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HomeMy WebLinkAbout09) Performance Bond American Contracting { 400TC1221 0: I .. . THE AMERICAN INSTITUTE OF ARCHITECTS AlA Document A312 Performance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): AMERICAN CONTRACTING & SERVICES, INC. 2501 PLACE, 6200 E HWY 62,100 JEFFERSONVillE, IN 47130 SURETY (Name and Principal Place of Business): ST. PAUL FIRE AND MARINE INSURANCE COMPANY 9001 WESLEYAN ROAD, SUITE 101 INDIANAPOLIS, IN 46268-1176 OWNER (Name and Address): JEFFERSONVillE DRAINAGE BOARD OF THE CITY OF JEFFERSONVillE 501 EAST COURT AVENUE JEFFERSONVILLE, IN 47130 r~bNSTRUCTION CONTRACT Date: Amount: $1,445,964.52 Description (Name and Location): BONENBERGER'S OAK GROVE SUBDIVISION DRAINAGE PROJECT, JOB NO. 9705A BOND Date (Not earlier than Construction Contract Date): Amount: $1,445,964.52 Modifications to this Bond: D None o See Page 3 Signature: Name and Title: (Corporate Seal) CONTRACTOR AS PRINCIPAL Company: AMERICAN CONTRACTING & (Corporate Seal) SERVICES, INC. ~ Signature m4/ Name and Title: SURETY Company: (Any additional signatures appear on page 3) (FOR INFORMA;TlONQNL Y - Name, Address and Telephone) AGENT or?BROh-:ER: -'. . i OWNER'S REPRESENTATIVE (Architect, Engineer or TOBIAS INSURANCE; GROUP, INC. other party): 9247 N. MER!D!Atl ST. STE. 30e INDIANAPOLIS, IN 46260 317-844-7759 r AlA DOCUMENT A312 . PERFORMANCE BOND AND PAYMENT BOND' DECEMBER 1984 ED. . AlA @ < THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 THIRD PRINTING. MARCH 1987 A312.1984 1 r" 1 The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, i 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 Construc- tion Contract. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reason- able time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; and 3.2 The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete the contract. Such Contractor Default shall not be de- clared earlier than twenty days after the Contractor and the Surety have received notice as provided in Sub- paragraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accor- dance with the terms of the contract with the Owner. 4 When the Owner has satisfied the conditions of Para- raph 3, the Surety shall promptly and at the Surety's ex- pense take one of the following actions: 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract; or {\ 4.2 Undertake to perform and complete the Construc- tion Contract itself, through its agents or through inde- pendent contractors; or 4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Con- struction Contract, arrange for a contract to be pre- pared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 6 in ex- cess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or 4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is deter- mined, tender payment therefor to the Owner; or .2 Deny liability in whole or in part and notify the Owner citing reasons therefor. 5 If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. 6 After the Owner has terminated the Contractor's right to complete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Sure- ty is obligated without duplication for: 6.1 The responsibilities of the Contractor for correc- tion of defective work and completion of the Construc- tion Contract; 6.2 Additional legal, design professional and delay costs resulting from the Contractor's Default, and re- sulting from the actions or failure to act of the Surety under Paragraph 4; and 6.3 Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual dam- ages caused by delayed performance or non-perfor- mance of the Contractor. 7 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Con- struction Contract, and the Balance of the Contract Price shall not be reduced or set off on account 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,includ- ing changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obliga- tions. 9 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent 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 this Bond, whichever oc- curs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation avail- AlA DOCUMINT A312' PERfORMANCE BOND AND PAYMENT BOND' DECEMBER 1984 ED. . AlA @ THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE.. N.W.. WASHINGTON, D.C. 20006 THIRD PRINTING. MARCH 1987 A312-1984 2 able to sureties as a defense in the jurisdiction of the suit shall be applicable. r\ 10 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the sig- nature page. 11 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions con- forming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 12 DEFINITIONS 12.1 Balance of the Contract Price: The total amount payable by the Owner to the Contractor under thE;l Construction Contract after all proper adjustments have been made, including allowance to the Con- MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: tractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, re- duced by all valid and proper payments made to or on behalf of the Contractor under the Construction Con- tract. 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the sig- nature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor which has neither been remedied nor waived, to per~ form or otherwise to comply with the terms of the Construction Contract. 12.4 Owner Default: Failure of the Owner, which has neither been r~medied nor waived, to pay the Con- tractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. THIS BOND 15 SUBJECT TO THE ATTACHED RIDER CONTAINING DISCLOSURE NOTICE OF TERRORISM COVERAGE. r (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) Signature: Name and Title: Address: SURETY Company: (Corporate Seal) Signature: Name and Title: Address: ~.. AlA. DOCUMENT A312 . PERFORMANCE BOND AND PAYMENT BOND. DECEMBER 1984 ED. . AlA $ , HE AMERICAN INSTITUTE OF ARCHITECTS. 