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HomeMy WebLinkAboutContract 2081~`d81 ~~~D~ EJCDC STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR ON THE BASIS OF STIPULATED PRICE THIS AGREEMENT is by and between the CITY OF COLUMBIA HEIGHTS, MINNESOTA (OWNER) and Ron Kassa Construction, Inc. (CONTRACTOR). OWNER and CONTRACTOR, in consideration of the mutual covenants set forth herein, agree as follows: ARTICLE 1 -WORK 1.01 CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: Concrete curb and gutter, sidewalk, steps or flatwork removals and repairs or installations at spot locations throughout the City. ARTICLE 2 -THE PROJECT 2.01 The Project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows: • 2008 MISCELLANEOUS CONCRETE REPAIRS AND INSTALLATIONS CITY PROJECT NO. 0800 ARTICLE 3 -ENGINEER 3.01 The Project has been designed by the CITY OF COLUMBIA HEIGHTS' ENGINEERING DEPARTMENT (ENGINEER), who is to act as OWNER's representative, assume all duties and responsibilities, and have the rights and authority assigned to ENGINEER in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents. 17 ARTICLE 4 -CONTRACT TIMES 4.01 Time of the Essence A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for final payment as stated in the Contract Documents are of the essence of the Contract. 4.02 Dates for Substantial Completion and Final Payment A. The Work will be substantially completed on or before September 26, 2008, and completed and ready for final payment in accordance with Paragraph 14.07 of the General Conditions on or before October 17, 2008. 4.03 Liquidated Damages A. CONTRACTOR and OWNER recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not completed within the times specif ed in Paragraph 4.02 above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. The parties also recognize the delays, expense, and difficulties involved in proving in a legal or arbitration proceeding the actual loss suffered by OWNER if the Work is not completed on time. Accordingly, instead of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty), CONTRACTOR shall pay OWNER $250.00 for each day that expires after the time specified in Paragraph 4.02 for Substantial Completion until the Work is substantially complete. After Substantial Completion, if CONTRACTOR shall neglect, refuse, or fail to complete the remaining Work within the Contract Time or any proper extension thereof granted by OWNER, CONTRACTOR shall pay OWNER $250.00 for each day that expires after the time specified in Paragraph 4.02 for completion and readiness for final payment until the Work is completed and ready for final payment. ARTICLE 5 -CONTRACT PRICE 5.01 OWNER shall pay CONTRACTOR for completion of the Work in accordance with the Contract Documents an amount in current funds equal to the sum of the amounts determined pursuant to paragraphs below: For all Work, at the prices stated in CONTRACTOR'S Bid, attached hereto as Exhibit A. As provided in Paragraph 11.03 of the General Conditions, estimated quantities are not guaranteed, and determinations of actual quantities and classifications are to be made by ENGINEER as provided in Paragraph 9.07 of the General Conditions. Unit prices have been computed as provided in Paragraph 11.03 of the General Conditions. 18 ARTICLE 6 -PAYMENT PROCEDURES 6.01 Submittal and Processing of Payments A. CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed by ENGINEER as provided in the General Conditions. 6.02 Progress Payments; Retainage A. OWNER shall make progress payments on account of the Contract Price on the basis of CONTRACTOR'S Applications for Payment on or about the fifteenth day of each month during performance of the Work as provided in Paragraphs 6.02.A.1 and 6.02.A.2 below. All such payments will be measured by the schedule of values established as provided in Paragraph 2.07.A of the General Conditions (and in the case of Unit Price Work based on the number of units completed) or, in the event there is no schedule of values, as provided in the General Requirements: 1. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below but, in each case, less the aggregate of payments previously made and less such amounts as ENGINEER may determine or OWNER may withhold, including but not limited to liquidated damages, in accordance with Paragraph 14.02 of the General Conditions: a. 95% of Work completed (with the balance being retainage). If the Work has been 50% completed as determined by ENGINEER, and if the character and progress of the Work have been satisfactory to OWNER and ENGINEER, OWNER, on recommendation of ENGINEER, may determine that as long as the character and progress of the Work remain satisfactory to them, there will be no additional retainage; and b. 95% of cost of materials and equipment not incorporated in the Work (with the balance being retainage). 