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Contracts & Bonds Approval ~ t .. CITY OF DUBUQUE, IOWA IMPROVEMENT CONTRACT THIS IMPROVEMENT CONTRACT (the Contract), made in triplicate, dated for reference purposes the 25th day of August, 2005, between the City of Dubuque, Iowa, by its City Manager, through authority conferred upon the City Manager by its City Council (City) and Tricon General Construction of the City of Dubuque, Iowa. 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 Third Street Overpass Decorative Railing Project (the Project). The Project shall be made to the established grade and to the grades as shown on the profiles and cross sections on file in the City Engineer's office for this Project; 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 Document shall of which provisions and documents are each and all hereby referred to and made a part of this Contract just as much as if the detail statements thereof were repeated herein. 2. Contract Documents shall mean and include the following: All ordinances and resolutions heretofore adopted by the City Council having to do with the Project; the Notice to Bidders; the Contractor's Proposal; and the Plans, 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 shall be retained by the City for a period of thirty (30) days after final completion and acceptance of the Project by the City Council 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 specifications including General Requirements and has examined and understands the plans herein referred to and agrees not to plead misunderstanding or deception because of estimates of quantity, character, location or other conditions surrounding the same. 7. In addition to the guarantee provided for in the specifications, the Contractor shall also make good any other defect in any part of the Project due to improper construction notwithstanding the fact that said Project may have been accepted and fully paid for by the City, and the Contractor's bond shall be security therefore. 8. The Contractor shall fully complete the Project under this Contract on or before December 2,2005. 9. To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the City from and against all claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the 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 (other than the Project itself) including loss of use resulting there from, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, the Contractor's subcontractor, or anyone directly or indirectly employed by the Contractor or the Contractor's subcontractor or anyone for whose acts the Contractor or the Contractor's subcontractor may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. THE CITY AGREES: Upon the completion of the Contract, and the acceptance of the Project by the City Council, 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 plans and specifications is approximate only and the final payment shall be made by the work covered by the Contract. CONTRACT AMOUNT $254,792.80 FURTHER CONDITIONS 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 agreement 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 agreement or arrangement with any other person, firm, corporation or association which tends to or does lessen or destroy free competition in the letting 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 be less than $750 (Seven-Hundred-Fifty-Dollars) as liquidated damages to the City. The surety on the bond furnished for this Contract, shall in addition to all other provisions, be obligated to the extent provided for by Iowa Code 9 573.6, relating to this Contract, which provisions apply to said bond. The Contractor agrees, and its bond shall be surety therefore, that it will keep and maintain the Project in good repair for a period of two years after acceptance of the same by the City Council and its bond shall be security therefore. PRINCIPAL: ~fLlwtJ Gf)J<ijML. QaJsr~TiOAJ Contractor By: Signature PP- ESt lJtJJT Title .. CERTIFICATE OF CITY CLERK This is to ceJ1X that a certified in my office on the AtV'. da f f the above Contract has been filed ,2005. ~/.. . anne F. Schneider, CMC, City Clerk ;: Bond No. 2057222 CITY OF DUBUQUE, IOWA PERFORMANCE, PAYMENT AND MAINTENANCE BOND KNOWN ALL MEN BY THESE PRESENTS: That Tricon General Construction . . ) North American Specialty S t as Pnnclpal (Contractor and Tn1';l1rrmr.p r.()mp;:my as ure yare held firmly bound unto the City of Dubuque, Iowa (City), in the penal sum of $254,792.80 the same being 100% of the total price of the Contract for the Project herein referred to, lawful money of the United States of America, well and truly to be paid to said City of Dubuque, and to all other parties who, under the provisions of the laws of Iowa, are intended to be protected and secured hereby for which payment we bind ourselves, our heirs, executors, successors and assigns, jointly and severally by these presents. Dated at Dubuque, Iowa, this 13th day of September duly attested and sealed. , 2005, and WHEREAS, the said Contractor by a Contract dated August 25, 2005, incorporated herein by reference, has agreed with said City of Dubuque to perform all labor and furnish all materials required to be performed and furnished for the Third Street Overpass Decorative Railing Project (the Project) according to the Contract and Construction Documents prepared therefore. It is expressly understood and agreed by the Contractor and Surety bond that the following provisions are a part of this Bond and are binding upon said Contractor and Surety, to-wit: 1. PERFORMANCE BOND: 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 City from all outlay and expense incurred by the City 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 BOND: The Contractor and the Surety shall 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 which the City 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, Code of Iowa, which by this reference is made a part hereof as though fully set out herein. 3. MAINTENANCE BOND: The Contractor and the Surety 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 within the period of two (2) year(s) from the date of acceptance of the work under the Contract by the City Council of the City of Dubuque, Iowa, by reason of defects in workmanship or materials used in construction of said work; B. To keep all work in continuous good repair; and C. To pay the City the reasonable costs of monitoring and inspection to assure that any defects are remedied, and to repay the City 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 agreement herein made extends to defects in workmanship or materials not discovered or known to the City at the time such work was accepted. NOW, THEREFORE, the condition of this obligation is such that if the said Contractor shall perform all of the work contemplated by the Contract in a workmanlike manner and in strict compliance with the plans and specifications, and will pay all claims for labor and materials used in connection with said Project, to indemnify the said City for all damages, costs and expense incurred by reason of damages to persons or property arising through the performance of said Contract, and will reimburse the City for any outlay of money which it may be required to make in order to complete said Contract according to the Construction Documents and will maintain in good repair said Project for the period specified in the Contract where this bond is obligated for maintenance, and will faithfully comply with all of the provisions of Section 573 of the Code of Iowa, then this obligation shall be null and void, otherwise it shall remain in full force and effect. All the conditions of this bond must be fully complied with before the Contractor or the Surety will be released. The Contract, Contractor's Proposal, and Construction Documents shall be considered as a part of this Bond just as if their terms were repeated herein. Dated at Dubuque, Iowa this 13th day of September ,2005. By: PRINCIPAL: ~WA.l G fJ.)'f./).../tG c.D1JS~TruJ "~ontracto~ ~- / I By: ' . at e -PiL rs If) f.,Pi Title SURETY: North American Specialty Insurance Company sure~ny By: I /~ ~..::::,::> Signature Thomas O. Chambers Attorney-in-Fact Title Racine, WI 53406 City, State, Zip Code 262-884-6590 Telephone Thomas o. Chambers Attorney In-Fact NAS SURETY GROUP 'NORTII AMERICAN SPECIALTY rnSURANCE COMPANY -. W AS:Hll'IGTON INTERNATIONAL rnSURANCE COMPANY GENERAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, THAT North American Specialty Insurance Company, a corporation duly organized and eXistingmder laws of the State of New Hampshire, and having its principal office in the City of Mancbester, New Hampshire, and Washington International Insurance Company, a corporation orgai:Jized and existing under the laws of the State of Arizona