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Contracts Bonds W. 5th, University " CITY OF DUBUQUE, IOWA IMPROVEMENT CONTRACT THIS IMPROVEMENT CONTRACT (the Contract), made in triplicate, dated for reference purposes the ;); sf day of ,lZifle , 2006, between the City of Dubuque, Iowa, by its City Manager, through authority conferred upon the City Manager by its City Council (City) and Portzen Construction, Inc, 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 West 5th Street (Delhi - Alpine) Reconstruction 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. .. CITY OF DUBUQUE, IOWA PERFORMANCE, PAYMENT AND MAINTENANCE BOND KNOWN ALL MEN BY THESE PRESENTS: That Portzen Construction, Inc. as Principal (Contractor) and United Fire & Casualty Company as Surety are held firmly bound unto the City of Dubuque, Iowa (City), in the penal sum of $1,024,519.20 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 20th day of June duly attested and sealed. , 2006, and WHEREAS, the said Contractor by a Contract dated 20th day of June , 2006, 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 West 5th Street (Delhi - Alpine) Reconstruction 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 20th day of .llIn~ ,2006. CITY OF DUBUn~'lVV~ ,il By: Lt . ell fl{JL----; City Manager PRINCIPAL Portzen Construction, Inc. Contractor By: 1L'~A/;~ Signature fJrt's/dfJ/l1- Title SURETY By: United Fire & Casualty Company Surety Company ~. "'- ~. WA-A Signature Attorney-in-Fact Title Dubuque,IA 52004-1810 City, State, Zip Code (563)556-5441 Telephone ~~\6. ~ Attorney In Fact " .. -- .. "", ',-,' " ,- ", UNITED FIRE& CASUALTY,COMPANY , HQM~ OFFICe ~'CEOA~R.YlD$, IOWA " c~'i'II:I6> COPY OF'PoWEROF AtTORNEY (Original on file at Home Office 01 Company - See Certification) ".' ~ ' . , KNOW ALL M1;N ~y THESE P~ESENTS, That the\JNITE[) FIRE & CAS!.iALTYCOMPANY; !l corporation duly <nQanized and existing undert~ Jaws of t~ statll of Iowa, and nlMll!l lts pnncipal'offjQe in Cedar Raj>lds, state of Iowa, dqes roake, conStitute and appoint .,:,: ,.:- -:-:, ;-:_',,-":',:::'-- ":,'::, ;::;;-,"'-'_:':''-'::'''':'''; ,'.: ,}.(:',-r:.-'<..,;:-.'.~":' ':': /<"':'...:,,:. i:.-::::- ,.>:,:","',::::._ ,:-,: :,': ':,,:.__.:,."",:,-:.. ',". DAVID :PRITZ. oR' OIAIIA K~,'REIIRIClI:. OJ! KEITlf II'SIIl1lBEllG. OR ClWlU:s if: AIIDRACCIlIO. OLIVIlli'lt sCn:ITT. OR KIKBEar.Y A WIELlIIIO. OR lCIlVIII\{ EmU:.tCl!. ALL ,rJiDIVIOIlALLY' b'iiiuBIlQUll' lA" ' , lis tnie ,and la'oVfUl Attorney(Se)-in-Fad w1thpo~ and author#}- he~y conretied to, sign, seal and exec.ute\n.lis behlllf all lawful bonds, undllrtaldngs and other obligatory Il\strum~s 01 similar nature as follows: Any and JlU, Bonds , , ' ',' and to bind lfNITE6:PIR~ & CASUALTY COMPANY thereby' as fully andta' the ~~ine extent as if such Instruments Were signed by the duly authorized officers of UNITED FIRE & CASUALTY COMPANY and all the ads of said Attomey, pursuant to the authority hereby given are hereby r;tllfied,end conflO7led, , , :, , , The Authority herelly,grantediscontlnuous and shitltremain,in full, force and ilffed,untll,revokedby UNITIED FIRE & CASUALTY COMPA/IIY , " ' , ' ':' ,',' ",' , :', ",' , , ,This p~ of Attorney is made lllid, ~ec,uted pursua~ to and by a~rity oithe follOWing By.taw duly adopted by Board of Diredorsolthe"Ampany'onApriI1S',1973.' ,',,,,, " ',' ,,,,' :, " :', " - """"...".,' t.... .<' ,_'__-:: ..' _,.'.' _ _, __', .