2. Upon Substantial Completion, OWNER shall pay an amount sufficient to increase total payments to CONTRACTOR to 98% of the Work completed, less such amounts as ENGINEER shall determine in accordance with Paragraph 14.02.B.5 of the General Conditions and less 5% of ENGINEER's estimate of the value of Work to be completed or corrected as shown on the tentative list of items to be completed or corrected attached to the certificate of Substantial Completion. 6.03 Final Payment A. Upon final completion and acceptance of the Work in accordance with Paragraph 14.07 of the General Conditions, OWNER shall pay the remainder of the Contract Price as recommended by ENGINEER as provided in said Paragraph 14.07. 19 ARTICLE 7 -INTEREST 7.01 All moneys not paid when due as provided in Article 14 of the General Conditions shall bear interest at the rate of 6% per annum. ARTICLE 8 -CONTRACTOR'S REPRESENTATIONS 8.01 In order to induce OWNER to enter this Agreement CONTRACTOR makes the following representations: A. CONTRACTOR has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents. B. CONTRACTOR has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. C. CONTRACTOR is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work. D. CONTRACTOR has carefully studied all; (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) which have been identified in the Supplementary Conditions as provided in Paragraph 4.02 of the General Conditions and (2) reports and drawings of a Hazardous Environmental Condition, if any, at the Site which has been identified in the Supplementary Conditions as provided in Paragraph 4.06 of the General Conditions. E. CONTRACTOR has obtained and carefully studied (or assumes responsibility for doing so) all additional or supplementary examinations, investigations, explorations, tests, studies, and data concerning conditions (surface, subsurface, and Underground Facilities) at or contiguous to the Site which may affect cost, progress, or performance of the Work or which relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to be employed by CONTRACTOR, including any specific means, methods, techniques, sequences, and procedures of construction expressly required by the Bidding Documents, and safety precautions and programs incident thereto. F. CONTRACTOR does not consider that any further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents. G. CONTRACTOR is aware of the general nature of work to be performed by OWNER and others at the Site that relates to the Work as indicated in the Contract Documents. 20 H. CONTRACTOR has correlated the information known to CONTRACTOR, information and observations obtained from visits to the Site, reports and drawings identified in the Contract Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents. I. CONTRACTOR has given ENGINEER written notice of all conflicts, errors, ambiguities, or discrepancies that CONTRACTOR has discovered in the Contract Documents, and the written resolution thereof by ENGINEER is acceptable to CONTRACTOR. J. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. ARTICLE 9 CONTRACT DOCUMENTS 9.01 Contents A. The Contract Documents consist of the following: 1. This Agreement (pages 17 to 24, inclusive). 2. Performance Bond (pages 25 to 26, inclusive). 3. Payment Bond (pages 27 to 28, inclusive). 4. 5. 6. 7. 8. 9. 10. Other Bonds (pages to ,inclusive). General Conditions (pages 00700-01 to 00700-41, inclusive). Supplementary Conditions (pages 00700-42 to 00700-50, inclusive). Specifications as listed in the table of contents of the Project Manual. Drawings consisting of none. Addenda (numbers to , inclusive). Exhibits to this Agreement (enumerated as follows): a. CONTRACTOR's Bid (pages 9 to 16, inclusive). b. Documentation submitted by CONTRACTOR prior to Notice of Award (pages to ,inclusive). c. 21 11. The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto: a. Notice to Proceed (pages to ,inclusive). b. Work Change Directives. Change Order(s). B. The documents listed in Paragraph 9.O1.A are attached to this Agreement (except as expressly noted otherwise above). C. There are no Contract Documents other than those listed above in this Article 9. D. The Contract Documents may only be amended, modified, or supplemented as provided in Paragraph 3.04 of the General Conditions. ARTICLE 10 -MISCELLANEOUS 10.01 Terms A. Terms used in this Agreement will have the meanings stated in the General Conditions and the Supplementary Conditions. 