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HomeMy WebLinkAboutContract 1793BUILDING DEMOLITION & EXCAVATION OF CONTAMINATED SOIL COLUMBIA HEIGHTS INDUSTRIAL PARKi PHASE 1 CITY OF COLUMBIA HEIGHTS, MINNESOTA WORK AGREEMENT ~ Frat:talone Compan±es, Inc. ('/M~,, This Ag~%e&]aent is made this 25th day of October 2004, by and between the City of Columbia Heights [( the City") and-&t~.-Fratta-lor~C~ (the "Contractor") for Contaminated s0ii as detailed in the bid request. Building Demolition and Excavation of WlTNESSETH: WHEREAS, the City desires to have perforlned or constructed the services or facilities described in the Contract Documents (the "work"); WHEREAS, Contractor represents that it has the necessary personnel, experience, competence, and legal right to perform the Work; WHEREAS, the City Council has adopted a Resolution authorizing the City staff to enter a contract for the completion of the Work specified herein. NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree witll the other as follows: 1. WORK TO BE COMPLETED ... The Work shall be performed in strict accordance with the Contract Docm'nents. The Contractor shall carefully review all of the Contract Documents before performing the Work and shall promptly call to the attention of the City any discrepancy or inconsistency which may exist between any two or more documents or b~tween any parts of the stone document. The City shall have discretion as to how to address any such discrepancy or inconsistency and shall modify, interpret~ or adjust the Contract Documents accordingly as the case may be. 2. CONTRACT DOCUMENTS ... The Contract Documents shall consist of the Work Agreement, the Scope of Work and Specifications, the plans mid drawings prepared by or on behalf of the City in connection with the Work (where specified), all Amendment Request Certificates approved by the City, all Change Orders issued by the City, the Notice toProceed, the Sworn Construction Statement, the Completion Certificate, and written interpretations of the Contract Documents issued by the City. The Contract Documents shall, insofm' as is possible, be interpreted to be consistent with one another. Any inconsistencies shall be addressed in accordance with paragraph 1 of this Agreement. 3. PERMITS AND REGULATIONS ... Prior to commencing the Work, the Contractor shall secure all necessary building permits and licenses as may be required, and before and during the progress of the Work, give all notices and comply with all the laws, ordinances, rules, and regulations of evec/kind and nature now or hereafter in effect that are promulgated by any federal, state, county, or other govermnental attthority, relating to the performance of the Work. If the Contractor's performance is contrary to any such law, ordinance, rule, or regulation, it shall bear all costs arising there from. Contractor specifically agrees to abide by and observe all .... ~..~ ~ ..... ~,; .... c.~,~ n ...... *~"'o~ ~o~*" °~'~ Health Admip~stration, which are applicable to the w~,H~ 4. PROSECUTION OF THE WORK... The Contractor shall at all times prosecute the Work diligently so as to insure its completion in full accordance with the Contract Documents mid shall at all times furnish sufficient .numbers and amounts of properly skilled Workers, acceptable materials and equipment, adequate services, construction tools, and equipment. The Work shall be performed in a good and Worlc~aanlike mamler. Contractor shall keep the Work site clean and orderly during the course of the Work and remove all debris at the completion of the Work. If the Contractor is negligent in these areas, the City reserves the right to perform this work with its own forces at overtime rates. The costs of such work shall be charged to the Contractor. The Contractor will adequately protect the Work fi'om damage, will protect the property from injury or loss, and will take all necessm3~ precautions during the progress of the Work to protect all persons and the prope~V of others from injury or damage. The Contractor will assume full responsibility for all its tools and equipment and all materials to be used in connection with the Work. Materials and equipment that have been removed and replaced, as part of the Work shall belong to the Contractor unless agreed otherwise. 