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MOSCOW DOWNTOWN REVITALIZATION INFRASTRUCTURE IMPROVEMENTS AND REPLACEMENTS 2 005 CONSTRUCTION CONTRACT TillS AGREEMENT, dated thisday of /1ft4d/ , 2005, by and between the City of Moscow, Idaho, a municipal corporation of the State of Idaho (hereinafter, "City") and Brown Contracting and Development, Inc. (hereinafter, "Contractor"): WITNESSETH: WHEREAS, pursuant to the invitation of the City, extended through an officially published "Advertisement for Bids", the Contractor did, in accordance therewith file with the City a proposal containing an offer which was invited by said notice; and WHEREAS, the City has determined that said offer was the lowest and best submitted: NOW THEREFORE, the parties to this Contract, 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 the City and the Contractor concerning the work to be perfonned are this Contract, pages one through four and the following: I. Advertisement for Bids; 2. Project Specifications titled: Moscow Downtown Revitalization Infrastructure Improvements And Replacements 2005. 3. Bid/Proposal of the Contractor, dated March I, 2005, to be physically attached to this Contract; 4. The Engineering Plans; 5. Performance and Payment Bonds and Insurance Certificates, to be physically attached to this Contract; 6. Change Orders, which may be delivered or issued after the effective date of this Agreement; 7. Addenda issued prior to opening of bids, to be physically attached to this contract. There are no Contract Documents other than those listed in Article I. This Contract may only be amended by change order as provided in the General Conditions. Construction Contract Page I of 4 2005-13 ---PAGE BREAK--- ARTICLE2. WORK The Contractor shall complete the entire work as specified, indicated and required under the Contract Documents. ARTICLE3. CONTRACT TIME/SUBSTANTIAL COMPLETION The work to be performed pursuant to this Contract shall be substantially complete on or before seventy five (75) calendar days from the issuance of the Notice to Proceed and no later than August 1, 2005, unless adjustment of the contract time is made in accordance with the provisions of the Contract Documents. The Contractor shall begin work in conformance with the Contract Documents and shall complete the work prior to the date of completion. ARTICLE 4. CONTRACT SUM The City shall pay the Contractor for completion of the Work in accordance with the Contract Documents in current funds the amount of FOUR HUNDRED SIXTY SEVEN THOUSAND EIGHT DOLLARS ($467,008.00). Said Contract Sum shall be paid in accordance with the Contract Documents. ARTICLES. INDEPENDENT CONTRACTOR The parties warrant by their signature that no employer-employee relationship is established between the Contractor and the City by the terms of this contract. It is understood by the parties hereto that the Contractor is an independent contractor and as such neither it nor its employees, agents, representatives or subcontractors, if any, are employees of the City for purposes of tax, retirement system, or social security (FICA) withholding. ARTICLE6. SCOPE OF SERVICES The 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 HARMLESSIINDEMNIFICATION In addition to other rights granted the City by the Contract Documents, the Contractor shall indemnifY and save harmless the Engineer and the City, its officers and employees, from all suits, actions, or claims of any character brought because of any injuries or damages received or sustained by any person, persons, or property on account of the operations of the Contractor or his 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 the Contractor or his subcontractors; or because of any Construction Contrru:t Page 2 of 4 ---PAGE BREAK--- 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. ARTICLES. CONFLICT OF INTEREST The 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. The Contractor further covenants that, in performing this Contract, it will employ no person who has any such interest. Should any conflict of interest arise during the performance of this Contract, Contractor shall immediately disclose such conflict to the Project Engineer/Engineer and