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HomeMy WebLinkAbout176-06 RESOLUTIONRESOLUTION NO.176-06 A RESOLUTION AWARDING BID #06-52 AND APPROVING A CONTRACT WITH CANDO, INC. IN THE AMOUNT OF $157,980.00 FOR THE INSTALLATION OF PARK AMENITIES FOR THE DEVELOPMENT OF THE PARK IN SALEM MEADOWS SUBDIVISION, AND APPROVING A 10% PROJECT CONTINGENCY IN THE AMOUNT OF $15,798.00. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas, hereby awards Bid #06-52 :and approves a contract with Cando, Inc. in the amount of $157,980.00 for the installation of park amenities for the development of the park in Salem Meadows Subdivision. A copy of the contract marked Exhibit "A" is attached hereto and made a part hereof. Section 2: That the City Council of the City of Fayetteville, Arkansas, hereby approves a 10% project contingency in the amount of $15,798 00. APPROVED: ATTEST. By DAN COODY, Mayo PASSED and APP • By: L--10u.i.ai Q SONDRA SMITH, City Clerk this 7th day of November, 2006. • Section 00 52 13 AGREEMENT BETWEEN CITY OF FAYETTEVIL,LE AND CANDO, INC. THIS AGREEMENT is dated as of the %A day of' Pot& in the year 2006 by and between the City of Fayetteville, Arkansas (hereinafter called CITY OF FAYETTEVILLE) and Contractor (herein after called CANDO, INC.). CITY OF FAYE I I'EVILLE and CANDO, INC., in consideration of the mutual covenants hereinafter set forth, agree as follows: • Article 1. WORK. • CANDO, INC. shall complete all Work as specified or indicated in the Contract Documents. The work generally consists of the construction of a neighborhood park consisting of sigma e elements, metal work, stone masonry, play equipment, earthwork, concrete work, and for Salem Meadows Park Land; and all items indicated in the Drawings and Specifications. Article 2. ENGINEER. The Project has been designed by City of Fayetteville Parks and Recreation Division 1455 South Happy Hollow Road Fayetteville, Arkansas 72701 will be hereinafter called PARKS AND RECREATION DIVISION PROJECT MANAGER and who is to act as CITY OF FAYE 1 1'F.VILLE's representative, assume all duties and responsibilities, and have the rights and authority assigned to ENGINEER in the Contract Documents in connection with completion of the Workin accordance with the Contract documents. Article 3. CONTRACT TIME. • • 3.1. The Work for Salem Meadows Park Land Construction shall be substantially completed within 75 consecutive calendar days after the date when the Contract Time commences to run as provided in paragraph 2.03 of the General Conditions, and completed and ready for final payment in accordance with paragraphs 14.07.B & C of the General Conditions within 100 consecutive calendar days after the date when the Contract Time commences to run. 3.2. Liquidated Damages. CITY OF FAYE11EVILLE and CANDO, INC. recognize that time is of the essence of the Agreement and that CITY OF FAYE I1'tVILLE will suffer financial loss if the Work is not completed within the times specified in paragraph 3.1 above, plus and extensions thereof allowed in accordance with Article 12 of the General Conditions. They also recognize the delays, expense and difficulties involved in proving the actual loss suffered by City of Fayetteville Page 00 52 13-1 10/23/2006 } CITY OF FAYETTEVILLE if the Work is not completed on time. Accordingly, instead of requiring any such proof, City of Fayetteville and CANDO, INC. agree that as liquidated damages for delay (but not as a penalty) CANDO, INC. shall pay CITY OF FAYETTEVILLE Two hundred and fifty dollars ($250.00) for each day that expires after the time specified in paragraph 3.1 for Substantial Completion until the Work is substantially complete. After Substantial Completion, if CANDO, INC. shall neglect, refuse or fail to complete the remaining