and having its principal office in ilie City of1t~ca, Illinois, each does hereby malee, constitute and appoint: THOMAS O. CHAMBERS, TODD SCHAAP and KIMBERLY S. RASCH jointly or severally Its true and lawful Attorney(s)-in-Fact, to make, execute, seal and deliver, for and on its behalf and as its act and deed, bonds or other writings obligatory in the nature of a bond on bebalf of each of said Companies, as surety, on contracts of suretyship as are or may be required or perrni~d by law, regulation, contract or otherwise, provided that no bond or undertaking or contract or suretyship executed under this authority shall exceedlhe amount of: I TEN MlLLION (lO,OOO,OOO.OO) DOLLARS This Power of Attorney is granted and is signed by facsimile under and by the authority of the following Resolutions adopted by the Boarik of Directors of both North American Specialty Insurance Company and Washington International Insurance Company at meetings duly called andheld on the 24'" of March, 2000: "RESOLVED, that any two of the President, any Executive Vice Presiden!, any Vice President, any Assistant Vice President, the Secretary or any Assistant Secretary be, and each or any of them hereby is authorized to execute a Power of Attorney qualifYing the attorney narned in the given Power of Attorney to execute on behalf of the Company bonds, undertakings and all contracts of surety, and that each or any of them hereby is authorized \0 attest to the execution of any such Power of Attorney and to attach therein the seal of the Company; and it is FURTIIER RESOLVED, that the signature of such officers and the seal of the Company may be affixed to any such Power of Attorney OTlo any certificate relating thereto by facsimile, and any such Power of Attorney or certificate beariDg such facsimile signatures or facsimile seal shall be binding upon the Company when so affixed and in the future with regard to any bond., undertaking or contract of surety to which it is attached.' ~~\\~~1111~ C /l '\ ~/ ,.,lo~~Wi4l'~",,,, #2~.:'D.pru;"~G-~ ~ 0 ~~o/~J't-:;;''':. ~ 'i:I...cp.-_......J':..~~ . S';:;-L..._...___~ --;. Sf3f (<'-'- ~~ By ,,"". CORi'ORATE\ (">0 ~ Q i SEAL ! 0 ~ P.uI D. Amstutz, President &. Chid becutivr Officer ofWasbiDtlOD JDtenationallDSDnDce Compaay &. e g \' SEA l i ~~ -ct: -rn- -0 19- S UI '..~ 1973 ro.1 0 ~ Vice f'rltSidCDt of North AmmaD Spedalty IDSUnDu Compaay ~ ~ log ~~-!? ~~. 0 ~ t74a- ~~;--..::A1!Illllll ~-i ~ -8__-.Jt''''MPs~..~~ "':J;. . ,_~,: ~-'.(&~_....._<~l>'~ .. ..... y,.>' ~Il ON. ).)'~~~ ",,> * i.'\' 7//IIIJllIU\U\\\: By "",,,,.,....,p." Sleven P. ADdeBDa, ExltC1ltive Ykc P~dCDt ofWasbinrtOD JulunationalJDSUnlDU Compao)' &. V1cc PresideDI of North AmrricaD Specialty Insuraocc COmpaD} IN WITNESS WHEREOF, North American Specialty Insurance Company and Washington International Iosuranee Company have causelltheir official seals to be hereunto"affixed., and these presents to be signed by their authorized officers this ~day of April . 2D~, North American Specialty Insurance Company .Washington International Insurance Company State of Dlinois County ofDu Page ss: 00 this ~ day of April, 20 ~ before me, a Notary Public personally appeared Paul D. Ams~tz . President and CEO of Washington International Insurance Company and Vice President of North American Specialty Insurance Company and Steven P. Anderson Executive Vice President ofWashiogton Internationallnsurance Company and Vice President of North American Specialty Insurance Company, personally known to me, who being by me duly sworn, acknowledged that they signed the above Power of Attorney as officers of and acknowledged said instrument to be the voluntary act and deed of their respective companies, ....~=~ JtO;!MYI'1*JC--"7JQ'E.(:I1l.1.RK)I$ "!f~~.~~ ~ cZ-zY'~ Yasmin A. Patel, Notary Public I, James A_ Carpenter . the duly elected Assistant Secretary of North American Specialty Insurance Company and Washington International Insurance Company, do hereby certify that the above and foregoing is a true and ~OITect copy of a Power of Attorney given by said North American Specialty Insurance Company and Washington Internationallnsuraoce Company, which is still in full force and effect. IN WITNESS WHEREOF, I have set my hand and affixed the seals of the Companies thisll day of Septembe;rLo 0 5 _ ~y}-/5~ James A. c.rpaJla'. Vice Prc:sideot &:.AssistaDl ~ ofWashingtoD hlerllationaJ lnsun.ncc Company &:. ,...;..... S=wy ol'Nonh AmcriaD SpeciollY Insunmcc Company .. . - . . . . . STATE OF WISCONSIN ) ) COUNTY OF KEN OSHA ) ON THIS 13th day of September, 2005, before me, a notary public, within and for said County and State, personally appeared Thomas O. Chambers to me personally known, who being duly sworn, upon oath did say that he is the Attorney-in-Fact of and for the NORTH AMERICAN SPECIALTY INSURANCE COMPANY, a corporation of NEW HAMPSHIRE, created, organized and existing under and by virtue of the laws of the State of NEW HAMPSHIRE; that the corporate seal affixed to the foregoing within instrument is the seal of the said Company; that the seal was affixed and the said instrument was executed by authority of its Board of Directors; and the said Thomas O. Chambers did acknowledge that he executed the said instrument as the free act and deed of said Company. j ... . CITY OF DUBUQUE, IOWA IMPROVEMENT CONTRACT THIS IMPROVEMENT CONTRACT (the Contract), made in triplicate, dated for reference purposes the 25th day of August, 2005, between the City of Dubuque, Iowa, by its City Manager, through authority conferred upon the City Manager by its City Council (City) and Tricon General Construction of the City of Dubuque, Iowa. 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 Port of Dubuque Recognition Wall Project (the Project). The Project shall be made to the established grade and to the grades as shown on the profiles and cross sections on file in the City Engineer's office for this Project; 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 Document shall of which provisions and documents are each and all hereby referred to and made a part of this Contract just as much as if the detail statements thereof were repeated herein. 2. Contract Documents shall mean and include the following: All ordinances and resolutions heretofore adopted by the City Council having to do with the Project; the Notice to Bidders; the Contractor's Proposal; and the Plans, 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 shall be retained by the City for a period of thirty (30) days after final completion and acceptance of the Project by the City Council 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 specifications including General Requirements and has examined and understands the plans herein referred to and agrees not to plead misunderstanding or deception because of estimates of quantity, character, location or other conditions surrounding the same. 7. In addition to the guarantee provided for in the specifications, the Contractor shall also make good any other defect in any part of the Project due to improper construction notwithstanding the fact that said Project may have been accepted and fully paid for by the City, and the Contractor's bond shall be security therefore. 8. The Contractor shall fully complete the Project under this Contract on or before December 2, 2005. 9. To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the City from and against all claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the 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 (other than the Project itself) including loss of use resulting there from, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, the Contractor's subcontractor, or anyone directly or indirectly employed by the Contractor or the Contractor's subcontractor or anyone for whose acts the Contractor or the Contractor's subcontractor may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. THE CITY AGREES: Upon the completion of the Contract, and the acceptance of the Project by the City Council, 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 plans and specifications is approximate only and the final payment shall be made by the work covered by the Contract. CONTRACT AMOUNT $148,000.00 .. . FURTHER CONDITIONS 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 agreement 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 agreement or arrangement with any other person, firm, corporation or association which tends to or does lessen or destroy free competition in the letting 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 be less than $750 (Seven-Hundred-Fifty-Dollars) as liquidated damages to the City. The surety on the bond furnished for this Contract, shall in addition to all other provisions, be obligated to the extent provided for by Iowa Code 9 573.6, relating to this Contract, which provisions apply to said bond. The Contractor agrees, and its bond shall be surety therefore, that it will keep and maintain the Project in good repair for a period of two years after acceptance of the same by the City Council and its bond shall be security therefore. CITY 7f1U,B, ~l~E, IIOW~l By (~jl LV", 1Lt!) ctity Manager PRINCIPAL: -rR./WIJ GfJJflML. CotJsrf2.U.CJl1J IJ Contractor By: ($~ "..