5. COMMENCEMENT AND COMPLETION OF WORK; LIQUIDATED DAMAGES ... The Work is anticipated to commence on November 2004 and be satisfactorily completed in the opinion of the City within 60 days of the Authorization to Proceed. In the event the Work is not commenced within ten (10) days of the date specified, the City may dismiss the Contractor without any compensation whatsoever and appoint a substitute Contractor(s). If the Contractor is unable to commence the Work by the specified date, it must promptly notify the City. In the event the Work is not completed by the specified date, the Contractor and its sureties shall be assessed liquidated damages of one percent (1%) of the total Contract Price or fifty dollars ($50.00), whichever is greater, per day for each calendar day of delay excluding Saturday, Sunday, and legal holidays. This sum shall be deducted fi'om the Contract Price at the time of payment. This provision for liquidated damages represents the best estimate by the City and the Contractor of loss suffered by the City due to failure to complete the Work on time, and shall not be, or is deemed to be, a penalty or forfeiture. This provision for liquidated damages is in addition to any and all other rights and remedies to which the City may be entitled at law or in equity in connection with this Agreement. 6. EXCUSABLE DELAYS ... The following circumstances, and only these circumstances, will, at the City's discretion, be considered legitimate cause for a change in the commencement and/or completion dates specified in paragraph 5 of this Agreement: Material delay -- material delays that are beyond the control of the Contractor, which can be shown to have directly caused the overall late completion. Adverse weather conditions -- weather conditions that directly affect the scheduling of exterior work over a significant portion of the term of this Agreement. Strikes -- Contractors who face union work stoppage in the case where they have to rely on such a work force in order to complete the Work. Amendments -- significant amendments in the original scope of work, which can be reasonably shown to require an extension of the time, allowed for completion. eo Emergencies -- accidents, death or illness in the immediate family of the Contractor, which necessitates a significant leave of absence from the job. Proven lack of cooperation from persons in possession of the prope~ resulting in significant delays. g. Proven lack of cooperation from the Contractor's agents resulting in significant delays. 7, AMENDMENT REQUEST CERTIFICATE ... Changes in the scope, specifications, or cost of the Work that are proposed by the Contractor subsequent to the execution of this Agreement shall be considered Amendments. No such Amendments shall be made without prior written approval by the City. Any Amendment proposed by the Contractor shall be submitted via an Amendment Request Certificate. The Amendment Request Certificate must: (a) be signed and dated by the Contractor; (b) specify how the Work is to be amended and the cost for such Amendments; and (c) specify the reason for any cost increase/decrease resulting fi'om the Amendment(s). The City will approve or disapprove the Amendment Request Certificate after appropriate review and prope~ inspection. If approved, a copy of the signed Amendment Request Certificate will be forwarded to the Contractor. Upon receipt by the Contractor of the approved Amendment Request Certificate, the approved Amendment(s) may be implemented. All Amendments made before receipt of an approved Amendment Request Ce~rificate will not be compensable by the City. No such Amendment Request Certificate shall be deemed to constitute a waiver of any remaining covenant, agreement, term, or condition contained in the Contract Documents. 8. CHANGE ORDER ... The City shall have the right, within the general scope of the Work and without notice to any surety or sureties of the Contractor, to make changes in the Work, either by altering the nature of the same or by adding to or deducting from it. Ail changes shall, except in the case of emergencies endangering the safety of persons or property be made by written Change Order. The Contractor shall promptly comply with any and all written Change Orders. No such Change Order shall be deemed to invalidate the remaining terms and conditions contained in the Contract Documents. 9. GENERAL GUARANTY ... The Contractor hereby guarantees to the City that all of the Work shall be done in competent, workman-like manner and that such Work shall be and remain free of defects in work2nanship and materials for a period of one (1) year from the date that the City executes the Completion Ce~ntificate pursuant to paragraph 17 of this Agreement. The Contractor warrants that all materials and equipment furnished in connection with the Work will be new, unless otherwise specified, and be of good quality and fi'ee fi'om faults and defects. The Contractor shall assign to the City (if assignable) or enforce for the benefit of the City (if not assignable) any guarantees provided by manufacturers or sellers of machinery materials or equipment that are to be incorporated into the Work. The City's acceptance of the Work shall not be deemed to be a waiver of any of the City's rights under this paragraph. 