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Improvement Contract_Eastern Iowa Excavating & Concrete, LLC for the Iowa Amphitheater at Schmitt Island Bid Package 1: Site PreparationCity of Dubuque City Council C,9191Z 9���i���►�i6'�9�iF� Copyrighted November 4, 2024 ITEM TITLE: Improvement Contracts / Performance, Payment, and Maintenance Bonds SUMMARY: Eastern Iowa Excavating & Concrete, LLC for the Iowa Amphitheater at Schmitt Island Bid Package 1: Site Preparation SUGGUESTED Receive and File; Approve DISPOSITION: ATTACHMENTS: 1. Iowa Amphitheater - Eastern Iowa Excavating Concrete - Signed ContractBond Page 794 of 2498 =�=A1A Document A101°- 2017 Standard Form of Agreement Between Owner and Contractor where the basis of payment is a Stipulated Sum AGREEMENT made as of the 22nd day of October in the year 2024 (In words, indicate day, month and year.) BETWEEN the Owner: (Name, legal status, address and other information) CLty of Dubuque 50 W. 13`t' Street, Dubuque_,1A 52001 PH:563.589.1734 and the Contractor: (Name, legal status, address and other information) Eastern Iowa Excavatin>~ & Concrete, hf.0 121 Nixon St SE, P.O. Box 189 Cascade, lA 52033 PH: 563,852.5120 for the following Project: (Name, location and detailed description) Iowa Amphitheater at Schmitt Island Bid Package 1: Site Preparation The Architect: (Name, legal status, address and other information) RDG Planning & Design- Inc. (R3002.227.01� 301 Grand Avenue, Des Moines, IA 50309 515288.3141 The Owner and Contractor agree as follows. AIA Document A1010-2017. Copyright© 1915, 1918, 1925, 1937, 1951, 1958. 1961. 1963, 1967. 1974, 1977. 1987. 1991, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. WARNING This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAS Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the taw. Page 795 of 2498 TABLE OF ARTICLES I THE CONTRACT DOCUMENTS 2 THE WORK OF THIS CONTRACT 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 4 CONTRACTSUM 5 PAYMENTS 6 DISPUTE RESOLUTION 7 TERMINATION OR SUSPENSION S MISCELLANEOUS PROVISIONS 9 ENUMERATION OF CONTRACT DOCUMENTS EXHIBIT A INSURANCE AND BONDS ARTICLE I THE CONTRACT DOCUMENTS The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary, and other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement, and Modifications issued after execution of this Agreement, all of which form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations, or agreements, either written or oral. An enumeration of the Contract Documents, other than a Modification, appears in Article 9. ARTICLE 2 THE WORK OF THIS CONTRACT The Contractor shall fully execute the Work described in the Contract Documents, except as specifically indicated in the Contract Documents to be the responsibility of others. ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION § 3.1 The date of commencement of the Work shall be: (Check one of the following boxes) ❑ The date of this Agreement. N A date set forth in a notice to proceed issued by the Owner. ❑ Established as follows: (Insert a date or a means to determine the date of commencement of the 6Vork.) Not applicable. If a date of commencement of the Work is not selected, then the date of commencement shall be the date of this Agreement. § 3.2 The Contract Time shall be measured from the date of commencement of the Work. AIA Document A101&-2017. Copyright© 1915, 1918, 1925. 1937, 1951. 1958. 1961. 1963, 1967, 1974, 1977, 1987, 1991, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may resuft in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Page 796 of 2498 § 3.3 Substantial Completion § 3.3.1 Subject to adjustments of the Contract Time as provided in the Contract Documents, the Contractor shall achieve Substantial Completion of the entire Work: (Check one of the following boxes and complete the necessary information.) ❑ Not later than not a licable (NIA) calendar days from the date of commencement of the Work. ® By the following date: ]anuary b 2025 § 3.3.2 Subject to adjustments of the Contract Time as provided in the Contract Documents, if portions of the Work are to be completed prior to Substantial Completion of the entire Work, the Contractor shall achieve Substantial Completion of such portions by the following dates: Portion of Work Substantial Completion Date Not applicable. Not applicable. § 3.3.3 If the Contractor fails to achieve Substantial Completion as provided in this Section 3.3, liquidated damages, if any, shall be assessed as set forth in Section 4.5. ARTICLE 4 CONTRACT SUM § 4.