~^" PI22.5llJt JJT Title CERTIFICATE OF CITY CLERK This is to certify that a ~ied copy of the above Contract has been filed in my office on the/9'~ day of - " ,2005. Jeanne F. Schneider, CMC, City Clerk 'Bond No. 2057223 CITY OF DUBUQUE, IOWA PERFORMANCE, PAYMENT AND MAINTENANCE BOND KNOWN ALL MEN BY THhESE PRESENTS: That (Insert Contractors Name) as . . Nort Amerlcan' Speclalty d PrIncipal (Contractor) and Insurance Company as Surety are hel firmly bound unto the City of Dubuque, Iowa (City), in the penal sum of $148,000.00 the same being 100% of the total price of the Contract for the Project herein referred to, lawful money of the United States of America, well and truly to be paid to said City of Dubuque, and to all other parties who, under the provisions of the laws of Iowa, are intended to be protected and secured hereby for which payment we bind ourselves, our heirs, executors, successors and assigns, jointly and severally by these presents. Dated at Dubuque, Iowa, this 13th day of September duly attested and sealed. WHEREAS, the said Contractor by a Contract dated 25th day of August, 2005, incorporated herein by reference, has agreed with said City of Dubuque to perform all labor and furnish all materials required to be performed and furnished for the Port of Dubuque Recognition Wall Project (the Project) according to the Contract and Construction Documents prepared therefore. , 2005, and It is expressly understood and agreed by the Contractor and Surety bond that the following provisions are a part of this Bond and are binding upon said Contractor and Surety, to-wit: 1. PERFORMANCE BOND: 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 City from all outlay and expense incurred by the City 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 BOND: The Contractor and the Surety shall 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 which the City 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, Code of Iowa, which by this reference is made a part hereof as though fully set out herein. 3. MAINTENANCE BOND: The Contractor and the Surety 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 within the period of two (2) year(s) from the date of acceptance of the work under the Contract by the City Council of the City of Dubuque, Iowa, by reason of defects in workmanship or materials used in construction of said work; B. To keep all work in continuous good repair; and C. To pay the City the reasonable costs of monitoring and inspection to assure that any defects are remedied, and to repay the City 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 agreement herein made extends to defects in workmanship or materials not discovered or known to the City at the time such work was accepted. NOW, THEREFORE, the condition of this obligation is such that if the said Contractor shall perform all of the work contemplated by the Contract in a workmanlike manner and in strict compliance with the plans and specifications, and will pay all claims for labor and materials used in connection with said Project, to indemnify the said City for all damages, costs and expense incurred by reason of damages to persons or property arising through the performance of said Contract, and will reimburse the City for any outlay of money which it may be required to make in order to complete said Contract according to the Construction Documents and will maintain in good repair said Project for the period specified in the Contract where this bond is obligated for maintenance, and will faithfully comply with all of the provisions of Section 573 of the Code of Iowa, then this obligation shall be null and void, otherwise it shall remain in full force and effect. All the conditions of this bond must be fully complied with before the Contractor or the Surety will be released. The Contract, Contractor's Proposal, and Construction Documents shall be considered as a part of this Bond just as if their terms were repeated herein. Dated at Dubuque, Iowa this 13th day of September ,2005. CITY OF D~.. UQ~E/ lOW... A.. I.:?' . PI \/ "1tb/l By: ~ I, I ..A /!1 / . -. - Cityl anager PRINCIPAL: -j1(.jeoJJ Sw~ CD~ID;J Contractor BY:~ -Pt?.E5I1> v.n- Title SURETY: North American Specialty Insurance Company By: sure7~d~) _----=~-c. Signature Thomas O. CHambers Attorney-in-Fact Title Racine, WI 53406 City, State, Zip Code 262-884-6590 Telephone Thomas o. Chambers Attorney In-Fact ~~,~.~ti"~~~~'"'~~~5~*,1m'~;;;~3ffN"I~~i<>''iR-2i""~r''',,;ZB'l&,~~,,,'j':'!Zi:ii!t,(?1!i~;;bt~;",f"'i:";?;""~7:i~~~~_;f;.~~~B":,t;$?'i'i'1';%~ NAS SURETY GROUP NORTH ANBuCAN SPECIALTY INSURANCE COMPANY W ASHINGTON INTERNATIONAL INSURANCE COMPANY GENERAL POWER OF ATTORNEY KNOW ALL 1vffiN BY 11-lESE PRESENTS, TIlAT North American Specialty Insurance Company, a corporation duly organized and eXistingmder laws of the State of New Hampshire, and having its principal office in !be City of Manchester, New Hampshire, and Washington International Insurance Company, a corporation organized and eXisting under the laws of !be State of Arizona and having its principal office in the City oflllsca, TIlinois, each does hereby make, constitute and appoint: . THOMAS O. CHAMBERS, TODD SCHAAP and KJ}...ffiERL Y S. RASCH j olntly or severally Its true and lawful Attorney(s)-in-Fact, to make, execute, seal and deliver, for and on its behalf and as its act and deed, bonds or other writings obligatory in the nature of a bond on behalf of each of said Companies, as surety, on contracts of suretyship as are or may be required or pennired by law, regulation, contract or otherwise, provided that no bond or undertaking or contract or suretyship executed under this authority shall exceedlbe ! amount of: TEN Mll-LION (10,000,000.00) DOLLARS , This Power of Attorney is granted and is signed by facsimile under and by the authority of the following Resolutions adopted by the Boarm of Directors of both North American SpecialtY Insurance Company and Washington International Insurance Company at meetings duly called andheld on the 2411> of March, 2000: "RESOLVED, that any two of the President, any Executive Vice President, any Vice President, any Assistant Vice President, the Secretaq or any Assistant Secretary be, and each or any of them hereby is authorized to execute a Power of Attorney qualifYing the attorney named in the givenpower of Attorney to execute on behalf of the Company bonds, undertakings and all contracts of surety, and that each or any of them hereby is authorized to attest to the execution of any such Power of Attorney and to attach therein the seal of the Company; and it is RJRTHER RESOLVED, that the signature of such officers and the seal of the Company may be affixed to any such Power of Attorney 0110 any certificate relating thereto by facsimile, and any such Power of Attorney or certificate bea:ri.:Dg such facsimile signatures or facsimile seal shallk binding upon the Company when so affixed and in the future with regard to any bond, undertaking or contract of surety to which it is attached.' A'? J ~ "'.u......" ;:J;;: ,4/ . :-4'~~~~'\01L4l ;;;"~ ~ - . -5~<;;';'--"""'(, '-,,- By f""l . oo':rl~1 "au! D. Amstutz,. President & Chid Exe:cutive Officer ofWasblngtoD IDtUl1::al:un:aallDSllT1lDce Compllln)' &. ;!; ,CORrE t"l i ""'i Viu '''n:sidtnt of North AnJeriOD Specialty lnSIlJ1ulee Compau)' ;. -::c. S II. 1 g:- ''>~ AlllZDIll /iI>. ti4a- ~ ~ /,l(i~ <, ~ ~i' . """)>,,,,.,,,,~...,,...,,~..,,,, :\\\\\\\\1I11I11/III/. ;;.~' C>i'Un- I "'~ #' g~..p.P~~{..~ ~ 3;"'--CP ~..1;,% iOaf SEAL ,"t'~ ~ii:~ ~~~ "%~\.~ 1973 ,;'!t1J ~~.4- .....It'~...pS~...~ ~ ~+..,f..>....._.:t"lb..~ ~4qON. ~~~~~ lIJIIIIIIIU\\\\\~ By Steven P. ADden.oa., hecutive Ykc: President ofWashinttoD lulerwltlooallosunloce Comp.aoy &. V1cc r.-esidcol DC North AmericaD Spedalty Insunoce CompaD)' IN WITNESS WHEREOF, North American Specialty Insurnnce Company and Washington International Insuranee Company have caused their official seals to be hereunto affixed, and these presents to be signed by their authorized officer.; this ~ day of' April ,2lI.22-. North American Specialty Insurance Company .Washington International Insurance Company State oflllinois County ofDu Page ss: On thi~ ~ day of April, 20~, before me, a Notary Public per.;onally appeared Paul D. Ams~tz , President and CEO of Washington International Insurance Company and Vice President of North American Specialty Insurance Company and Steven P. Anderson Executive Vice President of Washington InternatiooalInsurance Company and Vice President of North American Specialty Insurance Company, personally known to me, who being by me duly sworn, acknowledged that they signed the above Power of Attorney as officer.; of and acknowledged said instrument to be the voluntary act and deed of their respective companies. '.OFFK:b.i. sEAt. .....y~..P/'.