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HomeMy Public PortalAbout2016.08.02 Falvey's LLC Construction Contract - Rotary Park ReconstructionI. AGREEMENT BETWEEN OWNER AND CONTRACTOR FOR CONSTRUCTION CONTRACT 40 THIS AGREEMENT, is being made and entered into this oz day of -2016 and between The City of McCall (hereinafter, "OWNER") and Falvey's LLC (hereinafter, "CONTRACTOR"): NOW THEREFORE, the parties to this Contract, in consideration of the mutual covenants and stipulations set out, agree as follows: ARTICLE 1. CONTRACT DOCUMENTS The Contract Documents which comprise the entire agreement between the OWNER or City and the Contractor concerning the work to be performed are this Contract, pages one (1) through (_) and the following: 1. Bid Documents titled, ROTARY PARK RE -CONSTRUCTION & ADA IMPROVEMENTS — LATE SUMMER - FALL 2016 2. Standard General Conditions of the Construction Contract, 2016 ISPWC (Idaho Standards for Public Works Construction) Division 100 (not attached) (pages 1 to 52, inclusive). 3. Bid Proposal (Section III) of the Contractor, dated June 15, 2016, to be physically attached to this Contract; 4. The Construction Plans (8 sheets); 5. General Conditions (Section V) 6. Supplementary Conditions (Section VI) 7. Technical Specifications (Section VII) 8. Performance and Payment Bonds and Insurance Certificates, to be physically attached to this Contract; 9. The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto: a. Notice of Award b. Notice to Proceed. c. Written Amendments. d. Work Change Directives. e. Change Orders. f. Substantial completion certification g. Final completion certification 10. Change Orders, which may be delivered or issued after the effective date of this Agreement; 11. Addenda issued prior to opening of bids, to be physically attached to this contract; 12. WH-5 — Public Works Contract Report for Idaho State Tax Commission 13. W9 There are no Contract Documents other than those listed in Article 1. This Contract may only be amended by change order as provided in the General Conditions. ARTICLE 2. WORK The Contractor shall complete the entire work as specified, indicated and required under the Contract Documents. The Work is generally described as follows: ROTARY PARK RE -CONSTRUCTION & ADA IMPROVEMENTS — LATE SUMMER - FALL 2016. ARTICLE 3. PROJECT DESIGNER, PROJECT ENGINEER, MCCALL PARKS & RECREATION DIRECTOR 1.01 The project has been designed by the City of McCall Parks Supervisor (Project Manager) and engineered by Crestline Engineers (Project Engineer). The McCall Parks Superintendent is to act as the Owner's representative, assume all duties and responsibilities, and have the rights and authority assigned to "Engineer" in the Contract Documents in connection with the completion of the "Work" in accordance with the Contract Documents. ARTICLE 4. CONTRACT TIMES/LIMITATIONS 4.01 Substantial Completion The Contractor shall begin work in conformance with the Contract Documents and shall complete the work prior to the date of completion. The project site will be available to the Contractor for project implementation on August 15, or when weather conditions permit, or as specified below: • Bid Alternates (One): The project site will be available to the Contractor for project implementation on August 15, 2016 for bid alternates one and if funding becomes available for either of bid alternates 4,5,6,7. The work to be performed pursuant to this Contract shall be substantially complete for bid items 1 and or 4,5,6, 7 within 45 calendar days after Notice To Proceed and/or no later than September 30, 2016. • Bid Alternate — Option (two) The project site will be available to the Contractor for project implementation on either November 01, 2016 or when lake levels have dropped to low pool (whichever comes first, for bid alternates two. The work to be performed pursuant to this Contract shall be substantially complete for bid item two within 30 calendar days after Notice To Proceed and/or no later than December 01, 2016. 4.02 Final Completion The work shall be finally complete and ready for final payment, in accordance with Paragraph 14.07 of the ISPWC General Conditions as described below: • Bid Alternates (One): The work shall be finally complete and ready for final payment, in accordance with Paragraph 14.07 of the ISPWC General Conditions, within 12 calendar days of the date of Substantial Completion Certification or before October 12, 2016 for bid alternate (one and or 4.5.6.7 if funds become available). • Bid Alternate — (two) The work shall be finally complete and ready for final payment, in accordance with Paragraph 14.07 of the ISPWC General Conditions, within 12 calendar days of the date of Substantial Completion Certification or before December 14, 2016 for bid alternate (two). 