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Improvement Contracts_Performance BondsRESOLUTION NO. 3 6 5- 0 7 APPROVING PUBLIC IMPROVEMENT CONTRACTS AND BONDS Whereas, the City Council has awarded the following public improvement contracts: 1. By Resolution No. 304-07, Public Improvement Contract for Rush Street (Bryant to Villa) Reconstruction Project; and 2. Public Improvement Contract for the Calendar Year 2007 Pavement Marking Project to Selco, Inc.; and 3. By Resolution No. 305-07, Public Improvement Contract for the Asbury Plaza Area Wastewater Pumping Facilities 2007 Project to McDermott Excavating; and Whereas, the Contractors have submitted the attached executed Public Improvement Contracts and bonds. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: The Public Improvement Contracts and bonds attached hereto are hereby approved. Passed, approved and adopted this 2"d day of July, 2007. 7 • ~~ Roy D. Buol, Mayor Attest: eanne F. Schneider, CMC, City Clerk Bond No. 54-165491 CITY OF DUBUQUE, IOWA PERFORMANCE, PAYMENT AND MAINTENANCE BDND KNOWN ALL MEN BY THESE PRESENTS: That Horsfield Construction, Inc, as Principal (Contractor) end United Fire & Casualty Company as Surety are held firmly bound unto the City of Dubuque, Iowa (City), in the penal sum of $1,&57.853.10 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 snd secured hereby far which payment we bind ourselves, our heirs, executors, successors and assigns, jointly and Severally by these presents. <~ Dated at Dubuque, Iowa, this /~~ day of , 2Q07, and duly attested and sealed. WHEREAS, the said Contractor by a Contract datad !`l/.~- /' ~~ , 2007, incorporated herein by reference, has agreed with id City of Dubuque to pertorm all labor and furnish all materials required to be performed and furnished for the Rush Street (Bryant - Villa) Reconstruction Protect (the Project) according to the Contract and Gonstructior- 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: PERFOf~MANCE BOND: The Contractor shall well and faithfully observe, pertorm, fulfil! and abide by each and every covenant, condition snd part of Bald Contract and Contract Documents. by reference made a part hereof, for the Protect, 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, ar employees furnishing materials or providing labor in the performance of the Contrast. 2. PAYMENT BOND: The Contractor and the Surety shall pay all Lust 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 suboontrantor, 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 shell 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 estabRished 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 #ime 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 aII claims for labor and materials used in connection with said Project, to indemnify the Bald Clty 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 far maintenance, and wiN 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 farce and effect. A11 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 , 2007. CITY OF DUBU ,IOWA gY~ ~- ~ Cit Mana er PRINCIPAL Horsfield Construction, Inc. Contractor By: ~-1 - Signature rrlf. ~f~,.,, Title SURETY United Fire & Casualty Com s1~r'~~'Cvmpany ay: ~ ~w Dione R. Young, Attorney-in=Fact & Iowa Title Resident Agent Des Moines, Iowa 50309-4120 Clty, State, dip Code 515-309-6200 Telephone Dione R. Young Attorney In Fact UNITED FIRE & CASUALTY COMPANY HOME QFFICE - CEDA12 RAPIDS, IOWA CERTIFIED COPY OF POWER OF ATTORNEY (Original on fi a 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 offhe State of Iowa, and having"its principal office in Cedar Rapids; State of Iowa, does make, constitute and 'appoint TERRY A. SCHIILTZ, OR DI ONE R. YOUNG, OR BARRY A.-MCGEE, OR JOHN W. AHROLD, OR JOHN R. FAY, OR KARLENE KENTNBR, OR JENNIFER STARK, OR NATT,FAY,'ALL INDIVIDUALLY of DES MOINES IA its true and lawful-Attorriey(s)~in,-Fast with power and authority hereby conferred to sign, seal and execute in fts behalf alt Lawful bonds, undertakings and other obligatory instruments of similar nature as follows: Any ana All aonds and to bind UNITED EIRE & 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 & Ci~SUALTY COMPANY. This power of Attorney is made and executed pursuant to and by authority of the following By-Law duiyadopted by Qoard of Directors: of the Company do April 18, 1973. "Articte V -Surety Bonds and Undertakings" Section 2;, Appointment of Attorney-in-Fact. "TMe 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 certrficatir5n 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 