the City. ARTICLE 9. ENTIRE AGREEMENT, MODIFICATION AND ASSIGNABILITY This Contract and the exhibits hereto 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 contract may not be enlarged, modified or altered except upon written agreement signed by the parties hereto. The 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 the City of Moscow. ARTICLE 1 0. ADHERENCE TO LAW REQUIRED All applicable local, state and federal statutes and regulations are hereby made a part of this contract and shall be adhered to at all times. Violation of any of these statutes or regulations by the Contractor shall be deemed material and shall subject the Contractor to termination of this contract for cause. No pleas of misunderstanding or ignorance on the part of the Contractor will in any way serve to modifY the provisions of this requirement. The Contractor and his surety shall indemnifY and save harmless the City and its employees, agents and representatives against any claim or liability arising from or based on the violation of any such laws, codes, ordinances, or regulations, whether by himself, his employees, or his subcontractors. ARTICLE 1 1. LEGAL FEES In the event either party incurs legal expenses to enforce the terms and conditions of this contract, 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. Construction Contract Page 3 of 4 ---PAGE BREAK--- ARTICLE 12. SPECIAL WARRANTY The Contractor warrants that nothing of monetary value has been given, promised or implied as remuneration or inducement to enter into this Contract. The Contractor further 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 Contract. Any such activity by the Contractor shall make this Contract null and void. ARTICLE 13. COMMUNICATIONS Such communications as are required by this contract shall be satisfied by mailing or by personal delivery to the parties at the following address: Contractor: City: Brown Contracting and Development, Inc. 2205 N. Woodruff Road, Ste 1 City of Moscow 206 E. 3'd Street Spokane, W A 99206 Jv L li:Ci P.O. Box 9203 Moscow, Idaho 83843 Q ) Randy Fife, City Attorney ACKNOWLEDGMENT On this z.q day of )j , 2005, before me, a Notary Public of the State of_ Idaho1 ,11\\if»nally appeared ßà /ibri»â , in his official capacity as p 11 1111''''' known to me to be the person described in the above documen¼ z· · · to me he executed the same. ű .Ų tt."· ¹ Cº h.1 fj :S »r4 ¼\¾'% Notary Public residing at 5 My Commission expires ;:13. b2 l lluc ; § T1 ų 3 Ə , # Construction Contract Page 4 of 4 S HI 11tnumtH'''' ---PAGE BREAK--- TO: Mayor and City Council City of Moscow, Idaho BID PROPOSAL Date: March 1, 20 05 This proposal is submitted as an offer by the undersigned to enter into contract with the City of Moscow, Idaho as represented by the City Council, hereinafter referred to as the 'CITY' for MOSCOW DOWNTOWN REVITALIZATION INFRASTRUCTURE IMPROVEMENTS AND REPLACEMENTS 2005, specified herein and which construction documents are on file with the City Engineer, City Hall Annex, Moscow, Idaho, and which are a condition hereof with the same force and effect as though they were attached hereto. The offer is conditioned on the following declarations as to the facts, intention and understanding of the undersigned and the agreement of the CITY to the terms and prices herein submitted. 1. All project specifications and drawings examined by the undersigned and their terms and conditions are hereby agreed to. 2. The undersigned certifies that he has received or made himself aware of any and all existing site conditions that may affect the proposed work. 3. It is understood that the contract drawings may be supplemented by additional drawings and specifications in explanation and elaboration of the contract drawings and it is agreed that such supplemental drawings, when not in conflict with those referred to in paragraph I above, will have the same force and effect as if attached hereto and that when received they will be considered a part of the contract. 4. The undersigned will furnish separate performance and payment bonds in the full amount of the contract price. 