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Peterson Contracting Inc-11/14/2011 (2)
CfulAc P o CONTRACT FOR DEMOLITION AND SITE CLEARANCE SERVICES [no Regulated Asbestos Containing Materials (no RACM)] 300 W. Mullan -Former Grand Hotel This Contract for Demolition and Site Clearance Services (no RACM) (the "Contract") is entered into as of November 29, 2011, by and between the City of Waterloo, Iowa ("City") and Peterson Contracting Inc. ("Contractor"). In consideration of the mutual promises exchanged herein, the parties agree as follows: 1. Services. For a period of 45 days after the date of this Contract, subject to extension upon the mutual written agreement of the parties, the Contractor agrees to furnish all supervision, technical personnel, labor, materials, tools, machinery, services, and perform and substantially complete all work within the time period stated in the specifications after receipt of Notice to Proceed with respect to a given property or set of properties. Work to be performed includes all work described in the Contract Documents (defined below). Contractor shall provide the above services at the cost set forth in Contractor's RFP response. Contractor will be paid a lump sum for which services are performed and accepted. Contractor's request for payment for services authorized under this Contract shall be submitted at the completion of project and will be paid within thirty (30) days after receipt of an original invoice and after such services are delivered and accepted. Contractor will be paid for all items satisfactorily completed. Such payment will be full compensation for all work performed, for all permits, licenses, inspections, for complying with all laws, rules, regulations and ordinances, including safety, and for furnishing all materials, equipment and labor to complete the work, in accordance with the specifications. 2. Contract Documents. The following documents (collectively, the "Contract Documents") are hereby incorporated by reference as though set forth herein in full: a. Request for Proposal b. Addenda c. Response (Proposal) d. Specifications for Demolition and Site Clearance e. Signature Page f. Building Demolition Insurance Requirements In the event of conflict between the provisions of the Contract Documents and this Contract, the provisions of this Contract shall prevail. 2.1 Contract Limits. Total actual expenses allowed by the project Contract, including any renewal extensions of the Contract, shall not exceed $149,700 as submitted in the contractors RFP response. 3. Approval; Timing of Work. Contractor shall not begin work on any demolition until after the contract has been approved by the city council and the Contractor has been issued a Notice to Proceed. The work shall commence within seven (10) days after the City has issued a Notice to Proceed 4. Performance Bond. Contractor will be required to furnish bond in an amount equal to one hundred percent (100%) of the contract price and shall be issued by a responsible surety acceptable to the City. The bond shall guarantee the faithful performance of the contract and the terms and conditions therein contained, shall guarantee the prompt payment of all materials and labor and protect and save harmless the City from claims and damages of any kind arising out of the performance of this contract. 5. Indemnity. Except as to any negligence of City, its officials, officers, employees or agents, in the performance of any duty under this Contract, and to the extent not covered by insurance maintained by Contractor, Contractor agrees to defend and indemnify, City, the officials, officers, employees, agencies and agents of each, and to hold same harmless, from and against any and all claims, demands, causes of action, losses, costs, or liabilities whatsoever, including but limited to reasonable attorneys' fees and expenses, arising from or in connection with the acts or omissions of Contractor in providing the services contemplated by this Contract. This will include but is not limited to actions or suits based upon or alleging bodily injury, including death, or property damage rising out of or resulting from the Contractor's operation under this Contract, whether by itself or by any subcontractor or anyone directly or indirectly employed by any of them. Contractor is not and shall not be deemed an agent or employee of the City. 5.1 Property Damage. Contractor shall be responsible for all damage to public or private property. Contractor shall have one responsible person at the job site at all times when demolition activities are undertaken. Contractor shall keep a report of all damage. If public or private property is damaged by Contractor and is not repaired in a timely manner as determined by City, City has the option of having the damage repaired at the Contractor's expense, to be reimbursed to the City or withheld from future payments to Contractor hereunder. 6. Default; Termination for Cause. In the event that Contractor defaults in the performance or observance of any covenant, agreement or obligation set forth in this Contract, and if such default remains uncured for a period of seven (7) days after notice thereof shall have been given by City to Contractor (or for a period of fourteen (14) days after such notice if such default is curable but requires acts to be done or conditions to be remedied which, by their nature, cannot be done or remedied within such 14 -day period and thereafter Contractor fails to diligently and continuously prosecute the same to completion within such 14 -day period), then City may declare that Contractor is in default hereunder and may take any one or more of the following steps, at its option: a. by mandamus or other suit, action or proceeding at law or in equity, require Contractor to perform its obligations and covenants hereunder, or enjoin any acts