obligation under this Bond shall arise after 3. I The Owner has notified the Constructor and the Surety of its address described in Paragraph 10 below, that the Owner is con- sidering declaring a Contractor Default and has requested and at- tempted to arrange a conference with the Contractor and the Surety to be held not later than fifteen days after receipt of such notice to discuss methods of performing the Contraction Contract. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Con- tract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; and 3.2 The Owner has declared a Contractor Default and formally ter- mimaed the Contractor's fight to complete the contract. Such Contractor Default shall not be declared earlier than twenty days after the Contractor and the Surety have received notice as pm- vided in Subparagraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accordance with the terms of the contract with the Owner. 4. When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the Surety's expense take one of the following actionsl 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Conuact, or 4.2 Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors; or 4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and con- pletion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and the 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 Paragraph 6 in excess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or 4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable prompmess under the circumstances; 1. After investigation, determine the amount for which it may be liable to the Owner and as soon as practicable aiter the amount is determined, render payment therefor to the Owner, or 2. Deny liability in whole or in part and notify the Owner citing reasons thereof 5. If the Surety does not proceed as provided in Paragraph 4 with reason- able prompmess, the Surety shall be deemed to be in default of this Bond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligation under this Bond, and the Owner shall be entitled to enforce any remedy available to ~he Owner. If the Surety proceeds as provided in Subparagraph 4.4 and Ihe Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner I FOR INFORMATION ONLY - Name Address and Telephone) 6. After the Owner has terminated the Contractor% right to complete th,. Construction Contract, and if the Surety elects to act under Subparagrap~ 4.1, 4.2 or 4.3 above, then the responsibilities of the Surety to the Ownm shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To alt limit of the amount of this Bond, but subject to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is obligated without duplication for: 6.1 The responsibilities of the Contractor for correction of defective work and completion of the Construction Contract. 6.2 Additional legal, design professional and dearly costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Paragraph 4, and 6.3 Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor. 7. The Surety shall not be liable to the Owner or others for obligations o~ the Contractor that are unrelated to the Construction Contract, and the Balance of the ConUact Price, shall not be reduced or set offon account of any such unrelated obligations. No fight of actiou shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors. administrators, or successors. 8. The Surety hereby waives notice of any change, including changes ol' time, to the Construction Contract or in related subcontracts, purchase orders and other obligations. 9. Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years aftra Contractor Default or within two years after the Contractor ceased work- ing 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 mininum period of limitation availible to sureties as a defense in the jurisdiction of the suit shall be applicable. 10. Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. 11. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions con- forming to such statutory or other legal requirement shall be deemed in- corporated herein. The intent is that his Bond shall be construed as a statutory bond and not as a common law bond. 12. Defenitious. 12.1 Balance of the Contract Price: The total amount payable by the Owner in the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to thc Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages m which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Con- struction Contracts 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes therein. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Construction Contract. 12.4 Owner Default: Failure of the Owner, which has neither been remedied not waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof AGENT or BROKER OWNER'S REPRESENTATIVE (Architect, Engineer or other Party): R.J. AHMANN COMPANY City of Columbia Heights 6551 CITY WEST PARKWAY, EDEN PRAIRIE, MN 55344 En~noexin~ DepartmenL Columbia Heights, MN Construction Payment Bond Bond No. 400SM7046 Any singular reference to Contractor. Surety. Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address) SURETY (Name and Principal Place of Business) O'MALLEY CONSTRUCTION, INC. FIDELITY AND GUARANTY INSURANCE COMPANY 35799 241ST AVENUE 385 WASHINGTON STREET, LECENTER, MN 56057 ST. PAUL, MN 55102 OWNER (Name and Address) CITY OF COLUMBIA HEIGHTS 590 40TH AVENUE NE COLUMBIA HEIGHTS, MN 55421 CONSTRUCTION CONTRACT Date: April 8th, 2002 Amount: ELEVEN THOUSAND FIVE HUNDRED FORTY AND 20/100 Description (Name and Location): 2002 Miscellaneous Concrete Repairs and Installations City Project No. 0200 ($ 11,540.20 ) BOND Date (Not earlier than Construction Contract Date): April 19th, 2002 Amount: ELEVEN THOUSAND FIVE HUNDRED FORTY AND 20/100 ($ 11,540.20) Modifications to this Bond Form: CONTRACTOR AS PRINCIPAL O'MALLEY CONSTRUCTION, INC. Company: Signature: _, . Name and Title: SURETY FIDELITY AND GUARANTY INSURANCE COMPANY Company: Signature: Name and Title: ] Gary McBride, Attorney-in-Fa& CONTRACTOR AS PRINCIPAL Company: (Corp. Seal) SURETY Company: (Corp. Seal) Signature: Name and Title: Signature: Name and Title: EJCDC No. 1910-28B (1984 Edition) Prepared through the joint efforts of the Surety Association of America, Engineers' Joint Contract Documents Committee, The Associated General Contractors of America, American Institute of Architects, American Subcontractors Association, and the Associated Specially Contractors I. The Contractor and the Surety, jointly and severally, bind themselves, ;heir heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the perfor- mance of the Construction Comract, which is incorporated herein by reference. 2. With respeet in the Owner, this obligation shall be null and void if the Contractor: 2.1 Prompliy makes payment, directly or indirectly, for all sums due Claimants. and 2.2 Defends indemnifies and holds harmless the Owner from ail claims, demands, liens or suits by any person or entity who furnished labor, materials or equipment for use in the performance of the Construction Contract, provided the Owner has promptly notified the Contractor and the Surety (at the address described in Para- graph 12) of an claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety, and provided there is no Owner Default. 3. With respect to Claimants, this obligation shall be null and void if the Contractor promptly makes payment, directly or indirectly, for all sums due. 4. The Surety shall have no obligation to Claimants under this Bond until 4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, starting that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim. 4.2 Claimants who do not have a direct contract with the Contractor 1. Have furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner, within 90 days after having last performed labor or last furnished materials or equipment in- cluded in the claim stating, with substantial accuracy the amount of the claim and the name of the party to whom the materials were furnished or supplied or for whom the labor was done or performed; and 2. Have either received a rejection in whole or in part from the Contractor, or not received within 30 days of furnishing the above notice any communication from the Contractor by which the Contractor has indiciated the claim will be paid directly or indirectly: and 3. Not having been paid within the above 30 days, have sent a written notice to the Surety (at the address described in Para- garph 12) and sent a copy, or notice thereof, to the Owner stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to the Contractoi-, 5. If a notice required by Paragraph 4 is given by the Owner to the Con- tractor or to the Surety, that is sufficient compliance. 6. When the Claimant has satisfied the conditions of Paragraph 4, the Surety shall promptly and at the Surety's expense take the following actions. 6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and teh basis for challengin any amounts that are dispufied. 6.2 Payor arrange for payment of any undisputed amounts. 7. The Surety's total obligation shall not exceed the amount of this Bond and the amount of this Bond shall be credited for any payments made in good faith by the Surety. 8. Amounts owed by the Owner to the Constractor under the Construction Contract shall be used for the performance of the Coutmction Contract and to satisfy claims, it'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 Con- tractor and the Surety under this Bond, subject to the Owner's wish to use the funds for the completion of the work. 9. The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Con- tract. The Owner shall not be liable for payment of any costs or expense, of any Claimant under this Bond. and shail have under this Bond no obligations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond. 10. The Surety hereby waives notice of any change, including changes time, to the Construction Contract or to related subcontractors, purchase orders and other obligations. 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 thc work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2 (iii), or (2) on which the last labor or service was performed by anyone or the last materiais or equipment were furnished by anyone under the Construction Contract, whichever of ( I ) 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 clefen~e in the jurisdiction of the suit shall be applicable. 12. Notice to the Surety, the Owner or the Contractor shail be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be sufficient compliance as of the date received at the address shown on the signature page. 