5. The cash, certified check, bid bond, or cashier's check accompanying this proposal shall be forfeited to the City of Moscow, Idaho to the extent of 5% of the amount bid if the undersigned shall fail or refuse to execute the contract, furnish performance and payment bonds, and insurance certificate as required by the specifications within the time limit therein after notification that the said proposal is accepted, all in accordance with the provisions of this proposal and the specifications. 6. The undersigned further agrees that the CITY shall have the right to accept or reject any bid item deemed to be in the best interest of the City. 7. The undersigned agrees to order all necessary equipment and materials within a period of three days after Notice to Proceed has been issued by the Engineer. 8. The unde · ed, u have documents. as a bidder, acknowledges that Addenda Number , { through been delivered to him and have been examined as part of the contract 9. The undersigned agrees to complete all work embraced in the contract within the time limitations set forth in paragraph IB-13 of the Instruction to Bidders. 10. The undersigned holds Idaho State Public Works Contractor's License Number 11429-AAA-3 Bid Proposal Page I of 4 ---PAGE BREAK--- I I I I I I I I I I I I I 11. The undersigned pror > to use the following sub-contractors in t .1erfonnance of meeting the contract requirements. mfonnation herein must comply with Idaho Code Section 67-2310 and IB- 16: Idaho Public Subcontractors Trade Specialty Works License No. $Amount 12. The undersigned proposes to furnish labor, materials, equipment and services of all kinds required for MOSCOW DOWNTOWN REVITALIZATION INFRASTRUCTURE IMPROVEMENTS AND REPLACEMENTS - 2005 as described in the specifications, including all appurtenant work, all as required by the specifications and this proposal for the prices in accordance with the completed schedule contract prices as followed in the Bid Schedule. Brown Contracting and Development, Inc. Finn Name of Bidder . 0-uvwc=- $ I 061l B-1 I Remove and Replace Concrete 525 $ Curb Lineal Foot O::>F B-12 Remove and Replace Concrete 292 Square $ $ ct?l!' Walk Yard B-13 Truncated Domes 260 Square $ $ ' Foot B-14 Tree Well Modification 5 Each $ B-15 Relocate Street Light Pole I LumuSum $tMo $ .d Ot:>O B-16 Remove and Reinstall Signs 0 Each $6.5 i' $ TOTAL BASE BID $ Lj ? ADD ALTERNATE NO ONE: JEFFERSON STREET PARKING LOT (PLAN SHEET 8) Item Item Description Quantity Unit Unit Total No. Price Price A-1 Jefferson Street Parking Lot I NJA $ J"OrJ (ulan sheet 8) Lump Sum TOTAL OF ADD ALTERNATE NO. ONE tf ,2 / ADD ALTERNATE NO. TWO: SIDEWALKRENOVATIONS ATCITYHALL (PORTION OFPLAN SHEET9) Item Item Description Quantity Unit No. A-2.1 Traffic Control I Lump Sum A-2.2 Sawcut 369 Lineal Foot Unit Price N/A s <;Uti Total Price $ $ } I /,/J³ Bid Proposal Page 3 of 4 IN ---PAGE BREAK--- I I I I I I I I I I A-2.3 Reconstruct Existin)> "'rench I Each $ $ Drain 3 S7it? t) A-2A Remove and Replace Asphalt 41 Square $ $ PI(! Yard / v A-2.5 Remove and Replace Concrete 231 Lineal Foot $ $ Js-; Curb A-2.6 Remove and Replace Concrete 299 Square $ $ Walk Yard '7 0 c??tJ 93'/) A-2.7 Truncated Domes 68 Sqnare $ d)s: $ /JOO Foot A-2.8 Remove and Reinstall Sign 1 Each $ $ $ n: TOTAL ADD ALTERNATE NO. TWO 35- ADD ALTERNATE NO. THREE: SIDEWALK RENOVATIONS AT THE POLICE STATION (PORTION OF PLAN SHEET 9) Item Item Description Quantity Unit No. 1 266 Existing Trench 44 Lineal Foot 322 Truncated Domes 28 A-3.8 Remove and Reinstall Signs 7 A-3.9 and Reinstall Bike 1 A- Street Tree 3 TOTAL ADD ALTERNATE NO. THREE" TOTAL OF BASE BID AND ALL ADD ALTERNATES Unit Price Total Price Bid Proposal Page 4 of 4 ---PAGE BREAK--- Feb 25 2005 !1:00AM HP LASERJET 3330 Moscow Downtown Revitalization Infrastructure Improvements and Replacements 2005 Addendum Number One February 25, 2005 Prepared by: Laure L Taylor, LA Hodge & Associates, Inc. The following changes, additions, clarifications, and/or deletions are hereby made a part of the Moscow Downtown Revitalization Infrastructure Improvements and Replacements 2005 project, as fully and completely as if the same were entirely set forth in the Plans. Specificaiions, and Contract Documents. This addendum, as set forth herein, shall beccme an integral part of any contract entered into by and between the Owner and the Contractor. To the Specifications make the following revisions: Section 02930 Exterior Plants 1.12 Warranty: Delete item B: "Furnish one year manufacturer warranty for trees, plants and ground cover.