Improvement Contract_Gansen Excavating, Inc. for Mystique Ice Arena: Arena Rink Excavation and Demolition ProjectCity of Dubuque
City Council Meeting
Consent Items # 09.
Copyrighted
July 5, 2022
ITEM TITLE: Improvement Contracts / Performance, Payment and Maintenance
Bonds
SUMMARY: Gansen Excavating, I nc. for the Mystique I ce Arena: Arena Rink
Excavation and Demolition Project; McDermott Excavating for the Park
Department Waterline Project - 6'D I P Watermain.
SUGGESTED Suggested Disposition: Receive and File; Approve
DISPOSITION:
ATTACHMENTS:
Description Type
Mystique Ice Arena: Arena Rink Excavation and Supporting Documentation
Demolition Project
Park Department Waterline Project - 6'DI P Watermain Supporting Documentation
THE CITY OF
DUBQ�E
1V[ast(.rifi ce on [lie Mississippi
Dubuque
1?nginecring Department
50 W 13111 St
All•AneMeallly
Dubuque, lA 52001
Oflice (563) 589-4270
Fax (563) 589-4205
ITY (563) 556-9948
2007-2012•2013
engineer4ricityoRlubuque.org
201 7 * 2019
www.cityoi'dubtiquc.org
CITY OF DUBUQUE, IOWA
SHORT FORM
PUBLIC IMPROVEMENT CONTRACT
THIS PUBLIC IMPROVEMENT CONTRACT (the Contract), made in triplicate, between the
City of Dubuque, Iowa (City), by its City Manager, through authority conferred upon the City
Manager by its City Council and
Gansen Excavating, Inc. (Contractor) of the City of
(Contractor Name)
12198 Skyline Rd. Dubuque, IA 52003
(Contractors Address - City and State)
PROJECT TITLE: MYSTIQUE ICE ARENA
ARENA RINK EXCAVATION AND DEMOLITION PROJECT
For and in consideration of the mutual covenants herein contained, the parties hereto agree as
follows:
CONTRACTOR AGREES:
To furnish all material and equipment and to perform all labor necessary for the:
Mystique Ice Center - Arena Rink Excavation and Demolition Proiect (the Proiect).
Project Scope of Work:
The project will provide for the site excavation, demolition, and disposal of material and
concrete from the ice rink area within the interior finished arena space of the Mystique
Community Ice Center. The project will include the excavation and disposal of
approximately 570 C.Y. of Class 10 material; sawcut, demolition, excavation, and disposal
of approximately 28 C.Y. concrete apron edge slab around the perimeter of the rink.
The work described above shall be completed at the following location(s):
Mystique Community Ice Center
1800 Admiral Sheehey Drive, Dubu ue, Iowa, 52001
The Project shall be constructed to the meet the requirements as described in this Project
Contract and the attached special conditions; in strict accordance with the requirements of the
laws of the State of Iowa and ordinances of the City of Dubuque relating to public works, and in
accordance with the Contract Documents which provisions and documents are each and all
hereby referred to and made a part of this Contract just as much as if the detailed statements
thereof were repeated herein.
2. Contract Documents shall mean and include the following: This Improvement Contract; all
ordinances and resolutions heretofore adopted by the City Council having to do with the Project;
the Contractor's Proposal; and the conditions described in the Contract, including any Special
Conditions, Plans and Specifications and General Requirements as adopted by the City Council
for the Project.
3. All materials used by the Contractor in the Project shall be the best of their several kinds and
shall be put in place to the satisfaction of the City Manager.
4. The Contractor shall remove any materials rejected by the City Manager as defective or
improper, or any of said work condemned as unsuitable or defective, and the same shall be
replaced or done anew to the satisfaction of the City Manager at the cost and expense of the
Contractor.
5. Five percent (5%) of the Contract price may be retained by the City for a period of thirty (30)
days after final completion and acceptance of the Project by the City Manager to pay any claim
that may be filed within said time for labor and materials done and furnished in connection with
the performance of this Contract and for a longer period if such claims are not adjusted within
that time, as provided in Iowa Code Chapter 573. The City shall also retain additional sums to
protect itself against any claim that has been filed against it for damages to persons or property
arising through the prosecution of the work and such sums shall be held by the City until such
claims have been settled, adjudicated or otherwise disposed of.
