Full Text
. , CONSTRUCTION AGREEMENT WWTP SLIDE GATES REPLACEMENT PROJECT - 2013 BETWEEN CITY OF MOSCOW, IDAHO AND TML CONSTRUCTION, INC. THIS CONSTRUCTION AGREEMENT WWTP SLIDE GATES REPLACEMENT PROJECT - 2013 BETWEEN CITY OF MQBCOW, IDAHO AND TML CONSTRUCTION, INC. (hereinafter "Agreement") dated this ~ day of Oc:ro/3~1'-. , 2013, by and between the City of Moscow, Idaho, a municipal corporation of the State ofldaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "City") and TML Construction, Inc., P 0 Box 2970, Hayden, Idaho, 83835 (hereinafter "Contractor"); WITNESSETH: WHEREAS, pursuant to the invitation of City, extended through a "Solicitation For Bids", Contractor did, in accordance therewith, file with City a proposal containing an offer which was invited by said notice; and WHEREAS, City has determined that said offer was the lowest and best submitted; 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 5) and the following: 1. Advertisement for Bids; 2. Project Specifications titled: WWTP Slide Gates Replacement Project - 2013 City of Moscow Project No.112-013 3. Bid/Proposal of Contractor, dated October 4, 2013, 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, attached to this Agreement; 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. WWTP SLIDE GATES REPLACEMENT PROJECT- 2013 CITY AND TML CONSTRUCTION, INC. PAGE 1OF5 ---PAGE BREAK--- ARTICLE2. WORK Contractor shall complete the entire work as specified, indicated and required under the Contract Documents for City project (hereinafter "Project") titled: "WWTP SLIDE GATES REPLACEMENT PROJECT - 2013" ARTICLE3. CONTRACT TIME/SUBSTANTIAL COMPLETION The work to be performed pursuant to this Agreement shall start no earlier than November 4, 2013 and shall be completed no later than April 1, 2014. The work shall be substantially complete on or before thirty five (35) calendar days from the commencement of work, unless adjustment of the Agreement time is made in accordance with the provisions of the Contract Documents. Upon commencement of work, the Contractor will install two gates (gates I and 2) immediately, and installation of the remaining three gates (gates 3 through 5) will not proceed for two weeks after installation of the initial two gates. This interim is necessary to allow the City of Moscow time to properly drain and re-fill the applicable tanks and balance the WWTP before draining the remaining tanks for gate installation. 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 the amount of Twenty Seven Thousand Five Hundred Five and 90/100 Dollars ($27,505.90) for Base Bid and No Alternates. 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 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. ARTICLE6. 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. WWTP SLIDE GATES REPLACEMENT PROJECT- 2013 CITY AND TML CONSTRUCTION, !NC. PAGE20F 5 ---PAGE BREAK--- ARTICLE?. HOLD HARMLESS/INDEMNIFICATION In addition to other rights granted City by the Contract Documents, Contractor shall indemnify and save harmless the City, its officers, employees, and engineers, 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 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. ARTICLES. 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 ASSIGNABILITY 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 save 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. WWTP SLIDE GATES REPLACEMENT PROJECT- 2013 CITY AND TML CONSTRUCTION, INC. PAGE3 OF 5 ---PAGE BREAK--- ARTICLE 11. LEGAL FEES In 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. 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 ofldaho, in and for the County of Latah. ARTICLE 13. SPECIAL WARRANTY Contractor warrants that nothing of monetary value has been given, promised or implied as remuneration or inducement to enter into this Agreement. 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 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: TML Construction, Inc. P 0 Box2970 Hayden, Idaho 83835 WWTP SLIDE GATES REPLACEMENT PROJECT- 2013 CITY AND TML CONSTRUCTION, INC. City: City Engineer City of Moscow 206 East Third Street P 0 Box 9203 Moscow, Idaho 83843 PAGE40F 5 ---PAGE BREAK--- ARTICLE 15. EXECUTION IN WITNESS WHEREOF, said Contractor and City have caused this Agreement to be executed on the day and year first above written. Contractor: TML Construction, Inc. By: ACKNOWLEDGMENT State of l daho ) ) :ss County of llcb+ena l ) City: City of Moscow, Idaho JUU • 1 ;'.107 <5Q::ta· Roderick Hall, City Attorney On this 2'5 day of OCfvber , 2013 personally appeared sy d Pe.te~etl _ and known to me to be the V 'P and of TML Construction, Inc., described in the above document and acknowledged to me they executed the same. JUDI CRONIN NOTARY.PUBLIC STATE ~,tlAHO WWTP SLIDE GATES REPLACEMENT PROJECT- 2013 CITY AND TML CONSTRUCTION, INC. PAGE 5 OF 5 ---PAGE BREAK--- PERFORMANCE BOND Travelers Casualty and Surety Company of America Hartford, Connecticut 06183 Bond No.: 105994423 CONTRACTOR: (Name, legal status and address) TML Construction, Inc. P.O. Box 2970 Hayden, ID 83835 OWNER: (Name, legal status and address) City of Moscow 206 East Third Street Moscow, ID 83843 CONSTRUCTION CONTRACT Date: October 25, 2013 SURETY: (Name, legal status and principal place of business) Travelers Casualty and Surety Company of America 707 W. Main Street, Suite 300 Spokane, WA 99201 Amount:$ 27,505.90 Twenty Seven Thousand Five Hundred Five Dollars and 90/100 Description: (Name and location) WWTP Slide Gates Replacement Project - 2013, City of Moscow Project No. 112-013 BOND Date: October 26, 2013 (Not earlier than Construction Contract Date) Amount:$ 27,505.90 Modifications to this Bond: Twenty Seven Thousand Five Hundred Five Dollars and 90/100 None I I See Section 16 CONTRACTOR AS PRINCIPAL Company: TML Construction, Inc. (Corporate Seal) Signature: Nameand V1CLPl-4!.i~""'t Title: SURETY Company: Traveler asualty and Surety Company of America (Cor orate Seal) (FOR INFORMATION ONLY - Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: (Architect, Engineer or other party:) Wells Fargo Insurance Services USA, Inc. 601 W. Main, Suite 1400 Spokane, VVA 99201 [PHONE REDACTED] The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition 1 ---PAGE BREAK--- § 1 The Contractor and 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 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 shall indicate whether the Owner is requesting a conference among the Owner, Contractor and Surety to discuss the Contractor's performance. If the Owner does 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 attend. Unless the Owner agrees otherwise, any conference requested under this Section 3.1 shall be held within ten (10) business days of the Surety's receipt of the Owner's notice. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; .2 the Owner declares a Contractor Default, terminates the Construction Contract and notifies the Surety; and .3 the Owner has agreed to pay the Balance of the Contract Price in accordance with the tenns of the Construction Contract to the Surety or to a contractor selected to perform 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 has satisfied the conditions of Section 3, the Surety shall and 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 perform and complete the Construction Contract itself, through its agents or independent contractors; § 5.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for perfonnance 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 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 Section 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default; or § 5.4 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, 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 5 with reasonable promptness, the Surety shall be deemed to be in default on this Bond seven 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 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. § 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 the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; .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 Section 5; and .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. The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition 2 ---PAGE BREAK--- § 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 Bond. § 9 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators, 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, 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 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 Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period oflimitation 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 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 to be perfonned, 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. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law 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 perform and complete or comply with the other material tenns of the Construction Contract. § 14.