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CONSTRUCTION AGREEMENT THIRD STREET - POLK TO HA YES RECONSTRUCTION - 2016 BETWEEN CITY OF MOSCOW, IDAHO AND ML ALBRIGHT & SONS, INC. THIS CONSTRUCTION AGREEMENT THIRD STREET POLK TO HA YES RECON TRUCTION - 2016 BETWEEN CITY OF MOSCOW IDAHO AND ML & SONS INC. (hereinafter "Agreement"), dated this _Jj,Q_ day of , 2016 by and between th City of Moscow, Idaho a municipal corporation of the srat: Idaho 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "City"), and ML Albright & Sons, Inc., 6182 Lapwai Road, Lewiston, Idaho, 83501 (hereinafter "Contractor"); WITNESSETH: WHEREAS, pursuant to the invitation of City through a "Solicitation For Bids", Contractor submitted a proposal containing an offer invited by said notice; and WHEREAS, City has determined that said offer was the lowest responsive bid; and WHEREAS, City has accepted Contractor's bid; NOW THEREFORE, the parties to this Agreement, in consideration of the mutual covenants and stipulations set out, agree as follows: ARTICLE 1. CONTRACT DOCUMENTS The Contract Documents which comprise the entire agreement between City and Contractor concerning the work to be performed are this Agreement, pages one through five (1 through and the following: 1. Advertisement for Bids; 2. Project Specifications titled: Third Street- Polk To Hayes Reconstruction - 2016 City of Moscow Project No. 109-016 3. Bid/Proposal of Contractor, dated May 3, 2016, physically attached to this Agreement; 4. The Engineering Plans; 5. Performance and Payment Bonds and Insurance. Certificates, physically attached to this Agreement; 6. Addendum No.1 issued prior to opening of bids; 7. Change Orders which may be delivered or issued after the effective date of this Agreement. There are no Contract Documents other than those listed in Article 1. This Agreement may only be amended by change order as provided in the General Conditions. THIRD STREET-POLK To HAYES RECONSTRUCTION -2016 CITY AND ML ALBRIGHT & SONS PAGE l OF 5 1-0l lJ,- 037 ---PAGE BREAK--- ARTICLE 2. WORK Contractor shall complete the entire work as specified, indicated, and required under the Contract Documents for City project (hereinafter "Project") titled: "Third Street - Polk To Hayes Reconstruction - 2016" ARTICLE 3. CONTRACT TIME/SUBSTANTIAL COMPLETION The work to be performed pursuant to this Agreement shat l start no earlier than June 13, 2016 and shall be substantially completed by August 28, 2016. The work shall be completed on or before Seventy Five (75) calendar days from the commencement of work, unless adjustment of the contract time is made in accordance with the provisions of the Contract Documents. Contractor shall begin work in conformance with the Contract Documents and shall complete the work prior to the date of completion. ARTICLE4. CONTRACT SUM City shall pay Contractor for completion of the Work in accordance with the Contract Documents in current funds the amount of Seven Hundred Thirty Three Thousand Seven Hundred Sixty One and 15/100 Dollars ($733, 761.15) for Base Bid and No Alternates, as submitted by Contractor. In no event shall Contract amount exceed Contractor's bid amount of Seven Hundred Thirty Three Thousand Seven Hundred Sixty One and 15/100 Dollars ($733,761.15) unless otherwise authorized by the City. Any such increase in work shall be compensated in accordance with unit pricing terms specified in bid documents. Said Contract Sum shall be paid in accordance with the Contract Documents. ARTICLE 5. INDEPENDENT CONTRACTOR The parties warrant by their signature that no employer-employee relationship is established between Contractor and City by the terms of this Agreement. It is understood by the parties hereto that Contractor is an independent contractor and, as such, neither it nor its employees, agents, representatives or subcontractors, if any, are employees of City for purposes of tax, retirement system, or social security (FICA) withholding. ARTICLE 6. SCOPE OF SERVICES Contractor shall perform all services required by the Contract Documents. All work shall be completed in accordance with the specifications and plans established for this Project. THIRD STREET-POLK To HAYES RECONSTRUCTION -2016 CITY AND ML ALBRIGHT & SONS PAGE2 OF 5 ---PAGE BREAK--- ARTICLE 7. HOLD HARMLESS/INDEMNIFICATION In addition to other rights granted City by the Contract Documents, Contractor shall indemnify and hold harmless the City, its officers, employees, and engineers, from all suits, actions, or claims of any 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. ARTICLE 9. 