= ~rueuc-..JT.an-OF ILl.Itf()IS trrt~~,~~~ ~ a-zj?~ Yasmin A. Patel, Notary Public I, James A. Carpenter ,the duly elected Assistant Secretary of North American Specialty Insurance Company and Washington International Insurance Company, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney given by said North American Specialty Insurance Company and Washington Intemationallnsurance Company, which is still in full force and effect. IN WITNESS WHEREOF, I have set my hand and affixed the seals of the Companies this ll. day of Septembe;Qo 0 5 . ~Yf~~ JmlCS A. CarpaJtcr. Vu:e Praidcol8L Assisunl Ses::rer:;,ry ofWashingtoD lDU:rnlltionallnsunncc Coupany It. A.ssisInt S~ DrNonb American Specially lnsunDec Compoy .. .. . . .. STATE OF WISCONSIN ) ) COUNTY OF KENOSHA ) ON THIS 13th day of September, 2005, before me, a notary public, within and for said County and State, personally appeared Thomas O. Chambers to me personally known, who being duly sworn, upon oath did say that he is the Attorney-in-Fact of and for the NORTH AMERICAN SPECIALTY INSURANCE COMPANY, a corporation of NEW HAMPSHIRE, created, organized and existing under and by virtue of the laws of the State of NEW HAMPSHIRE; that the corporate seal affixed to the foregoing within instrument is the seal of the said Company; that the seal was affixed and the said instrument was executed by authority of its Board of Directors; and the said Thomas O. Chambers did acknowledge that he executed the said instrument as the free act and deed of said Company. ".<' .. WHKS & co. 470 Central Avenue Dubuque, IA 52001-7024 Phone: 563-582-5481 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, by and between City of Dubuque, hereinafter referred to as the "Client" and WHKS & Co., hereinafter referred to as "WHKS", is made as follows: WHEREAS, the Client has a need for certain professional services relating to the project described as: Cedar Street Lift Station and Dog Track Lift Station Improvements and, WHEREAS, WHKS proposes to furnish the professional services required by the Client for said project, NOW THEREFORE, the Client hereby agrees to retain and compensate WHKS to perform the professional services in accordance with the terms and conditions of this Agreement and the attached General Provisions (See Exhibit A). Scope of Services WHKS shall perform the following described services for the Client: See Exhibit B Basis of Compensation For the services described above, the Client shall remunerate WHKS as follows: Not to Exceed Fee = $103,200.00 Executed this ~o day of Jft ('( ~ ~ V-- ,2005. City of Dubuque WHKS & co. By: ~tJ L~;zk- ( C c }~ ;vlAAG/V-- / By: ~~ Zf2 )Ih Title: Vice President Title: WHKS & co. 470 Central Avenue Dubuque, IA 52001-7024 Phone: 563-582-5481 EXHIBIT A RE: Dubuque, Iowa Cedar Street Lift Station and Dog Track Lift Station Improvements Engineering Services Proposal WHKS & CO. General Provisions c:/dept/o/wp/gen-prov.dbq WHKS & co. 470 Central Avenue Dubuque, IA 52001-7024 Phone: 563-582-5481 1 . Scope of Services The Client and WHKS have agreed to a list of services WHKS will provide to the Client as listed on the Professional Services Agreement Form. 2. Govemina Law The laws of the State of Iowa will govern the validity of this Agreement, its interpretation and performance. Any litigation arising in any way from this Agreement shall be brought in the courts of that State. 3. Standard of Care Services provided by WHKS under this Agreement shall be performed in a manner consistent with that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances and in the same or a similar locality. 4. InteQration This Agreement comprises the final and complete agreement between the Client and WHKS. It supersedes all prior communications, representations, or agreements, whether oral or written, relating to the subject matter of this Agreement. Execution of this Agreement signifies that each party has read the document thoroughly. Amendments to this Agreement shall not be binding unless made in writing and signed by both the Client and WHKS. 5. Guarantees and Warranties WHKS shall not be required to sign any documents, no matter by whom requested, that would result in WHKS having to guarantee or warrant the existence of conditions whose existence WHKS cannot ascertain. The Client also agrees not to make resolution of any dispute with WHKS or payment of any amount due to WHKS in any way contingent upon WHKS signing any such guarantee or warranty. 6. Indemnification WHKS agrees, to the fullest extent permitted by law, to indemnify and hold the Client harmless from any damage, liability or cost (including reasonable attorney's fees and costs of defense) to the extent caused by WHKS' negligent acts, errors or omissions in the performance of professional services under this GENERAL PROVISIONS FOR PROFESSIONAL SERVICES AGREEMENTS Agreement and those of its subconsultants or anyone for whom WHKS is legally liable. The Client agrees, to the fullest extent permitted by law, to indemnify and hold WHKS harmless from any damage, liability or cost (including reasonable attorneys' fees and costs of defense) to the extent caused by the Client's negligent acts, errors or omissions and those of his or her contractors, subcontractors or consultants or anyone for whom the Client is legally liable, and arising from the project that is the subject of this Agreement. 7. BillinQ and Payment Provisions Invoices shall be submitted by WHKS monthly and are due upon presentation and shall be considered PAST DUE if not paid within thirty (30) calendar days of the invoice date. If payment is not received by WHKS within thirty (30) calendar days of the invoice date, the Client shall pay as interest an additional charge of one and one-quarter percent (1.25%) of the PAST DUE amount per month. Payment thereafter shall first be applied to accrued interest and then to the unpaid principal. In the event legal action is necessary to enforce the payment provisions of this Agreement, each party shall be entitled to collect from the other any judgment or settlement sums due, court costs, and expenses incurred in connection therewith. If the Client fails to make payments within sixty (60) days from the date of an invoice or otherwise is in breach of this Agreement, WHKS may suspend performance of services upon five (5) calendar days' notice to the Client. WHKS shall have no liability whatsoever to the Client for any costs or damages as a result of such suspension caused by any breach of this Agreement by the Client. If the Client fails to make payment to WHKS in accordance with the payment terms herein, this shall constitute a material breach of this Agreement and shall be cause for termination by WHKS. Payment of invoices is in no case subject to unilateral discounting or set- offs by the Client, and payment is due regardless of suspension or termination of this Agreement by either party. 8. Ownership of Records All reports, plans, specifications, field data and notes and other documents, including all documents on electronic media, prepared by WHKS as instruments of service shall remain the property of WHKS. The Client shall be permitted to retain copies, including reproducible copies, of the plans and specifications for information and reference in connection with the Client's use of the completed project. The plans and specifications shall not be used by the Client or by others on other similar projects except by agreement in writing by WHKS. 9. Delivery of Electronic Files In accepting and utilizing any drawings, reports and data on any form of electronic media generated and provided by WHKS, the Client covenants and agrees that all such electronic files are instruments of service of WHKS, who shall be deemed the author, and who shall retain all rights under common and statutory laws, and other rights, including copyrights. The Client is aware that differences may exist between the electronic files delivered and the respective construction documents due to addenda, change orders or other revisions. In the event of a conflict between the signed construction documents prepared by WHKS and electronic files, the signed construction documents shall govern. The Client and WHKS agree that the electronic files prepared by WHKS shall conform to the current CADD software in use by WHKS or to other mutually agreeable CADD specifica- tions defined in the Agreement. Any changes to the CADD specifications by either the Client or WHKS are subject to