Contract/Bond_McDermott Excavating for 15 South Main Site Utility Disconnect Project (Parcel 106) Copyrighted
July 15, 2019
City of Dubuque Consent Items # 22.
ITEM TITLE: ImprovementContracts / Performance, Paymentand
Maintenance Bonds
SUMMARY: Mathy Construction Companyd/b/a River City Paving for
the US52 - Central Avenue (9th-12th Streets) HMA
Pavement Milling and Resurfacing Project; McDermott
Excavating for the 15 South Main Street Site Utility
Disconnect Project; SELCO, Inc. for the 2019 Pavement
Marking Project.
SUGGESTED DISPOSITION: Suggested Disposition: Receiveand File;Approve
ATTACHMENTS:
Description Type
ContracVBond - Mathy Construction dba River City Supporting Documentation
Pavi ng
ContracVBond - McDermott E�avating Co. Supporting Documentation
ContracVBond - SELCO Co. Supporting Documentation
c
SECTION 00500
Page 1 of 6
PUBLIC IMPROVEMENT CONTRACT
SECTION 00500
15 SOUTH MAIN STREET
SITE UTILITY DISCONNECT PROJECT
THIS IMPROVEMENT CONTRACT (the Contract), made in triplicate, dated for references
purposes the 10� day of June 2019 between the City of Dubuque, lowa, by its City Manager,
through authority conferred upon the City Manager by its City Council (City), and McDermott
Excavatina (Contractor).
For and in consideration of the mutual covenants herein contained, the parties hereto agree
as follows:
CONTRACTOR AGREES:
1. To furnish all material and equipment and to perform all labor necessary for the
15 South Main Street Site Utilitv Disconnect Proiect (Project).
2. CONTRACT DOCUMENTS
A. The Contract Documents consist of the following:
1. Project Title Page (Section 00100).
2. Project Directory Page (Section 00101).
3. This Public Improvement Contract (Section 00500).
4. Pertormance, Payment, and Maintenance Bond (Section 00600).
5. Out-of-State Contractor Bond (Section 00610).
6. Other Bonds:
a. �(Bond Name) (pages_to_ , inclusive).
b. (Bond Name) (pages _to_ , inclusive).
c. (Bond Name) (pages_to_ , inclusive).
7. The lowa Statewide Urban Design and Specifications (SUDAS) 2017 Edition.
8. CITY OF DUBUQUE Supplemental Specifications 2017 Edition.
9. Other Standard and Supplementary Specifications as listed on the Title Page of the
Contract Document Manual.
10.Special Provisions included in the project Contract Document Manual.
11.Drawings Sheet No. 1 through No. 5 (05 pages) or drawings consisting of sheets
bearing the following general title:
12.Addenda (numbers 1 to 3 , inclusive).
13.Insurance Provisions and Requirements (Section 00700).
14.Sales Tax Exemption Certificate (Section 00750).
15.Site Condition Information (Section 00775).
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SECTION 00500
Page 3 of 6
8. The Contractor must fully complete the Project under this Contract on or before the date
indicated in the Construction Schedule and Agreed Cost of Delay Section of the Contract
Documents.
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 there
from, 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. The Contractor hereby represents and guarantees that it has not, nor has any other person
for or in its behalf, directly or indirectly, entered into any arrangement or Contract with any
other Bidder, or with any public officer, whereby it has paid or is to pay any other Bidder or
public officer any sum of money or anything of value whatever in order to obtain this Contract;
and it has not, nor has another person for or in its behalf directly or indirectly, entered into
any Contractor arrangement with any other person, firm, corporation or association which
tends to or does lessen or destroy free competition in the award of this Contract and agrees
that in case it hereafter be established that such representations or guarantees, or any of
them are false, it will forfeit and pay not less than ten percent (10%) of the Contract price but
in no event less than $2,000.00 (Two Thousand Dollars) to the City.
11. The surety on the Bond furnished for this Contract must, in addition to all other provisions,
be obligated to the extent provided for by lowa Code 573.6 relating to this Contract, which
provisions apply to said Bond.
12. The Contractor agrees, and its Bond is surety therefore, that after the Certificate of
Substantial Completion has been issued by the City, it will keep and maintain the Project in
good repair for a period of two 2 ears.
13. The Project must be constructed in strict accordance with the requirements of the laws of the
State of lowa, and the United States, and ordinances of the City of Dubuque, and in
accordance with the Contract Documents.
A. All applicable standards, orders, or regulations issued pursuant to the Clean Air Act of
1970 (42 U. S. C. 1958 (H) et. seq.) and the Federal Water Pollution Act (33 U. S. C.
1368 et. seq.) as amended, Executive Order 11738, and Environmental Protection
Agency regulations (40 CFR, Part 15). Contractor must comply with Section 103 and
107 of the Contract Work Hours and Safety Standards Act (40 USC 327-330) and
Department of Labor Regulations (29 CFR, Part 5).
B. 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
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SEGTION 00500
Page 5 of 6
CERTIFICATION BY CONTRACTOR
The undersigned, on behalf of the Contractor, with full authority to act on behalf of the Contractor,
certifies to the City of Dubuque as follows:
1. I have received a copy of the Consent Decree in the case of The United States of
America, and the State of lowa v. The City of Dubuque, lowa, Civil Action Number
Case 2:11-cv-01011-EMJ, Civil Action Number 2008V00041, DOJ Case Number 90-
5-1-1-09339, United States District Court for the Northern District of lowa.