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 hold harmless City and its employees, agents, engineers and representatives against any claim or liability arising from or based on the violation of any such laws, codes, ordinances, or regulations, whether by Contractor, Contractor's employees, or its subcontractors. THIRD STREET-POLK To HAYES RECONSTRUCTION -2016 CITY AND ML ALBRIGHT & SONS PAGE 3 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 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: ML Albright & Sons, Inc. 6182 Lapwai Road Lewiston, Idaho 83501 ARTICLE 15. EXECUTION City: City Engineer City of Moscow 206 East Third Street P 0 Box 9203 Moscow, Idaho 83843 IN WITNESS WHEREOF, said Contractor and City have caused this Agreement to be executed on the day and year first above written. Contractor: ML Albright & Sons, Inc. THIRD STREET-POLK To HAYES RECONSTRUCTION - 20 CITY AND ML ALBRIGHT & SONS City: City of Moscow, Idaho PAGE40F 5 ---PAGE BREAK--- ATTEST: By: Approved As To Form: Roderick Hall, City Attorney ACKNOWLEDGMENT STATE OF r6 o County of }J QQJ\ ) ) :ss ) THIRD STREET-POLK To HAYES RECONSTRUCTION -20\6 CITY AND ML ALBRIGHT & SONS PAGE 5 OF 5 ---PAGE BREAK--- PERFORMANCE BOND Bond Number: BD 749421 CONTRACTOR: M.L. Albright & Sons, Inc. P.O. Box 603 Lewiston, ID 83501 OWNER: City of Moscow, Idaho P.O. Box 9203 Moscow, ID 83843 CONSTRUCTION CONTRACT Date: May 16, 2016 AMCO Insurance Company Nationwide Mutual Insurance Company Allied Property & Casualty Insurance Company 1100 Locust St., Dept 2006 Des Moines, IA 50391-2006 (866) 387-0457 SURETY: Nationwide Mutual Insurance Company 1100 Locust St., Dept. 2006 Des Moines, IA 50391-2006 Amount: $733,761.15 Seven Hundred Thirty Three Thousand Seven Hundred Sixty One and 15/100 Dollars Description: Third Street - Polk to Hayes Reconstruction - 2016 BOND Date: May 26, 2016 Amount: $733,761.15 Seven Hundred Thirty Three Thousand Seven Hundred Sixty One and 15/100 Dollars Modifications to this Bond: 0 None D See Section 16 CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) M.L. Albright & Sons, Inc. SURETY Company: (Corporate Seal) Nationwide Mutual Insurance Company './l0i . I -t'i Signature: -,usf.o< Name and Title: (Any additional signatures appear on the last page of this Performance Bond) (FOR INFORMATION ONLY - Name, address and telephone) AGENT or BROKER: OWNERS REPRESENTATIVE: (Architect, Engineer or other party.) Conover Insurance Services, LLC P.O. Box 2528 Tri-Cities, WA 99302 (509)545-3800 This document conforms to American Institute of Architects Document A312, 2010 edition ---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 provide 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 terms 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 performance and completion of the Construction Contract, arrange for a contract to be prepared for the execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in 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 This document conforms to American Institute of Architects Document A312, 2010 edition ---PAGE BREAK--- ' ' .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-pcrfom1ancc of the Contractor. § 8 lf 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 subcontractors, 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 of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. § 12 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the 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 terms 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 term Contractor in this Bond shall be deemed to be a Subcontractor and the term Owner shall be deemed to be Contractor. This document conforms to American Institute of Architects Document A312, 2010 edition ---PAGE BREAK--- § 16 Modifications to this bond are as follows: (Space is provided below for additional signatures of added parties, other than those appearing on cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: Signature: ABCDEFG- Signature: Name Name And Title: and Title: Address Address (Corporate Seal) , Attorney-in-Fact This document conforms to American Institute of Architects Document A312, 2010 edition ---PAGE BREAK--- Power of Attorney KNOW ALL MEN BY THESE PRESENTS THAT: AMCO Insurance Company. an Iowa corporation Nationwide Mutual Insurance Company, an Ohio corporation Farmland Mutual Insurance Company, an Iowa corporation Nationwide Agribusiness Insurance Company, an Iowa corporation Allied Property and Casualty Insurance Company, an Iowa corporation Depositors Insurance Company, an Iowa