HomeMy WebLinkAboutBlack Hawk Electrical Co-10/11/2010 (2)THE AMERICAN INSTITUTE OF ARCHITECTS
(Villa to '1
Bond No. IAC 64915
AJA Document A3 1 2
Performance Bond
Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable.
CONTRACTOR (Name and Address):
Black Hawk Electrical Co.
1507 Commercial Street
Waterloo, IA 50701
OWNER (Name and Address):
SURETY (Name and Principal Place of Business):
Merchants Bonding Company (Mutual)
2100 Fleur Drive
Des Moines IA 50321-1158
City of Waterloo
715 Mulberry Street
Waterloo, IA 50703
CONTSTRUCTION CONTRACT
Date: September 28, 2010
Amount: $73,508.00
Description (Name and Location): Riverfront Stadium Lighting Upgrades
BOND
Date (Not earlier than Construction Contract Date): September 28, 2010
Amount: $73,508.00
Modifications to this Bond:
CONTRACTOR AS PRINCIPAL
Company:
Black Hawk Electrical Co.
Signature:
Name and Title: CIt,5 li)-0`) Pees -Aver
None
SURETY
(Corporate Seal) Company:
Merchant
(Any additional signatures appear on page 3)
ding Company (Mutual)
Signature.
Name and T
t.Q
o See Page 3
(Corporate Seal)
Jackie A Wagner
Attorney -In -Fact
(FOR INFORMATION ONLY— Name, Address and Telephone)
AGENT or BROKER:
PEDERSEN-DOWIE-CLABBY
McCausland Ins, PO Box 2597
Waterloo, IA 50704
319-234-8888
OWNER'S REPRESENTATIVE (Architect, Engineer or other
party):
Modus
214 E. 4th Street
Waterloo, IA 50703
AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BONG • DECEMBER 1984 ED. • AIA
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE.. N.W., WASHINGTON, D.C. 20006
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 per-
forming the Construction Contract. If the Owner, the
Contractor and the Surety agree, the Contractor 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
Paragraph 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
Contract; or
4.2 Undertake to perform and complete the Con-
struction Contract itself, through its agents or through
independent 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
Contract, arrange for a contract to be prepared 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
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
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 determined,
tender payment therefore to the Owner; or
.2 Deny liability in whole or in part and notify the
Owner citing reasons therefore.
5 If the surety does not proceed as provided in Para- graph
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 had 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 obligated without duplication for:
6.1 The responsibilities of the Contractor for cor-
rection of defective work and completion of the Con-
struction 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, inclu-
ding changes of time, to the Construction Contract or to
related subcontracts, purchase orders and other obli-
gations.
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 minimum period of limitation avail -
AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA
THE AMERICAN INSTITUTE OF ARCHITECHTS, 1735 NEW YORK AVE., N.W. WASHINGTON, D.C. 20006
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
signature page.
11 When this Bond has been fumished 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 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
Construction Contract after all proper adjustments
MODIFICATIONS TO THIS BOND ARE AS FOLLOWS:
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 be- half of the Contractor under the
Construction Contract.
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
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 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:
(Corporate Seal)
Signature:
Name and Title:
Address:
SURETY
Company:
(Corporate Seal)
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
A312-1984 3
THE AMERICAN INSTITUTE OF ARCHITECTS
Bond No. IAC 64915
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):
Black Hawk Electrical Co.
1507 Commercial Street
Waterloo, IA 50701
OWNER (Name and Address):
SURETY (Name and Principal Place of Business):
Merchants Bonding Company (Mutual)
2100 Fleur Drive
Des Moines IA 50321-1158
City of Waterloo
715 Mulberry Street
Waterloo, IA 50703
CONTSTRUCTION CONTRACT
Date: September 28, 2010
Amount: $73,508.00
Description (Name and Location): Riverfront Stadium Lighting Upgrades
BOND
Date (Not earlier than Construction Contract Date): September 28, 2010
Amount: $73,508.00
Modifications to this Bond:
CONTRACTOR AS PRINCIPAL
Company:
Black Hawk Electrical Co.
Signature: d�
Name and Title: Cht`�S kj,-) 5 P{eci�aej\'v
(Corporate Seal)
(Any additional signatures appear on page 6)
❑ None ® See Page 6
SURETY
Company: (Corporate Seal)
Merchants Bonding Company (Mutual
Signature- �l L� /174 /ei
Name and TrtI : Jackie A Wagner
Attorney -In -Fact
(FOR INFORMATION ONLY— Name, Address and Telephone)
AGENT or BROKER:
PEDERSEN-DOWIE-CLABBY
McCausland Ins, PO Box 2597
Waterloo, IA 50704
319-234-8888
OWNER'S REPRESENTATIVE (Architect, Engineer or other
Party):
Modus
214 E. 4th Street
Waterloo, IA 50703
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
A312-1984 4
1 The Contractor and the Surety, jointly and severally,
bind themselves, their heirs, executors, administrator,
successors 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, indemnities, 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, 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 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 per-
formed 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 mater-
ials 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 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 sufficient
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
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,
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
materials or equipment were furnished by anyone under
the Construction 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.
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
A312-1984 5
13 When this Bond has been fumished 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 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
promptly fumish 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 performance 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
fumished.
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 THIS BOND ARE AS FOLLOWS:
Section 6 is modified by adding section 6.3.
6.3 The Surety's failure to discharge its obligations under this Section 6 shall not be deemed to constitute a waiver of
defenses the Surety or Contractor may have or acquire as to a claim. However, if the Surety fails to discharge its
obligations under this Section 6, the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant
incurs to recover any sums found to be due and owing to the Claimant.
(Space is provided below for additional signatures of added parties, other than those appearing on the cover page.)
CONTRACTOR AS PRINCIPAL
Company:
SURETY
Company:
(Corporate Seal) (Corporate Seal)
Signature:
Name and Title:
Address:
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
A312-1984 6
MERCHANTS
BONDING COMPANY
POWER OF ATTORNEY
Bond #: IAC 64915
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
Jackie A Wagner
of Waterloo and State of IA 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:
TWENTY MILLION ($20,000,000.00) DOLLARS
and to bind the MERCHANTS BONDING COMPANY (MUTUAL) thereby as fully and to the same extent as if such bond or
undertaking was signed by the duly authorized officers of the MERCHANTS BONDING COMPANY (MUTUAL), and all the acts of
said Attomey-in-Fact, pursuant to the authority herein given, are hereby ratified and confirmed.
This Power -of -Attorney is made and executed pursuant to and by authority of the following Amended Substituted and Restated By -
Laws adopted by the Board of Directors of the MERCHANTS BONDING COMPANY (MUTUAL) on November 16, 2002.
ARTICLE II, SECTION 8 - The Chairman of the Board or President or any Vice President or Secretary shall have power and
authority to appoint Attomeys-in-Fact, and to authorize them to execute on behalf of the Company, and attach the Seal of the
Company thereto, bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature
thereof.
ARTICLE II, SECTION 9 - The signature of any authorized officer and the Seal of the Company may be affixed by facsimile
to any Power of Attorney or Certification thereof authorizing the execution and delivery of any bond, undertaking,
recognizance, or other suretyship obligations of the Company, and such signature and seal when so used shall have the
same force and effect as though manually fixed.
In Witness Whereof, MERCHANTS BONDING COMPANY (MUTUAL) has caused these presents to be signed by its President and
its corporate seal to be hereto affixed, this 28th day of September , 2010 .
..•--....
•• D�t1G CQ�•.• MERCHANTS BONDING COMPANY (MUTUAL)
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STATE OF IOWA
COUNTY OF POLK ss.
74 7
President
On this 28th day of September , 2010 before me appeared Larry Taylor, to
me personally known, who being by me duly swom 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.
a CINDY SMYTH
s �; Commission Number 173504
cw� My Commission Expires
March 16, 2012
Gx
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 28th day of September , 2010
POA 0005 (1/09)
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Secretary