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 15 If this Bond is issued for an agreement between a Contractor and subcontractor, the tenn Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. § 16 Modifications to this bond are as follows: (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: Company: (Corporate Seal) (Corporate Seal) Signature: Signature: Name and Title: Name and Title: Address: Address: The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition 3 ---PAGE BREAK--- 'PAYMENT BOND Travelers Casualty and Surety Company of America Hartford, Connecticut 06183 Bond No.: 105994423 CONTRACTOR: SURETY: (Name, legal status and address) (Name, legal status and principal place ofbusiness) TML Construction, Inc. P.O. Box 2970 Hayden, ID 83835 Travelers Casualty and Surety Company of America 707 W. Main Street, Suite 300 Spokane, VVA 99201 OWNER: (Name, legal status and address) City of Moscow 206 East Third Street Moscow, ID 83843 CONSTRUCTION CONTRACT Date: October 25, 2013 Amount:$ 27,505.90 Twenty Seven Thousand Five Hundred Five Dollars and 90/100 Description: (Name and location) Slide Gates Replacement Project - 2013, City of Moscow Project No. 112-013 BOND Date: October 26, 2013 (Not earlier than Construction Contract Date) Amount:$ 27,505.90 Modifications to this Bond: Twenty Seven Thousand Five Hundred Five Dollars and 90/100 None l I See Section 18 CONTRACTOR AS PRINCIPAL Company: TML Construction, Inc. (Corporate Seal) SURETY Company: Signature: Signature: Name and Name and Title: Title: (Any additional signatures appear on the last page of this Payment Bond.) (FOR INFORMATION ONLY -Name, address and telephone) Travelers Casualty and Surety Company of America (C rporate Seal) AGENT or BROKER: OWNER'S REPRESENTATIVE: (Architect, Engineer or other party:) VVells Fargo Insurance Services USA, Inc. 601 W. Main, Suite 1400 Spokane, VVA 99201 [PHONE REDACTED] The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition 1 ---PAGE BREAK--- § 1 The Contractor and 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, subject to the following terms. § 2 If the Contractor makes payment of all sums due to Claimants, and defends, indemnifies and holds harmless 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 performance of the Construction Contract, then the Surety and the Contractor shall have no obligation under this Bond. § 3 If there is no Owner Default under the Construction Contract, the Surety's obligation to the Owner under this Bond shall arise after the Owner has 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 performance of the Construction Contract and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety. § 4 When the 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 a 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 furnished a written notice of non-payment to the Contractor, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were, or equipment was, furnished or supplied or for whom the labor was done or performed, within ninety (90) days after having last performed labor or last furnished materials or equipment included in the Claim; and .2 have sent a Claim to the Surety (at the address described in Section 13). § 5.2 Claimants, who are employed by or have a direct contract with the Contractor, have sent a Claim to the Surety (at the address described in Section 13). § 6 Ifa notice ofnon-payment required by Section 5.1.1 is given by the Owner to the Contractor, that is sufficient to satisfy a Claimant's obligation to furnish a written notice of non-payment under Section 5.1.1. § 7 When a Claimant has satisfied the conditions of Sections 5.1 or 5.2, whichever is applicable, the Surety shall and at the Surety's expense take the following actions: § 7.1 Send an answer to the Claimant, with a copy to the Owner, within sixty (60) days after receipt of the Claim, stating the amounts that are 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 to 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 acquire as to a Claim, except as to undisputed amounts for which the Surety and Claimant have reached agreement. If, however, the Surety fails to discharge its obligations under Section 7.1 or Section 7 the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. § 8 The Surety's total obligation shall not exceed the amount of this Bond, plus the amount ofreasonable attorney's fees provided under Section 7.3, and the amount of this Bond shall be credited for any 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 perfonnance of the Construction Contract and to satisfy claims, if any, under any construction performance bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition 2 ---PAGE BREAK--- .Contract are dedicated to satisfy obligations of the Contractor and Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. § 10 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 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 Surety 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 competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date on which 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 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 law, the minimum 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 mailed 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 date 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 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. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 15 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor and Owner shall furnish a copy of this Bond or shall permit 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 of the person for whom the labor was done, or materials or equipment furnished; .3 a copy of the agreement or purchase order pursuant to which labor, materials or equipment was furnished for use in the performance of the Construction Contract; .4 a brief description of the labor, materials or equipment furnished; .5 the date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; .6 the total amount earned by the Claimant for labor, materials or equipment furnished as of the date of the Claim; .7 the total amount of previous payments received by the Claimant; and .8 the total amount due and unpaid to the Claimant for labor, materials 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 performance of the Construction Contract. The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. § 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. § 16.4 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 perform and complete or comply with the other material terms of the Construction Contract. The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition 3 ---PAGE BREAK--- § 16.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 17 If this Bond is issued for an agreement between a Contractor and subcontractor, the tenn Contractor in this Bond shall be deemed to be Subcontractor and the tenn Owner shall be deemed to be Contractor. § 18 Modifications to this bond are as follows: (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) Signature: Name and Title: Address: SURETY Company: Signature: Name and Title: Address: (Corporate Seal) The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 ~00 4 ---PAGE BREAK--- ~ 'TRAVELERSJ POWER OF ATTORNEY Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company Surety Bond No. 105994423 OR Project Description: WWTP Slide Gates Replacement Project - 2013, City of Moscow Project No. 112-013 St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers casualty and Surety Company of America United States Fidelity and Guaranty Company Principal: TML Construction, Inc. Obligee: City of Moscow KNOW ALL MEN BY THESE PRESENTS: That Farmington casualty Company, St. Paul Fire and Marine Insurance Company, St Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, are corporations duly organized under the laws of the State of Connecticut, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. Is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Kathy Gurley of the City of Spokane , State of WA , their true and lawful Attorney-In-Fact, to sign, execute, seal and acknowledge the surety bond(s) referenced above. IN WITNESS WHEREOF, the Companies have caused this Instrument to be signed and their corporate seals to be hereto affixed, this 101h day of September, 2012. Farmington casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company State of Connecticut City of Hartford ss. St. Paul Mercury Insurance Company Travelers casualty and Surety Company Travelers casualty and Surety Company of America United States Fidelity and Guaranty Company By: Robert L. Raney, Senior Vice President On this the 10th day of September, 2012, before me personally appeared Robert L. Raney, who acknowledged himself to be the Senior Vice President of Farmington casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing Instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. In Witness Whereof, I hereunto set my hand and official seal. My Commission expires the 30th day of June, 2016. Marie c. Tetreault, Notary Public ---PAGE BREAK--- Thi• Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance 'Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers casualty and Surety Company, Travelers casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof Is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or duly executed (under seal, if