· For the bidders clarification an automatic irrigation system is not being installed as part of lhis work. The Owner will water new plants by nand after the final acceptance period; therefore a warranty will be difficult to enforce. Section 02930 Exterior Plants 1.13 Maintenance Service: Delete item C: "Maintain plant life immediately after placement until plants are well established and exhibit vigorous growing condition. Continue maintenance until termination of warranty period." To the Construction Drawings make the following revisions: SHEET9: Mosoow PoliCE> Department Planimetric: To lhe leader note that reads, "Replace 3 existing street trees in decline" add the following, "Replace each existing tree with one Tilia cordata "Greenspire", 2-inch caliper." Receipt of ADDENDUM NO. ONE must be acknowledged. This document must be signed and attached to the bid to acknowledge its receipt Brown Contracting and Development, Inc. Firm Name of Bidder Signature of Bii:lder President Title 03/01/05 Date Moscow Downtown Re\rtJary 25, 2005 Page 1 of 1 ---PAGE BREAK--- IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy{ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s}. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement{s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25-S 17/971 ---PAGE BREAK--- BID BOND Conforms with The American Institute of Architects, A.I.A. Document No. A-310 KNOW ALL BY THESE PRESENTS, That we, BROWN CONTRACTING & DEVELOPMENT INC. as Principal, hereinafter called the Principal, and the WESTERN SURETY COMPANY of SIOUX FALLS, SOUTH DAKOTA , a corporation duly organized under the laws of the State of SOUTH DAKOTA , as Surety, hereinafter called the Surety, are held and firmly bound unto CITY OF MOSCOW, IDAHO as Obligee, hereinafter called the Obligee, in the sum of of Bid Amount - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dollars 5% of Bid Amount ) , for the payment of which sum well and truly to be made, the said Principal and the said Surety, bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has submitted a bid for MOSCOW DOWNTOWN REVITALIZATION INFRASTRUCTURE IMPROVEMENTS AND REPLACEMENTS 2004 NOW, THEREFORE, if the Obligee shall accept the bid of the Principal and the Principal shall enter into a Contract with the Obligee in accordance with the terms of such bid, and give such bond or bonds as may be specified in the bidding or Contract Documents with good and sufficient surety for the faithful performance of such Contract and for the prompt payment of labor and material furnished in the prosecution thereof, or in the event of the failure of the Principal to enter such Contract and give such bond or bonds, if the Principal shall pay to the Obligee the difference not to exceed the penalty hereof between the amount specified in said bid and such larger amount for which the Obligee may in good faith contract with another party to perform the Work covered by said bid, then this obligation shall be null and void, otherwise to remain in full force and effect. Signed and sealed this T day of }M~arch- 2005 BROWN CONTRACTING & DEVELOPMENT, INC. (Seal) Witness { By v ERit(L R²PP Attorney-in-Fact Witness LOIS STEWART FRP ---PAGE BREAK--- V.cstern Surety Comrvany POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTOR'\IEY-IN-FACT Know AU 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 George C Schroeder, W W Weller, Jo Anne Tonani, Lois Stewart, Chris Larson, Erin L Repp, H Keith Me Nally, Individually of Spokane, WA, its true and lawful Attomey(sHn¢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 Senior Vice President and its corporate seal to be hereto affixed on this 6th day of October, 2004. State of South Dakota County of Minnehaha WESTERN SURETY COMPANY On this 6th day of October, 2004, 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 Senior 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 to authority given by the Board of Directors of s2.id corporation and that he :;igned his name thereto pursuartt tc !ike authority, and acknowledges same to be the act and deed of said corporation. My commission expires November 30, 2006 l D. KRELL : ' ' ¯°NOTARY PUBLICj: .rSOUTH OAKOTA±.r ' ' t ry Public CERTIFICATE l, 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! have hereunto subscribed my name and affixed the seal of the said corporation this 1ST day WESTERN SURETY COMPANY Fom1 F4280-01-02 ---PAGE BREAK--- AlA Document A312 Performance Bond BOND NO. 929343415 Conforms with the American Institute of Architects, AlA Document A312. Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applic•c: accbc:lec_ . _ CONTRACTOR (Name and Address): BROWN CONTRACTING & DEVELOPMENT, INC. 2205 N. WOODRUFF, SUITE 1 SPOKANE, WA 99206 OWNER (Name and Address): CITY OF MOSCOW, IDAHO P.O. BOX 9203 MOSCOW, ID 83843·1703 CONSTRUCTION CONTRACT Date: March 23 2005 SURETY (Name and Principal Place of Business): WESTERN SURETY COMPANY P.O. BOX 2151 SPOKANE, WA 9921 0·2151 Amount: FOUR HUNDRED THIRTY-FOUR THOUSAND, EIGHT HUNDRED FIFTY-NINE AND N0/100--·($434,859.00) Description (Name and Location): MOSCOW DOWNTOWN REVITALIZATION · INFRASTRUCTURE IMPROVEMENTS AND REPLACEMENTS 2005 BOND Date (Not earlier than Construction Contract Date): March 25 2005 Amount: FOUR HUNDRED THIRTY-FOUR THOUSAND, EIGHT HUNDRED FIFTY-NINE AND N0/100--·($434,859.00) Modifications to this Bond: CONTRACTOR AS PRINCIPAL Company: BROWN CONTRACTING & (Corporate Seal) Signature: Name and (Any additional appear on page (FOR INFORMATION ONLY · Name, Address and Telephone) AGENT or BROKER: SEABURY & SMITH INC. P.O. BOX 2151 SPOKANE, WA 99210·2151 (509)358·3900 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. L 3 lf there is no Owner Default, the Surety's obligation under this Bond shall arise after: 3.1 The Owner has notified the Contractor and the Surety at its address described in Paragraph 10 below that the Owner is considering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor and the Surety to be held not later than fifteen days after receipt of such notice to discuss methods of performing the Construction Contract. If the Owner._ the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to ® None SURETY Company: WESTERN SURETY COMPANY c. 0 See Page2 (Corporate Seal) OWNER'S REPRESENTATIVE (Architect, l:ngineer or other party): 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 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 and at the Surety's expense take one of the following actions: SURETY 5026 (6-92) S-1852!GEEF1 0/99 Page 1 of 2 ---PAGE BREAK--- 4.1 Arrange for the Contractor, \Vith consent and complete the Construction Contract; or he Owner, to perform 4.2 Undertake to perform and complete the Construction 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 therefor to the Owner; or .2 Deny liability in whole or in part and notify the Owner citing reasons therefor. 5 If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. 6 After the Owner has terminated the Contractor's right to complete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2. or 4.3 above, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is obligated without duplication for: 6.1 The responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; 6.2 Additional legal. design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Paragraph 4; and 6.3 Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor. MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: 7 The Surety shall rr liable to the Owner or others for obligations of the Contractor that art- , 1relatcd 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. ;'\io right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors. administrators or successors. 8 The Surety hereby waives notice of any change, including changes or time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 9 Any proceeding. legal or equitable. under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable . 10 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. 