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CONSTRUCTION AGREEMENT WELL #6 PUMP REPLACEMENT BETWEEN CITY OF MOSCOW, IDAHO AND KME SPECIAL TIES, LLC THIS CONSTRUCTION AGREEMENT WELL #6 PUMP REPLACEMENT BETWEEN CITY OF MOSCOW, IDAHO AND KME SPECIALTIES, LLC (hereinafter "Agreement"), dated this ^ day of j0,(2 , 2017, by and between the City of Moscow, Idaho, a municipal corporation of the State of daho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "City"), and KME Specialties, LLC, P 0 Box 99, Troy, Idaho, 83871 (hereinafter "Contractor"); W I T N E S S E T H : WHEREAS, pursuant to the invitation of City through a "Solicitation For Bids", Contractor submitted a proposal containing an offer invited by said notice; and WHEREAS, City has determined that said offer was the lowest responsive bid; and WHEREAS, City has accepted Contractor's bid; NOW THEREFORE, the Parties to this Agreement, in consideration of the mutual covenants and stipulations set out, agree as follows: ARTICLE 1. CONTRACT DOCUMENTS The Contract Documents which comprise the entire agreement between City and Contractor concerning the work to be performed are this Agreement, pages One through Five (1 through and the following: 1. Advertisement for Bids; 2. Project Specifications titled: Well #6 Pump Replacement City of Moscow Project No. 112-017 3. Bid/Proposal of Contractor, dated June 13, 2017, physically attached to this Agreement; 4. The Engineering Plans; 5. Performance and Payment Bonds and Insurance Certificates, physically attached to this Agreement; 6. No Addendum issued prior to opening of bids; 7. Change Orders which may be delivered or issued after the effective date of this Agreement. There are no Contract Documents other than those listed in Article 1. This Agreement may only be amended by change order as provided in the General Conditions. WELL #6 PUMP REPLACEMENT CITY AND KME SPECIALTIES, LLC PAGE I OF 5 ---PAGE BREAK--- ARTICLE 2. WORK Contractor shall complete the entire work as specified, indicated, and required under the Contract Documents for City project (hereinafter "Project") titled: "Wen #6 Pump Replacement" CONTRACT TIME/SUBSTANTIAL COMPLETION The work to be performed pursuant to this Agreement shall be substantially completed on or before ninety (90) calendar days from the commencement of work. All work shall be completed within this described time frame unless adjustment of the contract time is made in accordance with the provisions of the Contract Documents. Contractor shall begin work in conformance with the Contract Documents and shall complete the work prior to the date of completion. ARTICLE4. CONTRACT SUM City shall pay Contractor for completion of the Work in accordance with the Contract Documents in current funds in an amount not to exceed One Hundred Ninety Six Thousand Five Hundred Eighty Dollars ($196,580) for Base Bid and Additive Alternate Bid, as submitted by Contractor. In no event shall Contract amount exceed Contractor's bid amount of One Hundred Ninety Six Thousand Five Hundred Eighty Dollars 196,580) unless otherwise authorized by City. Any such increase in work shall be compensated in accordance with pricing terms specified in bid documents. Said Contract Sum shall be paid in accordance with the Contract Documents. ARTICLE 5. INDEPENDENT CONTRACTOR The Parties warrant by their signature that no employer-employee relationship is established between Contractor and City by the terms of this Agreement. It is understood by the Parties hereto that Contractor is an independent contractor and, as such, neither it nor its employees, agents, representatives or subcontractors, if any, are employees of City for purposes of tax, retirement system, or social security (FICA) withholding. ARTICLE 6. SCOPE OF SERVICES Contractor shall perform all services required by the Contract Documents. All work shall be completed in accordance with the specifications and plans established for this Project. ARTICLE 7. HOLD HARMLESS/INDEMNIFICATION In addition to other rights granted City by the Contract Documents, Contractor shall indemnify and hold harmless the City, its officers, employees, and engineers, from all suits, actions, or claims of any WELL #6 PUMP REPLACEMENT CITY AND KME SPECIALTIES, LLC PAGE 2 OF 5 ---PAGE BREAK--- character brought because of any injuries or damages received or sustained by any person, persons, or property on account of the operations of Contractor or its subcontractors; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any act or omission, neglect, or misconduct of Contractor or its subcontractors; or because of any claims or amounts recovered from any infringements of patent, trademark or copyright; or from any claims or amounts arising or recovered under the Workmen's