10. WAIVER OF LIABILITY... It is agreed that the Work is undertaken at the sole risk of the Contractor. The Contractor does expressly forever release the City of Columbia Heights fi'om any claims, demands, injuries, damage actions, or causes of action whatsoever, arising out of or connected with the Work. 11. INDEMNIFICATION ... Any and all claims that arise or may arise as a consequence of any act or omission on the part of the Contractor, its agents, se~wants, or employees while engaged in the performance of the Work shall in no way be the obligation or responsibility of the City of Columbia Heights. The Contractor shall indemnify, hold harmless, and defend the City of Columbia Heights, council members, officers, employees, successors, and assigns against any and all liability, loss, cost, damages, expenses, claims, or actions, including attorney's fees which the City of Columbia Heights, council members, officers, or employees may hereinafter incur or be required to pay on account ofinjm2~ to or death of any person or persons or damage to any property arising out of or by reason of any act or omission of the Contractor, its agents, servants, or employees in the execution, performance, or failure to adequately perform its obligations under this Agreement, whatever the cause of such injuries or damage. 12. INSURANCE ... The Contractor agrees that in order to protect itself, the City of Columbia Heights under the indemnity provisions set forth in paragraph 11 of this Agreement, it will at all times during the term of this Agreement, maintain, at a minimum, the following insurance policies: Workers Compensation Insurance. The Contractor shall maintain worker's compensation insurance in compliance with all applicable statutes including Chapter 176 of the Minnesota Statutes. Such policy shall include Employer's Liability Coverage and at least such amount(s) as are customarily provided in worker's compensation policies issued in Minnesota. Contractor further agrees to require all subcontractors and independent contractors to maintain worker's compensation insurance in compliance with all applicable statutes and to monitor the compliance of such subcontractors and independent contractors with the applicable statutes. Commercial General Liabili_ty Insurance. The Contractor shall maintain Occurrence Based Commercial General Liability Insurance ("CGL"), providing coverage on an "occurrence", rather than on a "claims made" basis, which policy shall include coverage for the Completed Operations Hazard, and which shall also include a Broad Form General Liability Endorsement, IS0 number GL 0404, or an equivalent form (or forms), so long as such an equivalent form (or forms) affords coverage which is in all material respects at least as broad. Any equivalent form (or forms) of coverage, shall be approved by the City. The Contractor agrees to maintain total liability policy limits of at least One Million Dollars ($1,000,000), applying to liability for Bodily Injury, Personal Injury, and Property Damage, which total limits may be satisfied by the limits afforded under its Occurrence Based CGL policy as specified above, or by such policy in combination with the limits afforded by an Umbrella Liability Policy (or policies) provided, however, that the coverage afforded under any such Umbrella Liability Policy shall be at least as broad as that afforded by the underlying occurrence based CGL Policy as specified above. Automobile Liability Insurance. The Contractor shall maintain automobile liability insurance covering liability for Bodily Injury and Property Damage arising out of the ownership, use, maintenance, or operation of all owned, non-owned, and hired automobiles and other motor vehicles. Such policy shall provide total liability limits for combined Bodily Injury and/or Property Damage in the amount of at least One Million Dollars ($1,000,000) per accident, which total limits may be satisfied by the limits afforded under such policy, or by such policy in combination with the limits afforded by an Umbrella Liability Policy (or policies) provided, however, that the coverage afforded under any such Umbrella Liability Policy shall be at least as broad as that afforded by the underlying automobile liability insurance policy. The City of Columbia Heights shall be named as "additional insured" parties with respect to the insurance policies specified in (b) and (c) above. The Contractor shall not commence work until a Certificate of Insurance evidencing all of the insurance policies required above is approved and a written Notice to Proceed is issued by an authorized representative of the City. The City shall, at any time during the term of this agreement, have the right to require that the Contractor secure any additional insurance, or additional feature to existing insurance, as the City may reasonably require for the protection of its interests or those of the public. It is expressly understood that the City does not in any way represent that the minimum insurance coverage set forth in this paragraph is sufficient or adequate to protect the interest or liabilities of the Contractor. 