Work within the time specified in paragraph 3.1 for completion and readiness for final payment or any proper extension thereof granted by CITY OF FAYETTEVILLE, CANDO, INC. shall pay CITY OF FAYE11'EVILLE Two hundred and fifty dollars ($250.00) for each day that expires after the time specified in paragraph 3.1 for completion and readiness for final payment. Article 4. CONTRACT PRICE. CITY OF FAYE 11tVILLE shall pay CANDO, INC. for completion of the Work in accordance with the Contract Documents an amount in current funds equal to the sum of the amounts determined from the following Schedule of Values pursuant to paragraphs 4.1 and 4.2 below: 4.1. For all Work other than Unit Price Work, an amount equal to the sum of the established lump sums for each separately identified item of Lump Sum Work; and 4.2. For all Unit Price Work, an amount equal to the sum of the established unit price for each separately identified item of Unit Price Work times the estimated quantity of that item as indicated in this paragraph 4.2. PAYMENT ITEMS • As provided in paragraph 11.03 of the General Conditions estimated quantities are not guaranteed, and determinations of actual quantities and classifications are to be made by PARKS AND RECREATION DIVISION PROJECT MANAGER as provided in paragraph 9.08 of the General Conditions. Unit prices have been computed as provided in paragraph 11.03.B of the General Conditions. City of Fayetteville Page 00 52 13-2 10/23/2006 Cando, Inc. ITEM NUMBER DESCRIPTION UNIT EST. QTY. Une Price - Cost 1 Moeemtion(1) LS. 1.00 $6.000.00 2 ConsbW)gu Staldns LS. 1.005;500.00 52,500.00 3 Temporary Silt Fence (395) L.F. 150.00 $4.00 5600.00 4 Topsolicomplete b plane (8) C.Y. 1371.00 515.00 520,565.00 5 Seed and Straw (4) AC. 1.0053500.00 53,500.00 6 Nylapfesl Area Inlet or equal -lr-ppmplete in Place (61(9) EA 2.00$500.00 51,000.00 7 13- ADS dualn pipe- complete in place (689) LF. 33.00 $25.00 $825.00 8 Select FM- complete b place (8) C.Y. 1500.00 58.50 512,750.00 9 Unclassified Excavation C.Y. 60.00 $40.00 $2,400.00 10 Shelter- 20' Hexagon - complete in place (6)(9) LS. 1.00 522,000.00 $22 000.00 11 Comate Flatwork- 4° thick (7) S.Y. 354.00 $35.18 512,45312 12 Shelter Slab -n1ia (71 S.Y. 31.00540.00 $1,240.00 13 BasIcefba0 court. goal and sblpbl9 ogallete b Place (699) LS. 1.00 $20.000.00 520,000.00 14 Play egdpment- orbita or equal (899) LS. 1.00$5,40000 $5,400.00 15 Play equipment - saddle spinner or equal (699) L.S. 2.00 51.232.50 12,465.00 16 Play egipment - mob us equal (699) L.S. 1.00 $9,000.00 $9,000.00 17 Rubber Safety Surfacing - Tliesaonplete b place (699) S.F. 1849.013 514.00 $25,886.00 18 Picnic Tables - 7' ADA AccesaLe- conwlete b place (899) EA 2.00 51201103 52,400.00 19 Brice Rpt- complete in place (699) EA. 1.00 $50000 5500.00 20 6 Benches - complete in pla0e (6991 EA 2.0051.700.00 $3.400.00 21 Trees -Pana sfobusEA 3.00 $350.00 $1050.00 22 s- egnofa stellate1 TreeM EA 2.0D 5400.00 $80000 23 Seed Mix S.F. 12455.00 50.10 51,24500 Total Base Bid . 5157.980.22 • As provided in paragraph 11.03 of the General Conditions estimated quantities are not guaranteed, and determinations of actual quantities and classifications are to be made by PARKS AND RECREATION DIVISION PROJECT MANAGER as provided in paragraph 9.08 of the General Conditions. Unit prices have been computed as provided in paragraph 11.03.B of the General Conditions. City of Fayetteville Page 00 52 13-2 10/23/2006 %,. Article 5. PAYMENT PROCEDURES CANDO, INC. shall submit Applications for Payment in accordance with Article 14 of the General Conditions or as modified in the Supplementary Conditions. Applications for Payment will be processed by PARKS AND RECREATION DIVISION PROJECT MANAGER as provided in the General Conditions. 