___'_ ,_ __ _ _',. __' ' , "Artfcte V -'Surety Bonds and Undertakhlgs'" ' Sadion 2, Appointment of Attorney-in-Fact, ''The President or'enyVice President, or any other officer of the Company may, from tima t9 time" appoint by written, certificates attorne~-~cf to ,act in behalf of the Company in the executiofl of policies of lllsuran~; blind., uri'd:ertaklngs and other obligatory instrun'\ents ef'like nature, The signature'of any offIcer'suth(lrized hereby, and tba Corp.orate sea'I,:,(ilay be ,aflix8d by facsimile to '!nY'P6WerOfalt9mey or special pow~pf attorney,'or~rti~tiOn of either euthOflZed'/lerebY;' 5,uch Slgl)aturll" and ~al, When so used, bll109 ad,opted by the ComAAIlY: as the orlgmal slg!lature of Sl,Ich Officer and the, wiginlll seal of the Company, to be valid /l~'b~ing upon the Company w,itMhe,same forqe and effect as though manuaIlY~~, Such attorneys.in fact, ,SUbjad to the.lilll.l!lrttoos set forth in their ra,spective certlficates,ofauthority, shall have full powtrto bind the Company by.tlleir srgnature,and'eXecutlon of any such mstruments and to attach the seal of the COmpany thereto. The President Orany Vice President the 8Oa(d of Diredors or any other offic~ of the Company may at any time revoke'aU,poWlir'8Ild authority previously given to any attolney-in-fad., " IN WrrNeSS wHEREOF, the UNITED FIRE & CASUAL T>!COMPANY has ca'used these presents to be signed by itSVI<<& president and its corpOrate seeltobe hereto'affiJCej:lth1S 27th day of AprU', ;aDOS '-", . ''':''', . '. -' ".- ',. UNITl:O FIRE & CASUALTY COMPANY . ey..,~ cr. ~ ,Vi~ President, State of Iowa., County Of-Linh! sS:,' ", ,> ,,,C., ,_Y ;; -/)', ,,:,:,' . -- ','" Secretary BbNDOO19,o802 01' , ::> ACORD ____._,__..._.__T~ CERTIFICATE OF LIABILITY INSURANCE CSR DH PORTZ-1 06 20 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 06 PRODUCER TRICOR, Inc. - Dubuque PO Box 1810, 500 Iowa Street Dubuque IA 52004-1810 Phone: 563-556-5441 Portzen Construction lnc Dubuque Plumbing & Heating Man' O(ay 205 Stone Valley Dr. Dubuque IA 52003 COVERAGES INSURER A INSURER B INSURER C West Bend Mutual Ins. Co NAIC# I 15350 -t---...- I INSURERS AFFORDING COVERAGE INSURED , I INSURER 0 INSURER E I .._~ THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO Vv'HICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS I~~ lNSR~ ~ ~Mrtf6'rWf Pgkflfij~b'1:~~N - TYPE OF INSURANCE POLICY NUMBER LIMITS I ! GENERAL LIABILITY EACH OCCURRENCE '1,0.00,.990 A I A r ro..,"'M",~ ,,,-, .- CPI061671604 12/31/05 12/31/06 ~REMISES (Ea occurence) '200,000 i .d-.~ CLAIMS MADE [l{J OCCUR i MED EXP (Anyone person) '10,000 PERSONAL & ADV INJURY 1 '1,000,000 ~- ---- ,X Per Project Aggre GENERAL AGGREGATE " 2,000,000 -- GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMPtOP AGG '2,000,000 -l, !Xl PRO- n l I POLICY X JECT LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT A ~ ~NY AUTO CPI061671604 12/31/05 12/31/06 (Eaaccictent) 1,1,000,000 -- lr-'- BODILY INJURY I ~ ""''"''"'''' {Per person} , _____. _m ___ HIRED AUTOS BODILY INJURY , NON-OWNED AUTOS (Per accident} I -- - - I I-I _...-- PROPERTY DAMAGE , (Per accident) ~':"_~~AGE LIABILITY AUTO ONLY - EA ACCIDENT , - ~_~ ANY AUTO OTHER THAN EAACCi$ --.-- - I AUTO ONLY AGG I $ EXCESS/UMBRELLA LIABILITY EACH OCCURRENCE , 10,000 ,(l00 A xl OCCUR D CLAIMS MADE CPI059879603 12/31/05 12/31/06 AGGREGATE '10,000,000 ~~ - , =l DEDUCTIBLE I ---- I , - --- X RETENTION , WAIVED , WORKERS COMPENSATION AND X ITbW/~I~WS I IUJ~. A EMPLOYERS' LIABILITY YRI059878703 12/31/05 12/31/06 , 500000 ANY PROPRIETOR/PARTNER/EXECUTIVE EL EACH ACCIDENT OFFICER/MEMBER EXCLUDED? E.L DISEASE - EA EMPLOYEE , 500000 \fyes,describeunder I E.L. DISEASE - POLICY LIMIT , 500000 SPECIAL PROVISIONS below I OTHER , DESCRIPTION OF OPERATIONS I LOCA TlONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS The City of Dubuque is an additional insured on gen liab policies including ongoing&completed operations as well as being primary & non-contributing per