13. BOND... The Contractor shall furnish payment and performance bonds, issued by a surety acceptable to the City, at least equal to the Contract Price as that amount may be amended fi'om time to time=and including, but not be limited to coverage for liquidated damages provided for in paragraph 5 of this Agreement, and the period of coverage by any warranty required by the Work. The bonds shall remain in effect for one year after the date the Completion Certificate is executed by the City and for any warranty period required by the Work, whichever date is later. The premiums for such bonds shall be deemed to be included in the Contract Price, and no additional compensation shall be payable to the Contractor with respect to such bonds. No Change Order, approval or disapproval of an Amendment Request Certificate, changes in the commencement and/or completion dates pursuant to paragraph 5, failure to enforce any rights arising under the Contract Documents, or other act or forbearance of the City shall, unless specifically agreed to otherwise by the City, operate to release or discharge any surety or sureties under any such bond. 14. LIEN WAIVER ... Neither the Contractor nor any subcontractor or other person or entity furnishing labor, equipment, or materials in connection with the Work shall file any mechanic's lien against the City's buildings, structures or land or any part thereof. The Contractor shall protect, defend, indemnify, and hold harmless the City of Columbia Heights from any and all claims, demands, or actions of whatever nature arising out of work, labor, equipment, or materials furnished by the Contractor or its subcontractors in connection with the Work. Payment of the Contract Price shall not be due until the Contractor has delivered to the City lien waivers acceptable to the City, which release the City from all liens that may arise in connection with the Work. The Contractor shall list below tbe names of all suppliers and/or subcontractors that will provide materials, services, or labor in connection with the Work. The Contractor will notify the City of any changes in this list prior to the commencement of the Work. 15. CONTRACT PRICE ... The Contractor agrees to furnish all work, labor, materials, and equipment necessary to complete the Work as set forth in the Contract Documents for the sum of $694,662 (the "Contract Price"), to be paid by the City in accordance with the terms and conditions of this Agreement. The Contract Price shall constitute the sole compensation payable to the Contractor for its performance of the Work or anything done in connection therewith including expenditures by the Contractor for all taxes, permits, licenses, and bonds required to perform the Work. The Contractor shall indemnify and save the City harmless fi'om and against any liability for any such taxes, fees, premiums, contributions, etc. that the Contractor incurs in connection with the Work. 16. EXAMINATION OF WORK SITE... Contractor agrees that the Contract Price specified in paragraph l 5 of this Agreement is based upon Contractors examination of the work site and that it will make no claim for additional compensation or the extension of time for performance if the conditions encountered differ from those anticipated by such examination, unless such a claim is based upon conditions at the work site, or omissions, ambiguities, or conflicts in the Contract Documents, which Contractor can show could not have been discovered in the exercise of reasonable care prior to the submission of the Contract Price. 17. PAYMENT OF CONTRACT PRICE ... The Contractor agrees to provide the City with the following documentation as a condition to receiving payment of the Contract Price: (a) an itemized bill for the completed Work; (b) a properly executed Completion Certificate; (c) a Sworn Construction Statement; and (d) all lien waivers as required by paragraph 14 of this Agreement. The City may withhold payment of the Contract Price to the Contractor to such extent as may be necessary to protect the City from loss on account of: (a) defective work not remedied; (b) claims or actions filed or evidence reasonably indicating the probable filing of the same against the City with respect to the Work performed; (c) the failure of the Contractor to make payments properly to subcontractors and/or suppliers for equipment, material, or labor, or to provide evidence that such payments have been made; (d) any cost for which the Contractor is liable under the Contract Documents; or (e) a breach by Contractor of any term, condition, or provision contained in the Contract Documents. 