10.02 Assignment of Contract A. No assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.03 Successors and Assigns A. OWNER and CONTRACTOR each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 10.04 Severability A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and CONTRACTOR, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with 22 a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. l O.OS Other Provisions (if applicable). 23 IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in duplicate. One counterpart each has been delivered to OWNER and CONTRACTOR. All portions of the Contract Documents have been signed or identified by OWNER and CONTRACTOR or on their behalf. This Agreement will be effective on Agreement). OWNER: • 1~ Wa11J~f Felist,~City Mayor - ~ Atte Titl Adc (If OWNER is a corporation, attach evidence of authority to sign. If OWNER is a public body, attach evidence of authority to sign and resolution or other documents authorizing execution ofOWNER-CONTRACTOR Agreement). Designated Representative: Name: ~E~UIYI ~~~~en Title: PU~~(C ~ l'~ ~II~eC`~Oi2 g- ~t~ 1~1Q.1~ Address: ~~ ~ ~~~ S}. [~~ Col N~t~~S ~~ ,~Su~- Phone: 10 ~~ ~ b ~ - ~ `~ 0 ~ Facsimile: ~~~~) ~d~- ~'~®~ 2008 (which is the Effective Date of the CONTRACTOR: ~ ~ /mot S~- co ~s~V Cf - °``i ~`~`~ By: Q./ ~~G~~ Title: ~ ` [CORPORATE SEAL] Attest: Title: Address for giving notices: License No. (Where applicable) Agent for service of process: (If CONTRACTOR is a corporation or a partnership, attach evidence of authority to sign.) Designated Representative: Name: Title: Address:_ Phone: Facsimile: 24 [CORPORATE SEAL) PUBLIC WORKS CITY O F COLUMBIA HEIGHTS (I~ ~ :SEENGRINEERING • STREETS 637 38TH AVENUE N. E., COLUMBIA HEIGHTS, MN 55421-3806 (763) 706-3700 FAX 706-3701 ~ PARKS April 16, 2008 Ron Kassa Construction Attn: Ron Kassa 6005 ZSOt}' E. Elko, MN 55020 Subject: Award of 2008 Miscellaneous Concrete Repairs & Installation City Project No. 0800 Dear Ron: The City Council of Columbia Heights, at their regular meeting of April 14, 2008, awarded the bid for the above subject contract to your firm based upon your proposal dated March 26, 2008 in the amount of $37,496.20. Enclosed is a copy of the Bid Opening Minutes. Enclosed please find three (3) copies of a Contract of Agreement, three (3) copies of the Construction performance Bond, and three (3) copies of the Construction Payment Bond to be signed and returned to us. After being executed by the Mayor and City Manager, a copy of the Contract Agreement will be forwarded to you for your files. Prior to commencing with your work, please furnish the City with a work schedule for this project. Sincerely, CI~'Y/OF COLUMBIA HEIGHTS Kevin Hansen, P.E. I Public Works Director/City Engineer KH : cb Attachment: Bid Opening Minutes Contract of Agreement (3) Construction Performance Bond (3) Construction Payment Bond (3) THE CITY OF COLUMBIA HEIGHTS DOES NOT DISCRIMINATE ON THE BASIS OF DISABILITY IN EMPLOYMENT OR THE PROVISION OF SERVICES `$ERV'ICF_ IS OUR BUSINESS` EC~UAL OFPEIRTUNITY EMPL.OVER TDD (763) 706-3692 Contractor's Business Name: ~~'`~ /~S~" ~,.,,l~,Pv ~~~ .~`~'C Address: ~~Q-~ o2S~d ~ Phone No: ~1~oZ ~6 ( 37~-r" Fax No: 902 ~{~ ~ 3 71 ~ BID FORM PROJECT IDENTIFICATION: CITY PROJECT N0.0800 2008 MISCELLANEOUS CONCRETE REPAIRS AND INSTALLATIONS BIDS TO BE OPENED: 10:00 A.M. -TUESDAY, APRIL 8, 2008 This bid is submitted to: CITY OF .COLUMBIA H_ EIGHTS . 637 38~" AVENUE NE COLUMBIA HEIGHTS, MN 55421 1. The undersigned BIDDER proposes and agrees, if this Bid is accepted, to enter into an agreement with OWNER on the form included in the Contract-Documents to perform and furnish all Work as specified or indicated in the Contract Documents for the Contract Price and:within the Contract time indicated in this bid and in accordance with the other terms and conditions of the Contract Document. 2. BIDDER accept§ all of the terms and.conditions. of the Advertisement or Invitation to Bid and Instruction to Bidders. This Bid will remainsubject to acceptance for sixty'(60) days after the day of Bid opening. BIDDER will .sign: and submit the Agreement with the Bonds and other documents required~by the Bidding.Requirements within fiffeen'(15) days after the date of OWNER'S NOTICE OF AWARD. 