or things which may be unlawful or in violation of the rights of the City hereunder, or obtain damages caused to the City by any such default; 2 b. have access to and inspect, examine and make copies of all books and records of Contractor which pertain to the project; c. declare a default of this Contract, make no further disbursements, and demand immediate repayment from Contractor of any funds previously disbursed under this Contract; d. terminate this Contract by delivery to Contractor of written notice of termination; and/or e. take whatever other action at law or in equity may be necessary or desirable to enforce the obligations and covenants of Contractor hereunder, including but not limited to the recovery of funds. No delay in enforcing the provisions hereof as to any breach or violation shall impair, damage or waive the right of City to enforce the same or to obtain relief against or recover for the continuation or repetition of such breach or violation or any similar breach or violation thereof at any later time or times. In the event that City prevails against Contractor in a suit or other enforcement action hereunder, Contractor agrees to pay the reasonable attorneys' fees and expenses incurred by City. 7. Termination for Convenience. This Contract may be terminated at any time, in whole or in part, upon the mutual written agreement of the parties. City may also choose to terminate this Contract at any time by delivering to Contractor l0 -days' advance written notice of intent to terminate. 8. Non -Assignable Duties. Contractor may not assign its duties hereunder without the prior written consent of City. 11. Independent Contractor. Contractor is an independent contractor and is not an employee, servant, agent, partner, or joint venturer of City. Contractor has no power or authority to enter into contracts or agreements on behalf of City. City shall determine the work to be done by Contractor, but Contractor shall determine the legal means by which it performs the work specified by City. City is not responsible for withholding, and shall not withhold, FICA or taxes of any kind from any payments which it owes Contractor. Neither Contractor nor its employees, if any, shall be entitled to receive any benefits which employees of City are entitled to receive and shall not be entitled to workers' compensation, unemployment compensation, medical insurance, life insurance, pension, or any benefits of any type or nature whatsoever on account of their work for City. Contractor shall be solely responsible for compensating its employees, if any. 12. Anti -Discrimination. During the performance of this Contract, Contractor, for itself, its assignees and successors in interest, agrees to comply with the anti -discrimination laws of the State of Iowa, as contained in Sections 19B, 551.4 of the Code of Iowa, which are herein incorporated by reference and made a part of this Contract. 13. Severability. In the event any provision of this Contract, together with the Contract Documents, is held invalid, illegal, or unenforceable, whether in whole or in part, the remaining provisions of this Contract shall not be affected thereby and shall continue in full 3 force and effect. If, for any reason, a court fords that any provision of this Contract is invalid, illegal, or unenforceable as written, but that by limiting such provision it would become valid, legal, and enforceable, then such provision shall be deemed to be written and shall be construed and enforced as so limited. 14. General Terms. This Contract, together with the Contract Documents, constitutes the entire agreement between the parties pertaining to the subject matter hereof. This Contract may not be modified or amended except pursuant to the mutual written agreement of the parties. This Contract is binding on the parties and the heirs, personal representatives, successor and assigns of each. Time is of the essence in the performance of the terms hereof. IN WITNESS WHEREOF, the parties have executed this Contract for Demolition and Site Clearance Services as of the date first set forth above. CITY OF TERLOO, IOWA ‘411 By: ;l Ernest G. Clark, Mayor Attests Suzy Sches, City Clerk 4 Cordell Petersoi Peterson Contractors Inc. dzic—cioR®® CERTIFICATE OF LIABILITY INSURANCE DATE) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVEOR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(les) must be endorsed. 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). PRODUCER LSB Financial 219 Main Street Cedar Falls, IA 50613 Phone: 319-268-4242 Fax: 319-268-4211 CONTACT PPHON: E FAX (A/C No. Extl: A/C. No): E-MAIL ADDRESS: PRODUCER PETER -3 CUSTOMER ID 0: INSURER(S) AFFORDING COVERAGE NAIC # INSURED Peterson Contractors, Inc. Reinbeck Motors, Inc. PO Box A / 104 Blackhawk St Reinbeck, IA 50669 INSURER A: Zurich American Ins Co 16535 INSURER B : Axis Surplus Insurance Co 26620 INSURER C : 07/01/12 INSURER D : $ 1,000,000 INSURER E : $ 300,000 INSURER F : CLAIMS -MADE COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT 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. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSR SUBR wVD POUCY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP (MM/DDIYYYY) UMITS A GENERAL X UABIUTY COMMERCIAL GENERAL LIABILITY OCCUR GL0926706501 07/01/11 07/01/12 EACH OCCURRENCE $ 1,000,000 DAMAGE TO PREMISES (EaENTED occurrence) $ 300,000 CLAIMS -MADE X MED EXP (Any one person) $ 10,000 X BInkt Contractual PERSONAL & ADV INJURY $ 1,000,000 X XCU Coverage GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE UMIT APPUES PER: 7 POLICY n TERa n LOC PRODUCTS - COMP/OP AGG $ 2,000,000 5 A AUTOMOBILE X X X LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS BAP926706601 07/01/11 07/01/12 COMBINED SINGLE LIMIT (Ea accident) $ 2,000,000 BODILY INJURY (Por person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ $ $ B )( UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS -MADE EAU753420/01/2011 07/01/11 07/01/12 EACH OCCURRENCE $ 2,000,000 AGGREGATE $ 2,000,000 X DEDUCTIBLE RETENTION $ 10,000 $ $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILnY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory In NH) If yes, describe under SPFCIAI PROVISICINS holnw Y / N Y N/A WC9267067-01 07/01/11 07/01/12 X ORY LIA ITS OER E.L EACH ACCIDENT $ 1,000,000 E.L DISEASE - EA EMPLOYEE $ 1,000,000 E.L DISEASE - POUCY UMIT $ 1,000,000 A A Cargo Rent/Lease Equip CPP9267064-01 CPP9267064-01 07/01/11 07/01/11 07/01/12 07/01/12 800,000 1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS 1 VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) For the proejct described as Demolition and Site Clearance Services, 300 W. Mullan - Former Grand Hotel, the City of Waterloo, IA is named as an additional insured per written contract requirements. PCI # J3686 CERTIFICATE HOLDER CANCELLATION City of Waterloo 715 Mulberry Street Waterloo, IA 50703 SHOULD ANY OF THE ABOVE DESCRIBED POUCIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2009/09) © 1988- 2009 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD THE AMERICAN INSTITUTE OF ARCHITECTS Bond No.105666002 AIA Document A312 Performance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): Peterson Contractors, Inc. P.O. Box A Reinbeck, IA 50669 OWNER (Name and Address): City of Waterloo 715 Mulberry Street Waterloo, IA 50703 CONSTRUCTION CONTRACT Date: November 29, 2011 Amount: ($ 149,700.00 ) One Hundred Forty Nine Thousand Seven Hundred Dollars and 00/100 Description (Name and Ldcation):Demolition and Site Clearance Services (no RACM), 300 W. MuIlan Avenue -The Former Grand Hotel BOND Date (Not earlier than Construction Contract Date); December 7, 2011 Amount: ($149,700.00 ) One Hundred Forty Nine Thousand Seven Hundred Dollars and 00/100 Modifications to this Bond: ® None 0STs,?fie 3 SURETY (Name and Principal Place of Business): Travelers Casualty and Surety Company of America One Tower Square Hartford, CT 06183 CONTRACTOR AS PRINCIPAL Company: Peterson Contradtors. Inc. NONE- SURETY (Corporate Seal) Company: Signature: ,. Name and Title: -Travelers Casualty and Surety Comp Signature. Name and itle: Dianne S. RI -y cordell q. peterson president (Any additional signatures appear on page 3) Attorney -in -Fact (FOR INFORMATION ONLY—Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or Holmes Murphy & Associates, Inc. other party): 3001 Westown Parkway West Des Moines, IA 50266 515 223-6800 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 THIRD PRINTING • MARCH 1987 A312-1984 1 1 The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors 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 Construc- tion Contract. 11 the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reason• able 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 de - dared earlier than twenty days after the Contractor and the Surety have received notice as provided in Sub- paragraph 3.1; and 33 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 accor- dance 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 ex- pense take one of the following actions: 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract; or 4.2 Undertake to perform and complete theCoristruc- 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 Con- struction Contract, arrange for a contract to be pre- pared for execution by the Owner and the contractor selected with the Owner'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 ex- cess 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 reasonable promptness under the circumstances: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is deter- mined, tender payment therefor to the Owner; or .2 Deny liability in whole or in part and notify the Owner citing reasons therefor. 5 lithe Surety does not proceed as provided in Paragraph 4with 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 availabte 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 Sure- ty is obligated without duplication for: 6.1 The responsibilities of the Contractor for correc- tion of defective work and completion of the Construe - tion Contract; 6.2 Additional legal, design professional and delay costs resulting from the Contractor's Default, and re- sulting 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 dam- ages caused by delayed performance or non-perfor- mance 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 Con- struction Contract, and the Balance of the Contract Price shalt 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. B 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 obliga- tions. 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 oc- curs first. if the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation avail - ASA DOCUMENT *312 • PERFORMANCE BOND ANO PAYMENT BOND • DECEMBER 1984 £O. • MA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AYE., N.W., WASHINGTON. D.C. 200o6 THIRD PRINTING • MARCH 1987 A312-1984 2 able 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 sig- nature page. 11 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 deemed deleted herefrom and provisions con- forming 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 Construction Contract after all proper adjustments have been made, including allowance to the Con - MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: tractor 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, re- duced by all valid and proper payments made to or on behalf of the Contractor under the Construction Con- tract. 