farce 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 8~ CASUALTY COMPANY has caused these presents to be signed by ~s~~c~ its vice president and its corporate seal to be hereto affixed this 17th day of January, 2od5 "` COt-OUTE '-' UNITED FIRE & CASUALTY COMPANY t=1L ~ a ~~~ w State of Iowa, Count of Linn ss: By ~ '""~ ~ Vice President Y , C7n I7th day of. January, 2005, before me personally came Randy A. Ramlo 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 UNITt=D FIRE & CASUALTY COMPANY, the corporation described in and which executed the above instrument; that he knows th.e sea#> 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 igne his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. ~,~,`~~~~~~ .t ~~ '~ c MICHELLE 1MIL30N l' cT +- COMMt98tON NUMBHA 7Q47~$ Notary Public My COMM SIE1r ExPIRE~ My commission expires: `'1_ f~-~ 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 C}RfGINALS ON FILE 1N THE HOME OFFICE OF SAID COMPANY, and that the same are. correct transcripts thereof, and of-the whole of the said originals, and thafthe said Power of Attorney has not been revoked and'is now in #ul( force and effect. "'""~ !n testimony whereof I have hereunto subscribed my name and affixed the corporate seal of the said Company t`~'+~'' this day of ~pty~_____.. COUOtATE • _. rif~L ~ ~.,.~ :A, ~.~ Secretary BOND00190802 UND#3221-B ti CITY OF DUBUQUE, IOWA IMPROVEMENT CONTRACT THIS IMPROVEMENT CONTRACT (t a Contract), made in triplicate, dated for reference purposes the i y~'~' day of C~~.fi 2007, between the City of Dubuque, Iowa, by its City Manager, thro authority conferred upon the City Manager by its City Council (City) and Horsfield Construction, Inc. of the City of Epworth, Iowa. For and in consideration of the mutual covenants herein contained, the parties hereto agree as follows: CONTRACTOR AGREES: To furnish all material and equipment and to perform all labor necessary for the Rush Street (Bryant -Villa) 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: Phase I -November 16, 2007 Phase II -July 3, 2008. 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 attorney 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 $1,657,853.10 i , 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 § 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 OF UB E, IOWA BY ~ !~ C ty Manager PRINCIPAL Contractor Signature T".i~° . Title CERTIFICATE OF CITY CLERK This is to certify that a ified copy of the above Contract has been filed in my office on the day of , 20 7. ~' eanne F. Schneider, CMC, City Clerk ,~ . CITY OF DUBUQUE, IOWA PERFORMANCE, PAYMENT AND MAINTENANCE BOND KNOWN ALL MEN BY THESE PRESENTS: That Selco, Inc. as Principal (Contractor) and Merchants Bonding Company (Mutual) as Surety are held firmly bound unto the City of Dubuque, Iowa (City), in the penal sum of $60,274.10 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 25th day of May , 2007, and duly attested and sealed. WHEREAS, the said Contractor by a Contract dated 25th day of May , 2007, 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 Calendar Year 2007 Pavement Marking 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 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 25th day of May , 2007. CITY OF DUBUQUE, IOWA By: ~ ~~ ~~ City anager PRINCIPAL: SFLCO, Inc. Contractor Signature Title SURETY: Merchants Bonding Company (Mutual) Sur Company By: gnature Scott A. DeSousa Attorney-in-Fact Title Dubuque, IA. 52001 City, State, Zip Code 563-556-0272 Telephone 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 Robert J. Miller, Terrance J. Friedman, Scott A. DeSousa of Dubuque and State of Iowa its true and lawful Attomey-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: ONE MILLION FIVE HUNDii2ED THOUSAND ($1,500,000.00) 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 Attomey-in-Fact, pursuant to the authority herein given, are hereby ratified and confirmed. This Power-of-Attomey 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 Attomey 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 16th day of January, 2006. STATE OF IOWA COUNTY OF POLK ss. . •"" "•. ••O~!-G C~!Ifo. ;~o~0RP0A •.y• • 'v '~.~ :~<: • y • • tom: Z -O- ~ ~ ~ y~ 1933 ~~ ~; • J •~1~. • .~ ~ ~~ ~ ~. • •...... MERCHANTS BONDING COMPANY (MUTUAL) ~~ President On this 16th day of January, 2006, 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. CINDY SMYTH CN~t-. ~~ Commission Number 173504 My Commission Expires March 16, 2009 Notary Public, Polk County, Iowa STATE OF IOWA COUNTY OF POLK ss. 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 BONGING 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 25trlday of May ~ 200 POA 0001 (1/06) ~...... •~ ~~NG Cp~A. • m~~ORP~R '~~ • ~ V '~~ :Z,,c: Z' °: 3• _=, 1933 ; c; . vb •cti. ~ '.as • ~. . •`,~ •~• ~. '••..... ~~~~~ ~~~ Secretary ~. CITY OF DUBUQUE, IOWA IMPROVEMENT CONTRACT THIS IMPROVEMENT CONTRACT (the Contract), made in triplicate, dated for reference purposes the a5 ~~' day of 2007, between the City of Dubuque, Iowa, by its City Manager, through au ority conferred upon the City Manager by its City Council (City) and Selco, 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: To furnish all material and equipment and to perform all labor necessary for the Calendar Year 2007 Pavement Marking 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. S 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 September 15, 2007. 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 $60,274.10 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 Two Hundred Fifty and 00/100 Dollars ($250.00) 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 therefore. CITY OF UBU E, IOWA By ~~ Ci y Manager PRINCIPAL: Se /~C7 ~i1r C . Contractor By: i ~G~~i~.~iy~!~ Signature Title CERTIFICATE OF CITY CLERK This is to certify that a c 'fled copy of the above Contract has been filed in my office on the ~ day of , 2007. ~~, ~ ~../ anne F. Schneider, CMC, City Clerk CITY OF DUBUQUE, IOWA PERFORMANCE, PAYMENT AND MAINTENANCE BOND KNOWN ALL MEN BY THESE PRESENTS: That McDermott Excavating 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 $618,342.84 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 24th day of May , 2007, and duly attested and sealed. WHEREAS, the said Contractor by a Contract dated May 31 , 2007, 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 Asbury Plaza Area Wastewater Pumping Facilities 2007 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: 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 24th day of May , 2007. CITY OF DUBUQUE I/O/WA By: ~l City M Hager PRINCIPAL McDermott Excavating Contractor ignature Supervisor Title SURETY Merchants Bondin~Company (Mutual) rety,~'Company ~~ ~ ~~ ~ ~. Signature ___.~ Attorney-In-Fact Title Dubuque, IA 52001 City, State, Zip Code 563-583-5775 Telephone 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 J. Allen Wallis III, Fred J. Kunnert, Jerry L. Price, Robert S. Vohl 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 16th day of January, 2006. STATE OF IOWA COUNTY OF POLK ss. ~~\~1G CQ~A ~• MERCHANTS BONDING COMPANY (MUTUAL) ~o•.oRPOq~•9y: •y:2 c~r';~' . t-.. -o- ;a'• 1933 ~•c; .ti •c~. On this 16th day of January, 2006, 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. CINDY SMYTH lN~ Qxmissirn MiH~er' 1T3~F ~~~ March 16, Notary Public, Polk County, Iowa STATE OF IOWA COUNTY OF POLK ss. 1, William Warner, Jr., Secretary of the MERCHANTS BONDING COMPANY (MUTUAL), do hereby certify that the above and foregoing is a true and corcect 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 2 4 day of Mdy 2 Q 0 7 POA 0001 (1/06) p~N~ .~QM'•. ~o~oRP09..o9y : • : ~, 9~•.,c. • y: 2 ~ ; •--._ -o- a•'• 1933 ~~ c; .y •c:. '.~bd~. • ~ •'•~.d: ••...... ~~~~~ ~~~ Secretary President ~~ ,4 ~. CITY OF DUBUQUE, IOWA IMPROVEMENT CONTRACT THIS IMPROVEMENT CONTRACT (the Contract), made in triplicate, dated for reference purposes the 31 day of May 2007, between the City of Dubuque, Iowa, by its City Manager, through authority conferred upon the City Manager by its City Council (City) and McDermott Excavating of the City of Dubuque, Iowa. For and in consideration of the mutual covenants herein contained, the parties hereto agree as follows: CONTRACTOR AGREES: To furnish all material and equipment and to perform all labor necessary for the Asbury Plaza Area Wastewater Pumping Facilities 2007 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. .4~ 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 September 14, 2007. 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 attorney 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 $618,342.84 .~. c. 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 Five Hundred and 00/100 Dollars ($500.00) 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 therefore. CITY OFD BUQUE, IOWA By ~~ , Cit Manager PRINCIPAL McDermott Excavating Contractor ignature Supervisor Title CERTIFICATE OF CITY CLERK This is to ce~fy that a ce 'fied copy of the above Contract has been filed in my office on the ~~~ day of ,/ ~/ , 2007. ~- ,~ ~/ anne F. Schneider, CMC, City erk