6. The Contractor has read and understands the SUDAS Standard Specifications (Current Edition)
including but not limited to Division 1: General Provisions and Covenants and the City of
Dubuque Supplemental Specifications — Division 1 (Current Edition), and has examined and
understands the project description described in Section 1 and any attached Special Conditions
herein referred to and agrees not to plead misunderstanding or deception because of estimates
of quantity, character, location or other conditions surrounding the same.
ee s - -
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e. s e lAIMM
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8. The Contractor shall fully complete the Project under this Contract on or before
June 24. 2022
(DATE)
9. INDEMNIFICATION FROM THIRD PARTY CLAIMS. To the fullest extent permitted by law,
Contractor shall defend, indemnify and hold harmless City, its officers and employees, from and
against all claims, damages, losses and expenses claimed by third parties, but not including any
claims, damages, losses or expenses of the parties to this Contract, including but not limited to
attorneys' fees, arising out of or resulting from performance of this Contract, provided that such
claim, damages, loss or expense is attributable to bodily injury, sickness, disease or death, or
injury to or destruction of property, including loss of use resulting therefrom, but only to the extent
caused in whole or in part by negligent acts or omissions of Contractor, or anyone directly or
indirectly employed by Contractor or anyone for whose acts Contractor may be liable, regardless
of whether or not such claim, damage, loss or expense is caused in part by a party indemnified
hereunder.
10. Unless otherwise specified in the Contract Documents, prior to the commencement of any work
on the Project and at all times during the performance of this Contract, the Contractor shall
provide evidence of insurance which meets the requirements of the City's Insurance Schedule
for Artisan Contractors or General Contractors.
11. The City of Dubuque in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42
U.S.C. 2000d-2000d-4 and Title 49, Code of Federal Regulations, Department of
Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally
assisted programs of the Department of Transportation issued pursuant to such Act, hereby
notifies all bidders that it will affirmatively insure that in any contract entered into pursuant to
this advertisement, minority business enterprises will be afforded full opportunity to submit bids
in response to this invitation and will not be discriminated against on the grounds of race, color,
national origin, sex, age, or disability in consideration for an award.
12. The City of Dubuque, State of Iowa and Department of Justice have entered into a Consent
Decree requiring the City to complete certain capital improvements pursuant to an established
schedule and to comply with certain capital improvements pursuant to an established schedule
and to comply with certain reporting and recordkeeping requirements. One of the terms of the
Consent Order is for the City to advise contractors whose duties might reasonably include
compliance with any provision of the Consent Decree with a copy of the Consent Decree. The
City expects its contractors to comply with the Consent Decree and to assist the City in
complying with the Consent Decree. As a requirement of this Contract, the Contractor shall
execute and return to the City Exhibit A that is attached to this Contract.
THE CITY AGREES:
Upon the completion of the Contract, and the acceptance of the Project by the City Manager,
the City agrees to pay the Contractor as full compensation for the complete performance of this
Contract, the amount determined for the total number of units completed at the unit prices stated in
the Contractor's Proposal and less any liquidated damages provided for in the Contract Documents.
The number of units stated in the contract, special conditions and contractors proposal is
approximate only and the final payment shall be made by the work covered by the Contract.
CONTRACT ESTIMATED AMOUNT: $ 29,632.26
THE MAXIMUM CONTRACT AMOUNT SHALL BE LIMITED TO AN INCREASE OF 10 %
OF THE ABOVE LISTED ESTIMATED AMOUNT, UNLESS AUTHORIZED BY CHANGE ORDER
OR CONTRACT AMMENDMENT.
CITY OF DUBUQUE, IOWA CONTRACTOR:
By: (� —3., Gjansen Excavating, Inc.
Michael C. Van Milligen at Company blaine
City Manager
ignature Date
(Z1,�C H &A.i'ye,"o
Printed Name
OWrnef I P(6jCA-+-
Title
CONTRACTOR ACKNOWLEDGEMENT OF
ATTACHED SPECIAL CONDITIONS:
By. �.� UI IP )d,04
Signature Date
CK GXA� eV)
Printed Name
{)l ontr I PUS'i J&J-
Title
i ne twowing special conditions shall apply to this Project:
Full complete site excavation and demolition removals by June 24, 2022.
reed Costs of Deley for not completing said work by June 24, 2022 is $1 ,000 per day.