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 per- formed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conformin~ to such statutory or other legal requirement shall be deemed incorporated' herein. The intent is, that this Bond shall be construed as a statutory bond and not as a common law bond. 14. Upon request by any person or entity appearing to be a potenutil beneficiary of this Bond, the Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be made. 15. DEFINITIONS 15.1 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 Contract. The intent of this Bond shall be to include wilh- out limitation in the terms "labor, materiais or equipment" that part of water, gas, pOwer, light, heat, oil, gasoline, telephone ser- vice or rental equipment used in the Construction Contract, archi ectuai and engineering services required for performance of thc work of the Contractor and the Contractor's subcontractor, and all other items for which a mechanic's lien may be asserted in jurisdiction where the labor, materials or equipment were furnished. 15.2 Construction Contract: The agreement between the Owner anti the Contractor identified on the signature page, including all Contract Documents and changes thereto. 15.3 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. (FOR INFORMATION ONLY - Name, Address and Telephoiie) AGENT or BROKER OWNER'S REPREe~''~ ....... Alql~! a M 1~ t-,t~, an s ~.r~ '"~ ~ ~ v~ t~xcmtect, Engineer or other party) R.J ................... ~u,, ~t Cit ........ $ ~ y o~ t,mum~m Heights 6.. I CITY WEST PARKWAY, EDEN PRAIRIE, MN 55344 Engineering Department, Columbia Heights, MN ACKNOWLEDGEMENT OF SURETY State of Minnesota ) County of CARVER ) On this .!9th of April, 2002, before me personally appeared to me known, who being by me duly sworn, did depose and say: that s/he resides at OAKDALE. MINNESOTA, that s/she is the ATTORNEY-IN-FACT of FIDELITY AND GUARANTY INSURANCE COMPANy, the corporation described in and which executed the annexed instrument; that s/he knows the corporate seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation; that s/he signed his/her name thereto by like order; and that the liabilities of said corporation do not exceed its assets as ascertained in the manner provided by law. Nomr~ Public ~' Minnesota l~ / ~ N~ary Public ACKNOWLEDGEMENT OF CORPORATION State of Minnesota) County of ) Onthis 19thor April, 2002 , before me personally appeared Lot, 0 to me known, who being by me first duly sworn, did depose and say that s/he resides at that s/he is the p f ( .~ I'~ .iL , of O'MALLEY CONSTRUCTION. INC~, the corporation described in and which executed the foregoing instrument; that s/he knows the corporate seal of said corporation, that the corporate seal affixed to said instrument is such corporate seal, that it was so affixed by order and authority of the Board of Directors of said corporation, and that s/he signed his/her name thereto by like order and authority. Notary Public lheSl'RlUl POWER OF ATTORNEY Seaboard Surety Company United States Fidelity and Guaranty Company St. Paul Fire and Marine Insurance Company Fidelity and Guaranty Insurance Company St. Paul Guardian Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Mercury Insurance Company Power of Attorney No. 20294 Certificate No. 9 2 2 3 8 1 KNOW ALL MEN BY THESE PRESENTS: That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York, and that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, and that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, and that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Richard J. Ahmann, 111, Gary McBride, Barbara L. Raedeke, Mary Jo Dingwall and Andrew P. Krane Eden Prairie Minnesota of the City of State , their true and lawful Attomey(s)-in-Fact, each in their separate capacity if more than one is named above, to sign its name as surety to, and to execute, seal and acknowledge any and all bonds, undertakings, contracts and other written instruments in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakin or ~itted in any actions or proceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused thi: * [ ~ 1St day of December 1999 State of Maryland City of Baltimore Seaboard Surety Company St. Paul Fire and Marine St. Paul Guardian I~ St. Paul Mercury Insurance States Fidelity and Guaranty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. THOMAS E. HUIBREGTSE, Assistant Secretary On this 1st day of December , 1999 , before me, the undersigned officer, personally appeared John E Phinney and Thomas E. Huibregtse, who acknowledged themselves to be the Vice President and Assistant Secretary, respectively, of Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, United States Fidelity and Guaranty Company, Fidelity and Guaranty Insurance Company, and Fidelity and Guaranty Insurance Underwriters, Inc.; and that the seals affixed to the foregoing instrument are the corporate seals of said Companies; and that they, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing the names of the corporations by themselves as duly authorized officers. In Witness Whereof, I hereunto set my hand and official seal. My Commission expires the 13th day of July, 2002. REBECCA EASLEY-ONOKALA, Notary Public 86203 Rev. 7-2000 Printed in U.S.A.