Compensation Act or any other law, ordinance, order or decree. ARTICLE 8. CONFLICT OF INTEREST Contractor covenants that it presently has no interest and will not acquire any interest, direct or indirect, in the Project which would conflict in any manner or degree with the performance of its services hereunder. Contractor further covenants that, in performing this Agreement, it will employ no person who has any such interest. Should any conflict of interest arise during the performance of this Agreement, Contractor shall immediately disclose such conflict to the Project Engineer/Engineer and City. ARTICLE9. ENTIRE AGREEMENT, MODIFICATION AND ASSIGN ABILITY This Agreement and the exhibits hereto (if any) contain the entire agreement between the Parties, and no statements, promises, or inducements made by either Party, or agents of either Party are valid or binding unless contained herein. This Agreement may not be enlarged, modified or altered except upon written agreement signed by the Parties hereto. Contractor may not subcontract or assign its rights (including the right to compensation) or duties arising hereunder other than as contemplated by the Contract Documents, without the prior written consent and express authorization of City. ARTICLE 10. ADHERENCE TO LAW REQUIRED All applicable local, state and federal statutes and regulations are hereby made a part of this Agreement and shall be adhered to at all times. Violation of any of these statutes or regulations by Contractor shall be deemed material and shall subject Contractor to termination of this Agreement for cause. No pleas of misunderstanding or ignorance on the part of Contractor will in any way serve to modify the provisions of this requirement. Contractor and its surety shall indemnify and hold harmless City and its employees, agents, engineers and representatives against any claim or liability arising from or based on the violation of any such laws, codes, ordinances, or regulations, whether by Contractor, Contractor's employees, or its subcontractors. ARTICLE 11. LEGAL FEES Jn the event either Party incurs legal expenses to enforce the terms and conditions of this Agreement, the prevailing Party is entitled to recover reasonable attorney's fees and other costs and expenses, whether the same are incurred with or without suit. WELL #6 PUMP REPLACEMENT CITY AND KME SPECTALTIES, LLC PAGE3 OF 5 ---PAGE BREAK--- ARTICLE 12. JURISDICTION AND VENUE It is agreed that this Agreement shall be construed under and governed by the laws of the State of Idaho. In the event of litigation concerning it, it is agreed that proper venue shall be the District Court of the Second Judicial District of the State of Idaho, in and for the County of Latah. ARTICLE 13. SPECIAL WARRANTY Contractor declares that no improper personal, political or social activities have been used or attempted in an effort to influence the outcome of the competition, discussion, or negotiation leading to the award of this Agreement. Any such activity by Contractor shall make this Agreement null and void. ARTICLE 14. COMMUNICATIONS Such communications as are required by this Agreement shall be satisfied by mailing or by personal delivery to the Parties at the following address: Contractor: KME Specialties, LLC P 0 Box 99 Troy, Idaho 83871 ARTICLE 15. EXECUTION City: City Engineer City of Moscow 206 East Third Street P 0 Box 9203 Moscow, Idaho 83843 IN WITNESS WHEREOF, said Contractor and City have caused this Agreement to be executed on the day and year first above written. Contractor: KME Specialties, LLC By: Phil Stradley WELL #6 PUMP REPLACEMENT Crrv AND KME SPECIALTIES, LLC City of Moscow, Idaho Roderick Hall, City Attorney PAGE4 OF 5 ---PAGE BREAK--- STATE OF IDAHO County of _ _ • ACK NOWLEDGMENT ) ) :ss ) On this 1ay of 2017, before me, the undersigned, a Notary in and for said State, personally appear d Phil radley, known to me to be the person whose name is subscribed to the foregoing Agreement and acknowledged to me that he executed the same in his/her capacity as for KME Specialties, LLC. JI- L COi-1'1, & (se1t'J" l \ - I µO•TVTr • • = 1· l : . - : \ ,cUBl-'V / : ; o ° ± ² ³ ¯ ''111 c OF \ WELL #6 PUMP REPLACEMENT CITY AND KME SPECIAL TIES, LLC dQl,ut_Q_ d 6:>/ior Notary Public residing at: fl2C1Sl!C:X . ;J:'LJ My commission expires: -dll. PAGE 5 OF 5 ---PAGE BREAK--- Bond No. 71923723 Document A312TM -2010 Conforms with The American Institute of Architects AIA Document 312 Performance Bond CONTRACTOR: (Name, legal status and address) KME, Specialties, LLC PO Box 99 Troy, ID 83871 OWNER: (Name, legal status and address) City of Moscow PO Box 9203 Moscow, ID 83843 CONSTRUCTION CONTRACT Date: -::s-Jv i 20\"7 Amount:$ 196,580.o6 Description: (Name and location) Well #6 Pump Replacement BOND Date: July 5, 2017 (Not earlier them Contract Date) Amount: s 196,580.00 Modifications to this Bond: IKJ None SURETY: (Name, legal status and principal place of business) Western Surety Company 333 S. Wabash Ave. Chicago, IL 60604 Address for Notices 333 S. Wabash Ave. Chicago, IL 60604 This document has Important legal consequences. Consullatlon with an attorney Is encouraged with respect to Its complellon or modification. Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where One Hundred Ninety Six Thousand Five Hundred Eighty Dollars and 00/100 One Hundred Ninety Six Thousand Five Hundred Eighty Dollars and 00/100 D Sec Section 16 CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) SURETY Company: (Co1porate Seal) KME, Specialties, LLC Signature: T2UV::{,L Name and Title: (Any additional signatures appear on the last page of this Pe1for111ance Bond.) (FOR JNFORilt!ATION ONLY -Name, address and telephone) Western Surety Company /"t-S Name and Title: Attorney-in-Fact AGENT or BROKER: PayneWest Insurance, Inc. OWNER'S REPRESENTATIVE: (Architect, Engineer or other party:) 501 N. Riverpoint Blvd., Suite 403 Spokane, WA 99202 [PHONE REDACTED] S-1852/AS 8/10 ---PAGE BREAK--- § 1 The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns lo lhe Owner for the performance of the Construction Contract, which is incorporated herein by reference. § 2 If the Contractor perfonns the Construction Contract, the Surely and the Contractor shall have no obligation under this Bond, except when applicable to participate in a conference as provided in Section 3. § 3 If there is no Owner Default under the Construction Contract, the Surety's obligation under this Bond shall arise after .1 the Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring a Contractor Default. Such notice shull indicate whether the Owner is requesting a conference among the Owner, Contractor and Surety to discuss the Contractor's performance. If the Owner docs not request a conference, the Surety may, within five business days after receipt of the Owner's notice, request such a conference. If the Surety timely requests a conference, the Owner shall atlend. Unless the Owner agrees otherwise, any conference requested under this Section 3.1 shall be held within ten {l 0) business days oflhe Surety's receipt of the Owner's notice. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable lime to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if uny, subsequently to declare a Contractor Default; .2 the Owner declares a Contractor Default, tciminatcs the Construction Contract and notifies the Surety; and .3 the Owner has agreed lo pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perfonn the Construction Contract. § 4 Failure on the part of the Owner to comply with the notice requirement in Section 3.1 shall not constitute a failure to comply with a condition precedent to the Surety's obligations, or release the Surety from its obligations, except to the extent the Surety demonstrates actual prejudice. § 5 When the Owner hus satisfied the conditions of Section 3, the Surety shall ond at the Surety's expense take one of the following actions: § 5.1 Arrange for the Contractor, with the consent of the Owner, to perform and complete the Construction Contract; § 5.2 Undertake to pcrfonn and complete the Construction Contract itself, through lts ogents or independent contractors; § 6.3 Obtain bids or negotiated proposals from qualified contractors ucceptuble to the Owner for a contract for pcrfonnance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and a contractor selected with the Owner's concurrence, to be secured with pcrfonnancc and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay lo the Owner the amount of damages as descdbed In Section 7 in excess of the Dalonce of the Contract Price incurred by the Owner as 11 result of the Contractor Default; or § 5.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor nnd with reasonable promptness under the circums!W1ccs: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is dctennincd, make payment to the Owner; or .2 Deny liability in whole or in part and notify the Owner, citing the reasons for denial. § 6 If the Surety does not proceed as provided in Section S with reasonable promptness, the Surety shall be deemed to be in default on this Bond seven days after receipt of nn additionnl written notice from the Owner to the Surety demanding that the Surety perfonn 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 Section 5.4, and the Owner refuses the payment 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. S-1852/AS 8/10 ---PAGE BREAK--- § 7 If the Surety elects to act under Section 5.1, 5.2 or 5,3, 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. Subject