form WB1482.Form CG1503 0397 "Designated Projects"gen liab aggr limit form attached. Governmental Immunites End. attached.Waiver of Subrogation in favor of the City of Dubuque-Project:W.5th St. (Delhi-Alpine) Reconstruction Project CERTIFICA TE HOLDER CANCELLA nON CITYDUB SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT Ci ty of Dubuque 50 W. 13th St. Dubuque IA 52001 AUTHORIZED REPRESENTATIVE Keith M. Sindbe ION 1988 ACORD 25 (2001/08) IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORO 25 (2001/08) CPI0616716 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - CONTRACTOR'S BLANKET This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART A. WHO IS AN INSURED (Section II) is emended to include as an additional insured any person or organization whom you are required to add as an additional insured on this policy under a written contract or written agreement. The writlen contract or written agreement must be: 1. Currently in effect or becoming effective dur- ing the term of this policy; and 2. Executed prior to the "bodily injury," "property damage," "personal injury" or "advertising in- jury." B. The insurance provided to the additional insured is limited as follows: 1. That person or organization is only an addi" tional insured with respect to liability for "bod- ily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: a. Your acts or omissions; or b. The acts or omissions of those acting on your behalf: in the performance of your ongoing operations for the additional insured(s). There is no cov- erage for the additional insured for "bodily in- jury", "property damage" or "personal and ad- vertising injury" arising out of the sole negligence of the additional Insured or by those acting on behalf of the additional in- sured. 2. The Limits of Insurance applicable to the additional insured ere those specified in the written contract or written agreement or in the Declarations for this policy, whichever is less. These Limits of Insurance are inclusive and not in addition to the limits of Insurance shown in the Declarations. 3. Except when required by written contract Or written agreement, the coverage provided to the additional insured by this endorsement does not apply to: a. "Bodily injury" or "property damage" occur- ring after: (1) All work on the project (other than service, maintenance or repairs) to be performed by or on behalf of the addi- tional insured at the site of the covered operations has been completed; or (2) That portion of "your work" out of which the injury or damage arises has been put to its Intended use by any person or organization other than another con- tractor or subcontractor engaged in performing operations for a principal as part of the same project. b. "Bodily injury" or "property damage" arising out of acts or omissions of the additional insured other than in connection with the general supervision of "your work.11 4. The insurance provided to the additional in- sured does not apply to "bodily injury; "prop- arty damage," "personal injury," or 'advertis- ing injury" arising out of an arch~ecl's, engineer's, or surveyor's rendering of or fail- ure to render any professional services in- cluding; a. The preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifica- tions; and b. Supervisory, or Inspection activities per- formed as part of any related architectural or engineering activities. we 14820505 Wast Bend Mutual Insurance Company West Bend, Wisconsin 53095 Page 1 of 2 C. As respects the coverage provided under this endorsement, Paragraph 4.b. SECTION IV - COMMERCIAL GENERAl.. LIABILITY CONDI. TIONS Is amended with the addition of the fol- lowing: 4. Other insurance b. Excess insurance