required) by one or more Attorneys-In-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys-In-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company In the future with respect to any bond or understanding to which it is attached. I, Kevin E. Hughes, the undersigned, Assistant Secretary, of Farmington casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, do hereby certify that the above and foregoing Is a true and correct copy of the Power of Attorney executed by said Companies, which is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals of said Companies this 26th day of 2013 October Kevin E. Hughes, Assistant Secretary To verify the authenticity of this Power of Attorney, ca/11-[PHONE REDACTED] or contact us at www.travelersbond.com. Please refer to the Attorney-In-Fact number, the above-named Individuals and the details of the bond to which the power Is attached. ---PAGE BREAK--- PERFORMANCE BOND Travelers Casualty and Surety Company of America Hartford, Connecticut 06183 Bond No.: 105994423 CONTRACTOR: (Name, legal status and address) TML Construction, Inc. P.O. Box 2970 Hayden, ID 83835 OWNER: (Name, legal status and address) City of Moscow 206 East Third Street Moscow, ID 83843 CONSTRUCTION CONTRACT Date: October 25, 2013 SURETY: (Name, legal status and principal place of business) Travelers Casualty and Surety Company of America 707 W. Main Street, Suite 300 Spokane, VVA 99201 Amount:$ 27,505.90 Twenty Seven Thousand Five Hundred Five Dollars and 90/100 Description: (Name and location) Slide Gates Replacement Project - 2013, City of Moscow Project No. 112-013 BOND Date: October 26, 2013 (Not earlier than Construction Contract Date) Amount:$ 27,505.90 Modifications to this Bond: Twenty Seven Thousand Five Hundred Five Dollars and 90/100 None l I See Section 16 CONTRACTOR AS PRINCIPAL Company: TML Construction, Inc. (Corporate Seal) Signature: Name and p~+-e-n.t.n Title: SURETY Company: Trave rs Casualty and Surety Company of America (i orporate Seal) (FOR INFORMATION ONLY - Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: (Architect, Engineer or other party:) Wells Fargo Insurance Services USA, Inc. 601 \JV. Main, Suite 1400 Spokane, VVA 99201 [PHONE REDACTED] The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition I ---PAGE BREAK--- § 1 The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the perfonnance 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 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 shall indicate whether the Owner is requesting a conference among the Owner, Contractor and Surety to discuss the Contractor's perfonnance. If the Owner does 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 attend. Unless the Owner agrees otherwise, any conference requested under this Section 3.1 shall be held within ten (10) business days of the Surety's receipt of the Owner's notice. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; .2 the Owner declares a Contractor Default, terminates the Construction Contract and notifies the Surety; and .3 the Owner has agreed to pay the Balance of the Contract Price in accordance with the tenns 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 has satisfied the conditions of Section 3, the Surety shall and at the Surety's expense take one of the following actions: § 5.1 Arrange for the Contractor, with the consent of the Owner, to perfonn and complete the Construction Contract; § 5.2 Undertake to perform and complete the Construction Contract itself, through its agents or independent contractors; § 5.3 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 a 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 Section 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default; or § 5.4 Waive its right to perfonn 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, 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 5 with reasonable promptness, the Surety shall be deemed to be in default on this Bond seven 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 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. § 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 the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; .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 Section 5; and .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. The Company executing this bond vouches that this document conforms to American Institute or Architects Document A312, 2010 edition 2 ---PAGE BREAK--- § 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 Bond. § 9 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators, 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, 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 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 Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period oflimitation 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 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 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. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law 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 perform and complete or comply with the other material tenns of the Construction Contract. § 14.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 15 If this Bond is issued for an agreement between a Contractor and subcontractor, the tenn Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. § 16 Modifications to this bond are as follows: (Space is provided below for additional signatures of added parties. other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: Company: (Corporate Seal) (Corporate Seal) Signature: Signature: Name and Title: Name and Title: Address: Address: The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition 3 ---PAGE BREAK--- PAYMENT BOND Travelers Casualty and Surety Company of America Hartford, Connecticut 06183 Bond No.: 105994423 CONTRACTOR: SURETY: (Name, legal status and address) (Name, legal status and principal place of business) TML Construction, Inc. P.O. Box 2970 Hayden, ID 83835 Travelers Casualty and Surety Company of America 707 W. Main Street, Suite 300 Spokane, WA 99201 OWNER: (Name, legal status and address) City of Moscow 206 East Third Street Moscow, ID 83843 CONSTRUCTION CONTRACT Date: October 25, 2013 Amount:$ 27,505.90 Twenty Seven Thousand Five Hundred Five Dollars and 90/100 Description: (Name and location) WWTP Slide Gates Replacement Project - 2013, City of Moscow Project No. 112-013 BOND Date: October 26, 2013 (Not earlier than Construction Contract Date) Amount:$ 27,505.90 Modifications to this Bond: Twenty Seven Thousand Five Hundred Five Dollars and 90/100 I--x--1 None I I See Section 18 CONTRACTOR AS PRINCIPAL Company: TML Construction, Inc. (Corporate Seal) SURETY Company: Signature: Signature: Name and Name and Title: Title: (Any additional signatures appear on the Jast page of this Payment Bond.) (FOR INFORMATION ONLY -Name, address and telephone) Trav lers Casualty and Surety Company of America (C rporate Seal) AGENT or BROKER: OWNER'S REPRESENTATIVE: (Architect, Engineer or other party:) Wells Fargo Insurance Services USA, Inc. 601 W. Main, Suite 1400 Spokane, WA 99201 [PHONE REDACTED] The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition ---PAGE BREAK--- § I The Contractor and 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, subject to the following terms. § 2 If the Contractor makes payment of all sums due to Claimants, and defends, indemnifies and holds harmless 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 performance of the Construction Contract, then the Surety and the Contractor shall have no obligation under this Bond. § 3 If there is no Owner Default under the Construction Contract, the Surety's obligation to the Owner under this Bond shall arise after the Owner has 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 Surety. § 4 When the 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 a 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 furnished a written notice of non-payment to the Contractor, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were, or equipment was, furnished or supplied or for whom the labor was done or performed, within ninety (90) days after having last performed labor or last furnished materials or equipment included in the Claim; and .2 have sent a Claim to the Surety (at the address described in Section 13). § 5.2 Claimants, who are employed by or have a direct contract with the Contractor, have sent a Claim to the Surety (at the address 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 sufficient to satisfy a Claimant's obligation to furnish a written notice of non-payment under Section 5.1.l. § 7 When a Claimant has satisfied the conditions of Sections 5.1 or 5.2, whichever is applicable, the Surety shall and at the Surety's expense take the following actions: § 7.1 Send an answer to the Claimant, with a copy to the Owner, within sixty (60) days after receipt of the Claim, stating the amounts that are 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 to 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 acquire as to a Claim, except as to undisputed amounts for which the Surety and Claimant have reached agreement. If, however, the Surety fails to discharge its obligations under Section 7.1 or Section 7 the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. § 8 The Surety's total obligation shall not exceed the amount of this Bond, plus the amount ofreasonable attorney's fees provided under Section 7.3, and the amount of this Bond shall be credited for any 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 agree that all funds earned by the Contractor in the performance of the Construction The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 ~moo 2 ---PAGE BREAK--- Contract are dedicated to satisfy obligations of the Contractor and Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. § 10 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 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 Surety 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 competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date on which 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 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 law, the minimum period of limitation 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 mailed 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 date 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 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. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 15 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor and Owner shall furnish a copy of this Bond or shall permit 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 of the person for whom the labor was done, or materials or equipment furnished; .3 a copy of the agreement or purchase order pursuant to which labor, materials or equipment was furnished for use in the performance of the Construction Contract; .4 a brief description of the labor, materials or equipment furnished; .5 the date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; .6 the total amount earned by the Claimant for labor, materials or equipment furnished as of the date of the Claim; . 7 the total amount of previous payments received by the Claimant; and .8 the total amount due and unpaid to the Claimant for labor, materials 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 performance of the Construction Contract. The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. § 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. § 16.4 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 perform and complete or comply with the other material terms of the Construction Contract. The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition 3 ---PAGE BREAK--- § 16.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 17 If this Bond is issued for an agreement between a Contractor and subcontractor, the term Contractor in this Bond shall be deemed to be Subcontractor and the tenn Owner shall be deemed to be Contractor. § 18 Modifications to this bond are as follows: (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) Signature: Name and Title: Address: SURETY Company: Signature: Name and Title: Address: (Corporate Seal) The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition 4 ---PAGE BREAK--- TRAVELERSJ POWER OF ATTORNEY Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company Surety Bond No. 105994423 OR Project Description: WWTP Slide Gates Replacement Project - 2013, City of Moscow Project No. 112-013 St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company Principal: TML Construction, Inc. Obllgee: City of Moscow KNOW ALL MEN BY THESE PRESENTS: That Farmington Casualty Company, St. Paul Fire and Marine Insurance Company, St Paul Guardian Insurance Company, St Paul Mercury Insurance Company, Travelers casualty and Surety Company, Travelers casualty and Surety Company of America, and United States Fidelity and Guaranty Company, are corporations duly organized under the laws of the State of Connecticut, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Undeiwriters, Inc. Is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Kathy Gurley of the City of Spokane , State of WA , their true and lawful Attorney-in·Fact, to sign, execute, seal and acknowledge the surety bond(s) referenced above. IN WITNESS WHEREOF, the Companies have caused this instrument to be signed and their corporate seals to be hereto affixed, this 10th day of September, 2012. Farmington casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Undeiwriters, Inc. St. Paul Fire and Marine Insurance Company St Paul Guardian Insurance Company State of Connecticut City of Hartford ss. St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers casualty and Surety Company of America United States Fidelity and Guaranty Company By: Robert L. Raney, Senior Vice President On this the 10th day of September, 2012, before me personally appeared Robert L. Raney, who acknowledged himself to be the Senior Vice President of Farmington casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Undeiwriters, Inc., St Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing Instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. In Witness Whereof, I hereunto set my hand and official seal. My Commission expires the 30th day of June, 2016. Marie c. Tetreault, Notary Public ---PAGE BREAK--- Thi~ Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers casualty and Surety Company, Travelers casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed In the office of the Secretary; and it Is FURTHER RESOLVED, that any bond, recognizance, contract of Indemnity, or writing obUgatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or duly executed (under seal, if required) by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed In his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys-In-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory In the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company In the future with respect to any bond or understanding to which it is attached. I, Kevin E. Hughes, the undersigned, Assistant Secretary, of Farmington casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals of said Companies this 26th day of 2013 . October Kevin E. Hughes, Assistant Secretary To verify the authenticity of this Power of Attorney, ca/11-[PHONE REDACTED] or contact us at www.travelersbond.com. Please refer to the Attorney-In-Fact number, the above-named Individuals and the details of the bond to which the power Is attached. ---PAGE BREAK--- 194547 ACORD* CERTIFICATE OF LIABILITY INSURANCE l DATE (MM/DD/YYYY) ~ 10/22/2013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER ~f:r,cT Stacia Simpson Commercial Lines - (509) 358-3800 r4~~N9n [PHONE REDACTED] I fffc Nol [PHONE REDACTED] Wells Fargo Insurance Services USA, Inc. - CA Lie#: OD08408 E·MAIL [EMAIL REDACTED] ADDRESS· 601 West Main Street, Suite 1400 INSURERtSl AFFORDING COVERAGE NAIC# Spokane, WA 99201-0635 INSURER A: Bituminous Casualty Corporation 20095 INSURED INSURER B: State Insurance Fund TML Construction, Inc. INSURERC: PO Box 2970 INSURER D: Hayden, ID 83835 INSURER E: INSURER F : COVERAGES CERTIFICATE NUMBER: 6756704 REVISION NUMBER: See below THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR e• POLICY EFF POLICY EXP LTR TYPE OF INSURANCE QD wun POLICY NUMBER LIMITS A GENERAL LIABILITY x x CLP 3 592 024 8/19/2013 EACH OCCURRENCE $ 1,000,000 8/19/2014 x COMMERCIAL GENERAL LIABILITY PRal~e~ YE~~~~nooi $ 100,000 - D CLAIMS-MADE 0 OCCUR - MED EXP tAnv one person) $ 5,000 x WA STOP GAP $1,000,000 PERSONAL & ADV INJURY $ 1,000,000 - GENERAL AGGREGATE $ 2,000,000 - GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ 2,000,000 1 POLICY 1x1 P,fRT n LOC $ A AUTOMOBILE LIABILITY x x CAP 3 592 025 8/19/2013 8/19/2014 COMBINED SINGLE LIMIT $ 1,000,000 !Ea accldanll ~ x ANY AUTO BODILY INJURY (Per person) $ ~ ALL OWNED - SCHEDULED AUTOS AUTOS BODILY INJURY (Per accidenl) $ ~ - NON-OWNED PROPERTY DAMAGE x HIRED AUTOS x AUTOS !Per accidentl $ ~ $ A x UMBRELLA LIAB M OCCUR x x CUP 2 803248 8/19/2013 8/19/2014 EACH OCCURRENCE $ 5,000,000 - EXCESS LIAB CLAIMS-MADE AGGREGATE $ 5,000,000 OED I x l RETENTION $ 10,000 $ WORKERS COMPENSATION J T"X~S'rnI,~;; I j OJ~- B AND EMPLOYERS' LIABILITY Y/N 582650 7/1/2013 7/1/2014 ANY PROPRIETOR/PARTNER/EXECUTIVE [BJ IDAHOWORK E.L EACH ACCIDENT $ 1,000,000 OFFICER/MEMBER EXCLUDED? N/A (Mandatory In NH) COMP ONLY E.L. DISEASE - EA EMPLOYEE $ 1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Remarks Schedule, If more space Is required) PROJECT: WWTP SLIDE GATES REPLACEMENT-2013 PRIMARY AND NON-CONTRIBUTORY ADDITIONAL INSURED STATUS IS GIVEN TO THE CITY OF MOSCOW, THEIR ELECTED AND APPOINTED OFFICIALS, AGENTS, REPRESENTATIVES AND EMPLOYEES AS GRANTED BY THE FORMA ATTACHED. WAIVER OF SUBROGATION AND PER PROJECT AGGREGATE DO APPLY PER THE FORM ATTACHED. CERTIFICATE HOLDER CANCELLATION CITY OF MOSCOW PUBLIC WORKS SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE PO BOX 9203 THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. MOSCOW, ID 83843 AUTHORIZED REPRESENTATIVE 9r~- I The ACORD name and logo are registered marks of ACORD © 1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) ---PAGE BREAK--- THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BUILDERS EXTENDED LIABILITY COVERAGE This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM It is agreed that the provisions listed below apply only upon the entry of an [Kl In the box next to the caption of such provision. A. [iJ Partnership and Joint Venture Extension B. [iJ Contractors Automatic Additional Insured Coverage - Ongoing Operations C. [ii Automatic Waiver of Subrogation D. [ii Extended Notice of Cancellation, Nonrenewal E. Unintentional Failure to Hazards F. Broadened Mobile Equipment G. ~ Personal and Advertising Injury - Contractual Coverage H. Nonemployment Discrimination I. [iJ Liquor Liability J. [ii Broadened Conditions K. Automatic Additional insureds - Equipment Leases L. [ii Insured Contract Extension - Railroad Property and Construction Contracts M. [ii Turnkey Jobs - Coverage For Alienated Premises N. Construction Project General Aggregate Limits 0. 