to the commitment by the Owner to pay the Balance of the Contract Price, the Surety is obligated, without duplication, for .1 .2 .3 the responsibilities of the Contractor for correctfon of defective wo1·k and completion of the. Construction Contract; additional legal, design professional and delay cost'i resulting from the Contractor's Default, und resulling from the actions or failure to act of the Surety under Section 5; and -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. § 8 If the Surety elects to act under Section 5.1, 5.3 or 5.4, the Surety's liability is limited to the amount of this Dond. § 9 The Surety shall nol be liable to the Owner or others for obligations of the Contractor that arc unrelated lo the Construction Contract, and the Balance of the Contract Price sh11 l not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to uny person or entity other than the Owner or its heirs, executors, administrators, successors and assigns. § 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 Any proceeding, legul 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 a declaration of 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 Dond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available lo sureties as a defense in thejurisdiclion of the suit shall be applicable. § 12 Notice to the Surely, the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. § 13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was Lo be performed, any provision in this Doud conflicting with said :itututory or legal requirement shall be deemed deleted herefrom and provisions confo1ming to such statutory or other legal requirement shull be deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common luw·bond. § 14 Definitions § 14.1 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 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. § 14.2 Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and changes made to the agreement and the Contract Documents. § 14.3 Contractor Default. Failure of the Contractor, which has not been remedied or waived, to perform or otherwise to comply with a material term of the Construction Contract. § 14.4 Owner Default. Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to pcrfom1 and complete or comply with the other materlal terms of the Construction Contract. § 14.6 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 15 If this Bond is issued for an ngreemenl between a Contr11ctor und subcontractor, the term Contractor in this Bond shall be deemed to be Subcontractor and the lerrn Owner shall be deemed lo be Contractor. S-1852/AS 8110 ---PAGE BREAK--- § 16 Modifications lo this bond are as follows: (Space is provided below for additional signat11res of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: Signature: Signature: (Co1porate Seal) Name and Title: Name and Title: Address Address S-1852/AS 8/10 ---PAGE BREAK--- Bond No. 71923723 Document A312TM - 2010 Conforms with The American Institute of Architects AIA Document 312 Payment Bond CONTRACTOR: (Name, legal status and address) KME, Specialties, LLC PO Box 99 Troy, ID 83871 OWNER: (Name, legal sratus and address) City of Moscow PO Box 9203 Moscow, ID 83843 CONSTRUCTION CONTRACT Date: RJ Amount: $ 196, 580.dO Description: (Name and location) Well #6 Pump Replacement BOND Date: July 5, 2017 (Nol earlier than Construction Contract Date) Amount: $ 196,580.00 Modifications lo this Hond: None SURETY: (Name, legal starus and principal place of business) Western Surety Company 333 S. Wabash Ave. Chicago, IL 60604 Malling Address for Notices 333 S. Wabash Ave. Chicago, IL 60604 This document has important legal consequences. Consullallon with an attorney Is encouraged with respect to Its completion or modification. Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. One Hundred Ninety Six Thousand Five Hundred Eighty Dollars and 00/100 One Hundred Ninety Six Thousand Five Hundred Eighty Dollars and 00/100 D See Section 18 SURETY CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) Company: (Corporate Seal) KME, Specialties, LLC Signature: Name and Title: (Any additional signatures appear on the last page of this Payment Bond.) (FOR INFORi\lATION ONLY - Name, add1·ess and telephone) Western Surety Company / - p . Slgoatut. $t:hv·%&/V N Udrth C. Kaiser-Smith rune and Title: Attorney-in-Fact AGENT or BROKER: PayneWest Insurance, Inc. OWNER'S REPRESENTATIVE: (Architect, Engineer or other party:) 501 N. Riverpoint Blvd., Suite 403 Spokane, WA 99202 [PHONE REDACTED] S-2149/AS 8/10 ---PAGE BREAK--- § 1 The Contr11ctor and Surety, jointly and severally, bind themselves, their heirs, executors, udministralors, successors and assigns lo the Owner to p11y for labor, materials and equipment furnished for