4.03 Working Hours Work can be performed 5 days a week (Monday through Friday) for a period of 12 hours (7:00 am to 7:00 PM) per day. Adjustment of the contract time can be made in accordance with the provisions of the Contract Documents as directed by the Project Engineer, Parks & Recreation Director, or the OWNER. 4.04 Liquidated Damages A. CONTRACTOR and OWNER recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not completed within the times specified in paragraph 4.02 above, plus any extensions thereof allowed in accordance with Article 12 of the ISPWC Section 100 General Conditions. The parties also recognize the delays, expense, and difficulties involved in proving in a legal preceding the actual loss suffered by OWNER if the Work is not completed on time. Accordingly, instead of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty), CONTRACTOR shall pay OWNER $750.00 for each day that expires after the time specified in paragraph 4.02 for Substantial Completion until the Work is substantially complete. After Substantial Completion, if CONTRACTOR shall neglect, refuse, or fail to complete the remaining Work within the Contract Time or any proper extension thereof granted by OWNER, CONTRACTOR shall pay OWNER $750.00 for each day that expires after the time specified in paragraph 4.02 for completion and readiness for final payment until the Work is completed and ready for final payment. ARTICLE 5. CONTRACT PRICE OWNER shall pay CONTRACTOR for completion of the Work in accordance with the Contract Documents the amount of One Hundred Seven Thousand One Hundred Twenty Five Dollars ($ 107,125.00 ) in current funds equal to the sum of the amounts determined pursuant to the CONTRACTOR's Bid Proposal contained in Bid Form, Article 5, Section III. ARTICLE 6 - PAYMENT PROCEDURES 6.01 Submittal and Processing of Payments A. CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed by ENGINEER as provided in the General Conditions. Contractor shall provide an example Application for Payment submittal to the Project Engineer at the start of the project for review and approval. 6.02 Progress Payments; Retainage A. OWNER shall make progress payments on account of the Contract Price on the basis of CONTRACTOR's Applications for Payment on or about the 30th day of each month during performance of the Work as provided in paragraphs 6.02.A.1 and 6.02.A.2 below. All such payments will be measured by the schedule of values established in paragraph 2.07.A of the General Conditions (and in the case of Unit Price Work based on the number of units completed) or, in the event there is no schedule of values, as provided in the General Requirements: Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below but, in each case, less the aggregate of payments previously made and less such amounts as ENGINEER may determine or OWNER may withhold, in accordance with paragraph 14.02 of the General Conditions: a. 95% of Work completed (with the balance being retainage): and b. 95% of cost of materials and equipment not incorporated in the Work (with the balance being retainage). Upon Substantial Completion, Owner shall pay an amount sufficient to increase total payments to Contractor to 95 percent of the Work completed, less such amounts as ENGINEER shall determine in accordance with Paragraph 14.02.13.5. 6.03 Final Payment A. Upon final completion and acceptance of the Work in accordance with paragraph 14.07 of the General Conditions, OWNER shall pay the remainder of the Contract Price as recommended by ENGINEER as provided in said paragraph 14.07, less any sum Owner is entitled to set off against Engineer's recommendation, including but not limited to liquidated damages. ARTICLE 7 - INTEREST 7.01 All moneys not paid when due as provided in Article 14 of the General Conditions shall bear interest at the rate of 5% per annum. ARTICLE 8. INDEPENDENT CONTRACTOR The parties warrant by their signature that no employer -employee relationship is established between the Contractor and the OWNER by the terms of this contract. It is understood by the parties hereto that the Contractor is an independent contractor and as such neither it nor its employees, agents, representatives or subcontractors, if any, are employees of the OWNER for purposes of tax, retirement system, or social security (FICA) withholding. ARTICLE 9. SCOPE OF SERVICES The Contractor shall perform all services required by the Contract Documents. All work shall be completed in accordance with the specifications and plans established for this project. ARTICLE 10. HOLD HARMLESS/INDEMNIFICATION In addition