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Improvement Contracts_Performance Bonds
RESOLUTION NO. 434-07 APPROVING PUBLIC IMPROVEMENT CONTRACTS AND BONDS Whereas, the City Council has awarded the following public improvement contracts: 1. By Resolution No. 423-07, Public Improvement Contract for the Five Fiags Sidewalk and Lighting Replacement Project; and 2. By Resolution No. 374-07, Public Improvement Contract for the Port of Dubuque -Ice Harbor Transient Boat Dock Facility Project; and 3. By Resolution No. 381-07, Public Improvement Contract for the York and Curtis Street Stone Sewer Improvement Project; and 4. By Resolution No. 364-07, Public Improvement Contract for the Pedestrian Wayfinding Sign System Project; and 5. By Resolution No. 380-07, Public Improvement Contract for the Kaufmann Avenue Alley Storm Sewer Construction Project; and 6. By Resolution No. 375-07, Public Improvement Contract for the Decorative Concrete Repair and Maintenance Project; and 7. Public Improvement Contract for the Fifth and White Street Gateway Sign project. Whereas, the Contractors have submitted the 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 20th day of August, 2007' Roy D. Buol, Mayor Jeanne F. Schneider, CMC, City Clerk CONTRACT FORM 3 CITY OF DUBUQUE, IOWA IMPROVEMENT CONTRACT FIVE FLAGS SIDEWALK & LIGHTING REPLACEMENT PROJECT THIS IMPROVEMENT CONTRACT (the Contract), made in triplicate, dated for reference purposes the day of 2007, 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 Five Flags Sidewalk & Lighting Replacement 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 September 21, 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: $179,937.65 FURTHER CONDITIONS The Contractor hereby represents and guarantees that it has not, nor has any other person for or in its behalf, directly or indirectly, entered into any arrangement or agreement with any other bidder, or with any public officer, whereby it has paid or is to pay any other bidder or public officer any sum of money or anything of value whatever in order to obtain this Contract; and it has not, nor has another person for or in its behalf directly or indirectly, entered into any agreement or arrangement with any other person, firm, corporation or association which tends to or does lessen or destroy free competition in the letting of this Contract and agrees that in case it hereafter be established that such representations or guarantees, or any of them are false, it will forfeit and pay not less than ten percent (10%) of the Contract price but in no event be less than $750.00 (Seven Hundred Fifty and 00/100 Dollars) as liquidated damages to the City. The surety on the bond furnished for this Contract, shall in addition to all other provisions, be obligated to the extent provided for by Iowa Code § 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 DUBUQUE, IOWA PRINCIPAL: - -~ BY ~ ' o rz ~ ~` u. e~ i ~-~~ City Manager ontractor .--~ By: Signa e Title CERTIFICATE OF CITY CLERK This is to c ify that a cent' red co y o the above Contract has been filed in my office on the y day of , 2007. eanne F. Schneider, CMC, City Clerk CONTRACT FORM 4 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 $179,937.65 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 day of , 2007, and duly attested and sealed. WHEREAS, the said Contractor by a Contract dated on day of 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 Five Flags Sidewalk & Lighting Replacement 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 6th day of August , 2007. CITY OF DUBUQUE, IOWA By: ~~ , ~- ''~~ City anager PRINCIPAL: Portzen Construction, Inc. Contractor By: igna e ~v,r~a,~t~e S~arP-~"a,~/ Title SURETY: United Fire & Casualty Company Surety Company By: Sign ture Attorney-in-Fact Title Dubuque, IA 52001 City, State, Zip Code (563)556-5441 Telephone ~ G~~,,,~ Attorney In-Fact SPECIAL PROVISIONS An out-of-State contractor, before commencing a contract in excess of $5,000.00, shall, pursuant to Iowa Code 91 C.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 91 C.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. From: Diana Hedrick At: TRICOR Financial Services FaxID: 6087236440 To: Jenni Uate: aiirlUUi UG:va riw rage: c or CSR DH ACORD CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYVY) po~tTZ-1 oa o7 a7 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE TRICOR, Inc . - Dubuque HOLDER THIS CERTIFICATE DOES NOT AMEND, EXTEND OR PO Box 1810, 500 Iowa Street ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Dubuque IA 52004-1810 Phone :563-556-5441 Fax: 608-723-6440 INSURERS AFFORDING COVERAGE NAIC ~ INSURED INSURERA West Bend Mutual I[i8. CO 15350 Portzen Construction Znc Portzen Leasing IriC . INSURER B: Portzen Building Firm LLC Dubuque Plumbing 6 Haating INSURER C: 205 Stone Valle Dr . 0 INSURER D: Dubuque IA 520 INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWfrHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH 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. LTR SR TYPE OF INSURANCE POLICY NUMBER PATE MlflRl DATE MMit) LIMITS GENERALLUIBILRY EACHOCCURRENGE S1 OOO,OOO A )( X COMMERCIAL GENERAL LU181LITY CPIO 61671605 12 / 31 / 0 6 12 / 31 / 07 PREMISES Ea occurence s 2 00 , 0 0 0 CLAIMS MADE X^ OCCUR MED EXP (My one person) S 1 O O O O PERSONAL S ADV INJURY S 1 , OOO , OOO GENERAL AGGREGATE f 2,000 OOO GENLAGGREGATE LIMfTAPPLIESPER: PRODUCTS-COMP/OPAGG f 2 , OOO , OOO POLICY X J~ECT LOC A AUTOMOBILE LU481L.ITY X ANY AUTO CP1061671605 12/31/06 12/31/07 COMBINED SINGLE LIMIT (E7i00~"`> f 1 , OOO , OOO ALL OWNED AUTOS BODILY tNJVRY SCHEDULED AUTOS (Per person) f A X HIRED AUTOS BODILY INJVRY A X NON-OWNEOAUTOS (P~~~t f PROPERTY DAMAGE (Per accidsrrt) : GARAGE LUU3iLITY AUTO ONLY - EA ACCIDENT S ANY AUTO OTHER THAN ~ ACG S AUTO ONLY: AGG S E7(CESSlUMBRELLALIABILITY EACH OCCURRENCE S IO,000,OOO A X OCCUR ~ CLAIMSMADE CU1059879604 12/31/06 12/31/07 AGGREGATE s 10,000,000 S DEDUCTIBLE S X RETENTION SWAIVED S WORKERS COMPENSJ1TiON AND ' TORY LIMMTS ER A EMPLOYERS LIABILITY ANY PROPRIETOR/PARTNER/EXECVTIVE Y3I059878704 12/31/06 12/31/07 E.L. EACHACCIOEN7 s 500000 OFFN;ER/MEMBER EJ(CLUDED~ IA, IL & WI E.L. DISEASE - EA EMPLOYE i 5 Q Q Q O 0 Kye8 describe trader SPECWL PROVISION3 below E.L. DISEASE-POLICY LIMIT S 500000 A OTHER Installation Float CPI061671605 12/31/06 12/31/07 Stored Materials 250,000 DES CRIPTION OF OPERATKNI9 I LOCATN)NS f VEI9C LE3 / EXCLUSKNS ADDED 9Y ENDORSE MENT I SPECULL PRO VISIONS The City of Dubuque is an addtl insured on qen liab policies incl ongoing 6 completed operations as well as being primary6non-contributing par WB1482 Form CG1503 0397"Designated Projects"gen lisb aggr lit form attached Governmental Immunitea End. attached.Waiver of Subro in favor of the City of Dubuque-Proj:Five Flaga SidlB+walk6Lightinq(See Notes Cancellation Wording**) CERTIFICATE BOLDER CANCELLATION City of Dubuque 50 W. 13th St_ Dubuque IA 52001 CYTYDSQ SHOULD /~tY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATIC DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 3 O DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHAL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, RS AGENTS OR REPRESENTATIVES. AI1T11[NiVFI] RFDRESENTaT _ 1Keith M. S}~Qq~ //j~/,.,~ ACORD 25 (2007108) N 19! 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. AGVKU Y~ (ZUUI/Ui3) NiOT E PAD . HOLDER CODE CITYDBQ PORTZ-1 PAGE 3 IN SURE D'S NAME Portzen Construction Inc CSR DH DATE 08/04/07 **Should any of the described p,~licies be cancelled before the expiration date hereof, West Bend Mutual will mail 30 days written notice to the City of Dubuque and 10 day notice of cancellaton if cancelled for non payment of premium. THIS ENDORSEMENT ~;HANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED CONSTRUCTION PROJECT(S) GENERAL AGGREGATE LIMIT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Designated Construction Projects: (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) A. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences" under COVERAGE A (SECTION I), and for all medical expenses caused by accidents ei- der COVERAGE C (SECTION I), which can be attributed only to ongoing operations at a single designated construction project shown in the Schedule above: 1. A separate Designated Construction Project General Aggregate Limit applies to each des- ignated construction project and that limit is equal to the amount of the General Aggregate Limit shown in the Declarations. 2. The Designated Construction Project General Aggregate Limit is the most eve will pay for the sum of all damages under COVERAGE A, ex cept damages because of "bodily injury" or "property damage" included in the "products- completed operations hazard", and for medical expenses under COVERAGE C regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits". 3. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the Designated Con- struction Project General Aggregate Limit for that designated construction project. Such payments shall not reduce the General Aggre- gate Limit shown in the Declarations nor shall they reduce any other Designated Construc- tion Project General Aggregate Limit for any other designated construction project shown in the Schedule above. 