5.1. Progress Payments. CITY OF FAYETTEVILLE shall make progress payments on account of the Contract Price on the basis of CANDO, INC.'s Applications for Payment as recommended by PARKS AND RECREATION DIVISION PROJECT MANAGER, on or about the 1st day of each month during construction as provided in paragraphs 5.1.1 and 5.1.2 below and SC -14.02 . All such payments will be measured by the schedule of values established in paragraph 2.07 of the General Conditions and based on the number of units completed in the case of Unit Price Work or, in the event there is no schedule of values, as provided in the General Requirements. 5.1.1. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below, but, in case, less the aggregate of payments previously made and less such amounts as PARKS AND RECREATION DIVISION PROJECT MANAGER shall determine, or CITY OF FAYETTEVILLE may withhold, in accordance with paragraphs 14.02.B.5 & 14.02.D of the General Conditions. 90 percent of Work completed (with the balance of 10 percent being retainage), If Work has been 50 percent completed as determined by the PARKS AND RECREATION DIVISION PROJECT MANAGER, and if the character and progress of the 'Work have been satisfactory to CITY OF FAYETTEVILLE and PARKS AND RECREATION DIVISION PROJECT MANAGER, CITY OF FAYETTEVILLE, on recommendation of PARKS AND RECREATION DIVISION PROJECT MANAGER, may determine that as long as the character and progress of the Work remain satisfactory to them, there will be no additional retainage on account of work completed, in which case the remaining progress payments prior to Substantial Completion will be in an amount equal to 100 percent of the Work completed. 100 percent of materials and equipment not incorporated in the Work but delivered, suitably stored, and accompanied by documentation satisfactory to CITY OF FAYETTEVILLE as provided in paragraphs 14.02.B.5 & 14.02.D of the General Conditions. That is, if any such items are setup for that type payment in the Specifications. 5.1.2. Upon Substantial Completion, in an amount sufficient to increase total payments to CANDO, INC. to 98 percent of the Contract Price (with the balance of 2 percent being retainage), less such amounts as PARKS AND RECREATION DIVISION PROJECT MANAGER shall determine, or CITY OF FAYETTEVILLE may withhold, in accordance with paragraphs 14.02.B.5 & 14.02.D of the General Conditions. 5.3 Final Payment. Upon final completion and acceptance of the Work in accordance with City of Fayetteville Page 00 52 13-3 10/23/2006 paragraphs 14.07.B & C of the General Conditions, CITY OF FAYETTEVILLE shall pay the remainder of the Contract Price as recommended by PARKS AND RECREATION DIVISION PROJECT MANAGER as provided in said paragraphs 14.07.B & C. Article 6. CANDO, INC.'S REPRESENTATIONS. • In order to induce CITY OF FAYETTEVILLE to enter into this Agreement CANDO, INC. makes the following representations: 6.1. CANDO, INC. has examined and carefully studied the Contract Documents (including the Addenda listed in Article 7) and the other related data identified in the Bidding Documents including "technical data." 6.2. CANDO, INC. has visited the site and become familiar with and is satisfied as to the general, local, and site conditions that may affect cost, progress, performance, or furnishing of the Work. 6.3. CANDO, INC. is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, performance, and furnishing of the Work. 6.4. CANDO, INC. has carefully studied all reports of explorations and tests of subsurface conditions at or contiguous to the site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the site which have been identified in the Supplementary Conditions as provided in paragraph 4.02.A of the General Conditions. CANDO, INC. accepts the determination set forth in