18. EQUAL EMPLOYMENT OPPORTUNITY ... The Contractor shall not discriminate against any employee or applicant for employment on the basis of age, race, color, religion, sex, or national origin. The Contractor shall comply with all applicable laws, Executive Orders, and regulations concerning non-discrimination in emPloyment, including the Equal Opportunity Clause of Section 202, Executive Order 11246, as amended, which is hereby incorporated by reference. 19. INDEPENDENT CONTRACTOR STATUS ... Contractor is and shall remain an independent contractor in the performance of the Work, maintaining complete control of its workers and operations. Neither Contractor nor anyone employed or engaged by Contractor shall become an agent, representative, servant, or employee of the City in the performance of the Work or any part thereof. 20. CONTRACT REPRESENTATIVES; ADDRESSES ... The City's representative with respect to this Agreement shall be Randy Sclmmacher, Project Director, City of Columbia Heights. The Contractor's representative with respect to this Agn'eement shall be Jim Wutzke, Project Manager. All notices, requests, and instructions, or other communications given or received by either party under the terms of this Agreement shall, unless otherwise specifically provided herein, be made in writing signed by the designated representative of the party making such communication and be delivered or addressed to the designated representative of the other party at the following address: CITY ADDRESS: City of Columbia Heights Attn: Randy Schumacher 590 40m Avenue Northeast Columbia Heights, MN 55421 I CONTRACTOR ADDRESS: ~.-MrFrattaton,~mparry Frattalone Companies, Inc. '~ 3205 SPruce Street ~ _/~~-~ Little Canada, MN 55117 21.'-- SUBCONTRACTORS ... Contractor agrees to bind eVery subcontractor by the terms, conditions, and '-~ovisions set forth in the Contract Documents that are applicable to the subcontractor's work, unless otherwise specifically agreed otherwise in writing by the City. 22. ASSIGNMENT... This Agreement shall be binding upon and in order to the benefit of the Contractor, its legal representatives, heirs, successors, and assigns.' No assignment or attempted assigmnent of this Agreement or any rights hereunder shall be effective unless the written consent of the City is first obtained. No such assigmnent, even if consented to by the City, shall relieve the Contractor from liability under this Agreement for the performance and completion of the Work in accordance with the Contract Docmnents. 23. ENTIRE AGREEMENT The Contract Documents contain all the terms, conditions, and provisions pertaining to the Work to be completed by the Contractor, there being no other understandings, agreements, or warranties, express or implied. All prior negotiations and dealings regarding the subject matter of the Contract Documents are superseded by and merged into the Contract Documents. 24. APPLICABLE LAW... This Agreement shall be construed in accordance with and governed by the laws of the state of Minnesota. 25.~,,~,a ~n~r~an~q-, ......... Thi¢ a gre~m~nt~, ~ may be modified or amended only with the written ar~m'oval,, of the City and the Contractor. 26. CONSTRUCTION ... ~ the event that any one or more of the provisions of this Agreement, or any application thereof, shall be found to be invalid, illegal, or otherwise unenforceable, the validity, legality, and enforceability of the remaining provisions or any application thereo{shall not in may way be affected or impaired fharahv 27. AUTHO!~ATY ... Each of the undersigned parties warrants that it has the full authority to execute this Agreement, and each individual signing this Agreement on behalf of a corporation hereby warrants that he or she has full authority to sign on behalf of the corporation and that he or she represents and binds such corporation thereby. 28. WAIVER ... No failure by the City to insist upon the strict performance of any covenant, duty, agu'eement, or condition contained in this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or any other covenant, agreement, term, or condition, nor does it imply that such covenant, agreement, term, or condition may be waived again. IN WITNESS WHEREOF, the parties have set their hands this 25th day of October, 2004. THE CITY OF COLUMBIA HEIGHTS It/sjMayor- Ju!ie~me Wycl~'.f [ L/ , J-.~ .--F-r-a~t-a-t~ n e- Gonip any Its:vice President-Finance, 2/rag. Initial Dave Grimsrud H:\lndusirial Park 2004\De,nolition Contract THE AMERICAN INSTITUTE OF ARCHITECTS Bond No. 929348880 AIA Document A312 Performance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): Frattalone Companies, Inc. 3205 Spruce Street St. Paul, MN 55117 OWNFR (Name and Address): City of Columbia Heights 590 40th Avenue NE Columbia Heights, MN 55421 CONSTRUCTION CONTRACT Date: October 25th, 2004 Amount: Six Hundred Ninety-four Thousand Six Hundred Sixty-two and 00/100 ($694,662.00) Description (Name and kocation): Building Demolition and Excavation of Contaminated Soil Columbia Heights Industrial Park, Phase I BOND Date (Not earlier than Construction Contract Date): November 30th 2004 Amount: Six Hundred Ninety-four Thousand Six Hundred Sixty-two and 00/100 ($694,662.00) Modifications to this Bond: X SURETY (Name and Principal Place of Business): Western Surety Company CNA Plaza Chicago, Illinois 60685 [] See Page 3 CO N 'r RACI'O_Q.R-AS-taP~N C IPAL S U RETY /// ...... - .......... '1 Corer>any: (/ ~ (Corporate Seal) Comp y.an · '/~ j ~r/ "'" (~orporate Seal) Fra~alon0k~~c. t~ Western Surg~'o/n~,ahy ./,. Signature: ~~-~-- -- ' ~ Signatur~ In Fact Name'and Tit[e: Dave Gr±msrud, V±ce Pres±dent- Name an ' : . ~ s// At y- - ' F±nance (Any additional signatures appear on page 3) ~, ,o.,x ,,,,, ~,~P¢,,~, ,,.