4. The limits shown in the Declarations for Each Occurrence, Fire Damage and Medical Ex pense continue to apply. However, instead of being subject to the General Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Designated Construc- tion Project General Aggregate Limit. B. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences" under COVERAGE A (SECTION I), and for all medical expenses caused by accidents un- der COVERAGE C (SECTION I), which cannot be attributed only to ongoing operations at a single designated construction project shown in the Schedule above: 1. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products-Completed Operations Aggregate Limit, whichever is applicable; and 2. Such payments shall not reduce any Desig- nated Construction Project General Aggregate Limit. C. When coverage for liability arising out of the "products-completed operations hazard" is pro- vided, any payments for damages because of "bodily injury" or "property damage" included in the "products-completed operations hazard" will reduce the Products-Completed Operations Ag- gregate Limit, and not reduce the General Aggre- gate Limit nor the Designated Construction Proj- ect General Aggregate Limit. D. If the applicable designated construction project has been abandoned, delayed, or abandoned and then restarted, or if the authorized contracting parties deviate from plans, blueprints, designs, specifications or timetables, the project will still be deemed to be the same construction project. CG 25 03 03 97 Copyright, Insurance Services Office, Inc., 1996 Page 1 of 2 ^ E. The provisions of Limits Of Insurance (SECTION III) not otherwise modified by #his endorsement shall continue to apply as stipulated. Page 2 of 2 Copyright, Insurance Services Office, Inc., 1996 CG 25 03 03 97 ^ 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 amended 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 written 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 and advertising in- ju~,,, 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 arising out of: a. Your premises; b. "Your work" for that additional insured; or c. Acts or omissions of the additional insured in connection with the general supervision of "your work." 2. The Limits of Insurance applicable to the additional insured are 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." 4. The insurance provided to the additional in- sured does not apply to "bodily injury," "prop- erty damage," "personal injury and advertising injury" arising out of an architect's, engineer's, or surveyor's rendering of or failure to render any professional services including; 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. WB 1482 06 06 West Bend Mutual Insurance Company Page 1 of 2 West Bend, Wisconsin 53095 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 of coverage, the additional insured shall be obligated to tender the defense and indemnity of every claim or suit to all other insurers that may provide coverage to the additional insured, whether on a contingent, excess or primary basis. Page 2 of 2 West Bend Mutual Insurance Company WB 1482 06 06 West Bend, Wisconsin 53095 WORKERS COMPENSATION AN%3 EMPLOYERS LIABS.II'lf IN$ORANCE POLICY {~• M A! ~!„Rd AI !~T WANER OF OtNt RIGHT TO RECOVER FROM OTHERS ENDORSEMENT V1k have the right to rooover our payments tram anyone liable (or an injury covered by this poNcy. We vriU not entoror our right against the person or or90nizetion named in the 3ofisdub. (This agreement applies only to tM extent that you periortn work under a wrtttian contract that requires you to obtain this eyreernent from us.) This agreement shall not operate directly or indirectly to benefit anyone not Warned in the Schedule. Schedule CITY OF DUIUgUE This ondorswnent chenQK tl'io poNcy bo which d is sttaChad and iS affective on.ths de0a issued unt.as atharwiss scahd. tThc intarmalion below ie required only wAan Chic sndorsamsM is isaua!d subsequent to preparation of the policy.) Erxlorsemarx Enc~tiw 12/31/06 Potky No, Erdorsam~nt No. ~nsurad YS1059878704 Pnrnium; Insurance Cornptny Cour~Eoraipnad by West Bend 1•~[utual WC 00 0313 (04 t34) Page 1 of 1 Copyright 1S>q. National Couecli on Campensatlon Insurarsx, inc. CP1061671605 1~6 THIS ENDORSEMENT Cl~ANGES THE POLICY. PLEASE READ IT CAREFULLY. WBIOO A PAGE I of ICHANGE ENDORSEMENT THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: COMMERCIAL GENERAL LIABILITY COVERAGE PART CITY OF DUBUQUE, IDWA GOVERNMENTAL IMMUNITIES ENDDRSEMENT 1. NONWAIVER OF GOVERNMENTAL IMMUNITY. THE INSURANCE CARRIER EXPRESSLY AGREES AND STATES THAT THE PURCHASE OF THIS POLICY AND THE INCLUDING OF THE CITY OF DUBUQUE, IOWA AS AN ADDITIONAL INSURED DOES NOT WAIVE ANY OF THE DEFENSES OF GOVERNMENTAL IMMUNITY AVAILABLE TO THE CITY OF DUBUQUE, IOWA UNDER CODE OF IOWA SECTION 670.4 AS IT IS NOW EXISTS AND AS IT MAY BE AMENDED FROM TIME TO TIME. 2. CLAIMS COVERAGE. THE INSURANCE CARRIER FURTHER AGREES THAT THIS PDLICY OF INSURANCE SHALL COVER ONLY THOSE CLAIMS NOT SUBJECT TO THE DEFENSE OF GOVERN- MENTAL IMMUNITY UNDER THE CODE OF IOWA SECTION 670.4 AS IT NOW EXISTS AND AS IT MAY BE AMENDED FROM TIME TO TIME. THOSE CLAIMS NOT SUBJECT TO CODE OF IDWA SECTION 670.4 SHALL BE COVERED BY THE TERMS AND CONDITIONS OF THIS INSURANCE POLICY. 3. ASSERTION OF GOVERNMENTAL IMMUNITY. THE CITY OF DUBUQUE, IOWA SHALL BE RESPONSIBLE FOR ASSERTING ANY DEFENSE OF GOVERNMENTAL IMMUNITY, AND MAY DO SO AT ANY TIME AND SHALL DO SO UPDN THE TIMELY WRITTEN REQUEST OF THE INSURANCE CARRIER. 4. NON-DENIAL OF COVERAGE. THE INSURANCE CARRIER SHALL NOT DENY COVERAGE UNDER THIS POLICY AND THE INSURANCE CARRIER SHALL NOT DENY ANY OF THE RIGHTS AND BENEFITS ACCRUING TO THE CITY OF DUBUQUE, IOWA UNDER THIS POLICY FOR REASONS OF GOVERNMENTAL IMMUNITY UNLESS AND UNTIL A COURT OF COMPETENT JURISDICTION HAS RULED IN FAVOR OF THE DEFENSE(S) OF GOVERNMENTAL IMMUNITY ASSERTED BY THE CITY OF DUBUQUE, IOWA. NO OTHER CHANGE IN POLICY. THE ABOVE PRESERVATION DF GOVERNMENTAL IMMUNITIES SHALL NOT OTHERWISE CHANCE OR ALTER THE COVERAGE AVAILABLE UNDER THE POLICY. • WB 100 06 88 West Bend Mutual Insurance Company West Bend, Wisconsin 53095 ~ "~` CITY OF DUBUQUE, IOWA IMPROVEMENT CONTRACT PORT OF DUBUQUE -ICE HARBOR TRANSIENT BOAT DOCK FACILITY PROJECT THIS IMPROVEMENT CONTRACT (the Contract), made in triplicate, dated for reference purposes the day of 2007, between the City of Dubuque, Iowa, by its City Manager, through authority conferred upon the City Manager by its City Council (City) and Newt Marine of the City of Dubuque, Iowa. For and in consideration of the mutual covenants herein contained, the parties hereto agree as follows: CONTRACTOR AGREES: 1. To furnish all material and equipment and to perform all labor necessary for the Port of Dubuque -Ice Harbor Transient Boat Dock Facility 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 ti' 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 September 21, 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 $520,546.71 ~`1 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 $500.00 (Five Hundred and 00/100 Dollars) as liquidated damages to the City. The surety on the bond furnished for this Contract, shall in addition to all other provisions, be obligated to the extent provided for by Iowa Code § 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 DUBUQ E IOW~jA B ~ ~ -4,~ y ~~ , City anager PRINCIPAL: D> >qLe Barge & Fleeting Service Company Contractor - d/b/a Newt ine Service ~, ~. By: - ~ _____- z J Signature -Tarter F _ Naw1- Title CERTIFICATE OF CITY CLERK This is t~fY that a ce ed copy of the above Contract has been filed in my office on the day of ~ , 2007. Jeanne F. Schneider, CMC, Ci y Jerk \ ~ THE AMERICAN INSTITUTE OF ARCHITECTS Bond No. IAC52640 AIA Document A312 Performance Bond Any singular reference m Contractor, Surety, Owner or otfier party shall be considered plural where applicable. CONTRACTOR (Name and Address): Dubuque Barge & Fleeting Service Co. DB/A/ Newt Marine Service 5 Jones Street Dubuque, IA 52001 OWNER (Name and Address): City of Dubuque Dubuque, Iowa SURELY (Name and Principal Place of Business): Merchants Bonding Company (Mutual) 2100 Fleur Drive Des Moines, IA 50321-1158 CONTSTRUCTION CONTRACT Date: Amount: 5520,476.71 Description (Name and Location): Perform all labor and furnish all materials required to be performed and furnished for the Port of Dubuque-Ice Harbor Transient Boat Dock Facility Project BOND Date (Not earlier than Construction Contract Date): July 19, 2007 Amount: $520,476.71 Modifications to this Bond: ®None ^ See Page 3 CONTRACTOR AS PRINCIPAL Company: Dubuque Barge & Fleeting (Corporate Seal) Service Co. DB/ Newt Marine Serv ..