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's performance of the Contract. The Contract Sum shall be Eight Hundred and Nineteen Thousand, Six Hundred Seven -Six and 451100 Dollars ($819,676.45), subject to additions and deductions as provided in the Contract Documents. § 4.2 Alternates § 4.2.1 Alternates, if any, included in the Contract Sum: Item Price Not applicable. Not applicable. § 4.2.2 Subject to the conditions noted below, the following alternates may be accepted by the Owner following execution of this Agreement. Upon acceptance, the Owner shall issue a Modification to this Agreement. (Insert below each alternate and the conditions that must be met for the Owner to accept the alternate.) Item Price Conditions for Acceptance Not applicable. Not applicable. Not applicable. AIA Document A101&-2017. Copyright© 1915, 1918. 1925. 1937, 1951. 1958. 1961. 1963. 1967, 1974, 1977, 1987, 1991, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties_ Unauthorized reproduction or distribution of this AIAV Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Page 797 of 2498 § 4.3 Allowances, if any, included in the Contract Sum: (Identijy each allowance) ----Eatimated Quantity Included In Item I_urnp Sum No. DesjAptjon Base Bid Unit Old unit Price Repbcernent o7.. - — 1 Unsuitable Foundation 50 cu. Material for Structures YD9. $ 44.00 and Honda -Rep errt of__..._._. --- 2 Unsuitable Foundation 30 CU. Material for Utility YDS. $ 44.00 3 Disposing of Exci _. Sold Waste Fill 5 Excavating, 4 Transferring, and Tetal Bid Price Included In Lump Sum Base Bid s 2.200.00 S 1.320.00 50 TONS S 55.00 5 2,750.00 30 cu. YDS. 3 28.00 S 840.00 gdPi ry a riming gr 5. Additional On•she Fill for CU 0,500 cu. $ 6.50 S 42,250.00 Site Mass Cared Crushing Cdncreto f om - _ On -site Stockpile and 6' Demolition of Structures 1,305 TONS S 1850 S 24,142.50 and Surfaces 7. Crushing haft from Exlsri�s ass 2,315 TONS _ S 18.50 ••... S 38.197.50 § 4.4 Unit prices, if any: (Identify the item and state the unit price and quantity limitations, if any, to which the unit price will be applicable.) Item Not applicable. Units and Limitations Price per Unit ($0.00) Not applicable. Not applicable. § 4.5 Liquidated damages, if any: (Insert terms and conditions for liquidated damages, if any.) In accordance with Section 9.11 of AIA Document A201T"'L-2017, General Conditions of the Contract for Construction. § 4.6 Other: (Insert provisions for bonus or other incentives, if any, that might result in a change to the Contract Sum.) Not applicable. ARTICLE 5 PAYMENTS § 5.1 Progress Payments § 5.1.1 Based upon Applications for Payment submitted to the Architect by the Contractor and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents. § 5.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows: Not applicable. § 5.1.3 Provided that an Application for Payment is received by the Architect not later than the Wednesday before the last Tuesday of the dE�y e€a month, the Owner shall make payment of the amount certified to the Contractor fief t4an on or before the 1st day of the following month. If an Application for Payment is received by the Architect after the application date fixed above, payment of the amount certified shall be made by the Owner not later than twen (20) days after the Architect receives the Application for Payment. AIA Document A101(&-2017, Copyright© 1915, 1918. 1925, 1937, 1951, 1958. 1961, 1963, 1967. 1974. 1977, 1987. 1991. 1997. 2007 and 2017 by The American Institute of Architects. All rights reserved. WARNING: This AlA® Document is protected by U.S. Copyright Law and International 4 Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminai penalties, and will be prosecuted to the maximum extent possible under the law. Page 798 of 2498 § 5.1.4 Each Application for Payment shall be based on the most recent schedule of values submitted by the Contractor in accordance with the Contract Documents. The schedule of values shall allocate the entire Contract Sum among the various portions of the Work. The schedule of values shall be prepared in such form, and supported by such data to substantiate its accuracy, as the Architect may require. This schedule of values shall be used as a basis for reviewing the Contractor's Applications for Payment. § 5.1.5 Applications for Payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. § 5.1.6 In accordance with AIA Document A201TM-2017, General Conditions of the Contract for