11 When this Bond has been furnished to 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 confonning 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 Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page. including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Construction Contract. 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. (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: Signature: (Corporate Seal) Name and Title: Signature: Name and ů . Address: Address : 8·1852/GEEF I 0/99 Page 2 of 2 ---PAGE BREAK--- AlA Document A3 12 Payment Bond BOND NO. 929343415 Conforms with the American Institute of Architects, AlA Document A312. Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): BROWN CONTRACTING & DEVELOPMENT, INC. 2205 N. WOODRUFF, SUITE 1 SPOKANE, WA 99206 OWNER (Name and Address): CITY OF MOSCOW, IDAHO P.O. BOX 9203 MOSCOW, ID 83843-1703 CONSTRUCTION CONTRACT Date: March 23 2005 SURETY (Name and Principal Place of Business): WESTERN SURETY COMPANY P.O. BOX 2151 SPOKANE, WA 99210-2151 Amount: FOUR HUNDRED THIRTY-FOUR THOUSAND, EIGHT HUNDRED FIFTY-NINE AND N0/100---($434,859.00) Description (Name and Location): MOSCOW DOWNTOWN REVITALIZATION - INFRASTRUCTURE IMPROVEMENTS AND REPLACEMENTS 2005 BOND Date( Not earlier than Construction Contract Date): March 25 2005 Amount: FOUR HUNDRED THRITY-FOUR THOUSAND, EIGHT HUNDRED FIFTY-NINE AND N0/100----($434,859.00) Modifications to this Bond: CONTRACTOR AS PRINCIPAL Company: BROWN CONTRACTING & (Corporate Seal) DEVELOPMENT,Úè!= (Any additional &ignatures appear on page (FOR INFORMATION ONLY - Name, Address and Telephone) AGENT or BROKER: SEABURY & SMITH INC. P.O. BOX 2151 SPOKANE, WA 99210-2151 (509)358-3900 1 The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators. 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 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 who::;e claim, demand, lien or suit is for the payment for labor, materials or equipment furnished for use in the performance of the Construction Contract, provided the Owner has notified the C(}ntractor 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 pr()vidcd there is no Owner Default. SURETY 5026 (6-92} S-1853/GEEF 3/00 Page 1 of 2 [2<:1 None 0 See Page2 SURETY Company: WESTERN SURETY (Corporate Seal) COMPANY Ƌr / I 1:Û t Signature: ŭ; / - - Name and Titre: I:;RIN Lj REPP, ATrORNEY·IN-FACT - OWNER'S REPRESENTATIVE (Architect, Fngincer or other party): 3 With respect to Claimants. this obligation shall be null and void if the Contractor 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 arc 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 JaŮ! 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 ---PAGE BREAK--- Ǝ2 Have either received a rejection in v: · or in part from the Contractor. or not received within 3G uays 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 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 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'stotal 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 Com;truction 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 jurisdiction in the location in which MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: the work or part of the- -k is located or after the expiration of one year from the date on ch the Claimant gave the notice required by Subparagraph 4. l or Clause 4.2.3. or 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 or first occurs. If the provisions of this Paragraph are void or prohibited by Jaw, 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 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 wa<> 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 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 performance of the Contract. The intent of this Bond shall be to include without limitation in 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 an Contract Documents and changes thereto. 