~.R-~~~ __,.... ...._._. Signature: ~`` ~ ~ - Name and Title: ~`~ (Any additional signatures appear on page 3) SURETY Company: {Corporate Seal) Merchan/tfs Bondin/g~Company (Mutual) Signature: r""~ Gam-- - Name and Title: Daniel P. Curran, Attorney-In-Fact (fOR INfORMATION ONLY- Name, Address and Telephone) AGENT or BROKER: Trissel Graham & Toole, Inc. 220 Emerson Place, Ste 200 Davenport, IA 52801 (563)322-3521 AIA DOCUMENT A312 PERFORMANCE BOND AND PAYMENT BOND • DKEMBER 1984 ED. •AIA THE AMERIUN INSTITUTE OF ARCHRECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 CON 0387 (12199) OWNER'S REPRES TATIVE (Architect, Engineer or other Pam'): / ~ ~ .~ ~.._....__ A312-1984 1 1 The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, succes- sors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to participate in conferences as provided in Subparagraph 3.1. 3 If there is no Owner Default, the Surety's obligation under this Bond shall arise after: 3.1 The Owner has notified the Contractor and the Surety at its address described in Paragraph 10 below that the Owner is considering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor and the Surety to be held not later than fifteen days after receipt of such notice to discuss methods of performing the Construction Contract. If the Owner, the Contractor and the Surety agree, the Contrac- tor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; and 3.2 The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete the contract. Such Contractor Default shall not be declared earlier than twenty days after the Contractor and the Surety have received notice as provided in Subparagraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accordance with the terms of the contract with the Owner. 4 When the Owner has satisfied the conditions of Para- graph 3, the Surety shall promptly and at the Surety's expense take one of the following actions: 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Con- tract; or 4.2 Undertake to perform and complete the, Construc- tion Contract itself, through its agents or through inde- pendent contractors; or 4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Con- tract, arrange for a contract to be prepared for execution by the Owner and the contractor selected with the Own- er's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 6 in excess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or 4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with rea- sonable promptness under the circumstances: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practible after the amount is determined, tender payment therefor to the Owner; or .2 Deny liability in whole or in part and notify the Owner citing reasons therefor. 5 If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. 6 After the Owner has terminated the Contractor's right to complete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is ob- ligated without duplication for: 6.1 The responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; 6.2 Additional legal, design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Paragraph 4; and 6.3 Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor. 7 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators or successors. 8 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 9 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. if the provisions of this Paragraph are void or prohibited by law, the AIA DOCUMENT A3t2 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. •AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 2 minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 10 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. 11 When this Bond has been furnished to comp)yy with a statutory or other legal requirement in the location wFiere the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent Is that this Bond shall be construed as a statutory bond and not as a common law bond. 12 DEFINITIONS 12.1 Balance of the Contract Price: The total amount payable by the Owner to the Contractor under the Con- MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company: SURETY (Corporate Seal) Company: (Corporate Seal) Signature: - Name and Title: Address: struction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. 12.2 Construction Contract: The a reement between the Owner and the Contractor identifgied on the signature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Construction Contract. 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. Signature: Name and Title: Address: AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-'l984 3 THE AMERICAN INSTITUTE OF ARCHITECTS Bond No. IAC52640 AlA Document A312 Payment Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): Dubuque Barge & Fleeting Service Co. DB/A Newt Marine Service 5 Jones Street Dubuque, IA 52001 OWNER (Name and Address): City of Dubuque Dubuque, Iowa CONTSTRUCTION CONTRACT Date: Amount: 5520,476.71 Description (Name and Location): BOND Date (Not earlier than Construction Contract Date): Amount: 5520,476.71 Modifications to this Bond: July 19, 2007 CONTRACTOR AS PR{NCIPAL Company: Dubuque Barge & Fleeting {Corporate Seal) Service Co. DB/A Newt 1ne Service ~ _ ~ _ ~, ~i!-°`~-~ Signature: Name and T~'~ ® None SURETY Company: ~ See Page 6 (Corporate Seaq Merchants Bonding Company (Mutual) Signature: ~~~ Name and Title: Daniel P. Curran, Attorney-In-Fact (Any additional signatures appear on page 6) (fOR INfORMATJON ONLY- Name, Address and klephone) AGENT or BROKER: OWNER'S REP ENTATIVE (Architect Engineer or other Trissel Graham & Toole, Inc. 220 Emerson Place, Ste 200 Davenport, IA 52801 (563)322-3521 SURETY (Name and Principal Place of Business): Merchants Bonding Company (Mutual) 2100 Fleur Drive Des Moines, IA 50321-1138 Perform all labor and furnish all materials required to be performed and furnished for the Port of Dubuque-Ice Harbor Transient Boat Dock Facility Project AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, O.C. 20006 A312-1984 4 1 The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, succes- sors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference. 2 With respect to the Owner, this obligation shall be null and void if the Contractor: 2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants, and 2.2 Defends, indemnifies and holds harmless the Owner from all claims, demands, liens or suits by any person or entity who furnished labor, materials or equipment for use in the performance of the Construction Contract, pro- vided the Owner has promptly notified the Contractor and the Surety (at the address described in Paragraph 12) of any claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety, and provided there is no Owner Default. 3 With respect to Claimants, this obligation shall be null and void if the Contractor promptly makes payment, directly or indirectly, for all sums due. 4 The Surety shall have no obligation to Claimants under this Bond until: 4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim. 4.2 Claimants who do not have a direct contract with the Contractor: .1 Have furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner, within 90 days after having last performed labor or last furnished materials or equipment included in the claim stating, with substantial accuracy, the amount of the claim and the name of the party to whom the materials were furnished or supplied or for whom the labor was done or performed; and .2 Have either received a rejection in whole or in part from the Contractor, or not received within 30 days of furnishing the above notice any communication from the Contractor by which the Contractor has indicated the claim will be paid directly or indirect- ly; and .3 Not having been paid within the above 30 days, have sent a written notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to the Contractor. 5 If a notice required by Paragraph 4 is given by the Owner to the Contractor or to the Surety, that is sufficient compli- ance. 6 When the Claimant has satisfied the conditions of Para- graph 4, the Surety shall promptly and at the Surety's expense take the following actions: 6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed. 6.2 Pay or arrange for payment of any undisputed amounts. 7 The Surety's total obligation shall not exceed the amount of this Bond, and the amount of.this Bond shall be credited for any payments made in good faith by the Surety. 8 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any Construction Performance Bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and the Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. 