use in the perfonnance of the Construction Contract, which Is incorporated herein by reference, subject to the following tenns. § 2 If the Contractor mukes payment of all sums due to Claimants, and defends, indemnifies and holds hannless the Owner from claims, demands, liens or suits by any person or entity seeking payment for labor, materials or equipment furnished for use in the perfonnance of the Construction Contract, then the Surety and the Contractor shall have no obligation under this Bond. § 3 Iflhere is no Owner Default under the Construction Contract, the Surety's obligation to the Owner under this Bond shall arise after the Owner hus notified the Contractor and the Surety (at the address described in Section 13) of claims, demands, liens or suits against the Owner or the Owner's property by any person or entity seeking payment for labor, materials or equipment furnished for use in the perfonnance of the Construction Contract and tendered defense of such claims, demands, liens or suits to the Contractor and the Surely. § 4 When U1e Owner has satisfied the conditions in Section 3, the Surety shall and at the Surety's expense defend, indemnify and hold harmless the Owner against 11 duly tendered claim, demand, lien or suit. § 5 The Surety's obligations to a Claimant under this Bond shall arise after the following: § 5.1 Claimants, who do not have a direct contract with the Contractor, .1 have rumished 11 wrillen notice of non-payment to the Contractor, stating with substantial accuracy the amount claimed and the name o r t he party to whom the materials were, or equipment was, furnished or supplied or for whom the labor was done or perfonned, within ninely (90) days after having lost pcrfonncd labor or last furnished materials or equipment included in the Claim; und .2 have sent a Claim to the Surety (at the address described in Section 13). § 6.2 Claimants, who arc employed by or have a direct contract with the Contractor, have sent a Claim to the Surety (at the addres.Ų described in Section 13), § 6 If a notice of non-payment required by Section 5.1.l is given by the Owner to the Contractor, that is surlicient to satisfy a Claimant's obligation to furnish a written notice of non-payment under Section 5.1.1. § 7 When a Claimant has s11tisfied the conditions of Sections 5.1 or 5.2, whichever is applicable, the Surety shall und ut the Surety's expense take the following actions: § 7.1 Send on answer to the Cl11imont, with a copy to the Owner, within sixty (60) days after receipt of the Claim, stating the amounts that arc undisputed and the basis for challenging any amounts that are disputed; and § 7.2 Pay or arrange for payment of any undisputed amounts. § 7.3 The Surety's failure Lo discharge its obligations under Section 7.1 or Section 7.2 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or 11cquire as to a Claim, except as to undisputed amounts for which the Surety and Claimant have reached agreement. If, however, the Surety foils to discharge its obligations under Section 7.1 or Section 7.2, the Surety shall indemnify the Claimant for the reasonable ullorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimont. § 8. The Surety's total obligation shall not exceed the amount of this Bond, plus the amount of reusonuble uttomey's fees provided under Section 7.3, and the amount of this Bond shall be credited for 11ny payments made in good faith by the Surety. § 9 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 11gree that all funds earned by the Contractor in the perfonnance of the Construction Contract are dedicated to s11tisfy obligations of the Contractor and Surety under this Bond, subject to the Owner's priority to use the funds for lhe completion of the work S-2149/AS 8/10 ---PAGE BREAK--- § 10 The Surety shall not be liable to the Owner, Claimwits or others for obligations of the Contractor that arc unrelated to the Construction Contract. The Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligation to make payments to, or give notice on behalf of, Claimants or otherwise have any obligations to Claimants under this Bond. § 11 The Surely hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. § 12 No suit or action shall be commenced by a Claimant under this Bond other than in a court of coinpetentjurisdiction In the state in which the project that is the subject of tho Construction Contract· ls located or after the expiration ofone year from the date on \Vhich the Claimant sent a Claim to the Surety pursuant to Section 5.1.2 or 5.2, or on which the last labor or service wŻs performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of(l) or first occurs. If the provisions of this Paragraph arc void or prohibited by Jaw, the period oflimitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. § 