3. In submitting this bid, BIDDER represents, as more fully set forth in the Agreement, that: 9 (a) BIDDER has examined copies of all the Bidding Documents and of the following Addenda (receipt of all of which is hereby acknowledged): Date Number (b) BIDDER has familiarized itself with the nature and extent of the Contract Documents,Work, site, locality, and all local conditions and laws and regulations that in any manner may affect cost, progress, performance or furnishing of Work. (c) BIDDER has studied carefully all reports and drawings of subsurface conditions and drawings of physical conditions which are identified in the Supplementary Conditions as provided in Paragraph 4.02 & 4.03 of the General Conditions, and accepts the determination set forth in Paragraph S.C. 4.02 & 4.03 of the Supplementary Conditions of the extent of the technical data contained in such reports and drawings upon which BIDDER is entitled to rely. (d) BIDDER has obtained and carefully studied (or assumes responsibility for obtaining and carefixliy .studying) all such examinations, investigations, explorations, tests and studies (in addition to or to supplement those referred to in (c) above) which pertain_.to:-the subsurface or physical conditions at .the site or otherwise may affect the cost; progress, performance or~furnishing of the work as BIDDER considers necessary for the performance of furnishing the work at the Contract Price, within the Contract Time and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of Paragraph 4:02 & 4.03 of the General- Conditions; and no additional ex=aminations, investigations; explorations, tests, reports or similar information or data are or will be required by. BIDDER for such purposes. (e) BIDDER has reviewed and checked all~inforrnation and data shown or indicated . on the Contract Documents:with respect fo existing.Underground Facilities at or. contiguous to the site and assumes responsibility for the accurate location of said Underground Facilities. No additional _ examinations,- investigations, explorations, tests,. reports or similar information or data in respect of said Underground Facilities are or.will be required by BIDDER in order to perform and furnish the Work at the Contract Price, within the Contract Time and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of Paragraph 4.04 of the General Conditions. 10 (f) BIDDER has correlated the results of all such observations, examinations, investigations, explorations, tests, reports and studies with the terms and conditions of the Contract Documents. (g) BIDDER has given ENGINEER written notice of all conflicts, errors, discrepancies that it has discovered in the Contract Documents and the written resolution thereof by ENGINEER is acceptable to BIDDER. (h) This Bid is genuine and not made in the .interest of or on behalf of any undisclosed person, firm or corporation and is not submitted in conformity with any agreement or rules of any group, association, organization or corporation; BIDDER has not directly or indirectly induced or solicited any other BIDDER to submit a false or sham Bid; BIDDER has not solicited or induced any person, firm or corporation to refrain from bidding; and BIDDER has not sought by collusion to obtain for itself any advantage over any other BIDDER or over OWNER. (i) Any other representation as required by Laws and Regulations. 4. BIDDER WILL COMPLETE THE WORK FOR THE FOLLOWING UNIT PRICES: (See attached Page 12) .Quantities are indicated foi• the convenience of the Bidder. Although no truncated donne panels or step .quantities are anticipated at this time, line items are provided to obtain a unit price for Phase 2.' Final payment will be based on actual. quantities. 11 CITY OF COLUMBIA HEIGHTS "2008 MISCELLANEOUS CONCRETE REPAIRS AND INSTALLATIONS" UNIT NO. ITEM 1. Remove curb and gutter 2. Construct concrete curb and gutter 3. Remove street/alley 4: Construct 8" concrete street/alley 5. Remove driveway/apron 6. Construct 6" concrete driveway/apron 7. Remove sidewalk 8. Construct 4" concrete sidewalk 9. 'Truncated dome panel 10. Remove step 11. ,Construct concretestep 12. Remove bituminous floor 13. -Construct concrete floor with polypropylene fiber reinforcing TOTAL BID Total Bid Written In Words UNIT QUAN. PRICE AMOUNT o~ °~ L.F. 393.0 $~~ $ C ~ 6~ /_ L.F. 393.0 $~ $ (o ~~~ a Cd S.F. 1,536.0 $~ $ «g~ ~ S.F. 1,536.0 $ .3 6° $ S~o2~ G~ ~ ~- S.F. 100.0 $ ~ $ ~5~® G° s.F. loo.o $ 3 $ 3~© C~ 4~ S.F. 85.0 $ ~ $ ~~6 S.F. 85:0 $ ~~ ~~ $ v~S~ S.F. 8.0 $ ~-{ - $ w~~ . S.F. 10.0 Fa~% $ . a~. - $ ~ ~ ca F 10 S 0 ;pM ~~' ¢~ 3~ 0 . . . $ $ , S.F. 4,200.0 O~ $ ~ $ °/ . ~02~ S.F..4,200.0 _ _ ~o $~_ $ ai ~~~6~ 12 5. BIDDER agrees that the Work will be completed as follows: • 2008 MISCELLANEOUS CONCRETE REPAIRS & INSTALLATIONS CITY PROJECT 0800 • All work listed in the Supplemental Information (Phase 1) must be completed by May 30, 2008. • The Contractor shall anticipate a second list of removals and concrete repairs or installations at