9 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond. 10 The Surety hereby waives notice of any change, includ- ing changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 11 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdic- tion in the location in which the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subpara- graph 4.1 or Clause 4.2 (iii), or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construc- tion Contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 12 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be sufficient com- pliance as of the date received at the address shown on the signature page. 13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be AIA DOCUMENT A3t2 PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA THE AMERICAN IN571TUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-~9f34 5 deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 14 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall ppromptly furnish a copy of this Bond or shall permit a copy to be made. 15 DEFINITIONS 15.1 Claimant: An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the pertormance of the Contract. The intent of this Bond shall be to include without limitation in the terms MODIFICATIONS TO THIS BOND AREAS FOLLOWS: "labor, materials or equipment" that part of water, gas, power, light, heat, of ,gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for perfor- mance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. 15.2 Construction Contract: The a reement between the Owner and the Contractor identifiged on the signature page, including all Contract Documents and changes thereto. 15.3 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company: Signature: Name and Address: SURETY (Corporate Seal) Company: Title: Signature: Name and Title: Address: (Corporate Sea I) AIA DOCUMENT A312 • PERfORMANCE BOND AND PAYMENT BOND • OKEMBER 1984 ED. • AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, p.C. 20006 A312-1984 6 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 Phillip A. Trissel, Daniel P. Curran, Mark J. Schwab, Robert D.S. Karll, Deanna L. Schwab, Carol VanHoorebeck, Thomas R. Schwab of Davenport 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: TWO MILLION FNE HUNDRED THOUSAND ($2,500,000.00) 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 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 S -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~o`~P09~;o9. • ~ V 9J~'.y<i i 1933 ~' c; J~. .~~ti. d~,••~ •''\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. STATE OF IOWA COUNTY OF POLK ss. ~ CINDY SMYTH CN~• ~;• Commission Number 173504 1. U ow My Commission Expires March 16, 2008 Notary Public, Polk County, Iowa I, William Warner, Jr., Secretary of the MERCHANTS BONDING COMPANY (MUTUAL), do hereby certify that the above and foregoing is a true and correct copy of the POWER-OF-ATTORNEY executed by said MERCHANTS BONDING COMPANY (MUTUAL), which is still in full force and effect and has not been amended or revoked. In Witness Whereof, I have hereunto set my hand and affixed the seal of the Company on this 19th day of July 2007 . POA 0001 (1/06) . p\N ..CO,hA, 0o?ORPUq •.9' v 9~;.Z<. °: 3 e y 1933 • c; :`'~~~ ~ \1~c:' •...... ~~~~ ~~~, Secretary CITY OF DUBUQUE, IOWA IMPROVEMENT CONTRACT THIS IMPROVEMENT CONTRACT (the Contract), made in triplicate, dated for reference purposes the day of 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: 1. To furnish all material and equipment and to perform all labor necessary for the York and Curtis Storm Sewer Improvements 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 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 $35,076.83 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 $500.00 (Five Hundred and 00/100 Dollars) as liquidated damages to the City. The surety on the bond furnished for this Contract, shall in addition to all other provisions, be obligated to the extent provided for by Iowa Code § 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 fBU JUE, IOWA City Manager PRINCIPAL }~}~ C ~-2'1120/ t ~XG41/'c~-l-~~ytG Contractor BY: C .,~-.~~ Signature S~ Title CERTIFICATE OF CITY CLERK This is tQ cgrtify that a ce 'fied copy of the above Contract has been filed in my office on the ~ day of ,~,~i/ , 2007. ~2%l%"~Ci ~ ~ s eanne 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 $35,076.83 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 26th day of July , 2007, and duly attested and sealed. WHEREAS, the said Contractor by a Contract dated July , 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 York and Curtis Storm Sewer Improvements 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 26th day of Ju1~ , 2007. .' CITY OF DUBUQUE, IO/JWA PRINCIPAL By: ~y~ ~ ! ` McDermott Excavating City anager Contractor `~, By: ~ ~~ , Signature Title ~ SURETY Merchants Bor#~inq Company~utual) S ompanj~ r By: ignature Attornev-In-Fact Title Dubuque. IA 52001 City, State, Zip Code -583-5 75 elep ' ne _ _ -Esc-L~4.~ ttorney In Fact CITY OF DUBUQUE, IOWA PERFORMANCE, PAYMENT AND MAINTENANCE BOND KNOWN ALL MEN BY THESE PRESENTS: That McCullough Creative Group, Inc. as Principal (Contractor) and West Bend Mutual as Surety are held firmly bound unto the City of Dubuque, Iowa (City), in the penal sum of $77,268.00 the same being 100% of the total price of the Contract for the Project herein referred to, lawful money of the United States of America, well and truly to be paid to said City of Dubuque, and to all other parties who, under the provisions of the laws of Iowa, are intended to be protected and secured hereby for which payment we bind ourselves, our heirs, executors, successors and assigns, jointly and severally by these presents. Dated at Dubuque, Iowa, this 17th day of July 2007, and duly attested and sealed. V~IHER~gS, the said Contractor by a Contract dated July 17 , -Z0~7 , 2007, incorporated herein by reference, has agreed with said City of Dubuque to perform all labor and famish ail materials required to be performed and furnished for the Pedestrian Wayflnding Sign System 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 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 pertorm as required under the Contract and Contract Documents by all its subcontractors, suppliers, agents, or employees famishing materials or providing labor in the performance of the Contract. 2. PAYMENT BOND: The Contractor and the Surety shall pay a!I just claims submitted by persons, firms, subcontractors, and corporations famishing materials for or performing Tabor 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 ail 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 tv 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, tv indemnify the said City for all damages, Costs and expense incurred by reason of damages to persons or property arising through the pertormance 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, Contractors 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 17th day of ~u~Y , 2007. . __ CITY OF DU 4U , IQV1-A C ~---- By: ~,,~ City anager PRINCIPAL: McCullough Creative Contractor Signature David Hanley 1.~~ ~ .~ Title Treasurer sul~Y: West Bend Mutual Surety Company Signature Te ance J . Friedman Title ttorney-i n-Fact Dubuque. IA 52001 City, State, Zip Code 563-556-0272 Telephone Terrance J. Friedman Attorney In-fact State of Wisconsin ~~' ~ ~'~~ ~. County of Washington '-`~- On the 1st. day. of March, 2002 before me personally carne Anthony J: Warren, to me known being by duly sworn, did depose and say that he resides in the County of Washington, State of Wisconsin; that he is the President of West Bend Mutual Insurance Company, the corporation described in and which executed the above instrument; that. he knows the seal of the said corporation; that the seal affixed to said instrument is such corporate seal; that is was so affixed by order of the board of directors of said corporation and that he signed his name thereto by like order. * ~ NOTARY ' * ~: Joh uwell ~';. PUBLIC ,. ? ~ Sr. Vice President ~~~~~ ,: ~~?~'~~ Notary Pubiie, Washington Co. WI Op W~SG: ~ My Commission is Permanent ........ The undersigned, duly elected to the office stated below, now the incumbent in West Bend Mutual Insurance Company, a Wisconsin corporation authorized to make this certificate, Do Hereby Certify that the foregoing attached Power of Attorney remains in full force effect and has not been revoked andthat the: Resolution of the Board of Directors, set forth in the Power of Attorney. is now in force. Signed and sealed at West Bend, Wisconsin this 17th day of July 20 07 ~~ ~: ~,oRPORATF': S ~ ri ~r `~ SEAL ,~~ :Kevin A. Steiner .~~~d?'~' Sr. Vice President Notice: Reproductions are not binding on the company. Any questions concerning this Power of Attorney may be directed to the Bond Manager at National Specialty Insurance, a division of West Bend Mutual Insurance Co. ~R~eiuA~ CITY OF DUBUQUE, IOWA IMPROVEMENT CONTRACT THIS IMPROVEMENT CONTRACT (the Contract), made in triplicate, dated for reference purposes the I~ !tG~ day of ~'~,, I ~ 2007, between the City of Dubuque, Iowa, by its City Manager, through aut ority conferred upon the City Manager by its City Council (City) and McCullough Creative Group, 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 Pedestrian Wayfinding Sign System 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 September 21, 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 $77,268.00 FURTHER CONDITIONS The Contractor hereby represents and guarantees that it has not, nor has any other person for or in its behalf, directly or indirectly, entered into any arrangement or agreement with any other bidder, or with any public officer, whereby it has paid or is to pay any other bidder or public officer any sum of money or anything of value whatever in order to obtain this Contract; and it has not, nor has another person for or in its behalf directly or indirectly, entered into any agreement or arrangement with any other person, firm, corporation or association which tends to or does lessen or destroy free competition in the letting of this Contract and agrees that in case it hereafter be established that such representations or guarantees, or any of them are false, it will forfeit and pay not less than ten percent (10%) of the Contract price but in no event be less than $250.00 (Two Hundred Fifty and 00/100 Dollars) as liquidated damages to the City. The surety on the bond furnished for this Contract, shall in addition to all other provisions, be obligated to the extent provided for by Iowa Code § 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 BU E, IOWA PRINCIPAL: BY ~;~ ~' ~~~` _ :11c~wilow~t!