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the sig- nature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to per- form 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 Con- tractor 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: SURETY (Corporate Seal) Company: (Corporate Seal) Signature: Signature - Name and Title: Name and Title: Address: Address: AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA V THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 THIRD PRINTING • MARCH 1987 A312.1984 3 THE AMERICAN INSTITUTE OF ARCHITECTS Bond No. 105666002 AIA Document A312 Payment Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): Peterson Contractors, Inc. P.O. Box A Reinbeck, IA 50669 OWNER (Name and Address): City of Waterloo 715 Mulberry Street Waterloo, IA 50703 CONSTRUCTION CONTRACT Date: November 29, 2011 Amount: ($149,700.00 ) One Hundred Forty Nine Thousand Seven Hundred Dollars and 00/100 Description (Name and Location): Demolition and Site Clearance Services (no RACM), 300 W. Mullan Avenue -The Former Grand Hotel BOND Date (Not earlier than Construction Contract Date): December 7, 2011 Amount: ($ 149,700.00 ) One Hundred Forty Nine Thousand Seven Hundred Dollars and 00/100 Modifications to this Bond: ❑ None SURETY (Name and Principal Place of Business): Travelers Casualty and Surety Company of America One Tower Square Hartford, CT 06183 CONTRACTOR AS PRINCIPAL Company: NONE SURETY (Corporate Seal) Company: Peterso ctors, Inc. Travelers Casualty and Surety Co Signatur 012.0g2,� Signature. Name and Title: Cordell q. peterson president (Any additional signatures appear on page 6) tx) Si age 6 1,0 gigigat $ Name and itle: Dianne S. a iley Attomey-in-Fact (FOR INFORMATION ONLY—Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or Holmes Murphy & Associates, Inc. other party): 3001 Westown Parkway West Des Moines, IA 50266 515 223-6800 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 THIRD PRINTING • MARCH 1987 A312-1984 4 1 The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for Tabor, materials and equipment furnished for use in the perfor- mance of the Construction Contract, which is incorpo- rated 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 claims, demands, liens or suits by any person or entity whose claim. demand, lien or suit is for the payment for labor, materials or equipment fur- nished for use in the perforrnance of the Construction Contract, provided 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 pay- ment, 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 Con- tractor 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 no- tice any communication from the Contractor by which the Contractor has indicated the claim will be paid directly or indirectly; 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 suffi- cient compliance. 6 When the Claimant has satisfied the conditions of Paragraph 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 perfor- mance 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 prior- ity 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 unrelat- ed to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claim- ant under this Bond, and shall have under this Bond no obli- gations 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, including 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 juris- diction 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 Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last labor or service was performed by anyone or the last mate- rials or equipment were furnished by anyone under the Con- struction 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 compliance 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 deemed deleted herefrom and provisions con- forming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this MA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • ATA* THE AMERICAN INSTITUTE OF ARCHITECTS. 1735 NEW YORK AVE.. N W. WASMINCTCN, D.C. 20006 THIRD PRINTING • MARCH 1987 A3124984 5 14 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall promptly 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 per- formance of the Contract. The intent of this Bond shall be to include without limitation in the terms labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance 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 agreement between the Owner and the Contractor identified 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. MODIFICATIONS TO THE BOND ARE AS FOLLOWS: Paragraph 6 is deleted in its entirety and the following is substituted in its place: 6. When the Claimant has satisfied the conditions of Paragraph 4, and has submitted all supporting documentation and any proof of claim requested by the Surety, the Surety shall, within a reasonable period of time, notify the Claimant of the amounts that are undis- puted and the basis for challenging any amounts that are disputed, including, but not limited to, the lack of substantiating documenta- tion to support the claim as to entitlement or amount, and the Surety shall, within a reasonable period of time, pay or make arrange- ments for payment of any undisputed amount provided, however, that the failure of the Surety to timely discharge its obligations under this paragraph or to dispute or identify any specific defense to all or any part of a claim shall not be deemed to be an admission of liability by the Surety as to such claim or otherwise constitute a waiver of the Contractor's or Surety's defenses to, or right to dis- pute, such claim. Rather, the Claimant shall have the immediate right, without further notice, to bring suit against the Surety to enforce any remedy available to it under this Bond. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page,) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature: Name and Title: Name and Title: Address: Address: AIA DOCUMENT A312* PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. s AIA ® THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 N.Y. 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