00 Fellow Employee Coverage P. 00 Property Damage Elevators Q. LI Property Damage to the Named lnsured's Wort< R. [KJ Care, Custody or Control S. Concrete Rework Labor Reimbursement Coverage T. ~ Lost Key Coverage U. Of] Electronic Data Liability Coverage V. Consolidated Insurance Program Residua! l.iability Coverage W [RI Automatic Additional Insureds - Managers or Lessors of Premises X. [XJ Automatic Additional Insureds - State or Governmental Agency or Political Subdivisions - Permits or Authorizations Y. [XI Contractors Automatic Insured Coverage - Completed Operations Z. Additional Insured - Engineers, Architects or Surveyors A. PARTNERSHIP AND JOINT VENTURE EXTENSION The following provision is added to SECTION II ·WHO IS AN INSURED: The last full paragraph which reads as follows: No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. GL-3084 (09/11) -1 - ---PAGE BREAK--- Is deleted and replaced with the following: With respect to the conduct of any past or present joint venture or partnership not shown as a Named Insured in the Declarations and of which you are or were a partner or member, you are an insured, but only with respect to liability arising out of "your work" on behalf of any partnership or joint venture not shown as a Named Insured in the Declarations, provided no other similar liability insurance is available to you for "your work" in connection with your interest in such partnership or joint venture. B. CONTRACTORS AUTOMATIC ADDITIONAL INSURED COVERAGE- ONGOING OPERATIONS SECTION II - WHO IS AN INSURED is amended to include as an additional insured any person or organization who Is required by written contract to be an additional insured on your policy, but oniy with respect to liability for "bodily Injury", "property damage" or "personal and advertising Injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting ori your behalf; in the performance of your ongoing operations for the additional lnsured(s) at the project(s) designated in the written contract. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged In performing operations for a principal as a part of the same project. This Insurance is excess of all other insurance available ta the additional insured, whether primary, excess, contingent or on any other basis, unless the written contract requires this insurance to be primary. In that event, this Insurance will be primary relative to Insurance policy(s) which designate the additional insured as a Named Insured in the Declarations and we will not require contribution from such insurance if the written contract also requires that this insurance be non-contributory. But with respect to all other insurance under which the additional insured qualifies as an insured or additional insured, lhis insurance will be excess. C. AUTOMATIC WAIVER OF SUBROGATION Item 8. of SECTION IV - COMMERCIAL GENERAL LIABILITY CONDITIONS, is deleted and replaced with the following: 8. Transfer of Rights of Recovery Against Others to Us and Automatic Waiver of Subrogation. a. If the insured has rights to recover all or part of any payment we have made under this Coverage Form, those rights are transferred to us. The insured must do nothing after loss to impair those rights. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them. GL-3084 (09/11) ---PAGE BREAK--- b. If required by a written contract executed prior to loss, we waive any right of recovery we may have against any person or organization because of payments we make for injury or damage arising out of "your work" for that person or organization. D. EXTENDED NOTICE OF CANCELLATION, NONRENEWAL Item A.2.b. of the COMMON POLICY CONDITIONS, is deleted and replaced with the following: A.2.b. 60 days before the effective date of the cancellation if we cancel for any other reason. Item 9. of SECTION IV • COMMERCIAL GENERAL LIABILITY CONDITIONS, is deleted and replaced with the following: 9, WHEN WE DO NOT RENEW a. If we choose to nonrenew this policy, we will mall or deliver to the first Named Insured shown in the Declarations written notice of the nonrenewal not less than 60 days before the expiration date. b. If we do not give notice of our intent to nonrenew as prescribed in a. above, it is agreed that you may extend the period of this policy for a maximum additional sixty(60) days from its scheduled expiration date. Where not otherwise prohibited by law, the existing terms, conditions and rates will remain in effect during that extension period. It is further agreed that so long as It Is not otherwise prohibited by law, this one time sixty day extension is the sole remedy and liquidated damages available to the insured as a result of our failure to give the notice as prescribed in 9. a. above. E. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS Although we relied on your representations as to existing and past hazards, if unintentionally you should fail to disclose all such hazards at the inception date of your policy, we will not deny coverage under this Coverage Form because of such failure. F. BROADENED MOBILE EQUIPMENT Item 12.b. of SECTION V ·DEFINITIONS, Is deleted and replaced with the following: 12.b. Vehicles maintained for use solely on or next to premises, sites or locations you own, rent or occupy. G. PERSONAL AND ADVERTISING INJURY • CONTRACTUAL COVERAGE Exclusion 2.e. of SECTION I, COVERAGE B Is deleted. H. NONEMPLOYMENT DISCRIMINATION Unless "personal and advertising Injury" is excluded from this policy: Item 14. of SECTION V ·DEFINITIONS, is amended to include: "Personal and advertising injury" also means embarrassment or humiliation, mental or emotional distress, physical illness, physical impairment, loss of earning capacity or monetary loss, which is caused by "discrimination." SECTION V ·DEFINITIONS, is amended to include: "Discrimination" means the unlawful treatment of individuals based on race, color, ethnic origin, age, gender or religion. GL-3084 (09/11) ---PAGE BREAK--- " Item 2. Exclusions of SECTION I, COVERAGE B, is amended to include: "Personal and advertising injury" arising out of "discrimination" directly or indirectly related to the past employment, employment or prospective employment of any person or class of persons by any insured. "Personal and advertising injury" arising out of "discrimination" by or at your, your agents or your "employees" direction or with your, your agents or your "employees" knowledge or consent. "Personal and advertising injury" arising out of "discrimination" directly or indirectly related to the sale, rental, lease or sub-lease or prospective sale, rental, lease or sub-lease of any dwelling, permanent lodging or premises by or at the direction of any insured. Fines, penalties, specific performance or injunctions levied or imposed by a governmental entity, or governmental code, law, or statute because of "discrimination." I. LIQUOR LIABILITY Exclusion 2.c. of SECTION I, COVERAGE A, is deleted. J . BROADENED CONDITIONS Items 2.a. and 2.b. of SECTION IV • COMMERCIAL GENERAL LIABILITY CONDITIONS, are deleted and replaced with the following; 2. Duties In The Event Of Occurrence, Offense, Clalm Or Suit: a. You must see to it that we are notified of an "occurrence" or an offense which may result in a claim as soon as practicable after the "occurrence" has been reported to you, one of your officers or an "employee" designated to give notice to us. Notice should include: How, when and where the "occurrence" or offense took place; The names and addresses of any Injured persons and witnesses; and The nature and location of any injury or damage arising out of the "occurrence" or offense. b. If a claim is made or "suit" is brought against any insured, you must: Record the specifics of the claim or "suit" and the date received as soon as you, one of your officers, or an "employee" designated to record such information Is notified of it; and Notify us In writing as soon as practicable after you, one of your officers, your legal department or an "employee" you designate to give us such notice learns of the claims or "suit." Item 2.e. is added to SECTION IV· COMMERCIAL GENERAL LIABILITY CONDITIONS: 2.e. If you report an "occurrence" to your workers compensation insurer which develops into a liability claim for which coverage is provided by the Coverage Form, failure to report such "occurrence" to us at the time of "occurrence" shall not be deemed In violation of paragraphs 2.a., 2.b., and 2.c. However, you shall give written notice of this "occurrence" to us as soon as you are made aware of the fact that this "occurrence" may be a liability claim rather than a workers compensation claim. GL-3084 (09/11) ---PAGE BREAK--- K. AUTOMATIC ADDITIONAL INSUREDS • EQUIPMENT LEASES SECTION II • WHO IS AN INSURED is amended to include any person or organization with whom you agree in a written equipment lease or rental agreement to name as an additional insured with respect to liability for "bodily injury", "property damage" or "personal and advertising Injury" caused, at least In part, by your maintenance, operation, or use by you of the equipment leased to you by such person or organization, subject to the following additional exclusions. The insurance provided to the additional Insured does not apply to: 1. "Bodily injury" or "property damage" occurring after you cease leasing the equipment. 