HomeMy WebLinkAboutBonds SURETY BOND NO. 9434265
PERFORMANCE,PAYMENT,AND MAINTENANCE BOND
KNOW ALL BY THESE PRESENTS:
That we, ITG Communications,LLC , as Principal
(hereinafter the "Contractor" or "Principal" and Fidelity and Deposit Company of Maryland&Zurich American Insurance Company as
Surety are held and firmly bound unto City of Waterloo,Iowa , as
Obligee(hereinafter referred to as"the Jurisdiction"),and to all persons who may be injured by any breach of
any of the conditions of this Bond in the penal sum of
Seventy-Seven Million Eight Hundred Sixty-FourThousand Five Hundred Sixty-Five and 10/100s
dollars ($ S77,864,565.10 ), lawful money of the United States, for the payment of which sum, well
and truly to be made, we bind ourselves, our heirs, legal representatives and assigns,jointly or severally,
firmly by these presents.
The conditions of the above obligations are such that whereas said Contractor entered into a contract with the
Jurisdiction,bearing date the day of , ,hereinafter the"Contract")
wherein said Contractor undertakes and agrees to construct the following described improvements:
CONSTRUCTION OF A FIBER-TO-THE-PREMISE FEEDER/DISTRIBUTION AND BACKBONE
NETWORK PROJECT, CONTRACT NO. 1088
The improvement includes the construction of the necessary components to create the high-speed FTTP
XGS-PON communications Network(the Project) within the City's defined Service Area and prepare it
to deliver backbone and fiber-to-the-home services. The system shall be a fully operational high-speed
communications network supporting Internet protocol technology and allowing users access to and from
the Internet. The Project requires the construction of a Fiber to the Premise feeder/distribution and a
backbone network which will support XGS-PON technologies to be utilized to deliver best-effort and
guaranteed services to its customers within the City Service Area.
The design identifies the placement of FDH's located at the City data center and network PoP's. These
locations will also house active electronics and splicers in support of the FTTP deployment. Fiber routes
to be built by contractor and operated by the City and the Waterloo Telecommunications Utility will be
utilized to interconnect these FDHs in a fiber ring topology.
Fiber routes are laid out logically to economically connect each service area back to the local cabinet
located at the headend or alternate node site.Architecture is a star design for the feeder network and a
ring connecting network nodes.
The Project will be located at various locations throughout the City.
The City has active grant applications into federal funding agencies for portions of the backbone only
(Division 2 work). In the event of a grant award, the City reserves the right to remove the Division 2
work from this Contract, with a reduction in fee to the Contractor equivalent to the bid price associated
with the Division 2 work. The City anticipates that a decision regarding the Division 2 work will be made
on or before August 1, 2023.
(CON'T—PERFORMANCE,PAYMENT,AND MAINTENANCE BOND)
and to faithfully perform all the terms and requirements of said Contract within the time therein specified, in
a good and workmanlike manner,and in accordance with the Contract Documents. Provided,however,that
two years after the date of acceptance as complete of the work under the above referenced Contract,
the maintenance portion of this Bond shall continue in force.
It is expressly understood and agreed by the Contractor and Surety in this bond that the following provisions
are a part of this Bond and are binding upon said Contractor and Surety,to-wit:
PERFORMANCE: 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 above referenced improvements,and shall indemnify and save harmless
the Jurisdiction from all outlay and expense incurred by the Jurisdiction 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: The Contractor and the Surety on this Bond hereby agreed to 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 the Jurisdiction 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 of the Iowa Code,which by this reference is made
a part hereof as though fully set out herein.
3. MAINTENANCE: The Contractor and the Surety on this Bond hereby agree, at their own expense:
A. To remedy any and all defects that may develop in or result from all work except new paving to
be performed under the Contract within the period of two year(s)from the date of acceptance of
the work under the Contract, by reason of defects in workmanship or materials used in
construction of said work; and
B. To remedy any and all defects that may develop in or result from new paving work to be
performed under the Contract within the period of two year(s)from the date of acceptance of the
work under the Contract,by reason of defects in workmanship or materials used in construction
of said work;
C. To keep all work in continuous good repair;and
D. To pay the Jurisdiction's reasonable costs of monitoring and inspection to assure that any defects
are remedied, and to repay the Jurisdiction all outlay and expense incurred as a result of
Contractor's and Surety's failure to remedy any defect as required by this section.