15.3 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: Signature: Signature: Name and Name and Address: Address: S" 1853/GEEF 3!00 Page 2 of 2 (Corporate Seal) ---PAGE BREAK--- V '2stern Surety Carr Jany 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 George C Schroeder, W W Weller, Jo Anne Tonani, Lois Stewart, Chris Larson, Erin L Repp, H Keith Me Nally, 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 coq>oration. In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Senior Vice President and its corporate seal to be hereto affixed on this 6th day of October, 2004. State of South Dakota County of Minnehaha WESTERN SURETY COMPANY On this 6th day of October, 2004, 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 Senior 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 coq>orate 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 November 30, 2006 · · ' ' l D. KRELL l J°NOTARY PUBLIC~$ $SOUTH DAKOTA $ · . + CERTIFICATE y Public L Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is ;;till in force, and further certify that the By Law of the corporation printed on the reverse hereof is still in force. In testJ"mony whereof I ha.vŴ; hereunto subsc;ibed my name and affixed the seal of the said corporation this 25TH dayof MARCH WESTERN SURETY COMPANY Fonn F4280-0!-02 ---PAGE BREAK--- NOTICE In accordance with the Terrorism Risk Insurance Act of 2002, we are providing this disclosure notice for bonds and certain insurance policies on which one or more of the Writing Companies identified below is the surety or insurer. To principals on bonds and insureds on certain insurance policies written by any one or more of the following companies (collectively the "Writing Companies") as surety or insurer: Western Surety Company, Universal Surety of America, Surety Bonding Company of America, Continental Casualty Company, National Fire Insurance Company of Hartford, American Casualty Company of Reading, FA, The Firemen's Insurance Company of Newark, NJ, and The Continental Insurance Company. DISCLOSURE OF PREMIUM The premium attributable to coverage for terrorist acts certified under the Act was Zero Dollars DISCLOSURE OF FEDERAL PARTICIPATION IN PAYMENT OF TERRORISM LOSSES The United States will pay ninety percent (90%) of covered terrorism losses exceeding the applicable surety/insurer deductible. Fern F7310 ---PAGE BREAK--- ACORD,. CERTIFICATE OF LIABILITY INSURJP''CE I DATE tM ,jDD!YYI 3 / 2 5 0 5 PRODUCER PHONE# : 5 0 9 - 3 5 8 - ^ 9 0 0 THIS CERTIFICATl: ISSUED AS A MA TIER OF INFORMATION MARSH ADVANTAGE AMERICA ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR A SERVICE OF SEABURY & SMITH ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. PO BOX 2 1 5 1 i INSURERS AFFORDING COVERAGE S POKANE , WA 9 9 2 1 0 INSURED Brown Contracting & Dev . Corp INSURER A: Hartford Underwriters I ns Co B - 4 Propert ies LLC INSURER 6: Hartford Insurance 2 2 0 5 N Woodruff #1 INSURER c, Spokane WA 9 9 2 0 6 INSURER 0: - INSURER E: THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIM & ç TYPE POLICY NUMBER POLICY I P Y , liMITS AERAL LIABIUTV ½77 J.7:lO 0 4 1/ l/05 • EACH • $ 1 0 0 0 0 0 0 GENERAL LIABILITY ' F MOSCOW, ID 8 3 8 4 3 I ' ·sz \ir2 'MPO T 'ZI ' 'rw' \ ACORD 25-S 17/97! I e ACORD U IV,_ 1988 ---PAGE BREAK--- STATE INSURANCE FUNI)i 1 2 1 S W. STATE STREET • P.O. BOX 83720 • BOISE. IDAHO 83720-0044 PHONE (208) 332-2100 • (800) 334-2370 CERTIFICATE HOLDER: 693728 C I TY OF MOSCOW ATTN LES MCDONALD PO BOX 9203 MOSCOW I D 83843 CERTIFICATE OF WORKERS COMPENSATION INSURANCE The State Insurance Fund hereby certifies that the i nsurance pol icy hereunder described i s i n full force and effect on the date of thi s certifi cate and that i t remai ns i n fu l l force and effect unt i l cancel l ed . POLICY NUMBER: 571098 INSURED: BROWN CONTRACTING & DEVELOPMENT CORP 2205 N WOODRUFF RD STE 1 SPOKANE WA 99026 ORIGINAL EFFECTIVE DATE: 03/22/2000 Pol i cy i n force from 03/22/2000 12:01 a at the mai l i ng address of the i nsured shown above or the job site i n Idaho. PART TWO: EMPLOYERS LIABILITY I NSURANCE LIMITS Bod i l y Injury by Accident $100,000 each accident Bodily Injury by Disease $500,000 policy l imit Bod i l y Injury by Di sease $100,000 each employee The i nsurance coverage app l i e s to employees of the above-mentioned company anywhere i n the state of Idaho and a l so to any employees l i ving i n Idaho but working temporarily i n a neighboring state. In addition to the requ i red coverag e , the fol l owing elected coverage a l so appl i es : T h i s certifi cate i s val i d for one year from date of certificate. I n the