corporation hereinafter referred to severally as the "Company" and collectively as the "Companies," each does hereby make, constitute and appoint: CHARLES E. HUDON JARED W. HAFF PAMELA L. THURMAN KAREN E. ALLEY SARAH E. SCOTT JOHANNA E. ZERB JACQUELINE F. HERNANDEZ each in their ind1v1dual capacity. its true and lawful attorney-in-tact, with full power and authority to sign, seal, and execute on its behalf any and all bonds and undertakings, and other obligatory instruments of similar nature, in penalties not exceeding the sum of TWO MILLION AND NO/IOO DOLLARS $2,000.000.00 and to bind the Company thereby, as fully and to the same extent as if such instruments were signed by the duly authorized officers of the Company: and all acts of said Attorney pursuant to the authorit)' given are hereby ratified and confirmed. This power of attorney is made and executed pursuant to and by authority of the following resolution duly adopted by the board of directors of the Company: "RESOLVED, that the president, or any vice president be, and each hereby is, authorized and empowered to appoint attorneys-in-tact of the Company, and to authorize them to execute and deliver on behalf of the Company any and all bonds, forms, applications, memorandums, undertakings, recognizances, transfers, contracts of indemnity, policies, contracts guaranteeing the fidelity of persons holding positions of public or private trust, and other writings obligatory in nature that the business of the Company may require; and to modify or revoke, with or without cause, any such appointment or authority; provided, however, that the authority granted hereby shall in no way limit the authority of other duly authorized agents to sign and countersign any of said documents on behalf of the Company." "RESOLVED FURTHER, that such attorneys-in-fact shall have full power and authority to execute and deliver any and all such documents and to bind the Company sub1ect to the terms and limi1a\1ons of the power of attorney issued lo them, and io affix the seal of the Company thereto; provided, however, that said seal shall not be necessary for the validity ol any such documents." This power of attorney is signed and sealed under and by the following bylaws duly adopted by the board of directors of the Company. Execution of' Instruments. Any vice president, any assistant secretary or any assistant treasurer shall have the power and authority to sign or attest all aporoved documents. instruments, contracts, or other papers in connection with the operation of the business of the company in addition to the chairman of the board, the chief executive officer, president, treasurer or secretary; provided, however, the signature of any of them may be primed, engraved, or stamped on any approved document, contract, instrument, or other papers of the Company. IN WITNESS WHEREOF, the Company has caused this instrument lo be se:le' - (1du ly attested by the signature oi \ls officer the ǘ day of Februarv, 2014. y. ) T W ll' P I'd . t d Ch. f 0 t' Offi f N . 'd A . . C · . 1Ǚ · t'-.ą errance 1 1ams, res en an 1e pera 1"g · cǛro ahonw1 e . gnbusiness Insurance ompany F,,iSEALys. 6 t' \ • and Farmland Mutual Insurance . Company; and Vice President of Nat1onw1de Mutual Insurance Company, \ AMCO Insurance Company, Allied Property and Casualty Insurance Company, and Depositors Insurance I I Company 'II "lll !Iii !Ill , ć: · ACKNOWLEDGMENT ST A TE OF IOWA, COUNTY OF POLK: ss On this J.t'.'._day of Februarv, 2014, before me came the above-named officer for the Companies aforesaid, to me personally known to be the officer described in and who executed the preceding instrument, and he acknowledged the execution of the same, and being by me duly sworn, deposes and says, that he is the officer of the Companies aforesaid, that the seals affixed hereto are the corporate seals of said Companies, and the said corporate seals and his signature were duly affixed and subscribed to said instrument by the authority and direction of said Companies . Sandy Alitz Notarial Seal - Iowa ; SEAL 1.SEAL.l it r. • · I Commission Number 152785 f • + . My Commission Expires March. 24. 2017 Notary Public \ .I My Commission Expires CERTIFICATE March 24. 