E. Maintenance bond requirements shall not apply to the following: work that is not permanently
incorporated into the project, pavement markings, seeding, sodding, and plant material and
planting.
(CON'T— PERFORMANCE,PAYMENT,AND MAINTENANCE BOND)
4. GENERAL: Every Surety on this Bond shall be deemed and held bound,any contract to the contrary
notwithstanding,to the following provisions:
A. To consent without notice to any extension of time to the Contractor in which to perform the
Contract;
B. To consent without notice to any change in the Contract or Contract Documents,which thereby
increases the total contract price and the penal sum of this bond, provided that all such changes
do not,in the aggregate,involve an increase of more than 20%of the total contract price,and that
this bond shall then be released as to such excess increase;and
C. To consent without notice that this Bond shall remain in full force and effect until the Contract is
completed,whether completed within the specified contract period, within an extension thereof,
or within a period of time after the contract period has elapsed and the liquidated damage penalty
is being charged against the Contractor.
D. That no provision of this Bond or of any other contract shall be valid that limits to less that five
years after the acceptance of the work under the Contract the right to sue on this Bond.
E. That as used herein,the phrase"all outlay and expense"is not to be limited in any way,but shall
include the actual and reasonable costs and expenses incurred by the Jurisdiction including
interest,benefits, and overhead where applicable. Accordingly, "all outlay and expense"would
include but not be limited to all contract or employee expense, all equipment usage or rental,
materials, testing, outside experts, attorneys fees (including overhead expenses of the
Jurisdiction's staff attorneys),and all costs and expenses of litigation as they are incurred by the
Jurisdiction. It is intended the Contractor and Surety will defend and indemnify the Jurisdiction
on all claims made against the Jurisdiction on account of Contractor's failure to perform as
required in the Contract and Contract Documents, that all agreements and promises set forth in
the Contract and Contract Documents, in approved change orders, and in this Bond will be
fulfilled,and that the Jurisdiction will be fully indemnified so that it will be put into the position
it would have been in had the Contract been performed in the first instance as required.
In the event the Jurisdiction incurs any "outlay and expense" in defending itself against any claim as to
which the Contractor or Surety should have provided the defense, or in the enforcement of the promises
given by the Contractor in the Contract, Contract Documents, or approved change orders, or in the
enforcement of the promises given by the Contractor and Surety in this Bond, the Contractor and Surety
agree that they will make the Jurisdiction whole for all such outlay and expense,provided that the Surety's
obligation under this bond shall not exceed 125%of the penal sum of this bond.
(CON'T—PERFORMANCE,PAYMENT AND MAINTENANCE BOND)
In the event that any actions or proceedings are initiated regarding this Bond,the parties agree that the venue
thereof shall be Black Hawk County, State of Iowa. If legal action is required by the Jurisdiction to
enforce the provisions of this Bond or to collect the monetary obligation incurring to the benefit of the
Jurisdiction,the Contractor and the Surety agree,jointly,and severally,to pay the Jurisdiction all outlay and
expense incurred therefor by the Jurisdiction. All rights,powers,and remedies of the Jurisdiction hereunder
shall be cumulative and not alternative and shall be in addition to all rights,powers,and remedies given to the
Jurisdiction, by law. The Jurisdiction may proceed against surety for any amount guaranteed hereunder
whether action is brought against the Contractor or whether Contractor is joined in any such action(s)or not.
NOW THEREFORE,the condition of this obligation is such that if said Principal shall faithfully perform all
the promises of the Principal,as set forth and provided in the Contract,in the Contract Documents,and in this
Bond,then this obligation shall be null and void,otherwise it shall remain in full force and effect.
When a word,term, or phrase is used in this Bond, it shall be interpreted or construed first as defined in this
Bond, the Contract, or the Contract Documents; second, if not defined in the Bond, Contract, or Contract
Documents,it shall be interpreted or construed as defined in applicable provisions of the Iowa Code;third,if
not defined in the Iowa Code,it shall be interpreted or construed according to its generally accepted meaning
in the construction industry;and fourth,if it has no generally accepted meaning in the construction industry,
it shall be interpreted or construed according to its common or customary usage.