This insurance is excess over: Any other valid and collectible insurance available to the additional insured whether primary, excess, contingent or on any other basis unless a written contract spe- cifically requires that this insurance be ei- ther primary or primary and noncontribut- ing. Where required by written contract. we will consider any other insurance maintained by the additional insured for injury or damage covered by this en- dorsement to be excess and noncontrib- uting with this Insurance. When this insurance is excess, as a con~ dition 01 coverage, the additional insured shall be obligated to tender the delense and indemnity 01 every claim or suit to all olner i""ure"" that may provide coverage to Ihe additional insured, whether on a contingent, excess or primary basis. Page 2 of 2 West Bend Mutual Insurance Company Wast Bend. Wisconsin 53095 WB 1482 05 05 . . . COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED CONSTRUCTION PROJECT(S) GENERAL AGGREGATE UMIT COMMERCIAL GENERAL LIABILITY COVERAGE PART This endorsement modifies insurance provided under Ihe following: SCHEDULE DESIGNATED CONSTRUCTION PROJECTS: VOUR PROJECTS AWAV ~RDM PREMISES OWNED IV DR RENTED TO VOU. A. For all sums which the insured becomes legally oblillaled to pay as damages caused by .occur- rences" under Coverage A (Section I), and for all medical e><p..nses caused by accidents un. der Coverage C (Section I), which can be attri- buted only to ongoing operallons at a slngle designated construction project shown In H.. Sch..dul. abov.: 1. A separale Designated Construclion Project General Aggregate LimIt applies to each designated construction projecl, and thaI limit is equal to the amount of the General Aggregate limit shown In the Declarations. 2. The Designated Construcllon Project Gen- eral Aggregate L1mllls the most we will pay for the sum 01 all damages under Coverage A, except damages because of "bodily In- JUry" or "property damage" Included In the "producl.-compleled operations huard", and ror medical expenses under Coverage C regardless of the number of: e. Insureds; b. Claims made or 'suits" brought: or e. Persons or organizations making claims or bringing "suits-. 3. Any payments made under Coverage A for damages or under Coverage C for medical expenl.1 Ihall reduce Ih. Designated Construc1ion Project General Aggregate Limit for that dellgnated construction project. Such payments shall nol reduce the General Aggregale Lim~ shown in Ihe Declarations nor shall they reduce any O1her Designated COnstruction Projec1 General Aggregate Urn II for any other des. ignated construcllon projecl shown in the Schedule above. 4. The IIm~s shown In the Declarations for Each Occurrence, Fire Damege and Med- Ical Expenses continue to apply. However, In.tead of being subjecllo the General Ag- gregate L1m" .hown in the Declarations, such limits will be subjec1to the applicable Designated Construction Project General Aggregate Urn". (If no enlry appears above, inform.llon required 10 complete this endorsement will be shown In the Declara- lions as applicable 10 lhis endorsement) CG 2503 0317 COt:lyrlght. Insurance Services OffIce. Inc.. 1996 P_ 1 of 2 103 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CHANGE ENDORSEMENT WBIOO A PAGE I OF 1 THIS ENOORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWIN~: COMMERCIAL GEMERAL LIABILITY COVERAGE PART CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT I. NONWAIVER OF GOVERNMENTAL IMMUNITY. THE IMSURANCE CARRIER EXPRESSLY AGREES AND STATES THAT THE PURCHASE OF THIS POLICY AND THE INCLUDING OF THE CITY OF DUBUQUE, IOWA AS AN ADPITIONAL 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 COVERAGE. THE INSURANCE CARRIER FURTHER AGREES THAT THIS POLICY OF INSURANCE SHALL COVER ONLY THOSE CLAIMS NOT SUBJECT TO THE DEFENSE OF GOVERN. MENTAL IMMUNITY UNPER THE COPE OF IOWA SECTION 670.4 AS IT NOW EXISTS AND AS IT NAY BE AMEHDEP 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 IHSURANCE POLICY. 