various locations by August 29, 2008. This work shall be completed by September 26, 2008. These quantities are in addition to those listed in the Proposal. • Final inspection by October 17, 2008, in accordance with Paragraph 14.06 of the General Conditions. • BIDDER accepts the provisions of the Agreement as to liquidated damages in the . event of failure to complete the work on time. 6. The following documents are attached' to and made a condition of the BID. (a) A tabulation of Subcontractors, Suppliers, and other persons and organizations required to be identified in-this Bid.: (b) The contractor will complete the Work sequence in accordance.withDwision 1, Section 4, General Requirements. (c) Affidavit ofNon-Collusion. 7. Communications concerning this BID shall ,be addressed to the address of BIDDER indicated below. 8. The Germs used- in -this BID, which. are defined in the General Conditions of fhe Construction .Contract included as part of the Contract Documents, have the meanings assigned to them in the General Conditions. SUBMITTED ON: ~A"~/ ~~ , 2008. 13 If BIDDER is: AN INDIVIDUAL By (SEAL) (Individual's Name) Doing Business As Address: Telephone No: 14 A CORPORATION (SEAL) (Corporation Name) /'l /v (State of Incorporation) By ~~ /ors ~- (Name of Person Authorized to Sign) ~. ~ /~ /1 (Title) ATTEST: ~'T7 P (Secretary) Business Address: ~OaS' 02~ ~C Telephone No. S~~ ~ ~ 3 7 lS~ ~ s~ ~f 6 ~ 3 ? ~ ~~A~/ A JOINT VENTURE By - (Name) (Address) By (Name) (Address) Each joint venturer must sign. The manner of signing for each individual, partnership and corporation that is a party to the joint venture should be in the manner indicated above. 15 STATE OF m''''~ COUNTY OF AFFIDAVIT OFNON-COLLUSION: (1) That I am the BIDDER (if the bidder is an individual), a partner in the BIDDER (if the bidder is a partnership) of an officer or employee of the BIDDER corporation having authority to sign on its. behalf (if the BIDDER is a corporation; (2) That the attached bid or bids have been arrived at by the BIDDER individually and have been submitted without collusion with, and without any agreement, understanding or planned common course of action with any vendor of materials, supplies, equipment or services described in the invitation to bid designed to limit individual bidding or. competition; (3) That the .contents.. of the bid or bids have :not been communicated by the BIDDER; or rts=ern~ployees or agents, to`any person riot any employee or agent of the BIDDER, or'itssurery, on ariy bond furnished with the bid or bids, and will . not be.comxnuncated to any person,. prior to any official opening of the bids,. or bids; and; (4) That I-have fully informed myself regarding the accuracy of the statements made in this affidavit. ' ' BIDDER FIRM IVIAKING BIDS ~•. BETTE J KASSA NOTARYPUBLIC=MINNESOTA Subscribed and sworn to before a '~ • ~+!FxP~RSSia,•~o this da of , 2008. j Y • NAME OFFICIAL TITLE 16 Bond No. RCN 616745 CONSTRUCTION PERFORMANCE BOND Any sineular reference to the Contractor Sureri Owner or other part shall be considered plural where applicable CONTRACTOR (Name and Address): Ron Kassa Construction, Inc. 6005-250th E. Elko, MN 55020 OWNER (Name and Address): City of Columbia Heights 637-38th Avenue NE Columbia Heights, MN 55421-3806 CONSTRUCTION CONTRACT Date: April 15, 2008 Amount: $37,469.20 Description (Name and Location); SURETY (Name and Principal Place of Business): Old Republic Surety Company P.O. Box 1976 Des Moines, IA 50306 Miscellaneous Concrete Repair & Insullation City Project No. 0800 BOND Date (Not earlier than Construction Contract Date): April 22, 2008 Amount: $37,496.20 Modifications to this Bond Form: None Ron Kassa Construction, Inc. CONTRACTOR AS PRINCIPAL Company: Corp, al) Signature: Name and itle: pQ / ~/}-S~ ~i~~ CONTRACTOR AS PRINCIPAL Company: (Corp. Seal) Signature: Name and Title: SURETY Old Repub Su Cy mp y Company: (Co 1) - Signature: Name and T' e: John G. Hagberg, Attorney-In-Fact SURETY Company: (Corp. Seal) 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. 25 I. The Contractor and the Surety, jointly and severely, binds 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 provided in Subparagraph 3.1. 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 Construction Contract. 