Construction, and subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: § 5.1.6.1 The amount of each progress payment shall first include: .1 That portion of the Contract Sum properly allocable to completed Work; .2 That portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction, or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing; and .3 That portion of Construction Change Directives that the Architect determines, in the Architect's professional judgment, to be reasonably justified. § 5.1.6.2 The amount of each progress payment shall then be reduced by: .1 The aggregate of any amounts previously paid by the Owner; .2 The amount, if any, for Work that remains uncorrected and for which the Architect has previously withheld a Certificate for Payment as provided in Article 9 of AIA Document A201-2017; .3 Any amount for which the Contractor does not intend to pay a Subcontractor or material supplier, unless the Work has been performed by others the Contractor intends to pay; .4 For Work performed or defects discovered since the last payment application, any amount for which the Architect may withhold payment, or nullify a Certificate of Payment in whole or in part, as provided in Article 9 of AIA Document A201-2017; and .5 Retainage withheld pursuant to Section 5.1.7. § 5.1.7 Retainage § 5.1.7.1 For each progress payment made prior to Substantial Completion of the Work, the Owner may withhold the following amount, as retainage, from the payment otherwise due: (Insert a percentage or amount to be withheld as retainage from each Application for Payment. The amount of retainage may be limited by governing law.) 5%. § 5.1.7.1.1 The following items are not subject to retainage: (Insert any items not subject to the withholding of retainage, such as general conditions, insurance, etc.) Not applicable. § 5.1.7.2 Reduction or limitation of retainage, if any, shall be as follows: (If the retainage established in Section 5.1.7.1 is to be modified prior to Substantial Completion of the entire Work, including mod f cations far Substantial Completion of portions of the Work as provided in Section 3.3.2, insert provisions for such modifications.) Not applicable. § 5.1.7.3 Except as set forth in this Section 5.1.7.3, upon Substantial Completion of the Work, the Contractor may submit an Application for Payment that includes the retainage withheld from prior Applications for Payment pursuant to this Section 5.1.7. The Application for Payment submitted at Substantial Completion shall not include retainage as follows: (Insert any other conditions for release of retainage upon Substantial Completion.) Not applicable. AIA Document AIIMC-2017, Copyright© 1915, 1918, 1925, 1937, 1951, 1958, 1961. 1963, 1967, 1974, 1977. 1987. 1991, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. copyright Law and International 5 Treaties, Unauthorized reproduction or distribution of this AIAO Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Page 799 of 2498 § 5.1.8 If final completion of the Work is materially delayed through no fault of the Contractor, the Owner shall pay the Contractor any additional amounts in accordance with Article 9 of AIA Document A201-2017. § 5.1.9 Except with the Owner's prior approval, the Contractor shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. § 5.2 Final Payment § 5.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when .1 the Contractor has fully performed the Contract except for the Contractor's responsibility to correct Work as provided in Article 12 of AIA Document A20 t-2017, and to satisfy other requirements, if any, which extend beyond final payment; and .2 a final Certificate for Payment has been issued by the Architect. § 5.2.2 The Owner's final payment to the Contractor shall be made no later than 30 days after the issuance of the Architect's final Certificate for Payment, or as follows: Within 30 days of Acceptance of the Public Improvement Contract by Dubuque CCU Council. § 5.3 Interest Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate stated below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. (Insert rate of interest agreed upon, if any.) , In accordance with Iowa Code 573. ARTICLE 6 DISPUTE RESOLUTION § 6.1 Initial Decision Maker The Architect will serve as the Initial Decision Maker pursuant to Article 15 of AIA Document A201 2017, unless the parties appoint below another individual, not a party to this Agreement, to serve as the initial Decision Maker. (If the parties mutually