-,,-, O.n-e) AGENT or BROKER: T.C. Field & Company OWNER'S REPRESENTATIVE (Architect, Engineer or P.O. Box 64016 other party): St. Paul, Minnesota 55164-0016 (651) 227-8405 AIA DOCUMENT A312 · PERFORMANCE BOND AND PAYMENT BOND · DECEMBER 1984 ED. · AIA ® THE AMERICAN INSTITUTE OF ARCHn'ECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-19114 I 1 The Contractor and the Surety, iointly 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 to participate in conferences as prm(ided in Su.bparagr~ph 3(I. ......... 3 if there is no Owner Default, the Surety's obligation under this Bond shall arise after: 3.1 The Owner has notified the Contractor and the Surety at its address described in Paragraph 10 below that the Owner is considering declaring a Contractor Default and has requested and attempted 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 Construc- tion Contract. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reason- able 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; and 3.2 The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete the contract. Such Contractor Default shall not be de- clared earlier than twenty days after the Contractor and the Surety have received notice as provided in Sub- paragraph 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 accor- dance with the terms of the contract with the Owner. 4 When the Owner has satisfied the conditions of Para- graph 3, the Surety shall promptly and at the Surety's ex- pense take one of the following actions: 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract; or 4.2 Undertake to perform and complete the Construc- tion Contract itself, through its agents or through inde- pendent contractors; or 4.;3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Con- struction Contract, arrange for a contract to be pre- pared 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 ex- cess 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 promptness under the circumstances: .1 After investigation, determine the amount for which it may be liab'le to the Owner an~l, as soon as practicable after the amount is deter- mined, tender payment therefor to the Owner; or .:2 Deny liability in whole or in part and notify the Owner citing reasons therefor. 5 If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to bein default on this Bond fifteen days after receipt o'f'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 Subparagraph 4.4, and the 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. 6 After the Owner has terminated the Contractor's right to complete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2, or 4.3 above, 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. To the limit of the amount of this Bond, but subje~ to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Sure- ty is obligated without duplication for: 6.1 The responsibilities of the Contractor for correc- tion of defective work and completion of the Construc- tion Contract; 6.:2 Additional legal, design professional and delay costs resulting from the Contractor's Default, and re- sulting 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 dam- ages caused by delayed performance or non-perfor- mance of the Contractor. 7 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Con- struction Contract, and the Balance of the Contract Price shall not be reduced or set off on account o1: any unrelated obligations. No right of action shafl accrue this Bond to any person or entity othe:' than the Owner or its heirs, executors, administrators or successors. 8 The Surety hereby waives notice of any change, i~clud- lng changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obliga- tions. 9 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdictiop, in the location in which the work or part of the work is located and shall be instituted within two years after 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 oc- curs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation avail- AIA DOCUMENT A,~12 · PERFORMANCE BOND AND PAYMENT BOND · DECEMBER 1984 ED., AIA ® THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1~)84. 