event of cancel l ation o f said pol icy, the State I nsurance Fund wi l l endeavor to notify the party to whom this certifi cate is i ssued by providing thirty (30) days advance noti ce, but the State Insurance Fund shall not be l i able i n any way for fail ure to g i v e notice. Dated at Boi se, Idaho on March 28, 2005 / } ' ;m-u Peggy Underwriting Department 208/332-2312 ---PAGE BREAK--- CITY OF MOSCOW CONTRACT CHANGE ORDER NO. 1 DATE: March 2 1 , 2 005 CONTRACT TITLE: MOSCOW DOWNTOWN REVITALIZATION INFRASTRUCTURE IMPROVEMENTS AND REPLACEMENTS 2 005 TO (CONTRACTOR): BROWN CONTRACTING AND DEVELOPMENT, INC. You are hereby requested to comply with the following changes from the contract plans and specifications: 1 . Replace ten ( 1 0) concrete direct bury luminaire poles specified in Section 16510 2. 1 C with the following: Holophane - Wadsworth 1 2 foot Aluminum Pole, Fluted Shaft, 17" Base with one Receptacle on shaft and one Receptacle in Base of Pole, Black Finish. Model Number ZW12F17CABKH-DBB-FGIUL-SBKH, RB/GFIIWPC Contract Deduction = $6,610.00 2. Replace three concrete direct bury banner poles specified in Section 16510 2. 1 C with the following: Holophane - 20, 25, & 30 foot Steel Fluted Poles with a clamshell base, Painted Black with one 32" Banner Arm located six inches from the top of the pole and Banner Bottom Clip located 5'8" below the top arm, with a Cap on top and Weatherproof Receptacles eight feet above ground level. Model Number 20/25/30FTS - DBB - C24SCB-CAIBK - FG-SBKH - FINIAL, (I )BA3 2H/l/BO-CA/BK - (I )EB/BO-CAIBK Contract Deduction = $668.39 3. Replace twenty (20) non-lighted concrete direct bury bollards specified in Section 16510 2.2 B with twenty (20) of the non-lighted aluminum model noted below. Replace fifteen (15) lighted concrete direct bury bollards specified in Section 165 10 2.2 B with fifteen (I 5) of the non-lighted aluminum model noted below. Replace eight lighted concrete direct bury bollards specified in Section 1 6510 2.2 B with eight of the lighted aluminum model noted below. Replace six lighted concrete direct bury bollards with weatherproof receptacles specified in Section 16510 2.2 B with six of the lighted aluminum with receptacles model noted below. This item shall include the deletion of the associated electrical conduit, wiring, and appurtenances for the fifteen ( 1 5) bollards that are changing from lighted to non lighted. This item shall also include the 70 Watt Pulse Start Metal Halide lamps required for the lighted bollards noted below: Non-Lighted Aluminum Bollard: Holophane - Wadsworth Style Bollard, 14" Diameter Base, Dome Top with Direct Burial Base. Model Number BOL/W - 39/14/DT - CA-BK - DBB TOTAL NUMBER = 35 I ---PAGE BREAK--- Lighted Aluminum Bollard: Holophane - Wadsworth Style Lighted Bollard, 70 Watt MH, 14" Diameter Base, Dome Top with Direct Burial Base. Model Number BOL/W - 39/1 4/DLT - CA-BK - M70/120V - DBB TOTAL NUMBER = 8 Lighted Aluminum Bollard with Weatherproof Receptacle: Holophane Wadsworth Style Lighted Bollard, 70 Watt MH, 14" Diameter Base, Dome Top with Direct Burial Base, and Waterproof Receptacle. Model Number BOL/W - 9/14/DLT - CA-BK - M70/120V - DBB and Weatherproof Receptacle TOTAL NUMBER= 6 Contract Deduction = $9,570.61 4. Delete the Removal and Reinstallation of the existing Park Benches. 5. Delete the Removal of the Play Structure. 6. Delete Traffic ControL 7. Delete Removal of the Trees. 8. Delete the Relocation of one Conifer Tree. 9. Delete Tree Well Modifications - Five ( 5) locations Contract Deduction = $1,700.00 Contract Deduction = $650.00 Contract Deduction = $4,000.00 Contract Deduction = $1,200.00 Contract Deduction = $1,500.00 Contract Deduction = $6,250.00 TOTAL CONTRACT ADDITION/DEDUCTION = $32 ,1 49.00 All other provisions of the contract plans and specifications are unchanged and shall remain in effect 2 ---PAGE BREAK--- The price changes noted in this change order are lump sum. The sum of$32,149.00 is hereby DEDUCTED from the total contract price, and the total adjusted contract price to date thereby is $434,859.00. Contractor: BROWN CONTRACTING AND DEVELOPMENT, INC Eric R Brown, President Owner: City of Moscow, Id , 1ty Clerk •'71 1Xfq 3