agree, insert the name, address and other contact information of the Initial Decision Maker, if other than the Architect.) Not applicable. § 6.2 Binding Dispute Resolution For any Claim subject to, but not resolved by, mediation pursuant to Article 15 of AIA Document A201 2017, the method of binding dispute resolution shall be as follows: (Check the appropriate box.) ® Arbitration pursuant to Section 15.4 of AIA Document A201-2017 ❑ Litigation in a court of competent jurisdiction ❑ Other (Specify) If the Owner and Contractor do not select a method of binding dispute resolution, or do not subsequently agree in writing to a binding dispute resolution method other than litigation, Claims will be resolved by litigation in a court of competent jurisdiction. AIA Document A7018-2017. Copyright © 1915, 1918, 1925, 1937. 1951, 1958, 1961, 1963. 1967, 1974, 1977. 1987, 1991, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. WARNING: This AIAZ Document is protected by U.S. Copyright Law and International s Treaties. Unauthorized reproduction or distribution of this AIAQD Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Page 800 of 2498 ARTICLE 7 TERMINATION OR SUSPENSION § 7.1 The Contract may be terminated by the Owner or the Contractor as provided in Article 14 of AIA Document A201-2017. § 7.1.1 If the Contract is terminated for the Owner's convenience in accordance with Article 14 of AIA Document A201-2017, then the Owner shall pay the Contractor a termination fee as follows: (Insert the amount of, or method for determining, the fee, if any, payable to the Contractor following a termination for the Owner's convenience.) Not applicable. § 7.2 The Work may be suspended by the Owner as provided in Article 14 of AIA Document A201-2017. ARTICLE 8 MISCELLANEOUS PROVISIONS § 8.1 Where reference is made in this Agreement to a provision of AIA Document A201-2017 or another Contract Document, the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents. § 8.2 The Owner's representative: (Name, address, email address, and other information) Nathan Steffen, PE Civil Ent~ineer 1 Engineering Department Cily Hall 50 W. 131 Street, Dubuque, IA 52001 PH: 563.589.1734 § 8.3 The Contractor's representative: (Name, address, email address, and other information) Chad Demmer, Owner Eastern Iowa Excavating & Concrete, LLC 121 Nixon St, SE Cascade, IA 52033 PH: 563.852.5120 § 8.4 Neither the Owner's nor the Contractor's representative shall be changed without ten days' prior notice to the other party. § 8.5 Insurance and Bonds § 8.5.1 The Owner and the Contractor shall purchase and maintain insurance as set forth in AIA Document A101TM 2017, Standard Form of Agreement Between Owner and Contractor where the basis of payment is a Stipulated Sum, Exhibit A, Insurance and Bonds, and elsewhere in the Contract Documents. § 8.5.2 The Contractor shall provide bonds as set forth in AIA Document AJO1Tm-2017 Exhibit A, and elsewhere in the Contract Documents. § 8.6 Notice in electronic format, pursuant to Article 1 of AIA Document A201-2017, may be given in accordance with a building information modeling exhibit, if completed, or as otherwise set forth below: (If other than in accordance with a building information modeling exhibit, insert requirements for delivering notice in electronic format such as name, title, and email address of the recipient and whether and how the system will be required to generate a read receipt for the transmission.) Not applicable. § 8.7 Other provisions: Not applicable. AIA Document A101Q�-2017. Copyright© 1915, 1918, 1925. 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991. 1997. 2007 and 2017 by The American Institute of Architects, All rights reserved. WARNING- This AIA® Document is protected by U.S Copyright Law and International 7 Treaties. Unauthorized reproduction or distribution of this AIAG Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law, Page 801 of 2498 ARTICLE 9 ENUMERATION OF CONTRACT DOCUMENTS § 9.1 This Agreement is comprised of the following documents: A AIA Document A IOITm-2017, Standard Form of Agreement Between Owner and Contractor .2 AIA Document A101r"-2017, Exhibit A, Insurance and Bonds .3 AIA Document A201 Tlv�-2017, General Conditions of the Contract for Construction .4 Building information modeling exhibit, dated as indicated below: (Insert the date of the building information modeling exhibit incorporated into this Agreement.) Not applicable. .5 Drawings Number Title Date G00.00 Cover Not applicable. l� G00.0 