2 able 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 sig- nature 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 incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 12 DEFINITIONS 12.1 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 Con- tractor 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, re- duced by all valid and proper payments made to or on behalf of the Contractor under the Construction Con- tract. 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the sig- nature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to per- form or otherwise to comply with the terms of the Construction Contract. 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Con- tractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. 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) Signat u re: Signatu re: Name and Title: Name and Title: Add ress: Add ress: AIA DOCUMENT A312 · PERFORMANCE BOND AND PAYMENT BOND · DECEMBER 1984 ED. · AIA f~ THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 3 1 The Contractor and the 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 perfor- mance of the Construction Contract, which is incorporated herein by reference. :2 With respect to the Owner, this obligation shall be null and void if the Contractor: :2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants, and 2.:2 Defends, indemnifies and holds harmless the Owner from all claims, demands, liens or suits by any person or entity who furnished labor, materials or equipment for use in the performance of the Construc- tion Contract, provided the Owner has promptly noti- fied the Contractor and the Surety (at the address de- scribed in Paragraph 12) of any 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. :] With respect to Claimants, this obligation shall be null and void if the Contractor promptly makes payment, di- rectly 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, stating that a claim is being made under this Bond and, with sub- stantial 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 Con- tractor and sent a copy, or notice thereof, to the Owner, within 90 days after having last performed labor or last furnished materials or equipment included in the claim stating, with substantial accuracy, the amount of the claim and the name of the party to whom the mate- rials 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 with- in 30 days of furnishing the above notice any communication from the Contractor by which the Contractor has indicated 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 Paragraph 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 lUllll~il~g to I. ll~ S If a notice required by Paragraph 4 is given by the Owner to the Contractor or to the Surety, that is sufficient compli- ance. $ When the Claimant has satisfied the conditions of Para- graph 4, the Surety shall promptly and at the Surety's ex- pense 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 the basis for chal- lenging any amounts that are disputed. 6.2 Pay or 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 Contractor under the Construction Contract shall be used for the perfor- mance 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 the Surety under this Bond, subject to the Owner's priority 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 unrelat- ed to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obliga- tions 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, includ- ing changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obliga- tions. 11 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdic- tion in the location in which the 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 Sub- paragraph 4.1 or Clause 4.2 (iii), or (2) on which the last labor or service was performed by anyone or the last mate- rials 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 applica- ble. 1:2 Notice to the Surety, the Owneror the Co~itract°r shall be mailed or delivered to the address shown on th:e sig- nature page. Actual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be? suffi- cient compliance as of the date received at ihe address shown on the signature page. 13 When this Bond has been furnished'to corn, ply 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 incorporated herein. The intent is that this AIA DOCUMENT A312 · PERFORMANCE BOND AND PAYMENT BOND · DECEMBER 1984 ED. · AIA ® THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312'1~9~' 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 potential 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 equip- ment for use in the performance of the Contract. The intent of this Bond shall be to include without limita- tion 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. 