paragraph SC -4.02 of the Supplementary Conditions of the extent of the "technical data" contained in such reports and drawings upon which CANDO, INC. is entitled to rely as provided in paragraph 4.02 of the General Conditions. CANDO, INC. acknowledges that such reports and drawings are not Contract Documents and may not be complete for CANDO, INC.'s purposes. CANDO, INC. acknowledges that CITY OF FAYETTEVILLE and PARKS AND RECREATION DIVISION PROJECT MANAGER do not assume responsibility for the accuracy or completeness of information and data shown or indicated in the Contract Documents with respect to Underground Facilities at or contiguous to the site. CANDO, INC. has obtained and carefully studied (or assumes responsibility for having done so) all such additional 'supplementary examinations, investigations, explorations, tests, studies, and data concerning conditions (surface, subsurface, and Underground Facilities) at or contiguous to the site or otherwise which may affect cost, progress, performance, or furnishing of the Work or which relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to the employed by CANDO, INC. and safety precautions and programs incident thereto. CANDO, INC. does not consider that any additional examinations, investigations, explorations, tests, studies, or data are necessary for the performance and furnishing of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents. • 6.5. CANDO, INC. is aware of the general nature of work to be performed by CITY OF FAYETTEVILLE and others at the site that relates to the Work as indicated in the Contract Documents. 6.6. CANDO, INC. has correlated the information known to CANDO, INC., information and City of Fayetteville Page 00 52 13-4 10/23/2006 observations obtained from visits to the site, reports and drawings identified in the Contract Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents. 6.7. CANDO, INC. has given PARKS AND RECREATION DIVISION PROJECT MANAGER written notice of all conflicts, errors, ambiguities, or discrepancies that CANDO, INC. has discovered in the Contract Documents and the written resolution thereof by PARKS AND RECREATION DIVISION PROJECT MANAGER is acceptable to CANDO, INC. and the Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. Article 7. CONTRACT DOCUMENTS The Contract Documents which comprise the entire agreement between CITY OF FAYETTEVILLE and CANDO, INC. concerning the Work consist of the following: 7.1. This Agreement (pages 1 to 8, inclusive). 7.2. Performance and Payment Bonds, (Exhibits A and B respectively). 7.3. Certificates of Insurance, (Exhibit C). 7.4. Documentation submitted by CANDO, INC. prior to Notice of Selection (Exhibit D). 7.5. General Conditions (pages I to 42, inclusive). 7.6. Supplementary Conditions (pages 1 to 13 inclusive). 7.7. Specifications consisting of Divisions 1 through 16 as listed in table of contents thereof. 7.8. Addenda numbers 1 and 2 , inclusive. 7.9. One set of drawings (not attached hereto) consisting of: a cover sheet and additional sheets numbered two through seven with each sheet bearing the following general title: Salem Meadows Park Land. 7.10. The following which may be delivered or issued after the Effective Date of the Agreement and are not attached hereto: 7.10.1. Notice to Proceed • 7.10.2 All Written Amendments and other documents amending, modifying or supplementing the Contract Documents pursuant to paragraph 3.04 of the General Conditions. The documents listed in paragraphs 7.2 et seq. above are attached to this Agreement (except as expressly noted otherwise above). City of Fayetteville • Page 00 52 13-5 10/23/2006 • There are no Contract Documents other than those listed above in this Article 7. The Contract Documents may only be amended, modified or supplemented as provided in paragraph 3.04 of the General Conditions. Article 8. MISCELLANEOUS. 