to other rights granted the OWNER by the Contract Documents, the Contractor shall indemnify and save harmless the Architect and the Owner, its officers and employees, from all suits, actions, or claims of any character brought because of any injuries or damages received or sustained by any person, persons, or property on account of the operations of the Contractor or his subcontractors; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any act or omission, neglect, or misconduct of the Contractor or his subcontractors; or because of any claims or amounts recovered from any infringements of patent, trademark or copyright; or from any claims or amounts arising or recovered under the Workmen's Compensation Act or any other law, ordinance, order or decree. ARTICLE 11. CONFLICT OF INTEREST The Contractor covenants that it presently has no interest and will not acquire any interest, direct or indirect, in the project which would conflict in any manner or degree with the performance of its services hereunder. The Contractor further covenants that, in performing this Contract, it will employ no person who has any such interest. Should any conflict of interest arise during the performance of this Contract, Contractor shall immediately disclose such conflict to the Project Manager, Architect and the OWNER. ARTICLE 12. ENTIRE AGREEMENT, MODIFICATION AND ASSIGNABILITY This Contract and the exhibits hereto contain the entire agreement between the parties, and no statements, promises, or inducements made by either party, or agents of either party are valid or binding unless contained herein. This contract may not be enlarged, modified or altered except upon written agreement signed by the parties hereto. The Contractor may not subcontract or assign its rights (including the right to compensation) or duties arising hereunder other than as contemplated by the Contract Documents, without the prior written consent and express authorization of the OWNER. ARTICLE 13. ADHERENCE TO LAW REQUIRED All applicable local, state and federal statutes and regulations are hereby made a part of this contract and shall be adhered to at all times. Violation of any of these statutes or regulations by the Contractor shall be deemed material and shall subject the Contractor to termination of this contract for cause. No pleas of misunderstanding or ignorance on the part of the Contractor will in any way serve to modify the provisions of this requirement. The Contractor and his surety shall indemnify and save harmless the OWNER and the City of McCall and its employees, agents and representatives against any claim or liability arising from or based on the violation of any such laws, codes, ordinances, or regulations, whether by himself, his employees, or his subcontractors. ARTICLE 14. LEGAL FEES In the event either party incurs legal expenses to enforce the terms and conditions of this contract, the prevailing party is entitled to recover reasonable attorney's fees and other costs and expenses, whether the same are incurred with or without suit. ARTICLE 15. SPECIAL WARRANTY The Contractor warrants that nothing of monetary value has been given, promised or implied as remuneration or inducement to enter into this Contract. The Contractor further declares that no improper personal, political or social activities have been used or attempted in an effort to influence the outcome of the competition, discussion, or negotiation leading to the award of this Contract. Any such activity by the Contractor shall make this Contract null and void. ARTICLE 16. COMMUNICATIONS Such communications as are required by this contract shall be satisfied by mailing or by personal delivery to the parties at the following address: Contractor: Falvey's LLC P.O. Box 710 McCall ID 83638 Owner: City of McCall 216 E. Park Street McCall, Idaho 83638 IN WITNESS WHEREOF, said Contractor and the OWNER or City has caused this Contract to be executed on the day and year first above written. Contractor: Faly y's LLC by: Mathew Falvey ACKNOWLEDGMENT Owner: yackie J. Ayxh¢n, May ATTEST: �// / 1 BessieJo Wagn y, City Clerk Approved As To Form: William icho s, City Attorney till-) 'Rol On this day of 29k4, before me, a Notary Public of the State of Idaho, personally appeared , in his official capacity as ��jQ► �Up�„S 44.91 known to me to be the 6erson described in the ove document anXack wledged 4o me eked th a e. SEAL otary Public residing at /,, / CAMJpe'',,, -- My Commission expires °TA, vBI-\G - s�. �0,,,,:: ACORO� CERTIFICATE OF LIABILITY INSURANCE DATEiMMlDONYYYI �' /2 2016 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 CONTACT NAME. PFOST DARIN - AA _ JEL Western Community Irs Co PHONE , E:u- 