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HomeMy WebLinkAboutContract 2083EJCDC ~ 2083 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 AMERICAN LIBERTY CONSTRUCTION (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: SULLIVAN & SILVER LAKE BEACH PARK IMPROVEMENT PROJECTS CITY PROJECT NO. 0805 & 0806 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: CITY PROJECT NO. 0805 & 0806 Project Scope: the work includes, but is not limited to removal of existing bituminous pavement, removal of existing park shelter structure, general site earthwork, asphalt drives and parking lots, concrete curb and gutter, concrete pavement, drainage & utility improvements, electrical work and lighting, pre-fabricated shelter buildings, playground equipment installation, restoration (seed/sod), landscape plantings and related miscellaneous improvements. ARTICLE 3 -ARCHITECT/ENGINEER 3.01 The Project has been designed by the CONSULTNG ARCHITECT BRAUER & ASSOCIATES (ARCHITECT/ENGINEER), who is to act as OWNER's representative, assume all duties and responsibilities, and have the rights and authority assigned to ARCHITECT/ENGINEER in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents. 20 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 August 15, 2008, and completed and ready for final payment in accordance with Paragraph 14.07 of the General Conditions on or before September 5, 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 specified 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. The OWNER shall pay the CONTRACTOR in accordance with Article 6 of this AGREEMENT for the performance of the work, as follows: 21 00500 Silver Lake Beach Base Bid 300,829.31 Add Alt. #A2 (Plant Materials) 889.35 Add Alt. #A3 (Plan! Materials) 773.79 Add Alt. #A4 (Plant Materials) 885.52 Add Alt. #AS (Plant Materials) 841.05 Add Alt. #A6 (Plant Materials) 372.64 Add Alt. #A7 (Plant Materials) 179.30 Add Alt. #A8 (Plant Materials) 888.24 Add Alt. #A10 (Restroom Enclosure on Pad) 2,994.20 Add Alt. #A16 (Asphalt trail paving 5,259.10 00501 Sullivan Lake Base Bid 284,066.36 Add Alt. #A1 (Plant Materials) 1408.32 Add Alt. #A2 (Plant Materials) 841.05 Add Alt. #A4 (Plant Materials) 689.85 Add Alt. #AS (Plant Materials) 926.40 Add Alt. #A6 (Plant Materials) 173.80 Add Alt. #A7 (Plant Materials) 35.36 Add Alt. #A8 (Asphalt trail paving 15,026.00 Add Alt. #A9 (Stone piers for shelter structure) 22,051.76 Add Alt. #A10 (Restroom Enclosure on Pad) 2,994.20 Total Contract Amount $642,125.60 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 ARCHITECT/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. 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 ARCHITECT/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: 22 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 ARCHITECT/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 ARCHITECT/ENGINEER, and if the character and progress of the Work have been satisfactory to OWNER and ARCHITECT/ENGINEER, OWNER, on recommendation of ARCHITECT/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 ARCHITECT/ENGINEER shall determine in accordance with Paragraph 14.02.B.5 ofthe General Conditions and less 5% of ARCHITECT/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 ARCHITECT/ENGINEER as provided in said Paragraph 14.07. 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 23 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. 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. L CONTRACTOR has given ARCHITECT/ENGINEER written notice of all conflicts, errors, ambiguities, or discrepancies that CONTRACTOR has discovered in the Contract Documents, and the written resolution thereof by ARCHITECT/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. 24 ' ARTICLE 9 -CONTRACT DOCUMENTS 9.01 Contents A. The Contract Documents consist of the following: 1. This Agreement (pages 1 to S, inclusive). 2. Performance Bond (pages 9 to 10, inclusive). 3. Payment Bond (pages 11 to 12, inclusive). 4. Other Bonds (pages to ,inclusive). 5. General Conditions (pages to ,inclusive). 6. Supplementary Conditions (pages to ,inclusive). 7. Specifications as listed in the table of contents of the Project Manual. 8. Drawings consisting of a cover sheet and numbered sheets listed in the Drawing Index on the Cover Sheet titled Sullivan Lake and Silver Lake Beach Park General Site Improvements. 9. Addenda (numbers 1 to 2 inclusive). 10. Exhibits to this Agreement (enumerated as follows): a.l. CONTRACTOR'S Bid (Sullivan Lake Park) (pages 1 to 7, inclusive). a.2. CONTRACTOR'S Bid (Silver Lake Park) (pages 1 to 7, inclusive). b. Documentation submitted by CONTRACTOR prior to Notice of Award (pages to ,inclusive). c. 