- ~-'~it~v~~ Z~~,c~ City Manager Contractor Signature ~,~ ~ ,~ ~, ~ ~ ,~~~~~ T~;~.-~ S~~w~~=~ Title CERTIFICATE OF CITY CLERK This is to certi that a certified c py of the bove in m ffice on the .!~`~ day , / "'~ / anne F. Schneider, CMC, City Clerk Contract has been filed 2007. Y CITY OF DUBUQUE, IOWA IMPROVEMENT CONTRACT THIS IMPROVEMENT CONTRACT (the Contract), made in triplicate, dated for reference purposes the 27th day of July, 2007 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, 205 Stone Valley Drive, of the City of Dubuque, Iowa 52003. 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 5TH AND WHITE, GATEWAY SIGN PROJECT (the Project). The Project shall be made to the established grade and to the grades as shown on the profiles and cross sections on file in the City Engineer's office for this Project, in strict accordance with the requirements of the laws of the State of Iowa and ordinances of the City of Dubuque relating to public works, and in accordance with the Contract Documents all of which provisions and documents are each and all hereby made a part of this Contract just as much as if the detailed statements thereof were repeated herein. 2. Contract Documents shall mean and include the following: All ordinances and resolutions heretofore adopted by the City Council having to do with the Project; the Notice to Bidders; the Contractor's Proposal; and the Plans, Specifications, and General Requirements as adopted by the City Council for the Project. 3. All materials used by the Contractor in the Project shall be the best of their several kinds and shall be put in place to the satisfaction of the City Manager. 4. The Contractor shall remove any materials rejected by the City Manager as defective or improper, or any of said work condemned as unsuitable or defective, and the same shall be replaced or done anew to the satisfaction of the City Manager at the cost and expense of the Contractor. 5. Five percent (5%) of the Contract price shall be retained by the City for a period of thirty (30) days after final completion and acceptance of the Project by the City Council to pay any claim that may be filed within said time for labor and materials done and furnished in connection with the performance of this Contract and for a longer period if such claims are not adjusted within that time, as provided in Iowa Code Chapter 573. The City shall also retain additional sums to protect itself against any claim that has been filed against it for damages to persons or property arising through the prosecution of the work and such sums shall be held by the City until such claims have been settled, adjudicated or otherwise disposed of. 6. The Contractor has read and understands the specifications including General Requirements and has examined and understands the plans herein referred to and agrees not to plead misunderstanding or deception because of estimates of quantity, character, location or other conditions surrounding the same. 7. In addition to the guarantee provided for in the specifications, the Contractor shall also make good any other defect in any part of the Project due to improper construction notwithstanding the fact that said Project may have been accepted and fully paid for by the City, and the Contractor's bond shall be security therefore. 8. The Contractor shall fully complete the Project under this Contract on or before 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 $ 34,900 .. 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 $2,000.00 (Two Thousand Dollars) as liquidated damages to the City. The surety on the bond furnished for this Contract, shall in addition to all other provisions, be obligated to the extent provided for by Iowa Code § 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 DU UQUE IOWA By r, !L----`". City anager PRINCIPAL: 1 ~~27`Z Pti ~tTk $fi°'~"~1 - Contractor By: Sig tur Title CERTIFICATE OF CITY CLERK This is to certify that a ce ified cop. the above Contract has been filed in my office on the/~~ day of , 2007. c~~' eanne F. Schneider, CMC, City Clerk CITY OF DUBUQUE, IOWA PERFORMANCE, PAYMENT AND MAINTENANCE BOND KNOWN ALL MEN BY THESE PRESENTS: That Portzen Construction 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 $34,900 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 27th day of July, 2007, and duly attested and sealed. WHEREAS, the said Contractor by a Contract dated July 27, 2007, incorporated herein by reference, has agreed with said City of Dubuque #o perform all Labor and furnish all materials required to be performed and furnished for the 5TH AND WHITE, GATEWAY SIGN PROJECT (the Project) according to the Contract and Construction Documents prepared therefore. ft 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 Con~ractor 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} years} 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 ar 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 aU of the provisions of Section 573 of the Code of Iowa, then this obligation shall be null and void, o#herwise 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 2nd day of august , 2007. CITY OF DUBUQUE, IOWA /~~ By: ~ : ~ `Z City Manager PRINCIPAL: Portzen Construction, Inc. Contractor sy: Sign re Title SURETY: United Fire & Casualty Company S/urety Company BY: ` ~- ~d~-~L/k~`v Signature Attorney-in-Fact Title Dubuque,lA 52001 City, State, Zip Code (563)556-5441 Telephone ` ~ ~ ~ ~> t, Attorney In-Fact CITY OF DUBUQUE, IOWA SALES AND USE TAX EXEMPTION CERTIFICATE The City of Dubuque, as a designated exempt entity awarding construction contracts on or after January 1, 2003, may issue special exemption certificates to contractors and subcontractors, allowing them to purchase, or withdraw from inventory, materials for the contract free from sales tax pursuant to Iowa Code Sections: 422.42 (15) & (16}, and 422.47 (5). This special exemption certificate may also allow a manufacturer of building materials to consume materials in the performance of a construction contract without owing tax on the fabricated cost of those materials. If the Jurisdiction, at its option, decides to utilize this exemption option, it will so state by special provision and publication in the Notice of Hearing and Letting. Upon award of contract, the Jurisdiction will register the contract, Contractor, and each subcontractor with the Iowa Department of Revenue and Finance; and distribute tax exemption certificates and authorization letters to the Contractor and each subcontractor duly approved by the Jurisdiction in accordance with Section 1030, 1.10, B. These documents allow the Contractor and subcontractors to purchase materials for the contract free from ,sales tax. The Contractor and subcontractors may make copies of the tax exemption certificate and provide a copy to each supplier providing construction material. These tax exemption certificates and authorization letters are applicable only far the work under the contract. 2. At the time the Contractor requests permission to sublet in accordance with said Section 1030, 1.10, B, the Contractor shall provide a listing to the Jurisdiction identifying all subcontractors, including the Federal Employer Identification Number (FEIN) for the Contractor and all subcontractors, as well as the name, address, telephone number, and a representative of the organization which will perform the work, a description of the work to be sublet, and the associated cost. 3. The Contractor and each subcontractor shall comply with said Iowa Cade Sales Tax requirements, shall keep records identifying the materials and supplies purchased and verify that the were used on the contract, and shall pay tax on any materials purchased tax-free and not used on the contract. SPECIAL PROVISIONS An out-of-State contractor, before commencing a contract in excess of $5,000.00, shall, pursuant to Iowa Code 91 C.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 amoun#s: a. X1,000.00 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 91 C.