208-401-0132 IA/c, No(: 208 232-3608 PO Box 4848 ADORES commcerts@idfb:ns.com Pocatello, ID 83205-484B INSUREWS) AFFORDING COVERAGE NAIC S INSURER A: Western Community Ins Co 39519 INSURED INSURER B : _ (Itk'nt'In'Itntl't'n�tl'ntlnt�tn����tut�n�� `.I FALVEYS LLC NSURERC: PO BOX 710 (NSURER0; MCCALL ID 83638 INSURERE. INSURER F . COVERAGES CERTIFICATE NUMBER RFVISION NUMEIFR. AF0418 THIS IS TO CERTIFY THAT i Ht POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR T-1E POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM Ow CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO �4'HICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN THE INSURANCE A=FORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL TrE TERMS. EXCLUSIONS AND ':ANDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN RECUCEC BY PAID CLAIMS. INSi2 TYpE OF INSURANCE ADOL SUBR POLICY EFF POLICY EXP LTR POUCY NUMBER iMMIDD.YYYY MM OfYYYY LIMITS GENERAL UABIUTY _.ACH OCCJRRENCE $ 11000,000 X CGMMERCIAL -ENEFcA. LIA:21U— DAMAGE TO RENTED - PREMISES tEa acurr ,-if) S 100,000 C�-JVS-'JADE X C:;::UR MED EXP (Any one pemc i -_.. _-.. 8 10,000 A Y N 8NO84102 6/20/16 6/20/17 PERSONAL SADVIN.,URY $ 11000,000 GENERAL AGGREGATE S 2,000,000 GEN'L .AGGREGATE UNIT APaUES PER. PRODUCTS . COMP/OP AGG S 2 ,000 ► 000. POLICY .Cc AUTOMOBILE LIABILITY -__ COMBINED SINGLE L M1 tEa accident) $ 1.000.000 ANY AUTO BODILY INJURY;P., penonl S - ALL OWNED SCHEDULED A AUTOS X_ Autos N N 8NO84102 6/20/16 6/20/17 BODILV IN uRv;ppra(cidem' X X NON -OWNED PROPERTY DAMAGE $ HIRED AUTOS AUTOS IPer accdent) S UMBRELLA UAB OCCUR EACH OCCURRENCE S EXCESSLIAS GWMS-MADE AGGREGATE $ DEC) RETENTIONS S WORKERS COMPENSATION NCR OT AND EMPLOYERS'LIABILITY YIN LIMITS ANY PROPRIETOWPARTNER'EXE CUTIVE NIA E.L. EACH ACCIDEN- - $ -- - --- OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L DISEASE - EA EMPLOYEE $ It yes, .lescnbe snorer DESCRIPTION OF OPERATIONS belo.v E.L. DISEASE - POLICY LIMIT $ DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101 Additional Remarks Schedule, If more space Is requkredi Refer to IDCG 236(03/07) Exclusion of Coverage for Structures Built Outside of Designated Areas Endorsement - Copy attached. MULUtK CITY OF MCCALL BUILDING DEPARTMENT 216 E PARK ST MCCALL ID 83638 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE _ �t ACORD 25 (2010/05) O 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD CITY OF MCCALL PUBLIC WORKS NOTICE OF AWARD Dated: 08/01 /2016 TO: Mathew Falvev — Falvev's LLC ADDRESS: P.O. Box 710 — McCall. ID - 83638 PROJECT: Rotary Park Re -Construction and ADA Improvements You are notified that your Bid dated 6/15/16 for the above Contract has been considered. You are the apparent Successful Bidder and have been awarded a Contract for the Rotary Park Re -Construction and ADA Improvements and other related and miscellaneous work. The Contract Price of your Contract is: One Hundred Seven Thousand One Hundred Twenty Five Dollars ($107,125.00) A copy of the Contract Agreement accompanies this Notice of Award as well as subsequent Contract documents. You are required by the Information for Bidders to execute the Agreement and furnish the following: • Performance and Payment Bonds • Insurance Certificate (listing the City of McCall as additionally insured); • IRS form W-9; • Proof of current Idaho Public Works License appropriate for the work identified in the Contract; • WH-5 Public Works Contract Report; (Some of these items may have been provided with the completed Bid/Proposal) You are required to deliver the executed Contract Documents the Contract security (Bonds) as specified in the Project Specifications within seven (7) days of the date of this Notice. Failure to comply with these conditions within the time specified will entitle OWNER to consider your Bid in default, to annul this Notice of Award and to declare your Bid security forfeited. Within ten days after you comply with the above conditions, OWNER will return to you two fully executed counterparts of the Contract Documents. City of McCall (OWNER) By: (AUTHORIZED SIGNATURE) Title: Parks Supervisor ACCEPTANCE OF NOTICE Receipt of the above NOTICE OF AWARD is hereby acknowledged: By: (A THORIZED SIGNAT Title. (please sign the Acceptance of Notice and fax to 208-634-4170 or e-mail to nstewart@mccall.id. us) 216 East Park Street • McCall, Idaho 83638 . (208) 634-5580 . Fax (208) 634-4170 #AIA Document A312T'" .2010 Payment Bond CONTRACTOR: (Name, legal status and address) Falvey's LLC PO Box 710 McCall, ID 83638 OWNER: (Name, legal status and address) City of McCall 216 E Park Street McCall, Idaho 83638 CONSTRUCTION CONTRACT Date: ua 2 2016 Amount: $107,125.00 SURETY: (Name, legal