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. c. Change Order(s). B. The documents listed in Paragraph 9.O1.A are attached to this Agreement (except as expressly noted otherwise above). 25 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 a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 10.05 Other Provisions (if applicable). 26 ' 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 Apri128, 2008 (which is the Effective Date of the Agreement). CONTRACTOR: ~~ [CORPORATE SEAL] ,~ _ -. i r'#ttest. Q Tit1P: C~,~"~- Ad~dr/ess for giving notices: ~ ~ Z~ (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: Kevin Hansen Title: Director of Public Works Address: 637 38~' Ave. NE Columbia Heiehts, MN 55421 Phone: 763-706-3705 Facsimile:763-706-3701 ~ , I~ . By: Title: `t~f~c~7 ~~ A~~~IJ ~~~~' [CORPORATE SEAL] Attest: Title: Address for giving notices: ~'~-fix ~l-`7 rz~; Y1~~ - 55~; t?~ License No. ~/i~t" (Where applicable) N~~.~ Agent for service of process: (If CONTRACTOR is a corporation or a partnership, attach evidence of authority to sign.) Designated Representative: Name: T IA ~c~ Title: ~C`~~S1,O~lpf Address: 1 - ®~ ~~ rj ~~ Phone: `~~~~~~~-~ 1~ Facsimile: ~~j- ~-~- ~~~ 27 Aco~D CERTIFICATE OF LIABILITY INSURANCE csR~x DATE~MAVDD/YYYY) AMERI-1 PRODUCE 05/02/08 R THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Foster, Carlson, white Agency HOLDER. THIS CERTIFICATE DOES NOT AMEND EXTEND OR 200 w BdTVy PO Box 168 , ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Monticello MN 55362 Phone: 763-295-2614 Fax: 763-295-3010 INSURERS AFFORDING COVERAGE NAIC # INSURED INSURER A' weS tern National Mutual 15377 American Liberty Construction INSURER B: ?curl Ch IRC. 5 INSURER C_ inaemri Ly [~euranm co c 900 Ma1n $t / PO $OX 547 Rockford MN 55373 INSURER D: PTO reS 3lve g 24260 rtnv~Rer_re INSURER E: THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTMTHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT VATH RESPECT TO Vh11CH THIS CERTIFICATE MAV BE ISSUED OR MAV PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIAiITS SHOWN MAV HAVE BEEN REDUCED BV PAID CLAIMS. INSR DD'L LTR NSRD TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION DATE ~lAMIDDPy1') DATE (MMIpO LIlAITS GENERAL LIABILITY EACH OCCURRENCE S 1,000,000 A X COMMERCIAL GENERAL LIABILITY 300007995 01/01/08 01/01/09 DAMAGE TO RENTED PREMISES (Eaoavmnre) s 200,000 CLAIMS MADE a OCCUR MED EXP (AAy wle person) E lO, OOO PERSONA L BADV INJURY S 1,000,000 GENEflALAGGREGAT E S 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRO PRODUCTB~LOMP/OPAGG S 2,000,000 X POLICY JECT LOC AUTO MOBILE LIABILITY D ANY AUTO 3344954-2 01/01/08 01/01/09 COMBINED SINGLE LIMIT (E8aC1°e"L) E 1,000,000 ALL OWNED AUTOS BODILY INJURY X SCHEDULED AUTOS Per person) E HIRED AUTOS BODILY INJURY NON-0MMED AUTOS (pa aabe"I) E PROPERTY DAMAGE (Per a~clpeM) j GARAGE LIABILITY AUTO ONLY~EA AGGDENi j ANV AUTO OTHER THAN EA ACC E AUTO ONLY: AGG S EXCESSlUM11BftELLA LIABILITY EACH OCCURRENCE E 2,000,000 A X OCCUR ~ GAIMBMADE 300007995 01/01/08 01/01/09 AGGREGATE s 2,000,000 S DEDUCTIBLE S X RETENTION S1O,000 S WORKERS COMPENSATION ANO V`C STATll~ OTH- EMPLOYERS' LIABILITY X TORY LIIAITS ER F' ANY PROPRIETOR/PARTNER/EXECUPVE OFFICEF/MEMBER IXC UO ' 300007995 O1/O1/OB 01/01/09 E.L. EACH ACCIDENT a 1,000,000 L ED ! If yas, tl¢spipe lager E.L. p15 EASE-FJ~EIAPLOYEE S 1,000,000 SPECIAL PROVISIONS beloly E.L. DISEASE -POLICY LIMIT E 1,000,000 OTHER DESCRIPTION OF OPERATIONS (LOCATIONS /VEHICLES / E%C W SIGNS ADDED BY ENDORSEM1IENT /SPECIAL PROVISIONS Project: Sullivan and Silver Lake Beach Park Improvement Projects; Brauer & Associates, Ltd. Project #07-22A & 07-27; city Project #0805 and #0806 CFRTIFIr^-eTG t-Inl n~o _ . -- _ __ _ _ _ CITYCOL SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE E%PIRATK)N DATE THEREOF, THE ISSUING INSURER IYILL ENDEAVOR TO I,IAIL 3O pAY51VRITIEN NOTICE TO THE CERTIFICATE HOLDER NAM11E0 TO THE LEFT, BUT FAILURE TO DO SO SHALL City of Columbia Heights 637-38th Avenue NE IRWOSE NO OBLIGATION OR LIABILITY OF ANY NkJO UPON THE INSURER, ITS AGENTS OR COlumbia Heights MN 55421 REPRESENTATIVES. AUTHORIZED REPRESENTATIVE Mark White ACnRn 9~ l9nn 91n f21 U ACORD CORPORATION 1988 Payment Bond Bond No. GRMN27691A An singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address) American Libertv Construction, Inc. P.O. Box 547 5900 Main Street Rockford, MN 55373 OWNER (Name and Address) CITY OF COLUMBIA HEIGHTS 637 - 38TH AVE. NORTHEAST COLUMBIA HEIGHTS, MN 55421 CONTRACT Date: 4/28/2008 Amount: $ 642,125.60 Description (Name and Location): SURETY (Name and Principal Place of Business) GRANITE RE, INC. 14001 QUAILBROOK DRIVE OKLAHOMA CITY, OK 73134 CITY PROJECT NO. 0805 & 0806: SULLIVAN & SILVER LAKE BEACH PARK IMPROVEMENT PROJECTS, COLUMBIA HEIGHTS, MINNESOTA BON D BOND NO. GRMN27691A Date (Not earlier than Construction Contract Date): 5/07/2008 Amount: $ 642,125.60 (SIX HUNDRED FORTY TWO THOUSAND ONE HUNDRED TWENTY FIVE AND 60/100) Modifications to this Bond Form: None Surety and Contractor, intending to be legally bound hereby, subject to the terms printed on the reverse side hereof, do each cause this Payment Bond to be duly executed on its behalf by its authorized oflicer, agent or representative. CONTRACTOR AS PRINCIPAL American Libertv Construction, Inc. Company: (Seal) Signature: l-, Name and Title SURETY GRANITE RE, INC. Surety's Name and Corporate Seal By: Signature and Title: Tom Lahl, Attorney-in-Fact (Attach Power of Attorn ) (Space is provided below for signatures of additional parties, if required.) ~~ Attest: Signature and Title CONTRACTOR AS PRINCIPAL Coirtpany: (Seal) Signature: Name and Title: SURETY Surety's name and Corporate Seal By: Signature and Title: (Attach power of attorney) Attest: Signature and Title EJCDC No. C-615 (2002 Edition) Originally prepared through the joint efforts of The Surety Association of America, Engineers Joint Contract Documents Committee, The Associated General Contractors of America, the American Institute of Architects, the American Subcontractors Association, and the Associated Specialty Contractors. 1. Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to Owner to pay for labor, materials and equipment furnished for use in the performance of the Contract, which is incorporated herein by reference. 2. With respect to Owner, this obligation shall be null and void ifContractoc 2. I Promptly makes payment, directly or indirectly, for all sums due Claimants. and 22 Defends indemnities and holds harmless Owner from all claims, demands, liens or suits alleging non-payment by contractor by any person or entity who fumished labor, materials or equipment for use in the performance of the Contract, provided Owner has promptly notified Contractor and Surety (at the address described in Para- graph 12) of an claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to Contractor and Surety, and provided there is no Owner Default. 3. With respect to Claimants, this obligation shall be null and void if Contractor promptly makes payment, directly or indirectly, for all sums due. 4. The Surety shall have no obligation to Claimants under this Bond until: 4. I Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, starting that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim. 4.2 Claimants who do not have a direct contract with the Contractor: I . Have furnished written notice to Contractor and sent a copy, or notice thereof, to Owner, within 90 days after having last performed labor or last furnished materials or equipment in- cluded in the claim stating, with substantial accuracy the amount of the claim and the name of the party to whom the materials were furnished~or supplied or for whom the labor was done or pcrfornred; and 2. Have either received a rejection in whole or in part from Contractor, or not received within 30 days of fumishing the above notice any communication from Contractor by which Contractor has indiciated the claim will be paid directly or indirectly: and 3. Not having been paid within the above 30 days, have sent a written notice to Surety and sent a copy, or notice thereof, to Owner stating that a claim is being made under this Bond and enclosing a copy of the previous written notice fumished to Contractor. 5. If a notice required by Paragraph 4 is provided by Owner to Con- tractor or to Surety, that is sufficient compliance. (i. 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. I Send an answer to the Claimant, with a copy to Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and teh basis for challenging any amounts that are disputied. 6.2 Pay or arrange for payment of any undisputed amounts. 7. 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 Surety. 8. Amounts owed by Owner to Contractor under the Contract shall be used for the performance of the Contract and to satisfy claims, if any, under any Performance Bond. By Contractor furnishing and Owner accepting this Bond, they agree that all funds earned by Contractor in the perfo+7rrance of the Contract are dedicated to satisfy obligations of Con- tractor and Surety under this Bond, subject to Owner's priority to use the funds for the completion of the work. 9. Sw'ety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Con- tract. Owner shall not be liable for payment of any costs or expenses of any Claimant under this Bond, and shall have undea this Bond no obligations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond. 10. Surety hereby waives notice of any change, including changes of time, to the Contract or to related subcontracts, purchase orders and other obligations. 