review and acceptance by the other party. Additional efforts by WHKS made necessary by a change to the CADD specifications or other software shall be compensated for as Additional Services. The electronic files provided by WHKS to the Client are submitted for an acceptance period of 60 days. Any defects the Client discovers during this period will be reported to WHKS and WHKS & co. 470 Central Avenue Dubuque, IA 52001-7024 Phone: 563-582-5481 will be corrected as part of the Scope of Services. Correction of defects detected and reported after the acceptance period will be compensated for as Additional Services. The Client agrees not to reuse the electronic files, in whole or in part, for any purpose or project other than the project that is the subject of this Agreement. The Client agrees not to transfer the electronic files to others without the prior written consent of WHKS. In addition, the Client agrees, to the fullest extent permitted by law, to indemnify and hold WHKS harmless from any damage, liability or cost, including reasonable attorney's fees and costs of defense, arising from any changes made by anyone other than WHKS or from any reuse of the electronic files without the prior written consent of WHKS. Under no circumstance shall delivery of the electronic files for use by the Client be deemed a sale by WHKS and WHKS makes no warranties, either express or implied, of merchantability and fitness for any particular purpose. In no event shall WHKS be liable for any loss of profit or any consequential damages. 10. ChanQed Conditions The Client shall rely on the judgment of WHKS as to the continued adequacy of this agreement in light of occurrences or discoveries that were not originally contemplated by or known to WHKS. Should WHKS call for contract renegotiation, WHKS shall identify the changed conditions necessitating renegotiation and WHKS and the Client shall promptly and in good faith enter into renegotiation of this Agreement. If terms cannot be agreed to, the parties agree that either party has the absolute right to terminate this Agreement. 11. Permits and Approvals WHKS shall assist the Client in applying for those permits and approvals typically required by law for projects similar to the one for which WHKS services are being engaged. This assistance consists of completing and submitting forms as to the results of certain work included in the Scope of Services. 12. Suspension of Services If the project is suspended for more than thirty (30) calendar days in the aggregate, WHKS shall be compensated for services performed and charges incurred prior to receipt of notice to suspend and, upon resumption, an equitable adjustment in fees to accommodate the resulting demobilization and remobilization costs. In addition, there shall be an equitable adjustment in the project schedule based on the delay caused by the suspension. If the project is suspended for more than ninety (90) calendar days in the aggregate,' WHKS may, at its option, terminate this Agreement upon giving notice in writing to the Client. 13. Termination Either the Client or WHKS may terminate this Agreement at any time with or without cause upon giving the other party seven (7) calendar days prior written notice. The Client shall within thirty (30) calendar days of termination pay WHKS for all services rendered and all costs incurred up to the date of termination, in accordance with the compensation provisions of the Agreement. 14. Unauthorized ChanQes In the event the Client, the Client's contractors or subcontractors or anyone for whom the Client is legally liable makes or permits to be made any changes to any reports, plans, specifications or other contract documents prepared by WHKS without obtaining WHKS' prior written consent, the Client shall assume full responsibility for the results of such changes. Therefore, the Client agrees to waive any claim against WHKS and to release WHKS from any liability arising directly or indirectly from such changes. 15. Jobsite Safety Neither the profeSSional activities of WHKS nor the presence of WHKS or its employees and subconsultants at a construction site, shall relieve the General Contractor and any other entity of their obligations, duties and responsibilities including, but not limited to, construction means, methods, sequence, techniques or procedures necessary for performing, superintending or coordinating all G:IDept\3IPromolOubuQue Lift Stations 2004\PROP -23 Augu 2005 Lift Stationsdoc.doc portions of the construction work in accordance with the contract documents and any health or safety precautions required by any regulatory agencies. WHKS and its personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work or any health or safety precautions. 16. Additional Services Services which are requested by the Client or are required as part of the Project, but are not included in the Scope of Services, are considered Additional Services. WHKS will notify the Client in writing when Additional Services will be needed. WHKS will not perform Additional Services which will result in additional cost to the Client without documented verbal or written authority of the Client. 17. Dispute Resolution In an effort to resolve any conflicts that arise during the design or construction of the project or following the completion of the project, the Client and WHKS agree that all disputes between them relating to the construction or interpretation of this Agreement shall be submitted to nonbinding mediation unless the parties mutually agree otherwise. 18. Third Party Beneficiaries Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Client or WHKS. WHKS' services under this Agreement are being performed solely for the Client's benefit, and no other entity shall have any claim against WHKS because of this Agreement or the performance or nonperformance of services hereunder. 19. Extension of Protection The Client agrees to extend any and all liability limitations and indemnifications provided by the Client to WHKS officers and employees. WHKS agrees to extend any and all liability limitations and indemnifications provided by WHKS to Client's officers and employees. WHKS & co. 470 Central Avenue Dubuque,IA 52001-7024 Phone: 563-582-5481 20. Timeliness of Performance WHKS will perform the services described in the Scope of Services with due and reasonable diligence consistent with sound professional practices. 21. Delays WHKS is not responsible for delays caused by factors beyond WHKS' reasonable control, including but not limited to delays because of strikes, lockouts, work slowdowns or stoppages, accidents, acts of God, failure of any governmental or other regulatory. authority to act in a timely manner, failure of the Client to furnish timely information or approve or disapprove of WHKS' services or work product promptly, or delays caused by faulty performance by the Client or by contractors of any level. When such delays beyond WHKS' reasonable control occur, the Client agrees WHKS is not responsible for damages, nor shall WHKS be deemed to be in default of this Agreement during such period of delay. 22. Riaht to Retain Subconsultants WHKS may use the services of subconsultants at WHKS' expense when, in the sole opinion of WHKS, it is appropriate and customary to do so. Such persons and entities include, but are not limited to, aerial mapping specialists, geotechnical consultants and testing laboratories. WHKS' use of other consultants for additional services shall not be unreasonably restricted by the client provided WHKS notifies the Client in advance. 23. AssiQnment Neither party to this Agreement shall transfer, sublet or assign any rights under or interest in this Agreement (including but not limited to monies that are due or monies that may be due) without the prior written consent of the other party. 24. Severability and Survival Any provision of this Agreement later held to be unenforceable for any reasons shall be deemed void, and all remaining provisions shall continue in full force and effect. 25. Hazardous Materials asbestos or hazardous or toxic materials. In the event WHKS or any other party encounters asbestos or hazardous or toxic materials at the jobsite, or should it become known in any way that such materials may be present at the jobsite or any adjacent areas that may affect the performance of WHKS services, WHKS may, at its option and without liability for consequential or any other damages, suspend performance of services on the project until the Client retains appropriate specialist consultants(s) or contractor(s) to identify, abate and/or remove the asbestos or hazardous or toxic materials, and warrant that the jobsite is in full compliance with applicable laws and regulations. 