status aril principal place of business) Indemnity Company of California Five Centerpointe, Suite 530 Lake Oswego, OR 97035 Description: (Name and location) Rotary Park Re -Construction and ADA Improvements BOND /a u q 2 Date: _.2016 (Not earlier than Construction Contract Date) Amount: $107,125.00 Modifications to this Bond: ® None ❑ See Section 18 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Falvey's LLC ndemnity Company of Californ' Signature: Name ame Ka I chter, Att ney-In-Fact and Title: and Title: (Arty additional signatures appear on the last page of this Payment Bond) (FOR INFORML4TION ONLY— Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: Allied Bonding (Architect, Engineer or other party:) 5605 Overland Rd. Boise, ID 83705 Phone (208) 345-4177 Fax (208) 384-1677 Ink. AIA DoewnwK A31210 —2010. The Anudcon InedWb of Amhbch. Bond No. 759272P This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. AIA Document A312-2010 combines two separate bonds, a Performance Bond and a Payment Bond, into one form. This is not a single combined Performance and Payment Bond. 0n»0 5 § 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 promptly 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 promptly 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. 14 When the Owner has satisfied the conditions in Section 3, the Surety shall promptly 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 famished 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 5.2, whichever is applicable, the Surety shall promptly 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 the 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. Ink AIA Document AM'" - 20% The American Inastole of Arehftwta. § 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 5.2, or (2) 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 (1) or (2) 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 promptly 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; A a brief description of the labor, materials or equipment furnished; .5 the date on which the Claimant last performed labor or last famished 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. InIL AIA Doeun*M A312'r' — 2010. The American Insftft of Arch" "' . § 16A Owner Walk 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. § 16J Contract Doeurrenb. 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 term Owner shall be deemed to be Contractor. 118 Modifications to this bond are as follows: None (Sparc is provrded below for additiand signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature: Name and Title: Name and Title: Address Address CAUTM: You should sign an original AIA Contract Document, on which this text appears In RED. An original assurse that changes will not be obscured. Init. AIADoxaeaantA21210- MO. The AroskMWOLMSdAMhbWtL 8 POWER OF ATTORNEY FOR DEVELOPERS SURETY AND INDEMNITY COMPANY INDEMNITY COMPANY OF CALIFORNIA PO Box 19725, IRVINE, CA 92623 (949) 263-3300 KNOWALL BY THESE PRESENTS that except as expressly limited, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, do each hereby make, constitute and appoint: ***Karyl A. Richter, Janet K. Holthaus, jointly or severally*** as their true and lawful Attorney(s)-in-Fact, to make, execute, deliver and acknowledge, for and on behalf of said corporations, as sureties, bonds, undertakings and contracts of suretyship giving and granting unto said Attorney(s)-in-Fact full power and authority to do and to perform every act necessary, requisite or proper to be done in connection therewith as each of said corporations could do, but reserving to each of said corporations full power of substitution and revocation, and all of the acts of said Attomey(s)-in-Fact, pursuant to these presents, are hereby ratified and confirmed. This Power of Attorney is granted and is signed by facsimile under and by authority of the following resolutions adopted by the respective Boards of Directors of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as of January 1st, 2008. RESOLVED, that a combination of any two of the Chairman of the Board, the President, Executive Vice -President, Senior Vice -President or any Vice President of the corporations be, and that each of them hereby is, authorized to execute this Power of Attorney, qualifying the attorney(s) named in the Power of Attorney to execute, on behalf of the corporations, bonds, undertakings and contracts of suretyship; and that the Secretary or any Assistant Secretary of either of the corporations be, and each of them hereby is, authorized to attest the execution of any such Power of Attorney; RESOLVED, FURTHER, that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and