2. "Bodily injury" or "property damage" arising out of the sole negligence of the additional insured. 3. "Property damage" to: a. Property owned, used or occupied by or rented to the additional insured; or b. Property in the care, custody or control of the additional insured or over which the additional insured is for any purpose exercising physical control. This insurance is excess of all other insurance available to the additional insured, whether primary, excess, contingent or on any other basis, unless the written contract requires this insurance to be primary. In that event, this insurance will be primary relative to insurance policy(s) which designate the additional insured as a Named Insured in the Declarations and we will not require contribution from such insurance if the written contract also requires that this insurance be non-contributory. But with respect to all other insurance under which the additional insured qualifies as an Insured or additional insured, this insurance will be excess. L. INSURED CONTRACT EXTENSION· RAILROAD PROPERTY ANO CONSTRUCTION CONTRACTS Item 9. of SECTION V ·DEFINITIONS, is deleted and replaced with the following. 9. "Insured Contract" means: a. A contract for a lease of premises. However, that portion of the contract for a lease of premises that indemnifies any person or organization for damage by fire to premises while rented to you or temporarily occupied by you with permission of the owner is not an "insured contract"; b. A sidetrack agreement; c. Any easement or license agreement; d. An obligation, as required by ordinance, to indemnify a municipality, except in connection with work for a municipality; e. An elevator maintenance agreement; f. That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury" or "property damage" to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement. GL-3084 (09/11) ---PAGE BREAK--- Paragraph f. does not include that part of any contract or agreement: That indemnifies an architect, engineer or surveyor for injury or damage arising out of: Preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or Giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage; or Under which the insured, if an architect, engineer or surveyor, assumes liability for an injury or damage arising out of the lnsured's rendering or failure to render professional services, including those fisted in above and supervisory, Inspection, architectural or engineering activities. M. TURNKEY JOBS - COVERAGE FOR ALIENATED PREMISES It is agreed that: Excluslon 2.J.(2) of SECTION I, COVERAGE A, does not apply if the premises are "your work" and were not occupied, rented or held for rental by you for more than 12 months after completion. N. CONSTRUCTION PROJECT GENERAL AGGREGATE LIMITS This modifies SECTION Ill - LIMITS OF INSURANCE. A. For ail sums which can be attributed only to ongoing operations at a single construction project for which the insured becomes legally obligated to pay as damages caused by an "occurrence" under SECTION I - COVERAGE A, and for ail medical expenses caused by accidents under SECTION I - COVERAGE C: 1. A separate Construction Project General Aggregate Limit applies to each construction project, and that limit is equal to the amount of the General Aggregate Limit shown in the Declarations. 2. The Construction Project General Aggregate Limit is the most we will pay for the sum of all damages under COVERAGE A, except damages because of "bodily injury" or "property damage" Included in the "products-completed operations hazard," and for medical expenses under COVERAGE C regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits." 3. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the Construction Project General Aggregate Limit for that construction project. Such payments shall not reduce the General Aggregate Limit shown in the Declarations nor shall they reduce any other Construction Project General Aggregate Limit for any other construction project. 4. The limits shown in the Declarations for Each Occurrence, Fire Damage and Medical Expense continue to apply. However, instead of being subject to the General Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Construction Project General Aggregate Limit. GL-3084 (09/11) ---PAGE BREAK--- B. For all sums which cannot be attributed only to ongoing operations at a single construction project for which the insured becomes legally obligated to pay as damages caused by an "occurrence" under SECTION I • COVERAGE A, and for all medical expenses caused by accidents under SECTION I - COVERAGE C: 1. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products-Completed Operations Aggregate Limit, whichever is applicable; and 2. Such payments shall not reduce any Construction Project General Aggregate Limit. C. Payments for damages because of "bodily injury" or "property damage" included in the "products-completed operations hazard" will reduce the Products-Completed Operations Aggregate Limit, and not reduce the General Aggregate Limit nor the Construction Project General Aggregate Limit. D. If a construction project has been abandoned, delayed, or abandoned and then restarted, or if the authorized contracting parties deviate from plans, blueprints, designs, specifications or timetables, the project will still be deemed to be the same construction project. E. The provisions of SECTION Ill - LIMITS OF INSURANCE not otherwise modified by this endorsement shall continue to be applicable. O. FELLOW EMPLOYEE COVERAGE Excluslon 2.e. Employers of SECTION I, COVERAGE A, Is deleted and replaced with the foflowlng: 2.e. "Bodily injury" to An "employee" of the Insured arising out of and in the course of: Employment by the insured; or Performing duties related to the conduct of the insured's business; or The spouse, child, parent, brother or sister of that "employee" as a consequence of paragraph above. This excluslon applies: Whether the insured may be liable as an employer or in any other capacity; and To any obligation to share damages with or repay someone else who must pay damages because of the injury. This exclusion does not apply to: Liability assumed by the Insured under an "insured contract"; or Liability arising from any action or omission of a co-"employee" while that co-"employee" is either in the course of his or her employment or performing duties related to the conduct of your business. GL-3084 (09/11) ---PAGE BREAK--- Item 2.a.(1 of SECTION II - WHO IS AN INSURED, is deleted and replaced with the following: 2.a.(1 To you, to your partners or members (if you are a partnership or joint venture) or to your members (If you are a limited liability company), or to your "volunteer workers" while performing duties related to the conduct of your business. P. PROPERTY DAMAGE LIABILITY- ELEVATORS "Property damage" liability is changed as follows: 1. Exclusions 2.j.(3) and 2.J.(4) of SECTION I, COVERAGE A, do not apply to the use of elevators. 