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; 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 declared earlier than twenty days after the Contractor and the Surety have received notice as provided 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 in accordance wit 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 actions: 4. I 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 Construction Contract itself, through its agents or through independent contractors; or 4.3 Obtain bids or negotiated proposals for 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 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 Constitution 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 perforn 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, tender payment therefore to the Owner, or 2. Deny liability in whole or in part and notify the Owner, or 5. If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an additional and 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 had 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 Owner 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 subject to committed 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 for defective work and completion of the Construction Contract. 6.2 Additional legal, design professional and delay costs 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 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, or successors. 8. 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. 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 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 [his 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 thejurisdiction of the suit shall be applicable. ] 0. 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 famished 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. The intent is that this Bond shall be construed as a statutory bond and not as common law bond. l2. 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 Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claim s 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 Contraction Contract. 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. 123 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform or otherwise to comply wit the terms of the Construction Contract. 12.4 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 Telephone) OWNERS REPRESENTATIVE(Architect, Engineer, or other party): AGENT or BROKER: Northern Capital Insurance PO Box 9396, Minneapolis, MN 55440-9396 ,,~ a ep one - - ~~ CONSTRUCTION PAYMENT BOND Anv singular reference to the Contractor Surety Owner or other party shall be considered plural where applicable CONTRACTOR (Name and Address): Ron Kassa Construction, Inc. 6005-250th E. Elko, MN 55020 OWNER (Name and Address): City of Columbia Heights 63.7-38th Avenue NE Columbia Heights, MN 55421-3806 SURETY (Name and Principal Place of Business): Old Republic Surety Company P.O. Box 1976 Des Moines, IA 50306 CONSTRUCTION CONTRACT Date; April 15, 2008 Amount: $37,496.20 Description (Name and Location): Miscellaneous Concrete Repair & Installation City Project No. 0800 BOND Date (Not earlier than Construction Contract Date): APril 22, 2008 Amount: $37,496.20 Modifications to this Bond Form: None Ron Kassa Construction, Inc. CONTRACTOR AS PRINCIPAL Company: Corp. S I) Signature: Name and rte: /~6~ ~4.5,~¢ ~Q cS ~'O e~'- SURETY Old Republi S t C Company: al) Signature: Name and T~ John G. Hag erg, Attorney-In-Fact CONTRACTOR AS PRINCIPAL Company: (Corp, Seal) Signature: Name and Title: SURETY Company: (Corp. Seal) 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, and the American Institute of Architects, American Subcontractors Association, and the Associated Specialty Contractors. Reprinted ] 0/90 27 • 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 famished for use in the performance 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 claims, demands, liens or suits by any person or entity whose claim, demand, lien or suit is for payment for labor, materials or equipment furnished 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 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. 3. With respect to Claimants, this obligation shall be null and void if the Contractors 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 Contract 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 substantial accuracy, the amount of the claim. 4.2 Claimants who do now have a direct contract with the Contractor: I. Have famished 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 included in the claim stating, with substantial accuracy, the amount of the claim and the name of the party to whom the materials were famished 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 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 therefore, to the Owner, stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnishing to the Contractor. 5. If a notice required by Paragraph 4 is given by the Owner to the Contractor 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 the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and that basis for challenging any amounts that are disputed. 6.2 Pay or arrange for payment for 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 owned 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 famishing 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. 3. The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contract that are unrelated 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 obligations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond, ]0. 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. No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the location in which the work or part of work is located of 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 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 defense in the jurisdiction of the suit shall be applicable. l2. Notice to the Surety, the Owner or the Contractor shall 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 performed, any provision in the Bond conflicting with said statutory or legal requirement shall be deemed deleted here from and provisions conforming to such statutory or other legal requirements 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 requests 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. I5. 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 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 famished. 15.2 Construction Contract: The agreement between the Owner and 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 or to perform and complete or comply with the other terms thereof. (FOR INFORMATION ONLY-Name, Address and Telephone) OWNERS REPRESENTATIVE (Architect, Engineer or other party): AGENT or BROKER: Northern Capital Insurance PO Box 9396, Minneapolis, MN 55440-9396 Telephone 5 - - 28 ACKNOWLEDGMENT OF PRINCIPAL (Individual) STAT-E OF_ COUNTY OF. On this day of personally come(s) _ _ in the year ,before me to me known and known to me to be the person(s) who (is) (are) described in and who executed the foregoing instrument and acknowledge(s) to me that he executed the same. NOTARY PUBLIC ACKNOWLEDGMENT OF PRINCIPAL (Partnership) STATE OF COUNTY OF 1 ss.: On this personally come(s) day of in the year ,before me a member of the copartnership of to me known and known to me to be the person who is described in and who executed the foregoing instrument, and acknowledges to me that he executed the same as and for the act and deed of the said copartnership, NOTARY PUBLIC ACKNOWLEDGMENT OF PRINCIPAL (Corporation) STATE OF ~ ~ COUNTY OF ss.: On thi ay of personally come(s) ~6/ ~i¢-S in the year ~~before me to me known, who~eing b ~ me my sworn, deposes and says that he resides in th~e~"City of ~ C that he is the ~ of the c'.y ~rc.ii-S~i1- Co.'s d f' `•"~ the corporation described in and which executed the foregoing instrument; that he knows the seal of the said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed by the order of the Board of Directors of said corporation, and that he signed his name thereto by like order. `C,~~'~_ NOTAR PUBLIC ACKNOWLEDGMENT OF SURETY - BETTE J KASSA ,~.,y NOTARYPUBLIC-MINNESOTA STATE OF Minnesota ~ ~ MYCAMMIS910NEXPIRESI~1-t0 COUNTY OF Hennepin ss.: On this ~ Z day of ~~~~L in the year ~°g, before me personally come(s) John G. Hagberg Attorney(s)•in•Fact of Old Republic Surety Company with whom I am personally acquainted, and who, being by me duty sworn, says that he reside(s) in~lymouth MN that he is tare) the Attorney(s)-in-Fact of 01 d. Rep Bbl i S , etX ompanv ,the company described in and which executed the within instrument; that he know(s) the corporate seal of such Company; and that the seal affixed to the within instrument is such corporate seal and that it was affixed by order of the Board of Directors of said Company, and that he signed said instrument as Attorney(s)•in•F ct f the said Co an by like order. a NO ARY PUBLI F.97 I ] - 8/81 ~ °~,'~.- NICOLE C. VACEK • NOTARY PUBLIC -MINNESOTA MY COMMISSION EXPIRES 0 1 /3112 01 1 . ~~ , ss.: ** * * _ ~* OLD REPU3LIC lyf**** Surety Company POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS` Thet OLD REPUBLIC SURETY COMPANY, a Wisconsin stock insurance corporation, does make, constitute and appoint: JUDY L. JORISSEN, JOHN_G: HAGBERG DAWN M. REICHEL, ANN F°. WOLFGANG, ,.:: G. REYNOLDS F'LSHER, PATRICK I. MCGOVERN, OF MINNEAPOLIS, MN its true and lawful Attorney(s)-ih.Faot, wlfh full power and authority, not exce?.ding;$10 OOOtJ00, for and on betrjlt of tiio company as surety, to execute and deliver". and affix the seal of the company #hereto (if a seal is required), bonds; t,nde~takings, recognizances or other wiitter~ obligations in the nature thereof, (other.ahan bail bonds, bankdepository bonds, mortgage deficiency bonds, mortgage guaranty bonds, guarantees of installment paper and note guaranty bonds, self-irisurarice workers compensation bonds guaranteeing payment of benefits, asbestos at?,7tement contact bonds, waste management bonds, hazardous waste remediation bonds or black lung bonds), as follows: ALL WRITTEN INSTRUMENTS IN AN AMOUNT NOT TO EXCEED AN AGGREGATE OF TWO MILLION DOLLARS;($2,000>,000)---------- '=-- ----:.-- FOR ANY SINGLE OBLIGATION, REGARDLESS OF THE NUMBER OF INSTRUMENTS ISSUED FOR THE OBLIGATION. and to bind_OLD REPUBLIC SURETY COMPANY thereby, and all of the acts; of said Attorneys-in-Fact, pursuant to these presents, are ratified and confirmed. This document is not valid unless printed on colored background and is multi-colored: This'appointment'is made under and by authority of the board of directors at a special meeting held on February 18, 1982. This Power of Attorney is signed acid sealed by facsimile under and by the authority of the fallowing resolutions adopted by the board of directors of the OLDI REPUBLIC 'SURETY COMPANY on February 18, 1982. _. - - RESOLVED that, the president, any vice-president, or assistant vice president in conjunction with the secretary or any assistant secretary, may appoint attorneys-in-fact or agents with authority as defined or limited in the instrument evidencing the appointment in each case, for and on behalf of the company to execute and deliver and affix the seal of the company to bonds, undertakings, recog- nizances, and suretyship obligations of all kinds; and said officers may remove any such attorney-in-fact„qr.agent and revoke any Power of Attorney previously granted toauch :person. RESOLVED FURTHER,that any bond, undertaking recognizance, or suretyship obligation shall bevalid and binding upon the Company (i) when signed by the. president, any,vice president or assistant vice president, and attested and sealed ('rf a seal bE required) byany secretaryor assistant secretary; or >: (ii) when signed by the president, any vice president. or assistant vice president secretary or assistant secretary, and countersigned and sealed (if a seal be required) by a eJuly authorrzed attorney-in=facf or agent; or (iii) when duly executed and'sealed (if a seal be required).by one or more attorneys-in-fact or agents pursuant to and within the limits of the authority evidenced by the Power of.Attorney issued by the companyao such persoh or persons. RESOLVED FURTHER,thatthe signature of any authorized officer and the seal'of the company may be affixed by facsimile 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; anti such signature and seal when so used shall have the same force and: effect as though manually affixed. ' IN WITNESS WHEREOF; OLDR..EPUBLIC SURETY COMPANY has caused these presents to be signed by its proper officer, and its corporate seal to be affixed this 16TH day of AUGUST, 2007 . „ OLD REPUBLIC SURETY COMPANY !Qy.O~~ s~\T` . ICJ, ~OPPOHAI~ n3 - S 9i, SEAL ~ € ` f Assistant Secretary ~ ~ ~~ '~ ~`,; -- - President STATE OF WISCONSIN, COUNTY OF WAUKESHA = SS ~°*^ On this 16TH day of AUGUST, 2007 ,personally came before me, JAMES E. LEE and RICK A. JOHNSON to me known to be the individuals and officers of the OLD REPUBLIC SURETY COMPANY who executed the above instrument, and they each acknowledged the execution of the same, and being by me duly sworn, did severally depose and say; that they are said officers of the corporation, aforesaid, and that the seal affixed to the above instrument is fihe seal:;;of the corporation, and that said corporate seal and their signatures. as such officers were duly affixed and subscribed to the said instrument by the authority of the board of directors of said corporatiorii .PPO N A. p~2, ' r. ~ ee h;' NOTARY ~ 9 - :. .., ;. - + g - - Notary Public 9~F - _ ~o?~ ` My commission expires: 01 / 18 / 2 0 0 9 o w~s,< -• F......, CERTIFICATE I, the undersigned, assistant secretary of the OLD REPUBLIC.SURE~FY COMPANY, a Wisconsin corporation, CERTIFY that the :: foregoing and attached Power of Attorney remains in full force and has not been revoked; and furthermore,: that the Resolutions of the board of directors set forth in the Power of Aftc~rney, are now in force. Illl~uy 40-2710 JC $Up[:, ^sQ~m o~ oA , `~ Signed and sealed at the City of Brookfield; WI this ~~`' day of _~'~~~` ~~~ _ ~ ~ ; - 9 SEAL ~ - .o ' _..: ,~, ~:~-~ NORTHERN: CAp~~,,T~SL,t,,~~°~NS . GROUP Assistant retary;: .. .- _. .- ORSC 22262 (3/06)