Improvement Contract_Portzen Construction - 5th Street Restroom ProjectCITY OF DUBUQUE, IOWA
IMPROVEMENT CONTRACT
THIS IMPROVEMENT CONTRACT (the Contract) , made in triplicate,
dated for reference purposes the 1st day of July, 2013 between the City of
Dubuque, Iowa, by its City Manager, through authority conferred upon the City
Manager 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 30 inch Sanitary Sewer Force Main Relocation - Phase I 9th Street
to 11th Street (the Project).
The Project shall be constructed according to the plans and specifications
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
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 therefor.
8. The Contractor shall fully complete the Project under this Contract
on or before October 11, 2013.
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 therefrom, 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 $899,622.50
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 $600.00 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 § 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
therefor.
CITY OF DUBUQUE, IOWA
By ,
City Manager
PRINCIPAL
Portzen Construction, Inc.
Contractor R_
By: /(J ' A
Signature
Michael J. Portzen
Vice - President
Title
CERTIFICATE OF CITY CLERK
This is to certify ths?t a certified copyo the above Contract has been filed
in my office on the / day of , 201
Kevin S. stahl, GMC, City Clerk
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.
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 and Casualty Company as Surety are held
firmly bound unto the City of Dubuque, Iowa (City), in the penal sum of $899,622.50 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 9th day of July , 2013, and
duly attested and sealed.
WHEREAS, the said Contractor by a Contract dated July 1st, 2013,
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 30 inch
Sanitary Sewer Force Main Relocation - Phase 19t" Street to 11th Street (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 9th day of July
, 2013.
CITY OF DUBUQUE, IOWA
By:
City Manager
PRINCIPAL:
Portzen Construction, Inc.
Contractor„,
By.�0 oe
Signature
Michael J. Portze
Vice - President
Title
SURETY:
United Fire & Casualty Company
Surety Company
By:
Signature
Terrance J. Friedman
Attorney -in -Fact
Title
Dubuque, IA 52001
City, State, Zip Code
563 - 556 -0272
Telephone
Terrance J. Friedman
Attorney In -Fact
UNITED FIRE & CASUALTY COMPANY
HOME OFFICE - CEDAR RAPIDS, IOWA
CERTIFIED COPY OF POWER OF ATTORNEY
(Original on file at Home Office of Company See Certification)
KNOW ALL MEN BY THESE PRESENTS, That the UNITED FIRE & CASUALTY COMPANY, a corporation duly organized and
existing under the laws of the State of Iowa, and having its principal office in Cedar Rapids, State of Iowa, does make, constitute and
appoint TERRANCE J. FRIEDMAN, OR SCOTT A. DESOUSA, OR MARK J. PHALEN, ALL INDIVIDUALLY of DUBUQUE IA
its true and lawful attorney -in -Fact with power and authority hereby conferred to sign, seal and execute in its behalf all lawful bonds,
undertakings and other obligatory instruments of similar nature as follows: Any and Al 1 Bonds
and to bind UNITED FIRE & CASUALTY COMPANY thereby as fully and to the same extent as if such instruments were signed by the
duly authorized officers of UNITED FIRE & CASUALTY COMPANY and all the acts of said Attorney, pursuant to the authority hereby
given, are hereby ratified and confirmed.
The Authority hereby granted is continuous and shall remain in full force and effect until revoked by United Fire & Casualty
Company.
This power of Attorney is made and executed pursuant to and by authority of the following By -Law duly adopted by Board of
Directors of the Company on May 16, 2012.
"Article VI - Surety Bonds and Undertakings"
Section 2, Appointment of Attorney -in -Fact. "The President or any Vice President, or any other officer of the Company may,
from time to time, appoint by written certificates attorneys -in -fact to act in behalf of the Company in the execution of policies of,
insurance, bonds, undertakings and other obligatory instruments of like nature. The signature of any officer authorized hereby,
and the Corporate seal, may be affixed by facsimile to any power of attorney or special power of attorney or certification of
either authorized hereby; such signature and seal, when so used, being adopted by the Company as the original signature of
such officer and the original seal of the Company, to be valid and binding upon the Company with the same force and effect as
though manually affixed. Such attorneys -in fact, subject to the limitations set forth in their respective certificates of authority
shall have full power to bind the Company by their signature and execution of any such instruments and to attach the seal of
the Company thereto. The President or any Vice President, the Board of Directors or any other officer of the Company may at
any time revoke all power and authority previously given to any attorney -in -fact.
IN WITNESS WHEREOF, the UNITED FIRE & CASUALTY COMPANY has caused these presents to be signed by
its vice president and its corporate seal to be hereto affixed this 31st day of December , 2011
UNITED FIRE & CASUALTY COMPANY
By 4''
CORPORATE
SEAL
State of Iowa, County of Linn, ss:
On 31st day of December, 2011, before me personally came Dennis J. Richmann
to me known, who being by me duly sworn, did depose and say; that he resides in Cedar Rapids, State of Iowa; that he is a Vice
President of the UNITED FIRE & CASUALTY COMPANY, the corporation described in and which executed the above instrument; that
he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant
to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and
acknowledges same to be the act and deed of said corporation.
1` Vice President
Judith A. Davis
Iowa Notarial Seal
Commission number 173041
My Commission Expires 04/23/2015
Notary Public
My commission expires: 04 -23 -2015
I, the undersigned officer of the UNITED FIRE & CASUALTY COMPANY, do hereby certify that I have compared the foregoing copy of
the Power of Attorney and affidavit, and the copy of the Section of the by -laws of said Company as set forth in said Power of Attorney,
with the ORIGINALS ON FILE IN THE HOME OFFICE OF SAID COMPANY, and that the same are correct transcripts thereof, and of
the whole of the said originals, and that the said Power of Attorney has not been revoked and is now in full force and effect.
In testimony whereof I have hereunto subscribed my name and affixed the corporate seal of the said Company
this 9th day of July 20 13
BPOA0019 0113
Secretary