2. The insurance afforded by reason of this provision Is excess over any valid and collectible property insurance (including any deductible portion thereof) available to the insured whether primary, excess, contingent or on any other basis, and the OTHER INSURANCE condition is changed accordingly. Q. PROPERTY DAMAGE TO THE NAMED INSURED'S WORK Exclusion I of SECTION I, COVERAGE A. is deleted and replaced with the following: I. Damage to Your Work "Property damage" to "your work" arising out of It or any part of It and included in the "products completed operation hazard." This exclusion applies only to that portion of any loss in excess of $50,000 per occurrence if the damaged work and the work out of which the damage arises was performed by you. This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor. R. CARE, CUSTODY OR CONTROL Exclusion 2.J.4 of SECTION I, COVERAGE A. is deleted and replaced with the following: 2.j.4 Personal property In the care, custody or control of the insured. However, for personal property in the care, custody or control of you or your "employees," this exclusion applies only to that portion of any loss in excess of $25,000 per occurrence, subject to the following terms and conditions; The most that we will pay under this provision as an annual aggregate is $100,000, regardless of the number of occurrences. This provision does not apply to "employee" owned property or any property that is missing where there is not physical evidence to show what happened to the property. The aggregate limit for this coverage provision is part of the General Aggregate Limit and SECTION 111- LIMITS OF INSURANCE is changed accordingly. In the event of damage to or destruction of property covered by this exception, you shall, if requested by us, replace the property or furnish the labor and materials necessary for repairs thereto, at actual cost to you, exclusive of prospective profit or overhead charges of any nature. $2,500 shall be deducted from the total amount of all sums you became obligated to pay as damages on account of damage to or destruction of all property of each person or GL-3084 (09/11) ---PAGE BREAK--- organization, Including the loss of use of that property, as a result of each "occurrence." Our limit of liability under the endorsement as being applicable to each "occurrence" shall be reduced by the amount of the deductible indicated above; however, our aggregate limit of liability under this provision shall not be reduced by the amount of such deductible. The conditions of the policy, including those with respect to duties in the event of "occurrence," claims or "suit" apply irrespective of the application of the deductible amount. We may pay any part or all of the deductible amount to effect settlement of any claim or "suit" and, upon notification of the action taken, you shall reimburse us for such part of the deductible amount as has been paid by us. S. CONCRETE REWORK LABOR REIMBURSEMENT COVERAGE As it applies to this coverage, SECTION I - COVERAGE A Is amended as follows: 1. Insuring Agreement, Is deleted and replaced by the following: We will reimburse you for your direct labor expense associated with your "concrete rework" which was performed by you during the policy period due to the original "concrete product" failing to meet contractual specifications as ordered for the job or accepted industry standards for its specific intended use, verified by testing by an ASTM (American Society of Testing & Materials) accredited independent testing agency. 2. Exclusions, is deleted and replaced by the following: The Insurance provided by this endorsement does not apply to: a. "Cosmetic Defects" b. Loss of use c. Changes to the "concrete product" contractual specifications not acknowledged by the named insured in writing prior to the beginning of the job d. "Loss" arising from the "subsidence" of land e. "Loss" arising from work performed on your behalf by a subcontractor, except for the supply of the "concrete product" f. Cost of materials used in the installation of the "concrete product" or "concrete rework" g. Damages or "loss" that is covered by a Property or Inland Marine coverage form for your financial interest in your project and structures h. "Loss" unless the "concrete rework" is completed within one year from the completion of the original "concrete product" Installation performed by you I. "Loss" caused by the failure to order the "concrete product" as required: a. In the contractual specifications; or b. By accepted industry standards for its specific intended use J. "Loss" expected or intended from the standpoint of the insured k. "Concrete product" supplied by you GL-3084 (09/11) ---PAGE BREAK--- SECTION Ill ·LIMITS OF INSURANCE is amended to Include the followlng: 1. The Limits of Insurance as shown and the rules below fix the most we will pay regardless of the number of a. Insureds covered under this Insurance; b. "Concrete rework" projects to which this Insurance applies. "Concrete Rework" Project Limit "Concrete Rework" Policy Aggregate Limits "Concrete Rework" Deductible $50,000 $50,000 $ 1,000 2. The "Concrete Rework" Project Limit shown above is the most 'We will reimburse you for your direct labor expense arising out of any single "concrete rework" project. 3. Subject to 2. above, the "Concrete Rework" Policy Aggregate Limit shown above is the most we will reimburse you for your direct labor expenses for the sum of all "concrete rework" projects. 4. The "Concrete Rework" Project Limit and the "Concrete Rework" Policy Aggregate Limits shall be included within and not be in addition to the General Aggregate Limit or the Products- Completed Operations Aggregate Limit (whichever applies), as stated in the declarations and as described in SECTION Ill - LIMITS OF INSURANCE. 5. Our obligation to reimburse you applies only to the amount of your direct labor expense in excess of the "Concrete Rework" Deductible stated above. This deductible shall apply separately to each "concrete rework" project. The Limits of Insurance of this coverage apply separately to each consecutive annual period and to any remaining period of less than 12 months, starting with either the beginning of the policy period shown In the Declarations, or the effective date of the endorsement, whichever is less. If the policy period is extended after issuance for an additional period of less than 12 months the additional period will be deemed part of the preceding period for purposes of determining the Limits of Insurance. SECTION IV· COMMERCIAL GENERAL LIABILITY CONDITIONS is amended as follows: Item 2. Duties in The Event Of Occurrence, Offense, Claim Or Suit is deleted and replaced by the following: 2. Duties in The Event Of Occurrence, Offense, Claim Or Suit a. You must see to it that we are notified prior to completing the "concrete rework" which may result in labor reimbursement. Notice should include: How, when and where the incident took place; The names and addresses of any witnesses, and The estimated labor expense for the "concrete rework" b. You must take all steps to minimize the expenses involved. c. You must cooperate with us and upon request, assist in enforcing any right of contribution or indemnity against any person or organization. GL-3084 (09/11) -10- ---PAGE BREAK--- d. You must provide us with. proof of loss and any other required documents within 60 days of our request. You must also permit us to examine and copy any of your books and records at any reasonable time. You, your "employees" and your agents must, if we require you to, submit to examination under oath at such times as may be required, and sign a copy of the examination. e. No insureds will, except at their own cost, assume any obligation, or incur any expense without our consent. SECTION V ·DEFINITIONS is amended to add the following: "Concrete rework" means the alteration, repair, removal or replacement of a "concrete product" "Concrete product" means any product you directly install consisting of concrete, cement, sand, mortar mix or related materials "Cosmetic defects" means a superficial or surface defect that does not affect the structural integrity of the "concrete product" "Loss" means your direct labor expense associated with a "concrete rework" project "Subsidence" means earth movement, including but not limited to: a. Landslide; b. Mud flow; c. Earth sinking; d. Earth rising; e. Collapse or movement of fill; f. Improper compaction; g. Earth settling, slipping, falling away, caving in, eroding, tilting or shifting; h. Earthquake;or I. Any other movement of land or earth. T. LOST KEY COVERAGE As it applies to this coverage, SECTION I, COVERAGE A, is amended to Include as follows: We will pay those sums, subject to the limits of liability and deductible stated herein, that you become legally obligated to pay as damages due to the loss or mysterious disappearance of keys entrusted to or in the care, custody or control of you or your "employees" or anyone acting on your behalf. The damages covered by this endorsement are limited to the: 1. Actual cost of the keys; 2. Cost to adjust locks to accept new keys; or 3. Cost of new locks, if required, Including the cost of installation. GL-3084 (09/11) -11- ---PAGE BREAK--- ! . Item 2. Exclusions of SECTION I, COVERAGE A, is amended to include the following: 1. Keys owned by any insured, employees of any insured, or anyone acting on behalf of any insured. 2. Any resulting loss of use from the loss or mysterious disappearance of keys; or 3. Any of the following acts by any Insured, employees of any insured, or anyone acting on behalf of any insureds: a. Misappropriation; b. Concealment; c. Conversion; d. Fraud; or e. Dishonesty Excluslons 2.j.(3) and 2.j.(4) of SECTION I, COVERAGE A do not apply to Lost Key Coverage. SECTION Ill ·LIMITS OF INSURANCE is amended to include the following: 1. The Lost Key Coverage Occurrence Limit shown below is the most we will pay for each occurrence for damages for Lost Key Coverage provided in this endorsement. 