2. All work performed will be in conformity with the provisions of the Consent Decree.
3. All documents reports, data, records, or other information (including documents,
records, or other information in electronic form) that relate in any manner to the
performance of obligations under the Consent Decree, including any underlying
research and analytical data, will be retained as required by the Consent Decree.
4. The Contractor agrees to defend, indemnify, and hold harmless the City, its officers,
agents, or employees from and against any claims, including penalties, costs and
fees as provided in the Consent Decree, relating to or arising out of the Contractor's
failure to comply with the Consent Decree.
CONTRACTOR:
McDermott Excavati
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00900 N011�3S
SECTION 00600
Bond 4�IAC58879F3 Page 1 of 4
PERFORMANCE PAYMENT AND MAINTENANCE BOND
SECTION 00600 �
KNOW ALL BY THESE PRESENTS:
MDE, LLC dba
That we, McDermott Excavatinq, as Principai (hereinafter the "Contractor" or "Principal")
and Merchants Bonding�ompany (Mutual) , as Surety
are held and firmly bound unto the City of Dubuque, lowa, 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 Thirt -six thousand seven hundred fift -five dollars and fift -five cents
($36_,755.55), 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 Contract�r entered into a
contract with the Owner, bearing date the 10t—" day of June, 2019, (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 15 South Main Street
Site Utility Disconnect Project detail the following described improvements:
This project involves the excavation and disconnection of (3) water service lines at
the water main, HMA pavement restoration, the excavation and re�r�oval of(1) sanitary
sewer lateral, removal and disposal of building foundation and concrete floor slab,
place topsoil and seed over approximately 0.55 acres.
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:
1. 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 Contractor
and Surety shall not be liable to said persons, firms, or corporations unless the claims of said
SECTION 00600
Page 2 of 4
claimants against said portion of the contract price shail 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 lowa Code, which by this reference is made a part hereof as
though fully set out herein.
3. MAINTENANCE: The Contractor and the Surety on this Bond hereby agree, at their own
expense:
A. To remedy any and all defects that may develop in or result from work to be performed
under the Contract Documents within the period of two (2) year(s) from the date of
acceptance of the work under the Contract, by reason of defects in workmanship,
equipment installed, or materials used in construction of said work;
B. To keep all work in continuous good repair; and
C. To pay the Owner's reasonable costs of monitoring and inspection to assure that any
defects are remedied, and to repay the Owner all outlay and expense incurred as a
result of Contractor's and Surety's failure to remedy any defect as required by this
section.
Contractor's and Surety's Contract herein made extends to defects in workmanship or
materials not discovered or known to the Owner at the time such work 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 Cunfract 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.
SECTION 00600
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 lowa. 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
gi.iarantPed 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
lowa Code; third, if not defined in the lowa 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.
SECTION 00600
Page 4 of 4
Project No. 1001548
Witness our hands, in triplicate, this 13th day of June 2019.
,
SURETY COUNTERSIGNED BY: Title
�y<�«� -';7 FORM APP O BY:
/l '���w-..- -
Signature of A ent
Representative for Owner
Mark J. Phalen
Printed Name of Agent
880 Locust St — Ste 200 SURETY:
Company Address Mer ts Bonding Company
Dubuque, IA 52001 Surery m a y /
City,State,Zip Code
563-556-0272 By'
ure Attorney-in-Fact Officer
Company Telephone Number
Scott A. DeSousa
PRINCIPAL: Printed Name of Attorney-in-Fact Officer
Friedman Insurance, Inc.
Company Name
Cont or
�r � 880 Locust St — Ste 200
B � �'^ " Company Address
ature
—�nh�tis�ua,�52001
����� � _ �-� � City,State,Zip Code
Printed Name
563-556-0272
Company Telephone Number
NOTE:
1. All signatures on this performance, payment, and maintenance Bond must be original
signatures in ink; copies, facsimile, or electronic signatur�s 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
miast be exactly as listed on the Certificate or Power of Attorney accompanying this
Bond.
___= END OF SECTION 00600 =___
����������
BONDING COMPAI�TY,,,
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 lowa(herein collectively called the"Companies")do hereby make,constitute and appoint,individually,
Dan Wellik; Mark J Phalen;Scott A DeSousa;Shirley M Shannon;Terrance J Friedman
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 pertormance 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 MerchantsNationai 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 seai of the Company thereto, bonds and
undertakings,recognizances,contracts of indemnity and other writings obiigatory in the nature thereof."
"l�he signature of any authorized o�cer 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 ofFiorida Department
of Transportation making payment of the final estimate to the Contractor and/or its assignee, shail 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 ha�e caused this instrument to be signed and sealed this 5th day of April , 2p�7 ,
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� Gj;'�FZP�R,4'•,0�� ;�O?0(�POq •:�q�.� MERCHANTSBONDINGCOMPANY(MUTUAL)
•�:'G >'�•:2 y �y.V ��.y�, MERCHANTS NATIONAL BONDING,INC.
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•.��V ��;�i���'��.• .��Y ��Ll�� `�.' President
STATE OF IOWA ,'''••�•�••��`� '•••••••
COUNTY OF DALLAS ss.
On this this 5th day of April 2017 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.
,�PR'�A�S ALICIA K.GRANI
o ,�� � Commission Number767430 .
.J�._! . Niy Commission Expires ��
%o;N'a April 1,2020
Notary Public
(Expiration of notary's commission
does not invalidate this instrument)
I,Wiliiam 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 day of
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POA 0018 (3/17) �''•"••"••,�� ••••••