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. UNtTLD Fi.R>= ~ CASUALTY COMPANY WOME: OFF(IrE - CEDAR'RAPIDS;IOWA C>=RTI~IED COPY OF POWER OF ATTORNEY (Original on file at Home Office of Company -See Certification) KNOW ALL M€N BY THESE PRESENTS, That the UNITED SIRE 8~ CASUALTY COMPANY, a;corporatian duly organized and existing under the laws of the State of fovea, and having its principal office in Cedar Rapids, State of Iowa, dues make, constitute and appoint DAVID I~RITZ, OR DIANA IC 13RDRIGK, QR KEITH PI SINDBERG, OR; CHARLES 3 A~DRACCHIQ, OLIVIA R SCHMITT,`OR RI2iSERLY A WIELAND, OR ICZ;VI2t L EHRLICH, ALL `INDIVIDUALLY' of DUBUQUE IA its #rue and'lawfu! ~4ttomey(s~rn-Fact with power and authority hereby conferred to sign; seal and execute in its behalf elk lawful bonds,: undertakings and other obligatory instruments df similar nature as foifows: Any :and All `Bongs and. to bind UNITED'FIRf= & CASUALTY CONtPANY thereby as fully and to the same extent as if such instruments were signed by the duly authorized officers of UNITED-FIRE B~:CASUALTY COMPANY and all the acts of said Attorney, pursuant to the authority hereby gixeri are heretsy ratified and cpn#tttned. . The Authority hereby gtarYted is continuous and shall remain in full forceand effect until" revoked by UNITED FIRE ~ CASUALTY COMPANY. .:This power of Attorney Is..made and executed pursuanf to and tsy'authority of the fol-owirrg By_t~aw duly adopted by Board of Directors of the Company on April 1$, 193_ "Article V -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, ffom tlmett7: time, appoint by written certificates attom~ys-in-fact to-act in behalf of the Company in the execution of polrci;es of insurance,. bonds, undertakings and Other obligatotjt tnstGUments of like nature. The signature of any officer authorized hereby, and the Corporate cal, may be affixed by facsimile to any power of attorney o°r special power.- of attorney ar certification of either authdrtzed l~tereby; such signature and seal, when so used, being adopted by the Company as'the original signature of , such officer; end #~~ griginal seal of the Company, to be valid and binding upon the Company wi#h the same force arid' effect as though rrfar~wially;:a#fixed.: `Such attorneys-in fact, subjectto the (imitations 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 ail power ;and authority previously given. to any attorney-in-fact. IN WITNESS WHEREOF, the UNITED FIRE 8 CASUALTY COMPANY has caused these preserrts to be signed by + its vice president and its corporate seal to be hereto affixed this 2?th day off' Aprl.~, 2046 * ~~ `~'~ ~ UNITED FIRE & CASUALTY COMPANY itilL` - ey ~~ O. Cd~~ Vice President -" ,~~{. State of Iowa, County of Linn, ss: On 27th .day of April., ,2006, before me personally; came Randy A. Raialo ` to me known,-who being by me dory sworn, did depose and say; that he resides in Cedar Rapids; State of {owe; that he.is a Vice President of the UNITED FAZE & CASUALTY COMPANY;:thecorporation described in and which executed the aboveinstrument; that he knows the seal,of said. corporation; that thq.Seat affixed to-the said instrument is such corporate seal;:,that it was so affixed pursuant to authority given by the Board of directors o#said corporation and that he signed`hi, a thereto pursuant to tike authority, and acknowledges same to be the act and deed of said corporation. 'fT1 WAODE. ~ ~+ a ublfc y cor+~sator+ -+u~sa* 7t 32y~ MY O 18610 C 1*1(+s Y commission expires:: 10y26I2007 ow_ 1, the undersigned officer of the UNITED FIE~E $~ CASUALTY1' COMPANY, da hereby certify that !have :compared the foregoing .Copy of the Power ofAttorney and affidavit, and the copy of the Section of the by'~aws of-'said Company as set :forth in sald'Power of Attorney, -.with the ORIGINALS ON FILE W THE HOME OFF{CE 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 riot 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 ~~ ~CQlEOl41E ~ this 2, rid .day of August 20 ~_. .sue a f>ilL .~ ~~ A'~, ~-.-~~ Secretary BONp001 9 0802 01 CSR DH ACORD CERTIFICATE OF LIABILITY INSURANCE DATE (MMIDDIYYYY) pORTZ-1 08 02 07 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE TRICOR, Inc . - Dubuque HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR PO Box 1810 , 500 Iowa Street ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Dubuque IA 52004-1810 Phone:563-556-5441 Fax:608-723-6440 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURER A: west Bend Mutual IriB. CO 15350 Portzen Construction Inc INSURER B: Portzen Leasing Inc. Portzen Building Firm LLC INSURER C: 205 Stone Valley Dr. IA 5200 D b INSURER D: u uque 3 INSURER E: COVERAGES 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 WHICH 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. LTR NSR TYPE OF INSURANCE POLICY NUMBER P LI Y EFFE TIVE DATE MM/DD/YY P LI Y EXPIRATI N DATE MM/DD LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 A X X COMMERCIAL GENERAL LIABILITY CPI061671605 12/31/06 12/31/07 PREMISES (Eaoccurence) $ 200, 000 CLAIMS MADE ~ OCCUR MED EXP (Any one person) $ 1 O , O 0 O PERSONAL&ADV INJURY $ 1, 000, OOO GENERAL AGGREGATE $ 2, 000, OOO GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMPlOP AGG $ 2 , O O O , O O O POLICY X PRO LOC JECT AUT OMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) $ 1, 000, 000 A X ANY AUTO CPI061671605 12/31/06 12/31/07 ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS (Per person) $ A X HIRED AUTOS BODILY INJURY A X NON-OWNED AUTOS (Per accident) $ PROPERTY DAMAGE (Per accident) $ GARAGE LWBILITY AUTO ONLY - EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC $ AUTO ONLY: qGG $ EXCESSIUMBRELLA LIABILITY EACH OCCURRENCE $ l O, 0 0 0, O O O A X OCCUR ~ CLAIMSMADE CUI059879604 12/31/06 12/31/07 AGGREGATE $ 10, 000, 000 DEDUCTIBLE $ X ^•ET!~P!?!ON $wAIVSD $ WORKERS COMPENSATION AND ' TORY LIMITS ER A EMPLOYERS LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE ySI059878704 12/31/06 12/31/07 E.L. EACH ACCIDENT $ SOOOOO OFFICER/MEMBEREXCLUDED? IA, IL & wI E.L.DISEASE-F1tEMPLOYEE $ SOOOOO If yes, describe under SPECIAL PROVISIONS below E.L. DISEASE -POLICY LIMIT $ S O O O O O OTHER A Installation Float CPI061671605 12/31/06 12/31/07 Stored Materials 250,000 DESCRIPTION OF OPERATIONS /LOCATIONS /VEHICLES 1 EXCLUSIONS ADDED BY ENDORSEMENT /SPECIAL PROVISIONS The City of Dubuque is an addtl insured on gen liab policies incl ongoing & completed operations as well as being primary&non-contributing per wB1482 Form CG1503 0397"Designated Projects"gen liab aggr limit form attached Governmental Immunites End. attached.waiver of Subro in favor of the City of Dubuque-5th&White,Gateway Sign Project (See Notes Cancellation Wording**) CERTIFICATE HOLDER CANCELLATION CITYDBQ SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATIOI DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 3 O DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL City of Dubuque IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR 50 w. 13th St. Dubuque IA 52001 REPRESENTATIVES. AUTHORIZED REPRESENTATIVE _ • ACORD 25 (2001108) / JY~' ~ v ©ACORD~iFPORATION 1988 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. A(:UKU ZS ~ZOOIIOS) N OT E PAD , HOLDER CODE CITYDBQ PORTZ-1 PAGE 3 INSURED'SNAME Portzen Construction Inc CSR DH DATE 08/02/07 **Should any of the described policies be cancelled before the expiration date hereof, West Bend Mutual will mail 30 days written notice to the City of Dubuque and 10 day notice of cancellaton if cancelled for non payment of premium. 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 amended 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 written 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 and 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 arising out of: a. Your premises; b. "Your work" for that additional insured; or c. Acts or omissions of the additional insured in connection with the general supervision of "your work." 2. The Limits of Insurance applicable to the additional insured are 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." 4. The insurance provided to the additional in- sured does not apply to "bodily injury," "prop- erty damage," "personal injury and advertising injury" arising out of an architect's, engineer's, or surveyor's rendering of or failure to render any professional services including; 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. WB 1482 06 06 West Bend Mutual Insurance Company Page 1 of 2 West Bend, Wisconsin 53095 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 of coverage, the additional insured shall be obligated to tender the defense and indemnity of every claim or suit to all other insurers that may provide coverage to the additional insured, whether on a contingent, excess or primary basis. Page 2 of 2 West Bend Mutual Insurance Company WB 1482 06 06 West Bend, Wisconsin 53095 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED CONSTRUCTION PROJECT(S) GENERAL AGGREGATE LIMIT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Designated Construction Projects: (If no enter appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) A. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences" under COVERAGE A (SECTION I), and for all medical expenses caused by accidents un- der COVERAGE C (SECTION I), which can be attributed only to ongoing operations at a single designated construction project shown in the Schedule above: 1. A separate Designated Construction Project General Aggregate Limit applies to each des- ignated construction project, and that limit is equal to the amount of the General Aggregate Limit shown in the Declarations. 2. The Designated Construction Project General Aggregate Limit is the most we will pay for the sum of all damages under COVERAGE A, ex- cept damages because of "bodily injury" or "property damage" included in the "products- completed operations hazard", and for medical expenses under COVERAGE C regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits". 3. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the Designated Con- struction Project General Aggregate Limit for that designated construction project. Such payments shall not reduce the General Aggre- gate Limit shown in the Declarations nor shall they reduce any other Designated Construc- tion Project General Aggregate Limit for any other designated construction project shown in the Schedule above. 4. The limits shown in the Declarations for Each Occurrence, Fire Damage and Medical Ex pense continue to apply. However, instead of being subject to the General Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Designated Construc- tion Project General Aggregate Limit. B. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences" under COVERAGE A (SECTION I), and for all medical expenses caused by accidents un- der COVERAGE C (SECTION I), which cannot be attributed only to ongoing operations at a single designated construction project shown in the Schedule above: 1. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products-Completed Operations Aggregate Limit, whichever is applicable; and 2. Such payments shall not reduce any Desig- nated Construction Project General Aggregate Limit. C. When coverage for liability arising out of the "products-completed operations hazard" is pro- vided, any payments for damages because of "bodily injury" or "property damage" included in the "products-completed operations hazard" will reduce the Products-Completed Operations Ag- gregate Limit, and not reduce the General Aggre- gate Limit nor the Designated Construction Proj- ect General Aggregate Limit. D. If the applicable designated construction project has been abandoned, delayed, or abandoned and then restarted, or if the authorized contracting parties deviate from plans, blueprints, designs, specifications or timetables, the project will still be deemed to be the same construction project. CG 25 03 03 97 Copyright, Insurance Services Office, Inc., 1996 Page 1 of 2 ^ E. The provisions of Limits Of Insurance (SECTION III) not otherwise modified by this endorsement shall continue to apply as stipulated. Page 2 of 2 Copyright, Insurance Services Office, Inc., 1996 CG 25 03 03 97 ^ WORKERS COMPENSA110N AND EMPLOYER8 uA~ITY INSURANCE POLICY ~• M A! ~! !a: AL ~t WANER OF Ot7R RIdHT TO RECOVER PROM OTHERS ENDORSEIYENT IMe have the right to roeover our payments Tram anyone liable br an injury oavend by this policy. Wa will not entvroe our right against the person or organization named in the 3chsdub. (This ayraemsnt applies only to the extent that you perform work under a written contract that requires you In obtain this agreement from ue.) This agreement shall not operate directly or indirectly to benefit anyone not Warned in the Schedule. Schedub CITY OF DU3000E This andorsarnsr~ chanQas the policy ~ which d i6 attached and is sf(sdive on.ths date issued unl~as otfiarwis~ stated. lfie information glow is nquKSd only when Mtis sndorsemeM is issued subsepuent to prsparatiat of the pokcy.l ErWora•men< Ethctiw 12/31/06 Polley No, Erdorssm~rk No. insured YSI059878704 Premium; Insurance Cornparry Ctiur~EersiDnad bi- West Bend Mutual MfC 04 0313 (04134) Page 1 of 1 Copyright 1813. National Cotmcl! on Gompensaliorr lnsuratrce, Inc. - From: Diana Hedrick At: TRICOR Finandal Services FaxID: 608723644D To: Ken Tekippe Date: 8/8!2007 10:43 AM Page: 2 of 2 CPi061671605 126 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CHANGE ENDORSEMENT WB100 A PAGE 1 OF 1 THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOtLOWING: COMMERCIAL GENERAL LIABILITY COVERAGE PART CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. NONWAIVER OF GOVERNMENTAL IMMUNITY. THE INSURANCE CARRIER EXPRESSLY AGREES AND STATES THAT THE PURCHASE OF THIS POLICY AND THE INCLUDING OF THE CITY OF DUBUQUE, IOWA AS AN ADDITIONAL INSURED DOES NOT WAIVE ANY OF THE DEFENSES OF GOVERNMENTAL IMMUNITY AVAILABLE TO THE CITY OF DUBUQUE, IOWA UNDER CODE OF IOWA SECTION 670.4 AS IT IS NOW EXISTS AND AS IT MAY BE AMENDED FRDM 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 UNDER THE CODE OF IOWA SECTION 670.4 AS IT NOW EXISTS AND AS IT MAY BE AMENDED FROM TIME TO TINE. THOSE CLAIMS NOT SUBJECT TO CODE OF IOWA SECTION 670.4 SHALL BE COVERED BY THE TERMS AND CONDITIONS OF THIS INSURANCE POLICY. 3. ASSERTION OF GOVERNMENTAL IMMUNITY. THE CITY OF DUBUQUE, IOWA SHALL BE RESPONSIBLE FOR ASSERTING ANY DEFENSE OF GOVERNMENTAL IMMUNITY. AND MAY DO SO AT ANY TIME AND SHALL DO SO UPON THE TIMELY WRITTEN REQUEST DF THE INSURANCE CARRIER. 4. NON-DENIAL OF COVERAGE. THE INSURANCE CARRIER SHALL NOT DENY COVERAGE UNDER THIS POLICY AND THE INSURANCE CARRIER SHALL NOT DENY ANY OF THE RIGHTS AND BENEFITS ACCRUING TO THE CITY OF DUBUQUE, IOWA UNDER THIS POLICY FOR REASONS OF • GOVERNMENTAL IMMUNITY UNLESS AND UNTIL A COURT OF COMPETENT JURISDICTION HAS RULED IN FAVOR OF THE DEFENSE(S) OF GOVERNMENTAL IMMUNITY ASSERTED BY THE CITY OF DUBUQUE, IOWA. NO OTHER CHANGE IN POLICY. THE ABOVE PRESERVATION OF GOVERNMENTAL IMMUNITIES SHALL NOT OTHERWISE CHANGE OR ALTER THE COVERAGE AVAILABLE UNDER THE POLICY. • WB ~~ ~ ~ West Bend Mutual insurance CAmpany West Bend, Wisconsin 53095 i CITY OF DUBUQUE, IOWA PERFORMANCE, PAYMENT AND MAINTENANCE BOND KNOWN ALL MEN BY THESE PRESENTS: That Drew Cook & Sons Excavating as Principal (Contractor) and IMT Insurance Company as Surety are held firmly bound unto the City of Dubuque, Iowa (City), in the penal sum of $48,628.65 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 23rd day of July , 2007, and duly attested and sealed. WHEREAS, the said Contractor by a Contract dated July 23 , 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 Kaufmann Alley Storm Sewer Construction 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 23rd day of July , 2007. CITY OF DUBUQUE, IOWA Cit Manager PRINCIPAL: By SURETY: Title Dubuque IA 52001 City, State, Zip Code 563-556-3232 Telephone Attorney In-Fact ~~~~~ Title Attorney-in-Fact D rJ~rJ~r~r~rJ~rJ~rSr~frJ~rJ~rJ~rJ~r~1~rJ~rJ~~PrJ~rJ~rJ~rJ~rJ~rJ~r1r~J~rJ~rJ~~rlrJ~rJ~rJ~rJ~rJ~rJ~rJ~rPrJ~cPrJ~rJ~rJ~rJ~rJ~rJ~rJ~rJ~rJ~rJ~rJ~rJ~rJ~~Pr~rPr~rJ~rPrJ~rJ~r~rJ~cPrlrJ~r.Pr~rJ@l~cPr~rJ~rJ~rJ~rJ~r~cJ~rJ~~PrJ~rJ~rJ~r~~PrP O 5 ~ 5 5 AMT INSURANCE 5 5 ~ 5 5 POWER OF ATTORNEY No. 4 H O 6 7J 5 S Notice: The warning found elsewhere in this Power of Attorney affects the validity thereof. Please review carefully. 5 S Know All Persons By These Presents, that IMT Insurance Company a corporation duly organized under the laws of the State of Iowa, and having 5 5 its principal office in the City of West Des Moines, County of Polk, State of Iowa, hath made, constituted and appointed, and does by these presents 5 CJ make, constitute and appoint S 5 John E. Goodmann and Barton P. Brown 5 5 of Dubuque and State of Iowa its true and lawful Attorney-in-Fact, with full power and 5 5 authority hereby conferred in its name, place and stead, to sign, execute, acknowledge and deliver in its behalf as surety any and all bonds, under- 5 5 takings, recognizances or other written obligations in the nature thereof, subject to the limitation that any such instrument shall not exceed the 5 S amount of: One Million Five Hundred Thousand and No/100 ($1,500,000.00) Dollars 5 Cj and to bind IMT Insurance Company thereby as fully and to the same extent as if such bond or undertaking was signed by the duly authorized ~j 5 officers of IMT Insurance Company, and all such acts of said Attorney-in-Fact, pursuant to the authority herein given, are hereby ratified and 5 confirmed. S 5 This Power-of-Attorney is made and executed pursuant to and by authority of the following By-Laws adopted by the Board of S S Directors of IMT Insurance Company on December 18, 1998. S 5 ARTICLE VIII, SECTION 4. -The President or any Vice President or Secretary shall have the authority to appoint Attorneys In Fact and 5 5 to authorize them to execute on behalf of the Company, and attach thereto the Corporate Seal, bonds, undertakings, recognizances, con- 5 5 tracts of indemnity or other obligatory writings, excluding insurance policies and endorsements. 5 rj ARTICLE VIII, SECTION 5. -The signature of any authorized officer and the Corporate Seal may be affixed by facsimile to any Power rj S of Attorney authorizing the execution and delivery of any of the instruments described in Article VIII, Section 4 of the By-Laws. Such 5 5 facsimile signature and seal shall have the same force and effect as though manually affixed. C5 5 In Witness Whereof, IMT Insurance Company has caused these presents to ?