P E R F 0 R M A N C LIPAYMENT AND MAINTENANCE BOND
KNOW ALL BY THESE PRESENTS:
That we,
Gansen Excavating, Inc. , as Principal
(hereinafter the "Contractor" or ") and
Merchants Bonding Company (Mutual) , as Surety are held and firmly bound unto the City
"Principal
of Dubuque, Iowa, as Obligee (hereinafter referred to as "Owner"), and to all persons who may be
injured by any breach of any of the conditions of this Bond in the penal sum of
2963226
Twenty -Nine Thousand six HundrUnited
States, for dollars dof which sum, well a26/100 dollars nd truly to be made, we bind
lawful money of the United payment
ourselves, our heirs, legal representatives and assigns, jointly or severally, firmly by these presents.
The conditions of the above obligations are such that whereas said Contractor entered into a contract
with the Owner, bearing date the 3rd day of June
2022, hereinafter the
"Contract") wherein said Contractor undertakes and agrees to construct the following project in
accordance with the Contract Documents, and to faithfully perform all the terms and requirements of
said Contract within the time therein specified, in a good and workmanlike manner, and in accordance
with the Contract Documents. The Contract Documents for M_ystiaue Ice Center - Arena Rink
Excavation and Demolition Prp ect detail the following described improvements:
The project will provide for the site excavation, demolition, and disposal of
material and concrete from the ice rink area within the interior finished
arena space of the Mystique Community Ice Center. The project will include
the excavation and disposal of approximately 570 C.Y. of Class 10 material;
sawcut, demolition, excavation, and disposal of approximately 28 C.Y.
concrete apron edge slab around the perimeter of the rink.
It is expressly understood and agreed by the Contractor and Surety in this Bond that the following
provisions are a part of this Bond and are binding upon said Contractor and Surety, to -wit:
PERFORMANCE: The Contractor shall well and faithfully observe, perform, fulfill, and abide
by each and every covenant, condition, and part of said Contract and Contract Documents,
by reference made a part hereof, for the project, and shall indemnify and save harmless the
Owner from all outlay and expense incurred by the Owner by reason of the Contractor's
default of failure to perform as required. The Contractor shall also be responsible for the
default or failure to perform as required under the Contract and Contract Documents by all
its subcontractors, suppliers, agents, or employees furnishing materials or providing labor in
the performance of the Contract.
PAYMENT: The Contractor and the Surety on this Bond hereby agreed to pay all just claims
submitted by persons, firms, subcontractors, and corporations furnishing materials for or
performing labor in the performance of the Contract on account of which this Bond is given,
including but not limited to claims for all amounts due for labor, materials, lubricants, oil,
gasoline, repairs on machinery, equipment, and tools, consumed or used by the Contractor
or any subcontractor, wherein the same are not satisfied out of the portion of the contract
price the Owner is required to retain until completion of the improvement, but the Contractor
and Surety shall not be liable to said persons, firms, or corporations unless the claims of said
claimants against said portion of the contract price shall have been established as provided
by law. The Contractor and Surety hereby bind themselves to the obligations and conditions
set forth in Chapter 573 of the Iowa Code, which by this reference is made a part hereof as
though fully set out herein.
3. MAIN-T-ENANG€.- The-Contractor-and---the-Surety-on4his-Bond-hereby-agree eat -their -own
A. To --remedy -any- n-all••defects •th'+ uelop in.,or resin -frem-work- to be -performed
tinder +hr-' vvAtraf,t-DoGEiment —with n tom, t period
accaeptanc-e--of the-work-uRdee Cern„raGt, reasoe--Gf--def^^+—el:kmanship-,
equ en� l said work;
�ur�s—+v-vm;
Beep-a4l-wer-k-n-cGa-tiauous-good-repair; and
C—To-pa„ + Owner's Gests of men+tGrieg end 4nspeG4orto as&ure that ,y
defects--are-remedied-and to repay the •Ownerail-.G 4ay-aR4d-expense-incurred-as a result
of -Contractor! -and--Surety's failure-to-remedy-anydefeGt-as r-eguir-ed-43)�-this-section-.
contraGtar's-andSurety's-Sontract herein - made extends--ta-de#eGts- in workmanship or
meter+a1 --nGt d4-sGeveredar-4Enown-to-the-Ownerat-the-time-suG4-wGrk was -accepted:
4. GENERAL: Every Surety on this Bond shall be deemed and held bound, any contract to the
contrary notwithstanding, to the following provisions:
A. To consent without notice to any extension of time authorized in approved change orders
to the Contractor in which to perform the Contract.