3. ASSERTION OF GOVERNMENTAL IMMUNITY. THE CITY OF PUBUOUE. IOWA SHALL BE RESPONSIBLE FOR ASSERTING ANY DEFENSE OF GOVERNMENTAL IMMUNITY, AND MAY DO SO AT ANY TIHE AND SHALL DO SO UPON THE TIMELY WRITTEN REOUEST OF THE INSURANCE CARRTER. 4. NON-DENIAL DF COVERAGE. THE INSURANCE CARRIER SHALL NOT DENY COVERAGE UNDER TNIS POLICY AND THE INSURANCE CARRIER SMALL NOT DENY ANY OF THE RI~HTS AND BENEFITS ACCRUING TO THE CITY OF DUBUQUE, IOWA UNDER THIS POLICY FOR REASONS OF GOVERNMENTAL IMHUNITY UNLESS AND UNTIL A COURT OF COMPETENT JURISDICTION HAS RULED IN FAVOR OF THE DEFENSECS) OF GOVERNMENTAL IMMUNITY ASSERTED IY THE CITY OF DUBUQUE, IOWA. NO OTHER CHANGE IN POLICY. THE AIOVE PRESERVATION OF GOVERNMENTAL IMMUNITIES SHAll NOT OTHERWISE CHANGE OR ALTER THE COVERAGE AVAILABLE UNDER THE POLICY. WB 100 08 88 Welt Bend Muluallnlurance Company Welt Bend, Wi$<Xln$in 5301lS, WORKERS COMPENSAnON AND EMPLOYERS LIABLlTY INSURANCE POLICY ~ 90" l' (E~ IU ,~} WANER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable fDr an in;.ry cov.",d by this policy. We will nol enforce our ri~ llgainst the person or organization nllmed in the Schedule. (This agrwement applies only to the extent thlll you perform wor1o: .-,d.r a written contract that require. you to attain thill a"..ment from us.) This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule C!TV OF DUBUQUE This ondon;emttnl ohall;_ \he pouoy to whioh n . atIKhed a.d is etfec;tjye on the dallI iasued unless _rwiH _ed. IThe ",formation below;. required only wilen this endor.....nt Is iSlUed .ubaaquentto..........tIon of the poliey.) EncIo,..menl Ellective Insured Pelicy No. EncIoIMment No. Pr_um$ Insure no. Comptlny Counler$igoed by we 00 0313 (04 84) Copyright 1883, Nationlll Counc:U on Compensation Insurance, rnc:. Page 1 of 1 . . CITY OF DUBUQUE, IOWA IMPROVEMENT CONTRACT THIS IMPROVEMENT CONTRACT Contr ct), made in triplicate, dated for reference purposes the?g'../.(~ day of , 2006, between the City of Dubuque, Iowa, (City) by its City Mana ,through authority conferred upon the City Manager by its City Council and Tschiggfrie Excavating Co. 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 University Avenue Culvert Extension and University Avenue Sanitary Sewer Reconstruction 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 August 31,2006. 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. 10. Contractor acknowledges that the City is required to obtain a permit from the Iowa DNR prior to the commencement of any work on the Project. Contractor is willing to and does hereby enter into this Contract for the Project on the express condition, that if the necessary Iowa DNR permit is not issued to the City within one hundred twenty days from the date of this Contract, this Contract shall be deemed null and void and of no further force and effect. 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 $363,808.28 . 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 Seven Hundred Fifty and 00/100 Dollars ($750.00) 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 S 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: C\:'~V\\~~~( ) Contractor r " - ~: '-~(' /c;;?d ~~/~ ~ature - (. ~C\{~-\ Title ':, CERTIFICATE OF CITY CLERK This is to certify that a certified in my office on th~ day of --.~ eanne F. Schneider, CMC, City Clerk .