~e ~i~,nc:~ by its President and its corporate seal to 5 5 be hereto affixed, this 30th day of April 2007 5 5 IMT Insurance Cornpai:.y 5 5 ~~eaMN~'C. ~~~ S S Richarc': Keith, president.. 5 5 WARNING: THIS POWER IS INVALID IF NOT PRINTED WITH R>/II~ 130RDER AND RED LOGO. 5 5 STATE OF IOWA ~ ss: 5 5 COUNTY OF POLK 5 S On this 30th day of April 2007 ,before me appeared Richard Keith, to me personally known, 5 CJ who being by me duly sworn did say that he is President of the IMT Insurance Company, the corporation described in the foregoing instrument, 5 5 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 5 C~ behalf of said Corporation by authority of its Board of Directors. C~ 5 In Testimony Whereof, I have hereunto set my hand and affixed my Official Seal at the City of West Des Moines, Iowa, the day and year S 5 first above written. CJ AL 5 ,~`~ ~ COMMI SON N0.742311 ~~ S ~ ~ MYCOMMt AES Notary Public, Polk County, Iowa 5 ~owA - / 5 S CERTIFICATE C5 5 I, Newell K. Hart, Secretary of the IMT Insurance Company do hereby certify that the above and foregoing is a true and correct copy of 5 5 the POWER-OF-ATTORNEY, executed by said the IMT Insurance Company, which is still ir, fame and effect. S 5 In Witness Whereof, I have hereunto set my hand and affixed the Seal of tin.^, C~3mpany on 23rd day of 5 5 .rule 200 5 5 5 C Newell K. Hart, Secretary 5 5 sY o6 06 ~olro~> 5 O rJ~r~r~~PrJ~r.~rJ~r~r~rJ~~PrP~r-rJ~rJ~r~rJ~r~r~rJ~r~rl~nrPr~rJ~rJ~rlcPr~r~r~u~~P~nrJ~rJ~~nr.PrJ~r~rPtJ~rJ~rJ~rJ~rJ~rJ~~P~P~nrJ~~Pr.rrJ~~r-rJ~r~r~rJ~~Pr~rJ~r~rJ~~PrJ~cPrJ~rJ~~ncfrJ~rJ~~n~Pr rrJ~rJ~r~tPrPr~rJ~rJ~~io CITY OF DUBUQUE, IOWA IMPROVEMENT CONTRACT THIS IMPROVEMENT CONTRACT (the Contract), made in triplicate, dated for reference purposes the ~~ day of 2007, between the City of Dubuque, Iowa, by its City Manager, through autho ity conferred upon the City Manager by its City Council (City) and Kaufmann Alley Storm Sewer Construction Project 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 Kaufmann Alley Storm Sewer Improvements 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 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 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 $48,628.65 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 $500.00 (Five Hundred and 00/100 Dollars) as liquidated damages to the City. The surety on the bond furnished for this Contract, shall in addition to all other provisions, be obligated to the extent provided for by Iowa Code § 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 DUBUQUE, IOWA By C~~ , Ci Manager PRINCIPAL: .~~'er ~D[~~ ~(~~5 ~y,CQ (,~'t~l(~~' Contractor By: ~, Signature Title CERTIFICATE OF CITY CLERK This is to ce~ify th a certified y of the bove Contract has been filed in my office on theme' day of , 2007. ~- eanne F. Schneider, CMC, City Jerk Bond Number 8855195 C17Y o~F DUBUQUE, IOwA PERPORMANCIw, PAYMENT AND MAINTENANCE BOND KNOWN ALL MEN BY THESE PRESENTS: That Tschiggfrie Excavating, Inc. as Principal {Contractor) and Fidelity and Deposit Company of Marylanda~ Surety are held firmly bound unto the City of Dubuque, Iowa {City), in the penal sum of $227;449.45 the same being 100% of the total price of the Contrack for the Project herein referred to, lawful money of the United States of America, well and truly to be paid to said City of Dubuque, and to all other parties who, under the provisions of the laws of Iowa, are intended to be protected and secured hereby for which payment we bind ourselves, our heirs, executors, successors and assigns, jointly and severally by these presents. Dated at Dubuque, Iowa, this ,~„ day of , 2DD7, and duly attested and sealed. WHEREAS, the said Contractor by a Contract dated , 2007, incorporated herein by reference, has agreed with said City of Dubuque to perform all labor and furnish all materials required to be performed and furnished far the Decorative Concrete Repair and Maintenance Project (the Project) according to the Contract and Construction Documents prepared therefore. It i$ expressly understood and agreed by the Contractor and Surety band 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, pertorm, 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 ar failure to perform as required under the Contract and Contract Documents by all its subcontractors, suppliers, agents, or employees furnishing materials ar 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 an 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 fio 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 c{aimants 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 farkh in Chapter 573, Code of lows, which by this reference is made a part hereof as though fully set out herein. 3. MA{NTE~IANCE BOND: The Contractor and the Surety hereby agree, at fiheir 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 thafi if the said Contractor shall perform all of the work contemplated by the Contract in a workmanlike manner and iin 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 Clty for all damages, costs and expense incurred by reason of damages to persons or properly 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 goad repair said Project for the period specked in the Contract where this bond is obligated for maintenance, and will faithfully comply with all of the provisions of Section 573 of the Cade of Iowa, then this obligation shall be null and void, otherwise it shall remain in full force and ef!'ect_ 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 ~J ~ day of c: ~ , 2Q07. CITY of DUBUQUE, IOVIIA G~ By: ~ «,, City anager I~RINCIPAL: SURETY: Fidelity and Deposit Company of Maryland Surety Company ~~'~ , ' ~; sy: Signatu~~) Attorney-in-Fact Title West Des Moines IA 50266 __ City, State, zip Code 515-244-0166 Telephone Nancy D. Schwarz Attorney I n-Fact Tschiggfrie Excavating Co. _ Contractor Power of Attorney FIDELITY AND DEPOSIT COMPANY OF MARYLAND -KNOW ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a corporation of the State of Maryland, by WILLIAM J. MILLS, Vice President, and ERIC D. BARNES, Assistant Secretary, in pursuance of authority granted by Article Vl, Section 2, of the By-Laws of said Company, are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hece¢~by nominate, constitute and appoint F. Melvyn HRUBETZ, Joyce O. HERBERT, Mark E. K ~~~~~~~ r~. S~~ARZ, Patrick K. DUFF, Stacie D. HUKILL, Jeffrey R. BAKER and Greg T e s, ACH its true and lawful agent and Attorney-in-Fact, to make, execute o ~ , for ~ s surety, and as its act and deed: any and all bonds and undertakings, a e f suc rb ~ mgs in pursuance of these presents, shall be as binding upon said Coma s~ ~mPl ~~ urposes, as if they had been duly executed and acknowledged by t ~ el t otf' e y at Its office in Baltimore, Md., in their own proper persons. This power of attor es t ~ 's a of F. Melvyn HRUBETZ, Joyce O. HERBERT, Mark E. KEAIRNES, Nancy D. SCHWAR ,dated February 24, 2005. The said Assistant r 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 16th day of August, A. D. 2006. ATTEST: 'gyp DfPOS~i ~ f~~4 C~ I.. f0 O w~ ~ ~ ~~ ~ 4'~41~1' State of Maryland i ss: City of Baltimore f FIDELITY AND DEPOSIT COMPANY OF MARYLAND ,~. ~~,~- Eric D. Barnes Assistant Secretary i ~ ~~ ~/~ By: , William J. Mills Vice President On this 16th day of August, A.D. 2006, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, came WILLIAM J. MILLS, Vice President, and ERIC D. BARNES, 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 deposeth and with, 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 written. •43_x. `~ :t t '~~~~ i ~~~ ti ~~~F ~ ~ Maria D. Adan2ski Notary Public My Commission Expires: July 8, 2007 POA-F 088-6895 r• CITY OF DUBUQUE, IOWA IMPROVEMENT CONTRACT DECORATIVE CONCRETE REPAIR AND MAINTENANCE PROJECT THIS IMPROVEMENT CONTRACT (the Contract), made in triplicate, dated for reference purposes the day of 2007, between the City of Dubuque, Iowa, by its City Manager, through authority conferred upon the City Manager by its City Council (City) 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: To furnish all material and equipment and to perform all labor necessary for the Decorative Concrete Repair and Maintenance 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 September 21, 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 $227,449.45 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 $500.00 (Five Hundred and 00/100 Dollars) as liquidated damages to the City. The surety on the bond furnished for this Contract, shall in addition to all other provisions, be obligated to the extent provided for by Iowa Code § 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 UQ E, IOWA Cit yManager PRINCIPAL: ~- L Contr`ac or ~- 13y~' " ~ ~~ S' ature '/ L~ Title CERTIFICATE OF CITY CLERK This is to c rt~ that a ce 'fied copy of the above Contract has been filed in my office on the ~~~ day of ~ , , 2007. ~~ ~~ ~~~~ eanne F. Schneider, CMC, City Clerk