B. To consent without notice to any change in the Contract or Contract Documents,
authorized in approved change orders which thereby increases the total contract price
and the penal sum of this Bond, provided that all such changes do not, in the aggregate,
involve an increase of more than twenty percent (20%) of the total contract price, and that
this Bond shall then be released as to such excess increase.
C. To consent without notice that this Bond shall remain in full force and effect until the
Contract is completed, whether completed within the specified contract period, within an
extension thereof, or within a period of time after the contract period has elapsed and the
liquidated damage penalty is being charged against the Contractor.
The Contractor and every Surety on the Bond shall be deemed and held bound, any contract to the
contrary notwithstanding, to the following provisions:
D. That no provision of this Bond or of any other contract shall be valid that limits to less
than five (5) years after the acceptance of the work under the Contract the right to sue on
this Bond.
E. That as used herein, the phrase "all outlay and expense" is not to be limited in any way
but shall include the actual and reasonable costs and expenses incurred by the Owner
including interest, benefits, and overhead where applicable. Accordingly, "all outlay and
expense" would include but not be limited to all contract or employee expense, all
equipment usage or rental, materials, testing, outside experts, attorney's fees (including
overhead expenses of the Owner's staff attorneys), and all costs and expenses of
litigation as they are incurred by the Owner. It is intended the Contractor and Surety will
defend and indemnify the Owner on all claims made against the Owner on account of
Contractor's failure to perform as required in the Contract and Contract Documents, that
all agreements and promises set forth in the Contract and Contract Documents, in
approved change orders, and in this Bond will be fulfilled, and that the Owner will be fully
indemnified so that it will be put into the position it would have been in had the Contract
been performed in the first instance as required.
In the event the Owner incurs any "outlay and expense" in defending itself against any claim as to
which the Contractor or Surety should have provided the defense, or in the enforcement of the
promises given by the Contractor in the Contract, Contract Documents, or approved change orders,
or in the enforcement of the promises given by the Contractor and Surety in this Bond, the
Contractor and Surety agree that they will make the Owner whole for all such outlay and expense,
provided that the Surety's obligation under this Bond shall not exceed one hundred twenty-five
percent (125%) of the penal sum of this Bond.
In the event that any actions or proceedings are initiated regarding this Bond, the parties agree that
the venue thereof shall be Dubuque County, State of Iowa. If legal action is required by the Owner
to enforce the provisions of this Bond or to collect the monetary obligation incurring to the benefit of
the Owner, the Contractor and the Surety agree, jointly, and severally, to pay the Owner all outlay
and expense incurred therefor by the Owner. All rights, powers, and remedies of the Owner
hereunder shall be cumulative and not alternative and shall be in addition to all rights, powers, and
remedies given to the Owner, by law. The Owner may proceed against surety for any amount
guaranteed hereunder whether action is brought against the Contractor or whether Contractor is
joined in any such action(s) or not.
NOW THEREFORE, the condition of this obligation is such that if said Principal shall faithfully perform
all the promises of the Principal, as set forth and provided in the Contract, in the Contract Documents,
and in this Bond, then this obligation shall be null and void, otherwise it shall remain in full force and
effect.
When a work, term, or phrase is used in this Bond, it shall be interpreted or construed first as defined
in this Bond, the Contract, or the Contract Documents; second, if not defined in the Bond, Contract,
or Contract Documents, it shall be interpreted or construed as defined in applicable provisions of the
Iowa Code; third, if not defined in the Iowa Code, it shall be interpreted or construed according to its
generally accepted meaning in the construction industry; and fourth, if it has no generally accepted
meaning in the construction industry, it shall be interpreted or construed according to its common or
customary usage.
Failure to specify or particularize shall not exclude terms or provisions not mentioned and shall not
limit liability hereunder. The Contract and Contract Documents are hereby made a part of this Bond.
Project No. 3502890
Witness our hands, in triplicate, this 3rd
SURETY C UNTERSIGNED BY:
Sig ature of Ag nt
Kim Hess
Printed Name of Agent
600 Star Brewery Drive, Ste 110
Company Address
Dubuque, IA 52001
City, State, Zip Code
563-556-5441
Company Telephone Number
P , INCIPAL:
,ILA vac cap°Gtfi� I r) L
Contractor
By:
Sign ture
e. lil.
Printed Name
Owner Ores'l(I-eidt
Title
day of .rune , 2022.
FORM APPROVED BY:
Representative for Owner
SURETY:
Merchants Bondj4 Company Mut
Suret Company
GigHbfure Attor -in-Fact Offic
Nicole Hermsen
Printed Name of Attorney -in -Fact Officer
Gansen Excavating, Inc.
Company Name
12198 Skyline Rd
Company Address
Dubuque, IA 52003
City, State, Zip Code
563-556-0083
Company Telephone Number
NOTE:
1. All signatures on this performance, payment, and maintenance Bond must be original
signatures in ink; copies, facsimile, or electronic signatures will not be accepted.
2. This Bond must be sealed with the Surety's raised, embossing seal.
3. The name and signature of the Surety's Attorney-in-Fact/Officer entered on this Bond must be
exactly as listed on the Certificate or Power of Attorney accompanying this Bond.
MERCHANT
BONDING COMPANY,.
POWER OF ATTORNEY
Know All Persons By These Presents, that MERCHANTS BONDING COMPANY (MUTUAL) and MERCHANTS NATIONAL BONDING, INC.,
both being corporations of the State of Iowa (herein collectively called the "Companies") do hereby make, constitute and appoint, individually,
Nicole Hermsen
their true and lawful Attorney(s)-in-Fact, to sign its name as surety(ies) 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 undertakings required or permitted in any
actions or proceedings allowed by law.
This Power -of -Attorney is granted and is signed and sealed by facsimile under and by authority of the following By -Laws adopted by the Board
of Directors of Merchants Bonding Company (Mutual) on April 23, 2011 and amended August 14, 2015 and adopted by the Board of Directors
of Merchants National Bonding, Inc., on October 16, 2015.
"The President, Secretary, Treasurer, or any Assistant Treasurer or any Assistant Secretary or any Vice President shall have power and authority
to appoint Attorneys -in -Fact, and to authorize them to execute on behalf of the Company, and attach the seal of the Company thereto, bonds and
undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature thereof."
"The signature of any authorized officer and the seal of the Company may be affixed by facsimile or electronic transmission 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, and such signature and seal when so used shall have the same force and effect as though manually fixed."
In connection with obligations in favor of the Florida Department of Transportation only, it is agreed that the power and aut hority hereby given to the
Attorney -in -Fact includes any and all consents for the release of retained percentages and/or final estimates on engineering and construction
contracts required by the State of Florida Department of Transportation. It is fully understood that consenting to the State of Florida Department
of Transportation making payment of the final estimate to the Contractor and/or its assignee, shall not relieve this surety company of any of
its obligations under its bond.
In connection with obligations in favor of the Kentucky Department of Highways only, it is agreed that the power and authority hereby given
to the Attorney -in -Fact cannot be modified or revoked unless prior written personal notice of such intent has been given to the Commissioner -
Department of Highways of the Commonwealth of Kentucky at least thirty (30) days prior to the modification or revocation.
In Witness Whereof, the Companies have caused this instrument to be signed and sealed this 3rd day of June 2022
.••. ....
NA
I,�PPOR �•�0•:°p��\Ppp ��'O�•• MERCHANTS BONDING COMPANY (MUTUAL)
' O 94 ' y • MERCHANT NATIONAL BONDING, INC.
A. q�ON.Z : y v . c
Q.'2 -o- G':�= :=
v 2003 1933 r c; By
Ys
eee.� •.........:�'''� •• �• • ,Yf • •'`�•.• President
STATE OF IOWA •""...... �, e• • •"•
COUNTY OF DALLAS ss.
On this 3rd day of June 2022 , before me appeared Larry Taylor, to me personally known, who being by me duly sworn
did say that he is President of MERCHANTS BONDING COMPANY (MUTUAL) and MERCHANTS NATIONAL BONDING, INC.; and that the
seals affixed to the foregoing instrument are the Corporate Seals of the Companies; and that the said instrument was signed and sealed in behalf
of the Companies by authority of their respective Boards of Directors.
Q� tA4 S POLLY MASON
i.
y Commission Number 750576
My Commission Expires
P January 07, 2023
Notary Public
(Expiration of notary's commission
does not invalidate this instrument)
I, William Warner, Jr., Secretary of MERCHANTS BONDING COMPANY (MUTUAL) and MERCHANTS NATIONAL BONDING, 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 still in full
force and effect and has not been amended or revoked.
In Witness Whereof, I have hereunto set my hand and affixed the seal of the Companies on this 3rd day of June 2022 .
2003v.�� Secretary
e°e�••'• �'••• �,e°` 'use �, • ,�t • •'��,.•
POA 0018 (1/20) For bond verification contact verify Libm ;rchantsbonding.com