= . Bond Number 8855156 CITY OF DUBUQUE, IOWA PERFORMANCE, PAYMENT AND MAINTENANCE BOND KNOWN ALL MEN BY THESE PRESENTS: That Tschiggfrie Excavating Co. as Principal (Contractor) and Fi~~~~;~J,a;;~ ~;~~~~~01 as Surety are held firmly bound unto the City of Dubuque, Iowa (City), In the penal sum of $363,808.28 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 duly attested and sealed. day of , 2006, and WHEREAS, the said Contractor by a Contract dated , 2006, 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 University Avenue Culvert Extension and University Avenue Sanitary Sewer Reconstruction 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 Surely'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, 10 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 day of ,2006. CITY OF DUBUQU1'e-WA .' L By: ~L ~~J[I City Manager PRINCIPAL: Tschiggfrie Excavating Co. Contractor ~~ '-~i;/ Title ~ SURETY: Fidelity and Deposit Company of Maryland Surety Company By: ~ig~t~i1t"H) Nancy D. Schwarz, Attorney-in-Fact Title West Des Moines IA 50266 City, State, Zip Code 515-244-0166 Telephone Nancy D. Schwarz Attomey In-Fact . Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND KNOW ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a eorporation of the State of Maryland, by THEODORE G. MARTINEZ, Vice President, and GREGORY E. MURRAY, Assistant Secretary, in pursuance of authority granted by Article VI, Section 2, of the B=-Law . id Company, which are set f,mh on the reverse side hereof and are hereby certified to be in full force and eff'j'\t '6 <OJ' reoI'. does hereby nominate, constitute an.d appoint F. Melvyn HRUB~TZ, Joyce O. HEJql~~'Aaij .' ~~~S, Nancy D. SCHWARZ and PatrIck K. DUFF, all of Des MOInes, low_ " ~~;\n~~'f~W\~~torney-tn-Fact, to make. execute. seal and deliver, for, and on its behal '0 . ~ ~it2i~S st~A~~d all bonds and undertakings, and the execution of sue Or ~n ~ i r ~\dt~se presents. shall be as binding upon said Company, as fully and amply. t '''ef' ur ,9, . tJ,>\'Y tieen duly executed and acknowledged by the regularly elected of~rrn' ~ nf.Jll i~\l;f.~~ ore, Md., in their own proper persons. This power of attorney revokes that issued '\1f~I{of 'i~~,-n;yRml~, Joyce O. HERBERT, Mark E. KEAIRNES, Nancy D. SCHWARZ. Melissa L. EVANS, ~rffi~Q6F-,w.;ted April 11,2003. The said Assistant ~~ does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article VI, Section 2, of the By-Laws of said Company, and is now in force. IN WITNESS WHEREOF, the said Vice-President and Assistant Secretary have hereunto subscribed their names and affixed the Corporate Seal of the said FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 24th day of February, A.D. 2005. ATTEST: FIDELITY AND DEPOSIT COMPANY OF MARYLAND /1' --;:", (---~f'{/'-'.,,--/:._. , !-Jhtt~.-"\ ' __n () Ij .' (,) By: r!.,..-,J';';; "'. ,Wlf'Wlr;_ ! / Gregory E. Murray Assistant Secretary Theodore G. Martinez State of Maryland }ss: City of Baltimore On this 24th day of February, A.D. 2005, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, came THEODORE G. MARTINEZ, Vice President. and GREGORY E. MURRAY, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to be the individuals and officers described in and who executed the preceding instrument. and they each acknowledged the execution of the same, and being by me duly sworn, severally and each for himself dcposeth and saith, that they are the said officers of the Company aforesaid, and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said Corporate Seal and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above writt~n. ",I'IIIII/h" r},!~~:;:;~li !"!fllll'\ (/). - 00 " '.' '-00"0' ;-...r-.:J....c./ ,4A. Constance A. Dunn Notary Public My Commission Expires: July 14,2007 POA-F 088-6895