any such Power of Attorney or certificate bearing such facsimile signatures shall be valid and binding upon the corporations when so affixed and in the future with respect to any bond, undertaking or contract of suretyship to which it is attached. IN WITNESS WHEREOF, DEVELOPERS SURETYAND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have severally caused these presents to be signed by their respective officers and !attested bytheirrespective Secretary or Assistant Secretary this 18th day of April, 2016. By:L�%�'�!' ,PV„ANDiN-, O�yANyO� Daniel Young, Senior Vice -President yJ,•�oRPORar``��y A.VOpPOR4 C, p OCT. °1a 10 s o OCT. 5 O 1 9 3 6 t31 1967 a By: Mark Lansdon, Vice-President�p A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange On April 18 2016 before me, Lucille Raymond Notary Public Date Here Insert Name and Title of the Officer personally appeared Daniel Young and Mark Lansdon Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of rA ------ LUCILLE RAYMOND which the person(s) acted, executed the instrument. Commission 0 2081945 I Notary Public - Calitomilt I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is Z 0 Orange County true and correct. M Comm. Expires Oct 13 2018 WITNESS my hand and official seal. Place Notary Seal Above Signature Luciltoykond, Notary Public CERTIFICATE The undersigned, as Secretary or Assistant Secretary of DEVELOPERS SURETY AND INDEMNITY COMPANY or INDEMNITY COMPANY OF CALIFORNIA, does hereby certify that the foregoing Power of Attorney remains in full force and has not been revoked and, furthermore, that the provisions of the resolutions of the respective Boards of Directors of said corporations set forth in the Power of Attorney are in force as of the date of this Certificate. This Certificate is executed in the City of Irvine, California, this day of 010' P`��V� �N�F GCMpPO y O'O w / OCT. < 2 OCT. 5 T By: ° to W 1967 _0 Cassie J. nisford, Assistant Se to =0`=. ry `,�7�.,..,,/1936OWP,.,�La='= Oy O'r[/FOPr1�P> ID-1380 (Rev. 04/16) * * `{ PREMtJM 0 FOR THE CONTRACT TERM AND IS wBJECT TO ADJUSTMENT BASED ON FINAL CONTRACT PRICE #AIA Document A312T"" .2010 Performance Bond CONTRACTOR: (Name, legal status and address) Falvey's LLC PO Box 710 McCall, ID 83638 OWNER: (Name, legal status and address) City of McCall 216 E Park Street McCall, Idaho 83638 CONSTR,MCTION CONTRACT Date:, 2016 Lf Amount: $107,125.00 SURETY: (Name, legal status and principal place of business) Indemnity Company of California Five Centerpointe, Suite 530 Lake Oswego, OR 97035 Description: Rotary Park Re -Construction and ADA Improvements (Name and location) DateD DZ 2016 (Not earlier Awn Construction Contract Date) Amount: $107,125.00 Modifications to this Bond: 0 None 0 See Section 16 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: Falvey's LLC { 1� Indemnity Signatu� Name isr �ame and Title: and Title: (Any additional signatures appear on the last page of &, (Corporate Seal) of California Per Bond) (FOR INFORMATION ONLY— Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: Allied Bonding (Architect, Engineer or other party:) 5605 Overland Rd. Boise, ID 83705 Phone (208) 345-4177 Fax (208) 384-1677 Bond No. 759272P This document has Important legal consequences. Consultation with an attorney Is encouraged with reaped to its completion or modMcation. Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. ALA Document A312-2010 combines two separate bonds, a Perfom enoe Bond and a Payment Bond, into one form. This Is not a single combined Performance and Payment Bond. Init. Au DWAMMnt A312"u — 2010. The AmedrAn InsMufe of Archftcb. 081110 § 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 (5) 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 promptly 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 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. Init. NA Doak A312^m —MO. The Anw icen Inatihft d AmhAwft. § 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. 18 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 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 Definitons § 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 Subcontractor and the term Owner shall be deemed to be Contractor. InIL MA Oocrai ent A312" — 2010. The American Insuhft of AnohftWCb . § 16 Modifications to this bond are as follows: None (Space is provided below for additional signatures of added parties, other than those appearing on the cover page) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) gi ignature: Name and Title: Name and Title: Address Address CAUTION: You should sign an original AIA Contract Document, on which this text appears In RED. An original assures that changes will not