1 1. No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent j urisdiction in the location in which the Work or part of the Wot'k is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Paragraph 4.2.3, a (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Contract, whichever of (1) or (2) first occurs. [f the provisions of this Paragraph are void or prohibited by law, the minimum pet'iod of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. l2. Notice to Surety, Owner or Contractor shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, Owner or 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 fumished to comply with a statutory requirement in the location where the constract was to be per- formed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions confor7rring to such statutory or other legal requirement shall be deemed incorporated herein. The intent is, that this Bond shall be construed as a statutory bond and not as a common law bond. 14. Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be made. DEFINITIONS 15.1 Claimant: An individual or entity having a direct contract with Contractor or with afirst-tier 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 with- outlimitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone ser- vice or rental equipment used in the Contract, arohi- tectual 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 fumished. 15.2 Contract: The agreement between Owner and Contractor identified on the signature page, including all Contract Documents and changes thereto. 15.3 Owner Default: Failure of Owner, which has neither been remedied nor waived, to pay Contractor as required by the Contract or to perform and complete or comply with the other teens therenf (FOR INFORMATION ONLY -Name Address and Telephone) Surety Agency or Broker: Pate Bonding, Inc., 1276 South Robert Street, West St. Paul, MN 55118 (651)457-6842 OWNER'S REPRESENTATIVE (Engineer or other Party): BRAUER AND ASSOCIATES, LTD. 00615-2 ACKNOWLEDGMENT OF PRINCIPAL (Individual) State of ) County of ) On this day of in the year before me personally come(s) _, to me known and known to me to be the person(s) who (is) (are) described in and executed the foregoing instrument and acknowledge(s) to me that _ he _ executed the same. Notary Public ACKNOWLEDGMENT OF PRINCIPAL (Partnership) State of ) County of ) On this day of in the year before me personally come(s) _, a member of the co-partnership of _ to me known and known to me to be the person who is described in and executed the foregoing instrument and acknowledges to me that he executed the same as for the act and deed of the said co-partnership. Notary Public ACKNOWLEDGMENT OF PRINCIPAL (Corporation) State of ~~h~~: ) County of u~~~ ) n this ~ day of ~~/ 7 in the year before me personally come(s) ©~ c~ , to me known, whomb~eirn~g,.~du/ly,~,s,,w,o~rn, deposes and says that he is the ~(~Ti~D~PI- of the ~'~~ ~ r.~F~1"1 ~1N"'7~~~'~ the corporation described in and which executed the foregoing instrument; that he knows the seal of the said corporation; 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. ,` ~~ LAUREL A REECE 3~ `~ Notary Public `~:~ " Minnesota ~~ -~ M~,~ Commission Expires Jan. 31, 2010 Notary Public ACKNOWLEDGMENT OF SURETY State of Minnesota ) County of Dakota ) On this 7th day of ~, in the year 2008, before me personally come(s) Tom Lahl, Attorney(s)-in-Fact of GRANITE RE, INC. with whom I am personally acquainted, and who, being by me duly sworn, says that he is (are) the Attorney(s)-in-Fact of GRANITE RE, INC, company described in and which executed the within instrument; that he know(s) the corporate seal of such company; and that 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-Fact of the said company by like order. LISA M. FRANCOUR ~, NOTARY PUBLIC -MINNESOTA Notary PubIIC o My Commission Expires Jan. 31, 2010 GRANITE RE, INC. GENERAL POWER OF ATTORNEY Know all Men by these Presents: That GRANITE RE, INC., a corporation organized and existing under the laws of the State of OKLAHOMA and .having its principal office at the City of OKLAHOMA CITY in the State of OKLAHOMA does hereby constitute and appoint: JONATHAN PATE; WANDA FRANZ; TOM LAHL; LISA M. FRANCOUR; JENNIFER BOYLES its true and lawful Attorney-in-Fact(s) for