2. The Lost Key Coverage Policy Aggregate Limit shown below is the most we will pay for all occurrences covered by this endorsement during the policy period. Lost Key Coverage Occurrence Limit Lost Key Coverage Policy Aggregate Limit Lost Key Coverage Deductible $50,000 $50,000 $ 1,000 3. The Lost Key Coverage Policy Aggregate Limit shall be included within and not be in addition to the General Aggregate Limit or the Products-Completed Operations Aggregate Limit (whichever applies), as stated in the declarations and as described in SECTION Ill - LIMITS OF INSURANCE. Our obligation under this coverage to pay damages on your behalf applies only to the amount of damages in excess of the Lost Key Coverage Deductible stated above. The deductible applies on an "occurrence" basis. We may pay any part or all of the deductible amount to effect settlement of any claim or "suit" and, upon notification of the action taken, you shall reimburse us for such part of the deductible amount as has been paid by us. U. ELECTRONIC DATA LIABILITY COVERAGE 1. Exclusion 2.p. Electronic Data of SECTION I, COVERAGE A, is deleted and replaced with the following: 2.p. Damages arising out of the loss of, loss of use of, damage to, corruption of, inability to access, or inability to manipulate "electronic data' that does not result from physical injury to tangible property. GL-3084 (09/11) -12- ---PAGE BREAK--- 2. The following definition is added to SECTION V - DEFINITIONS: "Electronic data• means information, facts or programs stored as or on, created or used on, or transmitted to or from computer software {Including systems and applications software), hard or floppy disks, CD-ROMS, tapes, drives, cells, data processing devices or any other media which are used with electronically controlled equipment. 3. For the purposes of this coverage, the definition of "property damage" in SECTION V - DEFINITIONS is replaced by the following: "Property damage" means: a. Physical Injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical Injury that caused it; b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence" that caused it; or c. Loss of, loss of use of, damage to, corruption of, inability to access, or Inability to properly manipulate "electronic data", resulting from physical injury to tangible property. Ail such loss of "electronic data" shall be deemed to occur at the time of the "occurrence" that caused It. For the purposes of this insurance, "electronic data" is not tangible property. V. CONSOLIDATED INSURANCE PROGRAM RESIDUAL LIABILITY COVERAGE With respect to "bodily injury", "property damage•, or 'personal and advertising injury" arising out of your ongoing operations; or operations included within the "products-completed operations hazard', the policy to which this coverage is attached shall apply as excess insurance over coverage available to •you" under a Consolidated Insurance Program (such as an Owner Controlled Insurance Program or Contractors Controlled Insurance Program). Coverage afforded by this endorsement does not apply to any Consolidated Insurance Program involving a "residential project" or any deductible or insured retention, specified in the Consolidated Insurance Program. The following is added to Section V - Definitions "Residential project' means any project where 30% or more of the total square foot area. of the structures on the project is used or is intended to be used for human residency. This includes but is not limited to single or multifamily housing, apartments, condominiums, townhouses, co-operatives or planned unit developments and appurtenant structures (Including pools, hot tubs, detached garages, guest houses or any similar structures). A "residential project" does not Include military owned housing, college/university owned housing or dormitories, long term care facilities, hotels, motels, hospitals or prisons. All other terms, provisions, exclusions and limitations of this policy apply. W. AUTOMATIC ADDITIONAL INSUREDS - MANAGERS OR LESSORS OF PREMISES SECTION 11- WHO IS AN INSURED Is amended to Include: Any person or organization with whom you agree In a written contract or written agreement to name as an additional Insured but only with respect to llabllity arising out of the ownership, maintenance or use of that part of the premises, designated in the written contract or written agreement, that Is leased to you and subject to the following exclusions: GL-3084 (09/11) -13- ---PAGE BREAK--- This insurance does not apply to: 1. Any "occurrence" which takes place after you cease to be a tenant in that premises. 2. Structural alterations, new construction or demolition operations performed by or on behalf of the additional insured listed in the written contract or written agreement. This insurance is excess of all other insurance available to the additional insured, whether primary, excess, contingent or on any other basis, unless the written contract requires this insurance to be primary. In that event, this Insurance will be primary relative to insurance pollcy(s) which designate the additional insured as a Named Insured in the Declarations and we will not require contribution from such insurance if the written contract also requires that this Insurance be non-contributory. But with respect to all other insurance under which the additional insured qualifies as an insured or additional insured, this insurance will be excess. X. AUTOMATIC ADDITIONAL INSUREDS· STATE OR GOVERNMENTAL AGENCY OR POLITICAL SUBDIVISIONS - PERMITS OR AUTHORIZATIONS SECTION II - WHO IS AN INSURED is amended to include any state or governmental agency or subdivision or political subdivision with whom you are required by written contract, ordinance, law or building code to name as an additional Insured subject to the following provisions: This insurance applies only with respect to operations performed by you or on your behalf for which the state or governmental agency or subdivision or political subdivision has issued a permit or authorization. This insurance does not apply to: a. "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for th~ federal government, state or municipality; or b. "Bodily injury" or "property damage" included within the "products-completed operations hazard". This insurance is excess of all other insurance available to the additional insured, whether primary, excess, contingent or on any other basis, unless the written contract requires this insurance to be primary. Jn that event, this insurance will be primary relative to insurance policy(s) which designate the additional insured as a Named Insured in the Declarations and we will not require contribution from such insurance If the written contract also requires that this Insurance be non-contributory. But with respect to all other insurance under which the additional insured qualifies as an insured or additional insured, this insurance will be excess. V. CONTRACTORS AUTOMATIC ADDITIONAL INSURED COVERAGE- COMPLETED OPERATIONS SECTION II - WHO IS AN INSURED is amended to include as an additional insured any person or organization who is required by written contract to be an additional insured on your policy for completed operations, but only with respect to liability for "bodily Injury" or "property damage" caused, in whole or in part, by "your work" at the project designated in the contract, performed for that additional insured and included in the "products-completed operations hazard". This insurance is excess of all other insurance available to the additional insured, whether primary, excess, contingent or on any other basis, unless the written contract requires this insurance to be primary. In that event, this insurance will be primary relative to insurance policy(s) which designate the additional insured as a Named Insured In the Declarations and we will not require contribution from such insurance if the written contract also requires that this insurance be non-contributory. But with respect to all other insurance under which the additional insured qualifies as an insured or additional insured, this insurance will be excess. GL-3084 (09/11) -14- ---PAGE BREAK--- Z. ADDITIONAL INSURED - ENGINEERS, ARCHITECTS OR SURVEYORS SECTION II - WHO IS AN INSURED is amended to Include as an additional Insured any architect, engineer or surveyor who is required by written contract to be an additional insured on your policy, but only with respect to liability for "bodily Injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations performed by you or on your behalf. This includes such architect, engineer or surveyor, who may not be engaged by you, but is contractually required to be added as an additional Insured to your policy. With respect to the Insurance afforded to these additional Insureds, the following additional exclusion applies: This insurance does not apply to "bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of or the failure to render any professional services, Including: 1. The preparing, approving, or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, designs or specifications; or 2. Supervisory, inspection or engineering services. This insurance is excess of all other insurance available to the additional insured, whether primary, excess, contingent or on any other basis, unless the written contract requires this Insurance to be primary. In that event, this insurance will be primary relative to insurance pollcy(s) which designate the additional Insured as a Named Insured in the Declarations and we will not require contribution from such insurance if the written contract also requires that this insurance be non-contributory. But with respect to all other insurance under which the additional insured qualifies as an insured or additional Insured, this insurance will be excess. GL-3084 (09/11) -15-