be obscured. Init. AIA Documant AE12"' - 2010. The Anbrican Ins*ule 0f Ard*8C 4 POWER OF ATTORNEY FOR DEVELOPERS SURETY AND INDEMNITY COMPANY INDEMNITY COMPANY OF CALIFORNIA PO Box 19725, IRVINE, CA 92623 (949) 263-3300 KNOW ALL BY THESE PRESENTS that except as expressly limited, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, do each hereby make, constitute and appoint: ***Karyl A. Richter, Janet K. Holthaus, jointly or severally*** as their true and lawful Attorney(s)-in-Fact, to make, execute, deliver and acknowledge, for and on behalf of said corporations, as sureties, bonds, undertakings and contracts of suretyship giving and granting unto said Attorney(s)-in-Fact full power and authority to do and to perform every act necessary, requisite or proper to be done in connection therewith as each of said corporations could do, but reserving to each of said corporations full power of substitution and revocation, and all of the acts of said Attorney(s)-in-Fact, pursuant to these presents, are hereby ratified and confirmed. This Power of Attorney is granted and is signed by facsimile under and by authority of the following resolutions adopted by the respective Boards of Directors of DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA, effective as of January 1st, 2008. RESOLVED, that a combination of any two of the Chairman of the Board, the President, Executive Vice -President, Senior Vice -President or any Vice President of the corporations be, and that each of them hereby is, authorized to execute this Power of Attorney, qualifying the attorney(s) named in the Power of Attorney to execute, on behalf of the corporations, bonds, undertakings and contracts of suretyship; and that the Secretary or any Assistant Secretary of either of the corporations be, and each of them hereby is, authorized to attest the execution of any such Power of Attorney; RESOLVED, FURTHER, that the signatures of such officers may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and any such Power of Attorney or certificate bearing such facsimile signatures shall be valid and binding upon the corporations when so affixed and in the future with respect to any bond, undertaking or contract of suretyship to which it is attached. IN WITNESS WHEREOF, DEVELOPERS SURETY AND INDEMNITY COMPANY and INDEMNITY COMPANY OF CALIFORNIA have severally caused these presents to be signed by their respective officers and attested bytheirrespective Secretary or Assistant Secretary this 18th day of April, 2016. By: G2iJLw� �V°AND•.............. Q`c Daniel Young, Senior Vice -President 5J.,4oRvortgT'I —NI, G OPPOR� O �O :n >: �° By. Mark Lansdon, Vice -President 't...• A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange On April 18 2016 before me, Lucille Raymond Notary Public Date Here Insert Name and Title of the Officer personally appeared Daniel Young and Mark Lansdon Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized ��r�— capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of LUCILLE RAYMOND which the person(s) acted, executed the instrument. Commission 0 2001945 1 'r Notary Public - CalBornia I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is Orange County true and correct. My Comm. Dtres Oct 13 2018 WITNESS my hand and official seal. Place Notary Seal Above Signature Lucill y1ilriond, Notary Public CERTIFICATE The undersigned, as Secretary or Assistant Secretary of DEVELOPERS SURETY AND INDEMNITY COMPANY or INDEMNITY COMPANY OF CALIFORNIA, does hereby certify that the foregoing Power of Attorney remains in full force and has not been revoked and, furthermore, that the provisions of the resolutions of the respective Boards of Directors of said corporations set forth in the Power of Attorney are in force as of the date of this Certificate. This Certificate is executed in the City of Irvine, California, this a day of a� �Q'� "" tV AND iN' ONPAN yC5" J ?� ..................... p� ,.,. G PO , pP R9 9 OCT. By: _ a to n' OCT.S 0 Cassie J. rrisford, Assistant Se#tary t 93 1987 ID-1380 (Rev. 04/16)... „...."........ ......'t.......,.,,,•,,,,.._ ,. .. ,.. ...wr sne wm... «, u«....e.�.......:.Y....a.., ...m„.».�.v ..,.....,.„a,,...+.— ... .... .... .. C.L. "Butch" Offer Governor State of Idaho Division Building ryr e PUBLIC WORKS CONTRACTORS LICENSING 5 . 4,- CONTRACTOR TOR f PWC- -15595 - A -1 M - 3 07/11/2006 ; License. urnbet Original License Issued This is to certify 4, L E S LLC p: has fulfilled the requirements of the law relating to licensing In Idaho Code, `title 64, Chapter 19 & 4 i i and is hereby granted this certificate. r This license expires. 041=20117 €j. Licensee Signature CKelly Pearce, Administrator Nvmmrv..N�m'�r+wJwvu.+ w.,.. h C �