2017 Robert W Horner Ill, Secretary ot the Companies, do hereby certify tna the foregoing is a lu!!, true and correct copy al the original power ol attorney issued by the Company; that the resolLllion rncluded therein is a true and correct transcript rrorn the minures of the meetings of the boards of directors and the.same hes not been revoked or amended in any manner; that said Terram:e Williams was on the date of the execution of the foregoing power otattorney the duly elected ofi1cer Of the Compar11es. and the corporate seals and his signature as of'hcer were duly affixed and subscribed to the said ins1ru ment by the authority of said board of d1rec10rs; and the rorego1ng power of attorney is still in full force and efiect. IN WITNESS WHEREOF, I have hereunto subscribed my name as Secretary, and affixed the corporate seals of said Companies this or. _ M ' 2o_lk_ . This Power of Attorney Expires 0_3_10_9_1_20 _ 1_1 _ BDJ 1 (03-14) 00 46-23809 ar11- ) Secretary '2Ą day ---PAGE BREAK--- PAYMENT BOND Bond Number: BD 749421 CONTRACTOR: M.L. Albright & Sons, Inc. P.O. Box 603 Lewiston, ID 83501 OWNER: City of Moscow, Idaho P.O. Box 9203 Moscow, ID 83843 CONSTRUCTION CONTRACT Date: May 16, 2016 AMCO Insurance Company Nationwide Mutual Insurance Company Allied Property & Casualty Insurance Company 1100 Locust St., Dept 2006 Des Moines, IA 50391-2006 (866) 387-0457 SURETY: Nationwide Mutual Insurance Company 1100 Locust St., Dept. 2006 Des Moines, IA 50391-2006 Amount: $733,761.15 Seven Hundred Thirty Three Thousand Seven Hundred Sixty One and 15/100 Dollars Description: Third Street - Polk to Hayes Reconstruction - 2016 BOND Date: May 26, 2016 Amount: $733,761.15 Seven Hundred Thirty Three Thousand Seven Hundred Sixty One and 15/100 Dollars Modifications to this Bond: [ZJNone CONTRACTOR AS PRINCIPAL 0 See Section 16 SURETY Company: (Corporate Seal) Company: (Corporate Seal) Nationwide Mutual Insurance Company M.L. Albright & Sons, Inc. Signature: Signature: Name ( Name And Title: Sharon Albright, PreS'i and Title: (Any additional signatures appear on the last page of this Performance Bon (FOR INFORMATION ONLY - Name, address and telephone) ed W. Haff , Attorney-in-Fact AGENT or BROKER: OWNERS REPRESENTATIVE: (Architect, Engineer or other party.) Conover Insurance Services, LLC P.O. Box 2528 Tri-Cities, WA 99302 (509)545-3800 This document conforms to American Institute of Architects Document A312, 2010 edition $USEAL:cJ ---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 If a notice of non-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 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 7.2, 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 of reasonable 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 e Construction 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. This document conforms to American Institute of Architects Document A312, 2010 edition ---PAGE BREAK--- § 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 ( 1) on which the Claimant sent a Claim to the Surety pursuant to Section 5 .1.2 or 5 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 Owner and Contractor identified on the cover page, including all Contract Documents and all changes made to the agreement and the Contract Documents. This document conforms to American Institute of Architects Document A312, 2010 edition ---PAGE BREAK--- § 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. § 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 a Subcontractor and the term 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 cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature:-------- Name Signature:--------- Name And Title: and Title: , Attorney-in-Fact Address Address This document conforms to American Institute of Architects Document A312, 2010 edition ---PAGE BREAK--- Power of Attorney KNOW ALL MEN BY THESE PRES ENTS THAT: AMCO Insurance Company, an Iowa corporation Nationwide Mutual Insurance Company, an Ohio corporation Farmland Mutual Insurance Company, an Iowa corporation N ationwide Agribusiness Insurance Company , an Iowa corporation Allied Property and Casualty Insurance Company, an Iowa corporation Depositors Insurance Company, an Iowa corporation hereinafter referred to severally as the "Company" and collectively as the "Companies, " each does hereby make, constitute and appoint: CHARLES E. HUDON JARED W . HAFF PAMELA L. THURMAN KAREN E. ALLEY SARAH E. SCOTT JOHANN A E. ZERB .JACQUELINE F. HERNANDEZ e ach in their individual capacity. its true and lawful attorney-in-fact, with full power and authority to sign, seal, and execute on its behalf any and all bonds and undertakings, and other obligatory instruments of similar nature, in penalties not exceeding the sum of TWO MILLION AND N0/100 DOLLARS $2,000.000.00 and to bind the Company thereby, as fully and to the same extent as if such instruments were signed by the duly authorized officers of the Company: and all acts