I Survey G00.02 Survey L02.00 Grading Hold Down Plan 1301.01 Site Demolition Plan _- 1 D01.02 Site Demolition Plan - 2 DO1.03 _ Site Demolition Plan _ 3 D05.01 Site Demolition Details 1i Overall Erosion Control Plan C01.02 Mass Grading Plan - 1 C01.03 Mass Grading Plan & Profile Section AAA C01.04 Mass Gradine Plan & Profile Section BB-B C01.05 Mass Grading Plan = 2 C01.06 Mass Grading Plan - 3 C01.07 Stockpile Layout Plan C05.01 Erosion Control Details _-1 C05.02 Erosion Control, Details _- 2 ED01.01 Electrical Demolition .6 Specifications See Exhibit B. .7 Addenda, if any: Number Date Pages 01 10/3/2024 6 02 10/7/2024 8 Portions of Addenda relating to bidding or proposal requirements are not part of the Contract Documents unless the bidding or proposal requirements are also enumerated in this Article 9. .8 Other Exhibits: (Check all boxes that apply and include appropriate information identifying the exhibit where required.) ❑ AIA Document E204T" -2017, Sustainable Projects Exhibit, dated as indicated below: (Insert the date of the E204-2017 incorporated into this Agreement.) Not applicable. AIA DocumentA101a2017. Copyrigli 1915, 1918, 1925, 1937, 1951, 1958. 1961, 1963, 1967, 1974. 1977, 1987. 1991. 1997. 2007 and 2017 by The American Institute of Architects. All rights reserved. WARNING: This AIAG Document is protected by U.S, Copyright Law and Internationai $ Treaties_ Unauthorized reproduction or distribution of this AkAV Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Page 802 of 2498 ❑ The Sustainability Plan: Title Date Not applicable. Not applicable. ❑ Supplementary and other Conditions of the Contract: Not Applicable, Document Title Not applicable Not applicable. Pages Not applicable. Date Pages Not applicable. Not applicable. Other documents, if any, listed below: (List here any additional documents that are intended to form part of the Contract Documents. JI.d Document A 201TIVI-2n17 provides that the advertisement or invitation to bid, Instructions to Bidders, sample forms, the Contractor's bid or proposal, portions ofAddenda relating to bidding or proposal requirements, and other information f rnished by the Owner in anticipation of'r'eceiving bids or proposals, are not part of the Contract Documents unless enumerated in this Agreement. Any such documents should be listed here only i 'intended to be part ofthe Contract Documents.) Insurance Schedule F z ffty of Dubuque Requirements for General, Artisan or Trade Contractors, Subcontractors or Sub -Subcontractors attached as Exhibit Al This Agreement entered into as of the day and year first written above. Eas r owe x & Concrete, LLC OWNER (Signature) 0 N T R A C T 0 R (Signature) i-411clt 1 C (/I 1 (Printed name and title) Chad Demmer, Owner (Printed name and title) AIA document A101@-2017. Copyright(c? 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967. 1974. 1977, 1987, 1991, 1997, 2oO7 and 2017 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S- Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAQs Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Page 803 of 2498 Bond No. 2627818 SECTION 00 61 13.01 Page 1 of 4 PERFORMANCE, PAYMENT AND MAINTENANCE BOND SECTION 00 61 13.01 KNOW ALL BY THESE PRESENTS: That we, _Eastern Iowa Excavating & Concrete, LLC , as Principal (hereinafter the "Contractor" or "Principal") and West Bend Insurance Company , as Surety are held and firmly bound unto the City 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 Eight hundred nineteen thousand, six hundred seventy-six dollars and forty-five cents ($.819.676.45 T _J, lawful money of the United States, for the payment of which sum, well and truly to be made, we bind 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 22nd day of October , 2024, (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 Iowa Amphitheater at Schmitt Island, Bid Package 1: Site Preparation Project detail the following described improvements: Demolition and removal of existing structures site clearinq and preparation, mass grading for future amphitheater and minor storm water improvements at Schmitt Island Dubuque, IA 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. 2. 