15.2 Construction Contract: The agreement between the Owner and the Contractor identified on the sig- nature 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 Con- tractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: (Space is prOvided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY 'Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature: Name and Title: Name and Title: Address: Address: AIA DOCUMENT A312 , PERFORMANCE BOND AND PAYMENT BOND · DECEMBER 1984 ED.. AIA ® THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 6 CORPORATE ACKNOWLEDGMENT STATE OF Minnesota COUNTY OF Anoka On the 30th day of November , 2004., before me personally appeared, Dave Grimsrud to me, who being duly sworn, did depose and say: that s/he resides in Minnesota that s/he is the Vice President - Finance of the Frattalone Companies, Inc. the corporation described in and which executed the foregoing instrument; that s/he knows the 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; and that s/he signed her/his name thereto by like order. ~' ~;~;~::~ , - 'es Jan 31 2005 ' ACKNOWLEDGMENT OF CORPORATE SURETY STATE OF MINNESOTA COUNTY OF _ Ramsey On the 30th day of November , 2004 before me personally appeared, M.A. Jones to me known, who being duly sworn, did say: that s/he resides in the City of St. Paul, MN that s/he is the aforesaid officer or attorney in fact of Western Sure _ty Company a corporation; that the seal affixed to the foregoing instrument is the corporate seal of said corporation; and that said instrument as signed and sealed on behalf of said corporation by the aforesaid officer, by authority of its board of directors; and the aforesaid officer acknowledged said instrument to be the flee act and deed of said corporation. ~ ~!~ Notary Public-Minnesota ~tary t'u61ic ~ / ~ ~~ My Commission F-.xpires Jan 31,2~ 005~ NOTICE In accordance with the Terrorism Risk Insurance Act of 2002, we are providing this disclosure notice for bonds and certain insurance policies on which one or more of the Writing Companies identified below is the surety or insurer. To principals on bonds and insureds on certain insurance policies written by any one or more of the following companies (collectively the "Writing Companies") as surety or insurer: Western Surety Company, Universal Surety of America, Surety Bonding Company of America, Continental Casualty Company, National Fire Insurance Company of Hartford, American Casualty Company of Reading, PA, The Firemen's Insurance Company of Newark, NJ, and The Continental Insurance Company. DISCLOSURE OF PREMIUM The premium attributable to coverage for ten'orist acts certified under the Act was Zero Dollars ($0.00). DISCLOSURE OF FEDERAL PARTICIPATION IN PAYMENT OF TERRORISM LOSSES The United States will pay ninety percent (90%) of covered terrorism losses exceeding the applicable surety/insurer deductible. Form F7310 Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint Litton E S Field Jr, F E Launstein, M A Jones, Nicole M Coty, Individually of Saint Paul, MN, its tree and lawful Attorney(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature - In Unlimited Amounts - and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By-Law printed on the reverse hereof, duly adopted, as indicated, by the shareholders of the corporation. In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Senior Vice President and its corporate seal to be hereto affixed on this 25th day of June, 2004. WESTERN SURETY COMPANY State of South Dakota ~ ss County of Minnehaha Paul ~. Bmflat Semor Vice President On this 25th day of June, 2004, before me personally came Paul T. Bmflat, to me known, who, being by me duly sworn, did depose and say: that he resides in the City of Sioux Fails, State of South Dakota; that he is the Senior Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. My commission expires November 30, 2006 ,~ D. KRELL # {~"OTARY PUBLIC~~. ~t~*~.,) SOUTH DAKOTA ~'~,,.).~ CERTIFICATE ~r D. Krell, No"~iry Public I, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attomey hereinabove set forth is still in force, and further certify that the By-Law of the corporation 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 corporation this 30th day of November, 2004 Form F4280-01-02 WESTERN SURETY COMPANY ~ L. N~s~n, Assistant Secretary Authorizing By-Law ADOPTED BY THE SHAREHOLDERS OF WESTERN SURETY COMPANY This Power of Attorney is made and executed pursuant to and by authority of the following By-Law duly adopted by the shareholders of the Company. Section 7. All bonds, policies, undertakings, Powers of Attomey, or other obligations of the corporation shall be executed in the corporate name of the Company by the President, Secretary, and Assistant Secretary, Treasurer, or any Vice President, or by such other officers as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or agents who shall have authority to issue bonds, policies, or undertakings in the name of the Company. The corporate seal is not necessary for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation. The signature of any such officer and the corporate seal may be printed by facsimile.