1735 NEW YORK AVE:. N.W.. WASHINCTON. D.C. 20006 . rllRD PRINTING. MARCH 1987 A312-1984 3 IIi St Paul Surety St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company St. Paul Mercury Insurance Company Seaboard Surety Company United States Fidelity and Guaranty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Medical Liability Insurance Company Bond No. 400TC1221 RIDER CONTAINING DISCLOSURE NOTICE OF TERRORISM COVERAGE This disclosure notice is required by the Terrorism Risk Insurance Act of 2002 (the "Act"). No action is required on your part. This Disclosure Notices is incorporated in and a part of the attached bond, and is effective the date of the bond. You should know that, effective November 26, 2002, any losses covered by the attached bond that are caused by certified acts of terrorism would be partially reimbursed by the united States under a formula established by the Act. Under this formula, the United States reimburse!; 90% of covered terrorism losses exceeding the statutorily established deductible paid by the insurance company providing the coverage. Under the Act, there is a cap on our liability to pay for covered terrorism losses if the aggregate amount of insured losses under the Act exceeds $100,000,000,000 during the applicable period for all insureds and all insurers combined. In that case, we will not be liable for the payment of any amount which exceeds that aggregate amount of $100,000,000,000. The portion of your premium that is attributable to coverage for acts of terrorism is JO.OO. IMPORTANT NOTE: THE COST OF TERRORISM COVERAGE IS SUBJECT TO I CHANGE ON ANY BONDS THAT PREM,IUM IS CHARGED ANNUALLY. r.' " .. .) 11I8S1'''ul POWER OF ATTORNEY ~. t Seaboard Surety Company St. Paul Fire and Marine Insurance Cpmpany St. Paul Guardian Insurance Company St. Paul Mercury Insurance Company United States Fidelity and Guaranty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Power of Attorney No. 20286 Certificate No. 1974916 KNOW ALL MEN BY THESE PRESENTS: That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York, and that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, and that United States Fidelity and Guaranty Company is a corporation duly organized under the laws ofthe State of Maryland, and that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Nick J. Rutigliano, Timothy J. Taylor and Robert M. Rutigliano of the City of Indianapolis , State Indiana , their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign its name as surety to, and to execute, seal and acknowledge any and all bonds, undertakings, contracts and other written instruments in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undert~kings required or permitted in any actions or proceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this instrument to be signed and sealed this 15th day of November 2002 ~. f \ i Seaboard Surety Company St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company St. Paul Mercury Insurance Company United States Fidelity and Guaranty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. PETER W. CARMAN, Vice President ~er14 THOMAS E. HUIBREGTSE, Assistant Secretary State of Maryland City of Baltimore On this 15th day of November 2002 , before me, the undersigned officer, personally appeared Peter W. Carman and Thomas E. Huibregtse, who acknowledged themselves to be the Vice President and Assistant Secretary, respectively, of Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, United States Fidelity and Guaranty Company, Fidelity and Guaranty Insurance Company, and Fidelity and Guaranty Insurance Underwriters, Inc.; and that the seals affixed to the foregoing instrument are the corporate seals of said Companies; and that they, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing the names of the corporations by themselves as duly authorized officers. My Commission expires the 1st day ofJuly, 2006. ~~~.~ r ! ,In Witness Whereof, I hereunto set my hand and official seal. REDECCA llASUlY.ONOKALA. Noc>l)' I'IIbllc 86203 Rev. 7-2002 Printed in U.S.A. r'\ I This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, United States Fidelity and Guaranty Company, Fidelity and Guaranty Insurance Company, and Fidelity and Guaranty Insurance Underwriters, Inc. on September 2, 1998, which resolutions are now in full force and effect, reading as follows: RESOLVED, that in connection with the fidelity and surety insurance business of the Company, all bonds, undertakings, contracts and other instruments relating to said business may be signed, executed, and acknowledged by persons or entities appointed as Attorney(s)-in-Fact pursuant to a Power of Attorney issued in accordance with these resolutions. Said Power(s) of Attorney for and on behalf of the Company may and shall be executed in the name and on behalf of the Company, either by the Chairman, or the President, or any Vice President, or an Assistant Vice President, jointly with the Secretary or an Assistant Secretary, under their respective designations. The signature of such officers may be engraved, printed or lithographed. The signature of each of the foregoing officers and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Attorney(s)-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and subject to any limitations set forth therein, any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company, and any such power so executed and certified by such facsimile signature and facsimile seal.shall be valid and binding upon the Company with respect to any bond or undertaking to which it is validly attached; and RESOLVED FURTHER, that Attorney(s)-in-Fact shall have the power and authority, and, in any case, subject to the terms and limitations of the Power of Attorney issued them, to execute and deliver on behalf of the Company and to attach the seal of the Company to any and all bonds and undertakings, and other writings obligatory in the nature thereof, and any such instrument executed by such Attorney(s)-in-Fact shall be as binding upon the Company as if signed by an Executive Officer and sealed and attested to by the Secretary of the Company. I, Thomas E. Huibregtse, Assistant Secretary of Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, United States Fidelity and Guaranty Company, Fidelity and Guaranty Insurance Company, and Fidelity and Guaranty Insurance Underwriters, Inc. do hereby certifY that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which is in full force and effect and has not been revoked. r. IN TESTIMONY WHEREOF, I hereunto set my hand this day of 9@ ~€.tf4 THOMAS E. HUIBREGTSE, Assistant Secretary To verify the authenticity of this Power of Attorney, caI/1-800-421-3880 and ask for the Power of Attorney clerk. Please refer to the Power of Attorney number, the above-named individuals and the details of the bond to which the power is attached.