13 Notice and Claims to the Surety, the Owner or the Contractor shall be moiled or delivered to the address shown on the page on which their signature appears. Actual receipt of notice or Claims, however accomplished, shall be sufficient compliance as of the dote received. § 14 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 with said statutory or legal requirement shall be deemed deleted hcrefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed es a statutory bond and not as a conunon law bond. § 15 Upon request by any person or enlity appearing lo be a potential beneficiary of this Bond, the Contractor and Owner furnish a copy of this Bond or shall pennit a copy to be made. § 16 Definitions § 16.1 Claim. A written statement by the Claimant including at a minimum: .1 the name of the Claimant; .2 the name oflhe person for whom the labor was done, or materials or equipment furnished; .3 a copy of the agreement or purchase order pursuanfto which labor, materials or equipment was furnished for use in the pcrfonnance of the Construction Contract; .4 a brief description of the labor, materials or equipment furnished; .5 the dale on which the Claimant last perfonned labor or last furnished materials or equipment for use in the perfonnance of the Construction Contract; .6 the total amount earned by the Claimant for labor, materials or equipment furnished as oflhe date of the Claim; .1 the total amount of previous payments received by the Claimant; and .B the total amount due and unpaid to the Claimant for labor, mażerials or equipment furnished as of the date of the Claim. § 16.2 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 perfonnance of the Construction Contract. The term Claimant also includes any individual or entity that hns rightfully asserted n claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located. The intent oflhis Bond shall be lo include without limitation in the "labor, materials or equipment" that part of water, gas, power, lighŽ 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. § 16.3 Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and all changes made to the agreement and the Contract Documents. S·21491AS 8110 ---PAGE BREAK--- § 16.4 Owner Default. Failure of U1e Owner, which has not been remedied or wnived, lo pay the Contructor as required under the Construction Contract or to perfonn and complete or comply with the other material tenns of the Construction Contract. § 16.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 17 Iflhis Bond is issued for an agreement between a Contractor and subcontractor, the term in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. § 18 Modifications to this bond are as follows: (Space Is provided below /01· additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Name and Title: Signarure: _ Name and Title: Address Address S-2149/AS 8/10 ---PAGE BREAK--- Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint Judith A Rapp, James E Majeskey II, Judith C Kaiser Smith, Jaclyn R Kruse, Shanalee E Steele, Thomas V A Davis, Marla J Davenport, Individually of Spokane, WA, its true and lawful Attorney(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature - In Unlimited Amounts - and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By-Law printed on the reverse hereof, duly adopted, as indicated, by the shareholders of the corporation. In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Vice President and its corporate seal to be hereto affixed on this 16th day ofMay, 2017. State of South Dakota County of Minnehaha W E S T E RN S U R E T Y C O M P AN Y O n this 16th day of May, 2017, before me personally came Paul T. Bruflat, to me known, who, being by me duly sworn, did depose and say: that he resides in the City of Sioux Falls, State of South Dakota; that he is the Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. My commission expires J.MOHR June 23, 2021 J. Mohr, Notary Public CERTIFICATE I, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in force, and further certify that the By-Law of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixedthe seal of the said corporation this 5th day of July 2017 . W E S T E RN S U R E T Y C O M P AN Y Form F4280-7-2012 ---PAGE BREAK--- Authorizing By-Law ADOPTED BY THE SHAREHOLDERS OF WESTERN SURETY COMPANY This Power of Attorney is made and executed pursuant to and by authority of the following By-Law duly adopted by the shareholders of the Company. Section 7. All honds, policies, undertakings, Powers of Atlorney, or olher nhligalions of lhe cnrporntinn shall he executed in the corporate name of the Company by the President, Secretary, and Assistant Secretary, Treasurer, or any Vice President, or by such other offict:rs as tht: Boar