of said Attorne y pursuant to the authority given are hereby ratified and confirmed. This power of attorney is made and executed pursuant to and by authority of the following resolution duly adopted by the board of directors of the Company: "R ESOLVED, that the president, or any vice president be, and each hereby is, authorized and empowered io appoint attorneys-in-fact of the Company , and to authorize them to execute and deliver on behalf of the Company any and all bonds, forms, applications, memorandums, undertakings, recognizances, transfers, contracts of indemnity, policies, contracts guaranteeing the fidelity of persons holding positions of public or private trust, and other writings obligatory in nature that the business of the Company may require ; and to modify or revoke, with or without cause, any such appointment or authority; provided, however, that the authority granted hereby shall in no way limit the authority of other duly authorized agents to sign and countersign any of said documents on behalf of the Company." "RESOLVED FURTHER, that such attorneys-in-fact shall have full power and authority to execute and d eliver any and all such documents and to bind the Company subject to the terms and limitations of the power of attorney issued to them, and to affix the seal of the Company thereto; provided, however, that said seal shall not be necessary for the validity of any such documents." This powe r of attorney is signed and sealed under and by the following bylaws duly adopted by the board of directors of the Company. Execution of An\' vice presiden , any assistant secretary or any assistant treasurer shall have the power and authority to sign or attest all approved documents. instruments, contracts, or other papers in connection with the operation of the business of the company in addition to the chairman of the board, the chief executive officer, president, treasurer or secretary; provided, however, the signature of any of them may be printed, engraved, or stamped on any approved document, contract, instrument, or other papers of the Company. IN WITNESS WHEREOF, the Company has caused this instrument to be se%le . A duly attested by the signature of its officer the 1 day ol Februarv , 201 4 . . $ T w·11· P &d . t d Ch' f 0 . Off' f N . . . . errance 1 1ams, res1 en an 1e peratmg 1cer o at1onw1de Agribusiness Insurance Company 1fffS£ L;l;i, ' i \ - and Farmland Mutual Insurance . Company; and Vice President of Nationwide Mutual Insurance Company, AMCO Insurance Company, A!l1od Property and Casualty Insurance Company, and Depositors Insurance I • . I Company foi'""'(jl." װ lii׳trii"" ACKNOWLEDGMENT STATE OF I OWA, COUNTY OF POLK: ss On this .J.1."..day of Februarv , 2014, before me came the above-named officer for the Companies aforesaid, to me personally known to be the ofiicer described in and who executed the preceding instrument, and he acknowledged the execution of the same, and being by me duly sworn, deposes and says, that he is the officer of the Companies aforesaid, that the seals affixed hereto are the corporate seals of said Companies. and the said corporate seals and h i s signature were duly affixed and subscribed to said instrument by the authority and direction of said Companie s . ·:øù ö úû-ü IJ,Āā[!Ji,'• Sandy Alitz Fe· ·ýþ"' Fl$ױ ·"lj, i · t< Notarial Seal - Iowa P,2(SEAL)e; , \SEAL) ' Commission Number 152785 ÷ • f M.v Commission Expires March. 24. 2017 Notary Public \ i;J· Ă,ii i;ii'iii-':, My Commission Expires Ill-.• CERTIFICATE March 24, 201 7 [ Robert w Horner Ill, Secretary of the Companies, d o hereby certify that the foregoing is a full. true and correct copy of the power ol attorney issued by the Company; (hat the resolution included therein is a true and correct transcript irom the mmu1es ot the meetings of the boaros of directors and the same has not oe.en revoked ·or amended In any m anner: that said Terranee Willia.ms was on the date of ttie execution of the foregoing power ot attorney the duly e1ected officer of the Companies. and the corporate seals and hi's signature as officer were duly affixed and subscribed 10 the said lns1rument by the authority of said board -of dlrec1ors; and the ioregoing power of attorney is still in full force and effect. IN WITN ESS WHEREOF, I have hereunto subscribed my name as Secretary, and affixed the corporate seals of said Companies this of_M-r--' 20-1.k_ . This Power of Atto rney Expires _ _ _ 0_3_10_9 _12_ 0_1 _7 _ _ _ BDJ I (03-1 4) 00 46-23809 a,.11-1.A) )L Secretary 2 +h day ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK---