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HomeMy WebLinkAboutA032 - Performance, Payment and Maintenance Bond dated July 31, 2007 - Merchants Bonding Company (Mutual) I SURETY BOND NO. IAC 52024 PERFORMANCE,PAYMENT.AND MAINTENANCE.BOND IWOW ALL.BY THESETRES ITS:. That we,Con-Struct,Inc.,as Principal(hereinafter the"Contractor"or`°Principal"and . Merchants Bonding.-Coany...(Mutua]_) ,as Surety:are�held:and.firmly Bound unto the Kellie Markey Revocable Trust;c/o Kellie Markey as Obligee(hereinafter referred was"the Owner"),and to all persons who may be injured by any breach of any of the conditions of this Bond in the penal sum of: Ninety Seven Thousand Three Hundred Eighty Tive Dollars and No/100($97,385'.00)Jawful.money of the United States;forlhe payment Of-which sum,well and truly-to-be made,we bind ourselves,our heirs,legal representatives and assigns,jointlyorseverally,firmlyby.these presents: The conditions of the above obligations are such that whereas said Contrae-tor.entered into a contract with the Owner,bearing date the 31 day of July 2007 hereinafter the "Contrace)wherein said Contractor undertakes and agrees to construct the following described improvements: The work for Division Il-is as follows;-:F.C.C:paving and Associated.work for 400 feet of industrial street development. It is expressly understood and agreed by the Contractor and Surety-in-this bond that the following.provisions are a part of this Bond and are binding upon said Contractor and Surety,to-wit: L. PERFORMANCE: The-Contractor shall well and faithfully°observe;perform,fulfill and abide by each and every covenant,condition and part.of said Contract and Contract Documents,by reference made a part hereof,for the above referenced improvements,and shall indemnify and save harmless ttie Owner-frotn.all.outlay-and-expensre incurred by the Owner.by reason of the Contractor's.default :c=•` . of fadlure-io perfortrr-as required. The Contractor shall also be iesponsible,for-the default or failure to perform as required under'the Contract and Contract Documents by alI its subcontractors,suppliers, agents,or employees furnishing materials or providing labor in the'.performance of the Contract. 2. PAYMENT: The Contractor.and the Surety on this Bond are hereby<agreed.:to pay all just claims submitted-by,persons;firths;subcontractors;and corporations furnishing-materials for or performing labor in-the performance=of the Contract on account of which this Bond:is-given, including but not limited to claims for'all-amounts due.for labor;matenals,.lubricants;oil;gasoline,repairs on machinery,equipment and toals,consumed or used by the Contractor or any subcontractor,wherein the same are not-satisfied out'of the portion of the-contract-price which the Owner is required to `retain until completion of the-improvement,but the Contractor and Surety shall-not be liable to said persons,firms,or corporationsunless the claims of said claimants against said portion of the contract price shall have been established as provided'by law. The Contractor and Surety hereby bind themselves to:the obligations and-conditions set-forth in-Chapter 573,Code of Iowa,which by this reference-is made a-part hereo£as though fully set out herein. 3. MAINTENANCE::The-Contractor and the Surety on this Bond hereby agree,:at-their own expense: A. To remedy"any.anii all defects that rhay develop 4 or result from work to be performed under the Contract within the period of two(2)years from the date of acceptance of the work under the Contract- by reason of defects in workmanship or materials used is. . •.construetaon ofsaidworl�.. :. . . . B. To keep all work in continuous good-repair,and C. To-pay the Owaer's reasonable costs of monitoring and inspe6tioA16-assure that any- defects are remedied;and to repay the Owner all outlay and expense incurred as a result . of Contractor's and Surety's failure to remedy any defect as required by this section. . PPM- 1 o ( ( Cob a Contractor's and Surety's agreement herein made extends to defects in workmanship or materials not ,I discovered or known to the•Owner at the tim&such work:was accepted:: . 4. GENERAL: Every Surety on this Bond shall be deemed and held-bound.-.-my-contract to the contrary notwithstanding,to the following provisions: A. To consent-without-:notice to any extension of time to the Contractor in which to perform.the-Contract; ....To:consent:without notice-to any change;in the Contractor Contract:Documentg,which-: thereby increases the-total cantract:price.and the penal sum:.of this.bond,.provided that . all such changes.-do not,in the aggregate, involve an..increase of more than.twenty percent of the total contract price,and that this bond shall then be released as.to such . excess increase;and C.... - To'consentwithout-notice thatthis Bond'shall remain in.full.force and-effect until.the. Contract is completed,whether completed within the specified contract period,within an extension thereof,or within a period of time after the contract period has elapsed and the liquidated,damage penalty-is.being charged Against.the Contractor. The Contractor and every Surety on the bond shall be deemed and held bound,any contract to the contrary notwithstanding,to the foIlowing:provisions: D. That no provision of this Bond or of any other contract shall be valid which limits to ,less that five years after..the•acceptance of the work under the Contract the right to sue .::on thisBond. E.:.. :That as.used herein;-the:phrase:"all outlay.and-Expense"is not to be limited in any way, .- .but.sliall inelude.the.a.etuaLand reasonable costs and expenses Jncurmff" the Owner including-interest;.benefits and overhead where applicable..:Accordingly,"all outlay and. expense"would-include.but.not be limited to all contractor employee expense,.all equipment usage or rental,materials,testing,outside experts,attorneys fees(including -overhead.expenses of the Owner's.staff attorneys};and all costs,and expenses of Iitigation:as;they:are,mcurred by.the Owner:It.is intended the Contractor and Surety w ill-defend.and.indemnify the Owner on all.claims made against the Owner on account of Contractor's-failure.to Perform as required in.th6 Contract•:and Contract Documents, that all agreements.and promises set forth in the Cpntract.and Contract Documents, in approved change orders;and in this Bond will be fulfilled;and that.the Owner will be fully indemnified so.that it.will be-put into the;position it would have been in had the .....Contract been performed-inthe first instance as.requhvd. In the event.the Owner.incurs any"outlay and:.expense"in defending itself with.respect.to any claim as to which.the Contractor or Surety should have provided the.defense,.or..in the enforcement of the promises given by the Contractor in the Contract,.Contract Documents,or approved change orders;or in the enforcement of the promises given by the.Contractor and:Surety in this.Bond,.the Contractor and Surety agree that they will make the Owner-whole for all such outlay and-expense,provided that the Surety's obligation under this bond shall.not exceed 125%.of the penal.sum:of this bond. In the event that any actions or proceedings are.initiated with.-respe4to this Bond,the parties agree that the venue thereof shall be Story County,State of Iowa..If legal action.is required.by the Owner to enforce the provisions of this Bond or to collect the monetary obligation incurring to the benefit of the Owner,the Contractor and the Surety agree,jointly and severally,to.pay.the Owner all.outlay and expense incurred therefore by the Owner. All rights,powers,and remedies of the Owner hereunder shall be cumulative and not alternative and shall-be in-addition to Surety for any amount:guaranteed.hereunder whether action is brought against the Contractor or.whether.Contractor is joined in anysuch.action or...actions or not. PPM-2 . . ' I NOW THEREFORE,the condition of this obligation is such that if said Principal shall faithfully perform all the piomises of the Principal,as set forth and provided in the-Contract,in the Contract Documents,and in this Bond,then this obligation shall be null and void,otherwise it shall remain in full force and effect. When a work,term,or phrase is used in this Bond,it shall-be interpreted'or construed first as defined in this Bond,the Contract,or the Contract Documents;second,if not.def ned in the Bond, Contract,or Contract Documents,it shall be interpreted or construed as defined in applicable provisions'of the Iowa Code;third, if not defined in the Iowa Code,it shall be.interpreted°or construed accordingto its.generally accepted' meaning in the construction industry;and fourth,if it has no.generally accepted meaning in the construction industry,it shall be interpreted or construed--according to its common or customary usage.. Failure to specify or particularize.shall not exclude terms or provisions not mentioned and shall not Iimit liability hereunder. The Contract and Contract Documents are herebymade a part of this Bond. (The RemaindeucifPage Left Blank Intentionally) PPM--3 Witiaess our hands;.in triplicate.,this . 31 &ay.of .:J4Y. 2007 surety Countersigried By Con-Struc't,:Jrxc Signature of lowaResident Cormission Agent as • Contractor . Prescribed by Chapter 515.52-57,Iowa Code. (Requite only if Attorney-in-Fact is not also an IowaResident Commission Agent). By. Kent M I.Irselff Signature Drnc;flPnt Name of Resident Commission Agent Title SURETY: Company Name Merchants Bonding Company (Mutual) Company Address Surety Company By: City,state,Zip Code Srgnature Attcmey-in-Fact officer Robert Shano Company Telephone Number. :z _ _ Name of Attorney-in-Fact Officer -Koehler insurance, Inc. . Company Name 26 South First Ave. Company Address FORM APPROVED BY: Marshalltawn, IA 50158 City,State,Zip Code 641-753-6691 Attorney for Owner Company Telephone Number NOTES All signatures on-this performance,'maintenance&payment bond must be original signatures in ink;copies or facsimile of any signature will not be accepted. This bond must be sealed with,the Surety's raised,embossing seal. The Certificate'or Power of Attorney accompanying this bond must be valid on its face and sealed with the Surety's raised,embossing seal. PPM-4 Merchants Bonding Company (Mutual) POWER OF ATTORNEY Bond#: IAC 52024 Know All Persons By These Presents,that the MERCHANTS BONDING COMPANY(MUTUAL),a corporation duly organized under the laws of the State of Iowa,and having its principal office in the City of Des Moines,County of Polk,State of Iowa,hath made, constituted and appointed,and does by these presents make,constitute and appoint ROBERT SHOMO of MARSHALLTOWN and State of IA its true and lawful Attorney-in-Fact,with full power and authority hereby conferred in its name, place and stead,to sign,execute, acknowledge and deliver in its behalf as surety any and all bonds,undertakings, recognizances or other written obligations in the nature thereof, subject to the limitation that any such instrument shall not exceed the amount of: FOUR MILLION($4,000,000.00)DOLLARS and to bind the MERCHANTS BONDING COMPANY(MUTUAL)thereby as fully and to the same extent as if such bond or undertaking was signed by the duly authorized officers of the MERCHANTS BONDING COMPANY(MUTUAL),and all the acts of i said Attorney-in-Fact,pursuant to the authority herein given,are hereby ratified and confirmed. This Power-of-Attorney is made and executed pursuant to and by authority of the following Amended Substituted and Restated By- Laws adopted by the Board of Directors of the MERCHANTS BONDING COMPANY(MUTUAL)on November 16,2002. ARTICLE ll,SECTION 8-The Chairman of the Board or President or any Vice President or Secretary shall have power and authority to appoint Attorneys-in-Fact,and to authorize them to execute on behalf of the Company,and attach the Seal of the Company thereto,bonds and undertakings,recognizances,contracts of indemnity and other writings obligatory in the nature thereof. ARTICLE ll,SECTION 9-The signature of any authorized officer and the Seal of the Company may be affixed by facsimile to any Power of Attorney or Certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or other suretyship obligations of the Company, and such signature and seal when so used shall have the same force and effect as though manually fixed. In Witness Whereof,MERCHANTS BONDING COMPANY(MUTUAL)has caused these presents to be signed by its President and its corporate seal to be hereto affixed,this 1st day of January 2007 • •�O�NG Cq*-. MERCHANTS BONDING COMPANY(MUTUAL) �O.�y'POq••.9y•• •�:_ rn; �'. 1933 c: By l /'t'Z7 STATE OF IOWA •• President ••....•• COUNTY OF POLK ss. On this 1st day of January 2007 before me appeared Larry Taylor,to me personally known,who being by me duly sworn did say that he is President of the MERCHANTS BONDING COMPANY(MUTUAL), the corporation described in the foregoing instrument,and that the Seal affixed to the said instrument is the Corporate Seal of the said Corporation and that the said instrument was signed and sealed in behalf of said Corporation by authority of its Board of Directors. In Testimony Whereof,I have hereunto set my hand and affixed my Official Seal at the City of Des Moines,Iowa,the day and year first above written. +i CINDY SMYTH Co niissan Nurri er 173504 owl Cart7Tissicn res March 16,2W9 Notary Public,Polk County,Iowa STATE OF IOWA COUNTY OF POLK ss. I,William Warner,Jr.,Secretary of the MERCHANTS BONDING COMPANY(MUTUAL),do hereby certify that the above and foregoing is a true and correct copy of the POWER-OF-ATTORNEY executed by said MERCHANTS BONDING COMPANY(MUTUAL),which is still in full force and effect and has not been amended or revoked. In Witness Whereof,I have hereunto set my hand and affixed the seal of the Company on this 31 st day of July 2007 .