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 Page 804 of 2498 SECTION 00 61 13.01 Page 3 of 4 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 small 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. Page 805 of 2498 SECTION 00 61 13.01 Page 4 of 4 Project No. ; 5575000022 Witness our hands, in triplicate, this 22nd day of October , 2024. SURETY COUNTERSIGNED BY: Signature of Agent Printed Name of Agent Company Address City, State, Zip Code Company Telephone Number PRINCIPAL: Eastern . crete, LLC Contr to By; Strrature Chad Demmer Printed Name Title FORM APP"D BY: Representafive for Owner SURETY: West Bend Insurance Company Surety Company By: iigh'stur+�Attorrnney-in-Fact Officer Kim H:ss Printed Name o`Aftorney-in-Fact Officer Tricer Company Name 600 star Br Very I)r sre 110 Company Address Dubuque, 1A �2001 City, State, Zip Code 563-556-5441 Company Telephone Number Page 806 of 2498 NOTE: SECTION 00 61 13.01 Page 5 of 4 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. ==== END OF SECTION 00 61 13.01 ==== Page 807 of 2498 WEST BEND POWER OF ATTORNEY Bond No. 2627818 Know all men by these Presents, that West Bend Insurance Company (formerly known as West Bend Mutual Insurance Company prior to 1I1l2024), a corporation having its principal office in the City of West Bend, Wisconsin does make, constitute and appoint: Kim Hess lawful Attorneys) -in -fact, to make, execute, seal and deliver for and on its behalf as surety and as ffs act and deed any and all bonds, undertakings and contracts of suretyship, provided that no bond or undertaking or contract of suretyship executed under this authority shall exceed in amount the sum of: Thirty Million Dollars ($30,000,000) This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of West Bend Insurance Company by unanimous consent resolution effective the 151 day of January 2024, Appointment of Attorney -in -Fact The president or any vice president or any other officer of West Bend Insurance Company may appoint by written certificate Attorneys -In -Fact to act on behalf of the company in the execution of and attesting of bonds and undertakings and other written obligatory instruments of like nature. The signature of any officer authorized hereby and the corporate seal maybe affixed by facsimile to any such power of attorney or to any certificate relating therefore and any such power of attorney or certificate bearing such facsimile signatures or facsimile seal shall be valid and binding upon the company, and any such power so executed and certified by facsimile signatures and facsimile seal shall be valid and binding upon the company in the future with respect to any bond or undertaking or other writing obligatory in nature to which it is attached. Anysuch appointment may be revoked, for cause, or without cause, by any said officer at any time. Any reference to West Bend Mutual Insurance Company in any Bond and all continuations thereof shall be considered a reference to West Bend Insurance Company. In witness whereof, West Bend Insurance Company has caused these presents to be signed by its president undersigned and its corporate seal to be hereto duly attested by its secretary this 1 st day of January 2024, t1111f, Attest i'td;o�'�ar�. n's Christo her C. ZVy rt =ca q' � tt _ Robert J. Jacques Secretary z i; �tiy President State of Wisconsin �,��r'rrr..... County of Washington to ttt�,`,• On the lss day of January 2024, before me personally came Robert Jacques, to me known being by duly sworn, did depose and say that he is the President of West Bend Insurance Company, the corporation described in and which executed the above instrument; that he knows the seal of the said corporation; that the seal affixed to said instrument is such corporate seal; that is was so affixed by order of the board of directors of said corporation and that he signed his name thereto by like order. ,rr BENQ c .��4T+41t+ .fir'•` `� /�-jI�//,�� I./BOS `; ead orporate Attorney •. ........... f VA `G o; I4ot�ry Public, Washington Co., WI C� WtS5y5,�� My Commission is Permanent The undersigned, duly elected to the office stated below, now the incumbent in West Bend Insurance Company, a Wisconsin corporation authorized to make this certificate, Do Hereby Certify that the foregoing attached Power of Attorney remains in full force effect and has not been revoked and that the Resolution of the Board of Directors, set forth in the Power of Attorney is now in force. Signed and sealed at West Bend, Wisconsin this 22nd day of October 2024 \t,ttl r[r rrrrrl �p•�coS'a1iq�C ���: ��4t.U� L • �Gt�t� -;Eli, yf K- Christop er C. Zn at :` :s���• Go .`` ... . o.. .. Secretary `�. 1 r r r n etttjt�`, 1900 S 18th Avenue I West Bend, WI 53095 1 Phone.: (800) 236-5010 1 Fax: (877) 674-2663 1 www.thesiiverlining,com Page 808 of 2498