the following purposes, to wit: To sign its name as surety to, and to execute, seal and acknowledge any and all bonds, and to respectively do and perform any and all acts and things set forth in the resolution of the Board of Directors of the said GRANITE RE, INC. a certified copy of which is hereto annexed and made a part of this Power of Attorney; and the said GRANITE RE, INC. through us, its Board of Directors, hereby ratifies and confirms all and whatsoever the said: JONATHAN PATE; WANDA FRANZ; TOM LAHL; LISA M. FRANCOUR; JENNIFER BOYLES may lawfully do in the premises by virtue of these presents. In Witness Whereof, tl~e said GRANITE RE, INC. has caused this instrument to be sealed with its corporate seal, duly attested by the signatures of its President and Secretary/Treasurer, this 14"' day of January, 2008. 'N\TE RE„ ~P ~oFOO,,,p Nc Kenneth D on Pr Whiffin id nt - STATE OF OKLAHOMA ) s L n L . , g es e ~ - SS: / ' ~ COUNTY OF OKLAHOMA) Rodman A. Frates, Secretary/Lreasurer On this 14`'' day of January, 2008, before me personally came Kenneth D. Whittington, President of the GRANITE RE, INC. Company and Rodman A. Frates, Secretary/Treasurer of said Company, with both of whom I am personally acquainted, who being by me severally duly sworn, said, that they, the said Kenneth D. Whittington and Rodman A. Frates were respectively the President and the Secretary/Treasurer of the GRANITE RE, INC., the corporation described in and which executed the foregoing Power of Attorney; that they each. knew the seal of said corporation; that the seal affixed to said Power of Attorney was such corporate seal, that it was so fixed by order of the Board of Directors of said corporation, and that they signed their name thereto by like order as President and Secretary/Treasurer, respectively, of the Company. BEN oTagr'Q(~ My Commission Expires: _ May 9, 2008 9 ~. Commmission #: 00005708 T F K ~ Notary Publ c -~ GRANITE RE, INC. Certificate THE UNDERSIGNED, being the duly elected and acting Secretary/Treasurer of Granite Re, Inc., an Oklahoma Corporation, HEREBY CERTIFIES that the following resolution is a true and correct excerpt from the July 15, 1987, minutes of the meeting of the Board of Directors of Granite Re, Inc. and that said Power of Attorney has not been revoked and is now in full force and effect. "RESOLVED, that the President, any Vice President, the Secretary, and any Assistant Vice President shall each have authority to appoint individuals as attorneys-in-fact or under other appropriate titles with authority to execute on behalf of the company fidelity and surety bonds and other documents of similar character issued by the Company in the course of its business. On any instrument making or evidencing such appointment, the signatures may be affixed by facsimile. On any instrument conferring such authority or on any bond or undertaking of the Company, the seal, or a facsimile thereof, may be impressed or affixed or in any other manner reproduced; provided, however, that the seal shall not be necessary to the validity of any such instrument or undertaking." IN WITNESS WHEREOF, the undersigned has subscribed this Certificate and affixed the corporate seal of the Corporation this 7th day of May, 2008. \TE Rp ~R~nPO,,~ kb S N: A L odman A. Frates, Secretary/Treasurer GR0800-1 Performance Bond Bond No. GRMN27691A An singular reference to Contractor Surety Owner or other party shall be considered plural where applicable CONTRACTOR (Name and Address) American Liberty Construction, Inc. P.O. Box 547 5900 Main Street Rockford, MN 55373 SURETY (Name and Principal Place of Business) GRANITE RE, INC. 14001 QUAILBROOK DRIVE OKLAHOMA CITY, OK 73134 OWNER (Name and Address) CITY OF COLUMBIA HEIGHTS 637 - 38TH AVE. NORTHEAST COLUMBIA HEIGHTS. MN 55421 CONTRACT Date: 4/28/2008 Amount: $ 642,125.60 Description (Name and Location): CITY PROJECT NO. 0805 & 0806: SULLIVAN 8 SILVER LAKE BEACH PARK IMPROVEMENT PROJECTS COLUMBIA HEIGHTS MINNESOTA BOND BOND NO. GRMN27691A Date (Not earlier than Construction Contract Date): 5/07/2008 Amount: $ 642,125.60 (SIX HUNDRED FORTY TWO THOUSAND ONE HUNDRED TWENTY FIVE AND 60/100) Modifications to this Bond Form: None Surety and Contractor, intending to be legally bound hereby, subject to the terms printed on the reverse side hereof, do each cause this Performance Bond to be duly executed on its behalf by its authorized officer, agent or representative. CONTRACTOR AS PRINCIPAL American Liberty Construction, Inc. Company: / (Seal) Signature: _ t Name and Title SURETY GRANITE RE, INC. Surety's Name and Corporate Seal By: -~~`s? ~~ Signature and Title: Tom Lahl, Auorney-in-Fact (Attach Power of Attorney) (Space is provided below for signatures of additional parties, if required.) i r~'r ~-~, Attest: l ~,~/ Signature and Title CONTRACTOR AS PRINCIPAL Company: (Seal) Signature Name and Title: SURETY Surety's name and Corporate Seal By: Signature and Title: (Attach power of attorney) Attest: Signature and Title EJCDC No. C-610 (2002 Edition) Originally 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. i. CONTRACTOR and Surety, jointly and severally, bind themselves their heirs, executors, adminishators, successors and assigns to the Owner for the performance of the Contract, which is incorporated herein by reference 2. [f CONTRACTOR performs the Contract, Surety and CON"TRACTOR have no obligation under this Bond, except to pazticipate in conferences as provided in Subparagraph 3.1. 3. If there is no OLVNER Default, Surety's obligation under this Bond Shall arise after 3.1 OWNER has notified CONTRACTOR and Surety at the address described in Paragraph 10 below, that Owner is con- sidering declaring a CONTRACTOR Default and has requested and at- tempted to arrange a conference with CONTRACTOR and Surety to be he]d not later than fifteen days after receipt of such notice to discuss methods of performing the Contract. If OWNER, CONTRACTOR and Surety agree, CONTRACTOR shall be allowed a reasonable time to perform the Con- tract but such an agreement shall not waive the Owner's right, if any, subsequently to declare a CONTRACTOR Default; and 3.2 The OWNER has declared a CONTRACTOR Default and formally ter- minated CONTRACTOR'S right to complete the conh'act. Such CONTRACTOR Default shall not be declared earlier than twenty days after CONTRACTOR and Surety have received notice as pro- vided in paragraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the Contract Price to: I. "fhe Surety in accordance with the terms of the Contract: 2. Another contractor selected pursuant to paragraph 4.3 to perform the contract 4. When Owner has satisfied the conditions of Paragraph 3, Surety shall promptly and at the Surety's expense take one of the following actions: 4. I An~ange for Contractor, with consent of Owner, to perform and complete the Contract, or 4.2 Unda•take to perform and complete the Contract itself, through its agents or through independent contactors; or 4.3 Obtain bids or negotiated proposals fi~om qualified contractors acceptable to the Owner for a contract for performance and con- pletion of the Contract, an~ange for a contract to be prepared for execution by Owner and the contractor selected with Owner's concurrence to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Contract, and pay to Owner the amount of damages as described in Paragraph 6 in excess of the Balance of the Contract Price incurred by Owner resulting from the Contractor default or 4.4 Waive its right to perform and complete, an~ange for completion, or oUtain a new contractor and with reasonable promptness under the circumstances; i . After investigation, determine the amount for which it may be liable to Owner and as soon as practicable after the amount is determined, render payment therefor to Owner, or 2. Deny liability in whole or in part and notify the Owner citing reasons thereof. 5. if Surety does not proceed as provided in Paragraph 4 with reason- able promphtess, the Surety shall be deemed to be in default of this Bond 15 days after receipt of an additional written notice from Owner to Surety demanding that the Surety perform its obligation under this Bond, and Owner shall be entitled to enforce any remedy available to Owner. [f Surety proceeds as provided in Subparagraph 4.4 and Owner refuses the payment tendered or the Surety has denied liability, in whole or in pat7, without further notice Owner shall be entitled to enforce any remedy available to Owner. 6. After Owner has terminated Contractor's right to complete the Contract, and if Surety elects to act under paragraph 4.1, 4.2 a 4.3 above, then the responsibilities of Surety to Owner Shall not be greater than those of the Contractor under the Contract, and the responsibilities of Owner to Surety shall not be Greater than those of Owner under the Contract. "To a Limit of the amount of this Sond, but subject to commitment by Owner Of the Balance of the Contract Price to mitigation of costs and damages On the Contract, the Surety is obligated without duplication For: 6. I The responsibilities of the Contractor for correction of defective work and completion of the Construction Contract. 