•••••• l // , ' ••O\NG Co ���pRP 099 A9y•. Secretary v o o •a 1933 ;c. POA 0005 (1/06) •••......•' HOME OFFICE AUSTIN OFFICE DES MOINES, OWA 50321-1158 ME20 RCHANTS P.0.BOX 78755 AUSTIN,TEXAS 78755 343-9033 F )(515) 1 2 30344 BONDING COMPANY FAX(512) FAX 343-8363 ENDORSEMENT It is hereby understood and agreed that Bond No.: IAC 52024 Principal: Con-Struct,Inc. Obligee: Kellie Markey Revocable Trust,c/o Kellie Markey in the MERCHANTS BONDING COMPANY(Mutual), is changing this bond effective 07/31/2007. FROM: Obligee: Kellie Markey Revocable Trust,c/o Kellie Markey TO: Obligee: City of Ames (per letter dated 07/06/2010 from Fox Engineering) All terms and conditions of said bond, except as above changed, to remain the same. Signed, sealed and dated this 12th day of July 2010 MERCHANTS BONDING COMPANY(Mutual) By Eric Olson SUP 0018 (1/09) Attorney-In-Fact MERCHANTS BONDING COMPANY POWER OF ATTORNEY . for Company Employees Know All Persons By These Presents,that the MERCHANTS BONDING COMPANY(MUTUAL),a corporation duly organized under the laws of the State of Iowa,and having its principal office in the City of Des Moines,County of Polk,State of Iowa,hath made, constituted and appointed,and does by these presents make,constitute and appoint the following company employees Eric Olson of Des Moines and State of Iowa its true and lawful Attorney-in-Fact,with full power and authority hereby conferred in its name, place and stead,to sign,execute, acknowledge and deliver in its behalf as surety any and all bonds,undertakings, recognizances or other written obligations in the nature thereof,subject to the limitation that any such instrument shall not exceed the amount of: Unlimited and to bind the MERCHANTS BONDING COMPANY(MUTUAL)thereby as fully and to the same extent as if such bond or undertaking was signed by the duly authorized officers of the MERCHANTS BONDING COMPANY(MUTUAL),and all the acts of said Attorney-in-Fact,pursuant to the authority herein given,are hereby ratified and confirmed. This Power-of-Attomey is made and executed pursuant to and by authority of the following Amended Substituted and Restated By- Laws adopted by the Board of Directors of the MERCHANTS BONDING COMPANY(MUTUAL)on November 16,2002. ARTICLE ll,SECTION S-The Chairman of the Board or President or any Vice President or Secretary shall have power and authority to appoint Attorneys-in-Fact,and to authorize them to execute on behalf of the Company,and attach the Seal of the Company thereto,bonds and undertakings,recognizances,contracts of indemnity and other writings obligatory in the nature thereof. ARTICLE 11,SECTION 9-The signature of any authorized officer and the Seal of the Company may be affixed by facsimile to any Power of Attorney or Certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or.other suretyship obligations of the Company, and such signature and seal when so used shall have the same force and effect as though manually fixed. In Witness Whereof,MERCHANTS BONDING COMPANY(MUTUAL)has caused these presents to be signed by its President and its corporate seal to be hereto affixed,this 1st day of January 2009 ••��\NG CO�A• MERCHANTS BONDING COMPANY(MUTUAL) 00.�RPOq .9' ry7 -o- c •Z: 'y 'a'• 1933 . y c. By STATE OF IOWA •'••. ;..•'• President COUNTY OF POLK ss. On this 1st day of January 2009 before me appeared Larry Taylor,to me personally known,who being by me duly sworn did say that he is President of the MERCHANTS BONDING COMPANY(MUTUAL), the corporation described in the foregoing instrument,and that the Seal affixed to the said instrument is the Corporate Seal of the said Corporation and that the said instrument was signed and sealed in behalf of said Corporation by authority of its Board of Directors. In Testimony Whereof,I have hereunto set my hand and affixed my Official Seal at the City of Des Moines,Iowa,the day and year first above written. CINDY SMYTH Commission Number 173504 U OWN My Commission Expires March 16,2012 Notary Public,Polk County,Iowa STATE OF IOWA COUNTY OF POLK ss. I,William Warner,Jr.,Secretary of the MERCHANTS BONDING COMPANY(MUTUAL),do hereby certify that the above and foregoing is a true and correct copy of the POWER-OF-ATTORNEY executed by said MERCHANTS BONDING COMPANY(MUTUAL),which is still in full force and effect and has not been amended or revoked. In Witness Whereof,I have hereunto set my hand and affixed the seal of the Company on this 12th day of July 2010 , •.•••0.. . 'z ��o�i,RpOq • ;� ,�1;�y�� Secretary -o- of a 1933 POA 0005 EMP (1/09) •. •••..