Failure to specify or particularize shall not exclude terms or provisions not mentioned and shall not limit
liability hereunder. The Contract and Contract Documents are hereby made a part of this Bond.
(CON'T—PERFORMANCE, PAYMENT, AND MAINTENANCE BOND) Project No. 1088
Signed and Sealed this 14th day of July,2023.
PRINCIPAL: SURETY:
Fidelity and Deposit Company of Maryland&
ITG Communications, LLC Zurich American Insurance Company
or 1 Surety Company
By By Signature Si Si ature Attorney-in-Fact Officer
C c 0 KD Wapato,Attorney-In-Fact
Title Printed Name of Attorney-ire-Fact Officer
FORM APPROVED BY: Lockton Insurance Brokers LLC
Company Name
/A�
�,, lAt/� �- � 777 S.Figueroa Street,Suite 5200,
Attorney for Jurisdiction Company Address
,u 4--k rc N Pc-R-FgS�-'Tt
Los Angeles,CA 90017
City,State,Zip Code
213 689 0500
Company Telephone Number
NOTE:
1. All signatures on this performance, payment, and maintenance bond must be original signatures in ink;
copies, facsimile,or electronic signatures will not be accepted.
2. This bond must be sealed with the Surety's raised,embossing seal.
3. The Certificate or Power of Attorney accompanying this bond must be valid on its face and sealed with the
Surety's raised,embossing seal.
4. The name and signature of the Surety's Attorney-in-Fact/Officer entered on this bond must be exactly as
listed on the Certificate or Power of Attorney accompanying this bond.
.
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California
County of Los Angeles
On JUL 1,4 2023 before me, D. Garcia, Notary Public, personally appeared
KD Wap o w o proved to me on the basis of satisfactory evidence to be the persons)whose
names) is/are subscribed to the within instrument and acknowledgment to me that
h-e/she/they executed the same in iais/her/their authorized capacity(ies), and that by
la+s/her/their signatures)on the instrument the person4s3, or the entity upon behalf of which
the persons) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the
State of California that the foregoing paragraph is true and
correct.
�pMM �gRClq Witness my hand and official seal.
'-4£ Notary Pubh*�3S477p
Los An California
M Comm.Ex ees County o
A '• l8,2025
Signature4 6 -e
D. Garcia, Notary Public
r
ZURICH AMERICAN INSURANCE COMPANY
COLONIAL AMERICAN CASUALTY AND SURETY COMPANY
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:That the ZURICH AMERICAN INSURANCE COMPANY,a corporation of the State of New
York, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, a corporation of the State of Illinois, and the FIDELITY
AND DEPOSIT COMPANY OF MARYLAND a corporation of the State of Illinois (herein collectively called the "Companies"), by
Robert D.Murray,Vice President,in pursuance of authority granted by Article V,Section 8,of the By-Laws of said Companies,which are
set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof,do hereby nominate,constitute,
and appoint B. ALEMAN, Ethan SPECTOR, Timothy NOONAN, Janina MONROE, Adriana VALENZUELA, Jennifer OCHS, Aidan
SMOCK, Lisa CRAIL, Simone GERHARD, Erin BROWN, Paul RODRIGUEZ, Emily NEWELL, D. GARCIA,KD WAPATO, Marina
TAPIA,Edward C.SPECTOR,Ethan SPECTOR of Los Angeles,California, its true and lawful agent and Attorney-in-Fact,to make,
execute,seal and deliver,for,and on its behalf as surety,and as its act and deed: any and all bonds and undertakings,and the execution
of such bonds or undertakings in pursuance of these presents,shall be as binding upon said Companies,as fully and amply,to all intents and
purposes,as if they had been duly executed and acknowledged by the regularly elected officers of the ZURICH AMERICAN INSURANCE
COMPANY at its office in New York, New York., the regularly elected officers of the COLONIAL AMERICAN CASUALTY AND
SURETY COMPANY at its office in Owings Mills, Maryland., and the regularly elected officers of the FIDELITY AND DEPOSIT
COMPANY OF MARYLAND at its office in Owings Mills, Maryland.,in their own proper persons.
The said Vice President does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article V,Section 8,of
the By-Laws of said Companies,and is now in force.
IN WITNESS WHEREOF,the said Vice-President has hereunto subscribed his/her names and affixed the Corporate Seals of the said
ZURICH AMERICAN INSURANCE COMPANY, COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and
FIDELITY AND DEPOSIT COMPANY OF MARYLAND,this 07th day of February,A.D.2022.
„lO" Y ' �'ymmur,r rr'y, `si coMy,.
El 01-
SEAL m it SEAL g1';c, SEAL
�r''gq,.,nuoe.•�° y�'ny,„' `n�```` ,'4aoronutwA ATTEST:
ZURICH AMERICAN INSURANCE COMPANY
COLONIAL AMERICAN CASUALTY AND SURETY COMPANY
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
By: Robert D.Murray
Vice President
By: Dawn E.Brown
Secretary
State of Maryland
County of Baltimore
On this 07th day of February, A.D.2022, before the subscriber,a Notary Public of the State of Maryland,duly commissioned and qualified,Robert D.
Murray,Vice President and Dawn E.Brown,Secretary of the Companies,to me personally known to be the individuals and officers described in and who
executed the preceding instrument,and acknowledged the execution of same,and being by me duly sworn,deposeth and saith,that he/she is the said officer of
the Company aforesaid,and that the seals affixed to the preceding instrument are the Corporate Seals of said Companies,and that the said Corporate Seals and
the signature as such officer were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporations.
IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed my Official Seal the day and year first above written.
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— ,,�,-;�:i. `o _ My Commission hxpi cs'.July 9,2023
Authenticity of this bond-can be confirmed at bondvalidator.zurichna.ca!tt or 410-559-8790
•
•
EXTRACT FROM BY-LAWS OF THE COMPANIES
"Article V,Section 8,Attorneys-in-Fact. The Chief Executive Officer,the President,or any Executive Vice President or Vice President
may, by written instrument under the attested corporate seal, appoint attorneys-in-fact with authority to execute bonds, policies,
recognizances, stipulations, undertakings, or other like instruments on behalf of the Company, and may authorize any officer or any such
attorney-in-fact to affix the corporate seal thereto;and may with or without cause modify of revoke any such appointment or authority at any
time."
CERTIFICATE
I, the undersigned, Vice President of the ZURICH AMERICAN INSURANCE COMPANY, the COLONIAL AMERICAN
CASUALTY AND SURETY COMPANY, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the
foregoing Power of Attorney is still in full force and effect on the date of this certificate;and I do further certify that Article V,Section 8,of
the By-Laws of the Companies is still in force.
This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of
Directors of the ZURICH AMERICAN INSURANCE COMPANY at a meeting duly called and held on the 15th day of December 1998.
RESOLVED: "That the signature of the President or a Vice President and the attesting signature of a Secretary or an Assistant Secretary
and the Seal of the Company may be affixed by facsimile on any Power of Attorney...Any such Power or any certificate thereof bearing such
facsimile signature and seal shall be valid and binding on the Company."
This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of
Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the 5th day of
May, 1994, and the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a
meeting duly called and held on the 10th day of May, 1990.
RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature
of any Vice-President,Secretary,or Assistant Secretary of the Company,whether made heretofore or hereafter,wherever appearing upon a
certified copy of any power of attorney issued by the Company,shall be valid and binding upon the Company with the same force and effect
as though manually affixed.
IN TESTIMONY WHEREOF,I have hereunto subscribed my name and affixed the corporate seals of the said Companies,
this day of d1,11 1 4 M13
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By: Mary Jean Pethick
Vice President
TO REPORT A CLAIM WITH REGARD TO A SURETY BOND,PLEASE SUBMIT A COMPLETE DESCRIPTION
OF THE CLAIM INCLUDING THE PRINCIPAL ON THE BOND,THE BOND NUMBER,AND YOUR CONTACT
INFORMATION TO:
Zurich Surety Claims
1299 Zurich Way -
Schaumburg,IL 60196-1056,`, .
Ph: 800-626-4577 _1
If your jurisdiction allowelectreuiczenortingpf4urety claims,please submit to:
reportsfclaims c)zurichna.0 iri _
Authenticity of thr4-hond:can be confirmed at bondvalidator.zuruiina.com or 410-559-8790