6.2 Additional legal, desig,t professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Parag aph 4, a,td 6.3 Liquidated damages, or if no liquidated damages are specified in the Construction Conh'act actual damages caused by delayed performance or nonperformance of Contractor. 7. The Surety shall not be liable to Owner or others for obligations of The Contractor that are unrelated to the 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 [o 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 Contract or to related subcontracts, purchase orders and other obligations. 9. Any proceeding, legal or equitable, under this Bond maybe 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 Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the mininum period of limitation availible to sureties as a defense in the jurisdiction of the suit shall be liable. 10. Notice to Surety, Owner or Contractor shall be mailed or delivered to the address shown on the signature page. 11. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions con- forming to such statutory or other legal requirement shall be deemed in- corporated herein. The intent is that his Bond shall be construed as a statutory bond and not as a common law bond. 12. Definitions. 12.1 Balance of the Contract Price: The total amount payable by Owner to Contractor under the Contract after all proper adjustments have been made, including allowance to Contractor of any amounts received or to be received by Owner in settlement of insurance or other claims for damages to which Contractor is entitled, reduced by all valid and proper payments made to or on behalf of Contractor under the contract. ] 2.2 Contract: The agreement between Owner and Contractor identified on the signature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Contract. 12.4 Owner Default: Failure of Owner, which has neither been remedied not waived, to pay Contractor as required by the Contract or to perform and complete or comply with the other terms thereof (FOR INFORMAT[ON ONLY -Name Address and Telephone) Surety Agency or Broker: Pate Bonding, Inc., 1276 South Robert Street, West St. Paul, MN 55118 (651)457-6842 OWNER'S REPRESENTATIVE (Engineer or other Par ): BRAVER AND ASSOCIATES LTD. 00610-2 ACKNOWLEDGMENT OF PRINCIPAL (Individual) State of ) County of ) On this day of in the year before me personally come(s) to me known and known to me to be the person(s) who (is) (are) described in and executed the foregoing instrument and acknowledge(s) to me that _ he _ executed the same. Notary Public ACKNOWLEDGMENT OF PRINCIPAL (Partnership) State of ) County of ) On this day of in the year before me personally come(s) a member of the co-partnership of to me known and known to me to be the person who is described in and executed the foregoing instrument and acknowledges to me that he executed the same as for the act and deed of the said co-partnership. Notary Public ACKNOWLEDGMENT OF PRINCIPAL (Corporation) State of ~)~~~- ) County of ~~ )) n this 1 d~~ay,.~~,,orrf,,,, 1~ in the year !~'C.~ before me personally come(s) ~. ~I~E~,e~~av ,~t~oAme known, who, being duly sworn, deposes anjjd says that he is the ~~~ of the >I~'t~[C~! ~~~ ~IV~i1~~ Ifs. the corporation described in and which executed the foregoing instrument; that he knows the seal of the said corporation; 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. ""'~ LAUREL A REECE ~~ _ ~ ~,_~ Notary Public ~~ Minnesota --~ ~ My Commission Expires Jan. 31, 2010 Notary Public ACKNOWLEDGMENT OF SURETY State of Minnesota ) County of Dakota ) On this 7th day of M~a ~, in the year 2008, before me personally come(s) Tom Lahl, Attorney(s)-in-Fact of GRANITE RE, INC. with whom I am personally acquainted, and who, being by me duly sworn, says that he is (are) the Attorney(s)-in-Fact of GRANITE RE, INC. company described in and which executed the within instrument; that he know(s) the corporate seal of such company; and that 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-Fact of the said company by like order. ~J LISA M. FRANCOUR Notary Public NO'I ARY PUBLIC ~ MINNESOTA My ~omm~$s~+m Expires Jan. 31, 2010 GRANITE RE, INC. GENERAL POWER OF ATTORNEY Know all Men by these Presents: That GRANITE RE, INC., a corporation organized and existing under the laws of the State of OKLAHOMA and having its principal office at the City of OKLAHOMA CITY in the State of OKLAHOMA does hereby constitute and appoint: JONATHAN PATE; WANDA FRANZ; TOM tAHL; LISA M. FRANCOUR; JENNIFER BOYLES its true and lawful Attorney-in-Fact(s) for the following purposes, to wit: To sign its name as surety to, and to execute, seal and acknowledge any and all bonds, and to respectively do and perform any and all acts and things set forth in the resolution of the Board of Directors