26. Insurance WHKS shall provide insurance as set forth in the attached Insurance Schedule. Revised 5/24/96 Revised 3/10/98 Revised 11/29/04 It is acknowledged by both parties that WHKS' Scope of Services does not include any services related to G:IDept\3IPromoIDubuque Lift Stations 2004IPROP -23 Augu 2005 Lift Stationsdoc.doc WHKS & co. 470 Central Avenue Dubuque, IA 52001-7024 Phone: 563-582-5481 EXHIBIT B RE: Dubuque, Iowa Cedar Street Lift Station and Dog Track Lift Station Improvements Engineering Services Proposal SCOPE OF SERVICES to City of Dubuque The City of Dubuque Water Pollution Control Department has selected the WHKS team to prepare the design improvements to the Cedar Street Lift Station and the Dog Track Lift Station in the City of Dubuque. The anticipated improvements to the Cedar Street Pump Station include a reduction in pump size, a reduction in motor horsepower, if feasible, conversion of motors from 2300 volt to 480 volt, identification and detailing of rehabilitation needs, consideration of emergency power generation and architectural treatment to enhance the appearance of the building. WHKS will utilize the final report issued in February 2002 for the Cedar Street Lift Station as a starting point for the beginning of the project. The anticipated improvements to the Dog Track Lift Station will allow safe access to the pumps and appurtenances, and install pumps suitable for current and future anticipated flow conditions. The work is expected to include the following work items. Design Phase Letter Report 1. Hold a project kick-off meeting to establish goals and priorities for the project, City preferences, confirm schedule and scope of services. 2. Perform a site investigation and collect and review available information (studies, maps, reports, flow records, plans, etc.) relating to the project. 3. Update and review flow data from Cedar Street study to confirm design flows and pump sizing and confirm pump selection. 4. Analyze flow data for Dog Track Pump Station, determine appropriate design flows and develop a concept for the new Dog Track Pump Station configuration for new pumps and safe access. 5. Prepare a Letter Report to detail options for improvements at the Cedar Street Lift Station and the Dog Track Lift Station. The letter report will include construction alternatives, an Engineer's Opinion of Probable Construction Costs and recommendations. Construction Document Preparation 1. Meet with City staff to review the letter report and contract documents. A maximum of three (3) meetings has been assumed. Included in the meeting(s) will be a discussion of other technical issues that need to be addressed as part of the project. 2. Prepare three (3) copies of draft pump station rehabilitation contract documents for City review and six (6) copies of the final documents for permitting. Contract documents will consist of a project manual containing contract items and technical specifications and a drawing set showing the improvements that are required as part of the contract. WHKS & co. 470 Central Avenue Dubuque, IA 52001-7024 Phone: 563-582-5481 3. Obtain necessary permits required for construction other than building permit. Submit necessary information to support permit applications, discuss and interact with regulatory agencies and issue any revised contract documents changed as a result of regulatory review. Bidding Phase 1. Provide construction contract documents to prospective bidders and area plan houses. 2. Attend a pre-bid meeting at Cedar Street and Dog Track pump station sites. 3. Answer bidder questions. 4. Prepare and issue addenda in response to bidder questions. 5. Attend bid opening. 6. Assist in evaluating bids 7. Assemble and process documents for contract award. Construction Services 1. Administer the construction contract including review of pay applications with recommendation for payment. 2. Review contractor submittals for general conformance and compliance with contract documents. 3. Interpret contract documents and prepare change orders. 4. Attend on-site progress meetings during construction to discuss project issues, schedule and observe construction progress. 5. Provide construction observation services for the work. 6. Conduct a final observation of work for conformance to the contract documents. 7. Prepare record drawings showing changes made during construction. 8. Provide assistance during start-up. ASSUMPTIONS AND LIMITATIONS 1. No land survey services will be required by the projects. 2. Construction staking fees are not included and are to be negotiated if the actual improvements require staking. 3. Landscaping design is not included. 4. Progress meetings during construction have been estimated at 8 meetings, for a total 16 hours by a Construction Technician. Meeting time beyond the hours estimated shall be considered Extra Work. 5. Construction Observation staff hours have been estimated at 4 hours per day for a maximum of 45 days. Additional staff hours beyond this estimate shall be considered Extra Work. G:\DeptI3IPromo\Dubuque Uft Stations 2004IPROP -23 Augu 2005 Uft Slationsdoc.doc WHKS & co. 470 Central Avenue Dubuque, IA 52001-7024 Phone: 563-582-5481 FEES WHKS Ulstad Dolejs Total Project Management $ 8,000 $ 2,000 $ 10,000 Letter Report to the City $ 10,400 $ 2,500 $ 12,900 Construction Document Preparation $ 23,400 $ 5,000 $ 12,000 $ 40,400 Bidding Phase $ 6,100 $ 1,000 $ 7,100 Construction Phase $ 20,300 $ 5,000 $ 25,300 Expenses $ 5,000 $ 2,500 $ 7,500 Totals $ 73,200 $ 5,000 $ 25,000 $ 103,200 The WHKS subconsultants are Steve Ulstad Architects and Dolejs Associates, Inc. G:IDepl13lPromolDubuque Uft Slations 2004\PROP -23 Augu 2005 Uft Slalionsdoc.doc WHKS & co. 470 Central Avenue Dubuque. IA 52001-7024 Phone: 563-582-5481 EXHIBIT C RE: Dubuque, Iowa Cedar Street Lift Station and Dog Track Lift Station Improvements Engineering Services Proposal City of Dubuque Insurance Requirements, Schedule C INSURANCE SCHEDULE C INSURANCE REQUIREMENTS FOR PROFESSIONAL SERVICES TO THE CITY OF DUBUQUE 1. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All insurers shall have a rating of A better in the current A.M. Best Rating Guide. 2. All policies of insurance shall be endorsed to provide a thirty (30) day advance notice of cancellation to the City of Dubuque, except for 10 day notice for non- payment, if cancellation is prior to the expiration date. This endorsement supersedes the standard cancellation statement on the Certificate of Insurance. 3. shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 6 below. Such Certificates shall include copies of the following endorsements: . a) Commercial General Liability policy is primary and non-contributing. b) Commercial General Liability additional insured endorsement. c) Governmental Immunities Endorsement. shall also be required to provide Certificates of Insurance of all subcontractors and all sub-sub contractors who perform work or services pursuant to the provisions of this contract. Said certificates shall meet the same insurance requirements as required of 4. Each certificate shall be submitted to the contracting department of the City of Dubuque. 5. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement. 6. Contractor shall be required to carry the following minimum coveragellimits or greater if required by law or other legal agreement: a) COMMERCIAL GENERAL LIABILITY General Aggregate Limit Products-Completed Operations Aggregate Limit Personal and Advertising Injury Limit Each Occurrence Limit Fire Damage limit (any.one occurrence) Medical Payments $2,000,000 $1,000,000 $1,000,000 $1,000,000 $ 50,000 $ 5,000 10f2 June 2005 INSURANCE SCHEDULE C (Continued) INSURANCE REQUIREMENTS FOR PROFESSIONAL SERVICES TO THE CITY OF DUBUQUE This coverage shall be written on an occurrence form, not claims made form. All deviations or exclusions from the standard ISO commercial general liability form CG 0001 or Business owners BP 0002 shall be clearly identified. Form CG 25 04 03 97 'Designated Location (s) General Aggregate Limit' shall be included. Governmental Immunity endorsement identical or equivalent to form attached. Additional Insured Requirement: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards. commissions and/or authorities and their board members, employees and volunteers shall be named as an additional insured on General Liability including "ongoing. operations" coverage equivalent to ISO CG 20100704. b) Automobile $1,000,000 combined sinQle limit. c) WORKERS COMPENSATION & EMPLOYERS LIABILITY Statutory for Coverage A Employers Liability: Each Accident Each Employee Disease Policy Limit Disease $ 100,000 $ 100,000 $ 500.000 $1,000,000 d) PROFESSIONAL LIABILITY e) UMBREllA/EXCESS LIABILITY * .Coverage and/or limit of liability to be determined on a case-by-case basis by Finance Director. 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", .... . ,', ,. - a. :lns,ureds; . ,...,._::,[;::i&;:~r.>:';.':j'I:-;':~ie~)i.::::'.I':.M..y;e.'-'''.N....<:..- '1' ."., , '_'M' ,. -'-" ., '-' ,.:",::,,}:+'l~ ';;":'j ifd.,. ~:'('j . ,...'.., / ;, ',; ,> ;.' .. . -.. .. ,'-'" .:: ~<........_<>.-;...:..:..: '.' :'''>:;:'::.i!~<:J;;;:, ." . : ..:: CG2$04 Q397 Copyrigtrt.,lnsu~nce Services ,Office, Inc., 19&6 ., Page 1 ofZtl .r..I....~ '" A . ", POLley NUMBER: COMME~CIALGENERAL;LIA~Jj,.irY . .CG20'10'0:7'0.4 '.' .T.HIS~SNO~,RS.€MfNTC~~\?ESIHE PQ,LJ~Y.PL'EA:S1E>RE~pJT CA.:ftE:FU:LLY~q . ,.- ....... '1;." "E" .....'.$.'..\.5.. .. 'E" ........e...s..:. "O"-'R" . ..... .. ... - . -. . ......, .--. '~f'c:,:;;::" ~.,""' '.- >," '.'E..-iR:' 'S' '.'0" ."N. ........O...".',R'... ~ --. ,'",.: ". - . ~ '..: " '. . ... .-. - -. . . This:end9rs~rn.entfTlGdffies ihsLJran ce PrO'Il COMMERCIAl GENERAL UASILlTY'- CCVERA(.3t::PA.~:r".. ....~.~....,.J.~..'tj'~ij~!I;~lrrJ~'.s caU$~'lIl""hQIeOrlnpart.bY: . . .H-->.... ......'<. .... .., -'"'.." -, .ttl;j~;~an(j:tQer~nttclctor .. pr' stIbconn::.CtQI' ~.O-: ga9'~'in(pedQmliligOperations 'fQr.l principal'. . .' a$;a"parfofthe::same.projecl ~ CG 20 10 0704 C ISO Properties. Inc.. 2004 Page 1 of 1 o CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmental Immunity. The insurance carrier expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. " 2. Claims Coveraoe. The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be, amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, ahd may do so at any time and shall do so upon the timely written request of the insurance carrier. 4. Non-Denial of Coveraoe. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this pOlicy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Chanoe in Policv. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN 1 of 1 June 2005 /I CITY OF DUBUQUE, IOWA IMPROVEMENT CONTRACT THIS IMPROVEMENT CONTRACT (the Contract), made in triplicate, dated for reference purposes the 6th day of September, 2005, between the City of Dubuque, Iowa, by its City Manager, through authority conferred upon the City Manager by its City Council (City) and Geisler Brothers Company, 340 East 12th Street, of the City of Dubuque, Iowa. 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 Five Flags Center HVAC, Phase II Project (the Project). The Project shall be made to the established grade and to the grades as shown on the profiles and cross sections on file in the City Engineer's office for this Project, 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 all of which provisions and documents are each and all hereby 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: All ordinances and resolutions heretofore adopted by the City Council having to do with the Project; the Notice to Bidders; the Contractor's Proposal; and the Plans, 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 shall be retained by the City for a period of thirty (30) days after final completion and acceptance of the Project by the City Council 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 specifications including General Requirements and has examined and understands the plans herein referred to and agrees not to plead misunderstanding or deception because of estimates of quantity, character, location or other conditions surrounding the same. 7. In addition to the guarantee provided for in the specifications, the Contractor shall also make good any other defect in any part of the Project due to improper construction notwithstanding the fact that said Project may have been accepted and fully paid for by the City, and the Contractor's bond shall be security therefore. 8. The Contractor shall fully complete the Project under this Contract on or before December 1, 2005. 9. To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the City from and against all claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the 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 (other than the Project itself) including loss of use resulting there from, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, the Contractor's subcontractor, or anyone directly or indirectly employed by the Contractor or the Contractor's subcontractor or anyone for whose acts the Contractor or the Contractor's subcontractor may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. THE CITY AGREES: Upon the completion of the Contract, and the acceptance of the Project by the City Council, 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 plans and specifications is approximate only and the final payment shall be made by the work covered by the Contract. CONTRACT AMOUNT $116,850.00 FURTHER CONDITIONS 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 agreement 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 agreement or arrangement with any other person, firm, corporation or association which tends to or does lessen or destroy free competition in the letting 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 be less than $11,600 (Eleven Thousand Six Hundred Dollars) as liquidated damages to the City. The surety on the bond furnished for this Contract, shall in addition to all other provisions, be obligated to the extent provided for by Iowa Code 9 573.6, relating to this Contract, which provisions apply to said bond. The Contractor agrees, and its bond shall be surety therefore, that it will keep and maintain the Project in good repair for a period of two years after acceptance of the same by the City Council and its bond shall be security therefore. PRINCIPAL: ,.. ,'s Iu- ~,.oi1<<.r.I C. "f~ Contractor By: El 0-:....9 ~. /:\-..f2.- Signature PRf"! I,E"c/T Title CERTIFICATE OF CITY CLERK This is to certify that a certified copy ,of the above Contract has been filed in my . .,,---,. 6/;;' office on the ,-;? #rj day of <~~'/~/m,cQ{(~/f_~/ , 2005. ~' ---- /---- / '}) .. :4A~/ ,r '/)/~y /./,' A ~~/ , eanne F. Schneider, CMC, City Clerk L CITY OF DUBUQUE, IOWA SALES AND USE TAX EXEMPTION CERTIFICATE The City of Dubuque, as a designated exempt entity awarding construction contracts on or after January 1, 2003, may issue special exemption certificates to contractors and subcontractors, allowing them to purchase, or withdraw from inventory, materials for the contract free from sales tax pursuant to Iowa Code Sections: 422.42 (15) & (16), and 422.47 (5). This special exemption certificate may also allow a manufacturer of building materials to consume materials in the performance of a construction contract without owing tax on the fabricated cost of those materials. If the Jurisdiction, at its option, decides to utilize this exemption option, it will so state by special provision and publication in the Notice of Hearing and Letting. 1. Upon award of contract, the Jurisdiction will register the contract, Contractor, and each subcontractor with the Iowa Department of Revenue and Finance; and distribute tax exemption certificates and authorization letters to the Contractor and each subcontractor duly approved by the Jurisdiction in accordance with Section 1030, 1.10, B. These documents allow the Contractor and subcontractors to purchase materials for the contract free from sales tax. The Contractor and subcontractors may make copies of the tax exemption certificate and provide a copy to each supplier providing construction material. These tax exemption certificates and authorization letters are applicable only for the work under the contract. 2. At the time the Contractor requests permission to sublet in accordance with said Section 1030, 1.10, B, the Contractor shall provide a listing to the Jurisdiction identifying all subcontractors, including the Federal Employer Identification Number (FEIN) for the Contractor and all subcontractors, as well as the name, address, telephone number, and a representative of the organization which will perform the work, a description of the work to be sublet, and the associated cost. 3. The Contractor and each subcontractor shall comply with said Iowa Code Sales Tax requirements, shall keep records identifying the materials and supplies purchased and verify that the were used on the contract, and shall pay tax on any materials purchased tax-free and not used on the contract. SPECIAL PROVISIONS An out-of-State contractor, before commencing a contract in excess of $5,000.00, shall, pursuant to Iowa Code 91C.7(2), file a bond with the Division of Labor Services of the Department of Employment Services. The Surety Bond shall be executed by a Surety Company authorized to do business in the State of Iowa, and the bond shall be continuous in nature until canceled by the Surety with not less than 30 days written notice to the contractor and to the Division of Labor Services of the Department of Employment Services indicating the Surety's desire to cancel the bond. The bond shall be in the sum of the greater of the following amounts: a. $1,000.00 b. 5% of the contract price Release of the bond shall be conditioned upon the payment of all taxes, including contributions due under the unemployment compensation insurance system, penalties, interest, and related fees, which may accrue to the State of Iowa or its subdivision on account of the execution and performance of the contract. If any time during the term of the bond the Department of Revenue and Finance determines that the amount of the bond is not sufficient to cover the tax liabilities accruing to the State of Iowa or its subdivision, the Department will require the bond to be increased by an amount the Department deems sufficient to cover the tax liabilities accrued and to accrue under the contract, as provided under Iowa Code 91C.7(2). If it is determined that this subsection may cause denial of Federal Funds which would otherwise be available, or would otherwise be inconsistent with requirements of Federal law, this section shall be suspended, but only the extent necessary to prevent denial of the funds or to eliminate the inconsistency with Federal requirements. . "'f lAC 54800 CITY OF DUBUQUE, IOWA PERFORMANCE, PAYMENT AND MAINTENANCE BOND KNOWN ALL MEN BY THESE PRESENTS: That Geisler Brothers Company as Principal (Contractor) and Merchants Bonding Company as Surety are held firmly bound unto the City of Dubuque, Iowa (City), in the penal sum of $116,850.00 the same being 100% of the total price of the Contract for the Project herein referred to, lawful money of the United States of America, well and truly to be paid to said City of Dubuque, and to all other parties who, under the provisions of the laws of Iowa, are intended to be protected and secured hereby for which payment we bind ourselves, our heirs, executors, successors and assigns, jointly and severally by these presents. Dated at Dubuque, Iowa, this \3 duly attested and sealed. day of Ser'fC!;MW , 2005, and WHEREAS, the said Contractor by a Contract dated September 6, 2005, incorporated herein by reference, has agreed with said City of Dubuque to perform all labor and furnish all materials required to be performed and furnished for the Five Flags Center HVAC, Phase " (the Project) according to the Contract and Construction Documents prepared therefore. It is expressly understood and agreed by the Contractor and Surety bond that the following provisions are a part of this Bond and are binding upon said Contractor and Surety, to-wit: 1. PERFORMANCE BOND: 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 City from all outlay and expense incurred by the City 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 BOND: The Contractor and the Surety shall 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 which the City 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, Code of Iowa, which by this reference is made a part hereof as though fully set out herein. 3. MAINTENANCE BOND: The Contractor and the Surety 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 within the period of two (2) year(s) from the date of acceptance of the work under the Contract by the City Council of the City of Dubuque, Iowa, by reason of defects in workmanship or materials used in construction of said work; B. To keep all work in continuous good repair; and C. To pay the City the reasonable costs of monitoring and inspection to assure that any defects are remedied, and to repay the City 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 agreement herein made extends to defects in workmanship or materials not discovered or known to the City at the time such work was accepted. NOW, THEREFORE, the condition of this obligation is such that if the said Contractor shall perform all of the work contemplated by the Contract in a workmanlike manner and in strict compliance with the plans and specifications, and will pay all claims for labor and materials used in connection with said Project, to indemnify the said City for all damages, costs and expense incurred by reason of damages to persons or property arising through the performance of said Contract, and will reimburse the City for any outlay of money which it may be required to make in order to complete said Contract according to the Construction Documents and will maintain in good repair said Project for the period specified in the Contract where this bond is obligated for maintenance, and will faithfully comply with all of the provisions of Section 573 of the Code of Iowa, then this obligation shall be null and void, otherwise it shall remain in full force and effect. All the conditions of this bond must be fully complied with before the Contractor or the Surety will be released. The Contract, Contractor's Proposal, and Construction Documents shall be considered as a part of this Bond just as if their terms were repeated herein. Dated at Dubuque, Iowa this \3 day of Ser-fc-"" kr ,2005. CITY OF trrrC: IOWA IL By. } U ,~V\r~~, Cfty Manager PRINCIPAL: Geisler Brothers Company Contractor By: ~c-.S ~n. 0 Signature P~'~IC6~\ Title SURETY: By: Merchants Bonding Company Surety Company -1/ '\" I~" (~,--"-"-t,=-) b~b.-~{KJ\. Signature Attorney-In-Fact Title Dubuque, IA 52004 City, State, Zip Code 563-587 -5313 Telephone Kelly J. Esser Attorney In-Fact - . Merchants Bonding Company (Mutual) POWER OF ATTORNEY Know All Persons By These Presents, that the MERCHANTS BONDING COMPANY (MUTUAL), a corporation duly organized under the laws of the State of Iowa, and having its principal office in the City of Des Moines, County of Polk, State of Iowa, hath made, constituted and appointed, and does by these presents make, constitute and appoint Richard V. McKay, John J. Ottavi, Mark K. Fitzjerrells, Luca A. DeVecchi, Kelly J. Esser, Brandy Runde, Joseph Broderick of Dubuque and State of Iowa its true and lawful Attorney-in-Fact, with full power and authority hereby conferred in its name, place and stead, to sign, execute, acknowledge and deliver in its behalf as surety any and all bonds, undertakings, recognizances or other written obligations in the nature thereof, subject to the limitation that any such instrument shall not exceed the amount of: THREE MILLION ($3,000,000.00) DOLLARS and to bind the MERCHANTS BONDING COMPANY (MUTUAL) thereby as fully and to the same extent as if such bond or undertaking was signed by the duly authorized officers of the MERCHANTS BONDING COMPANY (MUTUAL), and all the acts of said Attorney-in-Fact, pursuant to the authority herein given, are hereby ratified and confirmed. This Power-of-Attorney is made and executed pursuant to and by authority of the following Amended Substituted and Restated By- Laws adopted by the Board of Directors of the MERCHANTS BONDING COMPANY (MUTUAL) on November 16, 2002. ARTICLE II, SECTION 8 - The Chairman of the Board or President or any Vice President or Secretary 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. ARTICLE II, SECTION 9 - The signature of any authorized officer and the Seal of the Company may be affixed by facsimile 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 Witness Whereof, MERCHANTS BONDING COMPANY (MUTUAL) has caused these presents to be signed by its President and its corporate seal to be hereto affixed, this 1 st day of September, 2004. ........ .. ,,,G CO.. .. ~~..,.. -. ..~...;.. ..~..~ \\PO II-i'."-s... : ~:'~ ~".;.c.: :~:- -0- 0:-- . ~". 1933 :~: . ..... . <:::'. .0,,:,".,. .~. . "'L;' .j.C::-. .. :,,-iif' -..... '\:\",:.. .. 1:l . ....... STATE OF IOWA COUNTY OF POLK ss. MERCHANTS BONDING COMPANY (MUTUAL) By ~ 7~ Pres On this 1st day of September, 2004, before me appeared Larry Taylor, to me personally known, who being by me duly sworn did say that he is President of the MERCHANTS BONDING COMPANY (MUTUAL), the corporation described in the foregoing instrument, and that the Seal affixed to the said instrument is the Corporate Seal of the said Corporation and that the said instrument was signed and sealed in behalf of said Corporation by authority of its Board of Directors. In Testimony Whereof, I have hereunto set my hand and affixed my Official Seal at the City of Des Moines, Iowa, the day and year first above written. fjj... CINDY SMYTH . '1 Commission Number 173504 My Commission Expires March 16, 2006 STATE OF IOWA COUNTY OF POLK ss. &'1~ Notary Public, Polk County, Iowa I, William Warner, Jr., Secretary of the MERCHANTS BONDING COMPANY (MUTUAL), do hereby certify that the above and foregoing is a true and correct copy of the POWER-OF-ATTORNEY executed by said MERCHANTS BONDING COMPANY (MUTUAL), 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 Company on this day of POA 0001 (9/04) ....... .. ,,,G Co.. .. ~~., -.... ..'41"';. ..~.,~ \\PO II:';..";.. . . " ?'..... '. ;..L . .~:~ f'f\'. :~:- -0- 0:-. . ~". 1933 :~: ....~. .<:::'. .-~. .~. .. ~" ........C::-. '.~iV'"'''' \"\,,:.. .. 1:l . ....... p'~~~, Secretary