of the said GRANITE RE, INC. a certified copy of which is hereto annexed and made a part of this Power of Attorney; and the said GRANITE RE, INC. through us, its Board of Directors, hereby ratifies and confirms ail and whatsoever the said: JONATHAN PATE; WANDA FRANZ; TOM LAHL; LISA M.'FRAN000R; JENNIFER BOYLES may lawfully do in the premises by virtue of these presents. In Witness Whereof, the said GRANITE RE, INC. has caused this instrument to be sealed with its corporate seal, duly attested by the signatures of its President and Secretary/Treasurer, this 14"' day of January, 2008. °pPN1TE RF ~~ - Kenneth D. Whittin on, President STATE OF OKLAHOMA ) s L a L SS: /~_ _~ COUNTY OF OKLAHOMA) Rodman A. Frates, Secretary/Treasurer On this 14`'' day of January, 2008, before me personally came Kenneth D. Whittington, President of the GRANITE RE, INC. Company and Rodman A. Frates, Secretary/Treasurer of said Company, with both of whom I am personally acquainted, who being by me severally duly sworn, said, that they, the said Kenneth D. Whittington and Rodman A. Frates were respectively the President and the Secretary/Treasurer of the GRANITE RE, INC., the corporation described in and which executed the foregoing Power of Attorney; that they each knew the seal of said corporation; that the seal affixed to said Power of Attorney was such corporate seal, that it was so fixed by order of the Board of Directors of said corporation, and that they signed their name thereto by like order as President and Secretary/Treasurer, respectively, of the Company. ~NVA IIFR a°TARr CC, My Commission Expires: _ May 9, 2008 9 ~e ~r~~ Commission #: 00005708 ,F K Notary Publ c GRANITE RE, INC. Certificate THE UNDERSIGNED, being the duly elected and acting Secretary/Treasurer of Granite Re, Inc., an Oklahoma Corporation, HEREBY CERTIFIES that the following resolution is a true and correct excerpt from the July 15, 1987, minutes of the meeting of the Board of Directors of Granite Re, Inc. and that said Power of Attorney has not been revoked and is now in full force and effect. "RESOLVED, that the President, any Vice President, the Secretary, and any Assistant Vice President shall each have authority to appoint individuals as attorneys-in-fact or under other appropriate titles with authority to execute on behalf of the company fidelity and surety bonds and other documents of similar character issued by the Company in the course of its business. On any instrument making or evidencing such appointment, the signatures may be affixed by facsimile. On any instrument conferring such authority or on any bond or undertaking of the Company, the seal, or a facsimile thereof, may be impressed or affixed or in any other manner reproduced; provided, however, that the seal shall not be necessary to the validity of any such instrument or undertaking." IN WITNESS WHEREOF, the undersigned has subscribed this Certificate and affixed the corporate seal of the Corporation this 7th day of May, 2008. ~,TE RF °p ~onvoy,< ~'O SN:AL ~;~ odman A. Frates, Secretary/Treasurer GRO800-1 Change Order #7 Contract Change Order for: Sullivan & Silver Lake Site Improvement Project City of Columbia Heights, MN To (Contractor): American Liberty Construction 5900 Main Street - PO Box 547 Rockford, MN 55373 Distribution To: ^ Owner ^ Field ^ Consultant ^ Other ^ Contractor Initiation Date: 22-May-08 Consultants Proiect: 07-22A / 07-27 CHANGES TO THE CONTRACT (The contractor shall make the following changes to the contract) # D RI N AD DE UC 1 Sullivan Lake Park Bid Form 00501: Deleting item 3.04 to furnish and install 48" dia. Manhole over existing storm line -complete 4,180.00 2 Furnish and install additional 12" HDPE (10 If @ $16.50/If) 165.00 3 Furnish and install additional 12" Galvanized FES with trash guard and Class III Random Riprap basin 165.00 4 Re-shape ditch by existing outlet (excavation, new rip-rap basin with filter blanket, fine radin ,etc. 3,108.00 5 Removal and disposal of concrete pad beneath existing shelter structure at Sullivan Park 1,009.80 TOTAL CHANGE ORDER ADDS AND DEDUCTS: 4,447.80 4,180.00 NET CHANGE ORDER TOTAL: 267 .80 Contract Summary to Date Original Contract Sum: 642,125.60 Net Chan e by Previous) Authorized Change Orders: - Net Chan a of this Chan e Order: 267.80 Total Contract Sum Includin all Chan a Orders to Date : $642,393.40 Consultant: Brauer & Associates, Ltd. Cj-e~ 10417 Excelsior Blvd. -Suite One Signature Date Hopkins, MN 55343 Contractor: American Liberty Construction 5900 Main Street - PO Box 547 Rockford, MN 55373 Owner: City of Columbia Heighs 637 - 38th Ave. NE Columbia Heights, MN 55421 Date O Date e o