8.1. Terms used in the Agreement which are defined in Article 1 of the General Conditions will have the meanings indicated in the General Conditions. 8.2. No assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 8.3. CITY OF FAYEII'LVILLE and CANDO, INC. each binds itself, it partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements and obligations contained in the Contract Documents. • 8.4. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken and all remaining provisions shall continue to be valid and binding upon stricken provision or part thereof with a valid and enforceable provision that comes as close as possible expressing the intention of the stricken provision. 8.5. Changes, modifications, oramendments in scope, price or fees to this contract shall not be allowed without a prior formal contract amendment approved by the Mayor and the City Council in advance of the change in scope, cost or fees. 8.6. Freedom of Information Act. City contract and documents prepared while performing city contractual work are subject to the Arkansas Freedom of Information Act. If a Freedom of Information Act request is presented to the City of Fayetteville, CANDO, INC. will do everything possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (A:C.A. §25-19-101 et. seq.) .Only legally authorized photocopying costs pursuant to the FOIA may be assessed for this compliance. IN WITNESS WHEREOF, CITY OF FAYETTEVILLE and CANDO, INC. have signed this Agreement in quadruplicate. One counterpart each has been delivered to CITY OF FAYETTEVILLE and PARKS AND RECREATION DIVISION PROJECT MANAGER, and two counterparts have been delivered to CANDO, INC.. All portions of the Contract Documents have been signed, initialed, or identified by CITY OF FAYETTEVILLE and CANDO, INC. or identified by PARKS AND RECREATION DIVISION PROJECT MANAGER on their behalf. City of Fayetteville Page 00 52 13-6 10/23/2006 • This Agreement will be effective on the Agreement). CITY OF FA By Mayor TTEVILLE: City of Fayetteville [CORPORATE SEAL] Attest •`3? 'z ;FAYETTEVILLE; ma'''y; ,GT4#' efiAlia,2006 (which is the Effective Date of CANDO, INC.: o n Eddy Title President3.71,.= [CORPORATE SEAL]"'' '= i - ��c :rte tr- tAttest Steve etary/7xfe'asurer * If a Corporation, attest by the Secretary. Address for giving notices Address for giving notices 305 West Center Street, Morrilton, AR. (If CITY OF FAYETTEVILLE is a public body, attach License No. 72110 evidence of authority to sign and resolution or other documents Agent for service of process: authorizing execution of Agreement.) (If CANDO, INC. is a corporation, attach evidence of authority to sign) City of Fayetteville Page 00 52 13-7 10/23/2006 ARKANSAS STATE HIGHWAY COMMISSION EXPERIENCE RECORD FINANCIAL STATEMENT EQUIPMENT SCHEDULE MAIL TO: ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT ATTENTION: PROGRAMS AND CONTRACTS DIVISION POST OFFICE BOX 2261 LITTLE ROCK, ARKANSAS 72203 SUBMITTED BY: CANDO. INC. MAILING ADDRESS: MORRILTON Cty 305 WEST CENTER STREET TELEPHONE: 501-354-0507 Street or P. O. Box AR 72110 State ZIP Ca FAX: 501-354-0507 Ano Code - Number Aree Code • Number EMPLOYER'S IDENTIFICATION NO. 71-0693956 January 1993 CERTIFICATION OF CORPORATE OFFICIALS Listed below aro the Officers/Owners/Partners authorized to enter with the Arkansas State Highway and Transportation Departtwntt This authorization is conferred either through Ownership, Board of or Partnership Agreement. STEVEN EDDY JOHN EDDY • into agreement Directors' action • CANDO, INC. (Company) STEVE EDDY (Company Official) SECRETARY / TREASURER (Title) FEBRUARY 21, 2006 (Date) 71-0693956 Federal Employer Identification Number ROTA: If Partaarabip, all partasas must alga. Return to: t w Gr, Arkansas State, Highway and Transportation Department -este 4 Attention: Programa and Contracts Division Post Office Box 2261 Little Rock, Arkansas 72203 n CORPORATE SEAL ('{.mss, J.! • Cando, Inc. 305 West Center Street Morrilton, Arkansas 72110 Phone: (501) 354-0507 IMINEfficlithifnied Signatu`r�List� John N. Eddy Steve Eddy President Secretary / Treasurer • ARKANSAS STATE HIGHWAY COMMISSION EXPERIENCE RECORD FINANCIAL STATEMENT EQUIPMENT SCHEDULE MAIL TO: ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT ATTENTION: PROGRAMS AND CONTRACTS DIVISION POST OFFICE BOX 2261 LITTLE ROCK, ARKANSAS 72203 SUBMITTED BY: cANDo. INC. MAILING ADDRESS: MORRILTON City 305 WEST CENTER STREET AR Slots Sues of P. 0. Box 72110 Zip Cole TELEPHONE: 501-354-0507 FAX: 501-354-0507 Ana Code • Number Ane Code - Number EMPLOYER'S IDENTIFICATION NO. 71-0693956 • January 1993 CERTIFICATION OF CORPORATE ornans • Listed below are the Officers/Owners/Partners authorized to enter with the Arkansas State Highway and Transportation Department This authorization is conferred either through Ownership. Board or Partnership Agreement. STEVEN EDDY JOHN EDDY ,smor doer into agreement of Directors' action CANDO, INC. (Company) STEVE EDDY (Company Official) SECRETARY / TREASURER (Title) FEBRUARY 21, 2006 (Date) 71-0693956 Federal Employer Identification Number Sols: If Partasrshlp, all partners must sign. Return to: Arkansas State Highway and Transportation Department Attention: Programs and Contracts Division Post Office Box 2261 Little Rock, Arkansas 72203 `i ct CORPORATE SEAI, ISAuthorizedFSignature1Eist I .41 Cando, Inc. 305 West Center Street Morrilton, Arkansas 72110 Phone. (501) 354-0507 _...�. . ^ _ ' John N. Eddy President • •S; Steve Eddy Secretary / Treasurer el Arra JreV /Y'• user • • AIA Document A312 Performance Bond Bond No.: $352061 Conforms with the American Institute of Architects, AIA Document A312. , Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): Cando, Inc. 305 West Center Street, Morrilton, AR 72110 OWNER (Name and Address): City of Fayetteville, Arkansas 113 W Mountain St, Fayetteville, AR 72701 CONSTRUCTION CONTRACT Date: SURETY (Name and Principal Place of Business): Employers Mutual Casualty Company P.O. Box 712 Des Moines, Iowa 50303-0712 f I1111111111111III0111IIIA1111100ID 101111111!!! lojI111110 D c ID. 010584570006 TVD L E R corded 1/20/2006 at 0:02 05 AM Fee Amt: $8.00 Pace 1 of 6 Washington County. AR Bette Stamos Circuit Clerk 1 FileB028-00000168 Amount: ONE HUNDRED FIFTY-SEVEN THOUSAND NINE HUNDRED EIGHTY AND 22/100THS Dollars ($157,980.22) Description (Name and Location): Salem Meadows Park Land Construction, Bid #06-52; Fayetteville, Arkansas BOND Date (Not earlier than Construction Contract Date): Amount: ONE HUNDRED FIFTY-SEVEN THOUSAND NINE HUNDRED EIGHTY AND 22/100THS Dollars _X f 7,980.22) . Modifications to this Bond: CONTRA O AS PRINCIPAL Company: Cando;•Inc. (Corporate Seal) Signature Name and Title: Steve E{eldy—S'c�cretary/TReasuer (Any additional signatures appear on page 2.) (FOR INFORMATION ONLY - Name, Address and Telephone) AGENT or BROKER: The Cashion Company, Inc. P. O. Box 550 Little Rock, AR 72203 501-376-0716 1 The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to participate in conferences as provided in Subparagraph 3.1. 3 If there is no Owner Default, the Suretys obligation under this Bond shall arise after: 3.1 The Owner has notified the Contractor and the Surety at its address described in Paragraph 10 below that the Owner is considering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor and the Surety to be held not later than fifteen days after receipt of such notice to discuss methods of performing the Construction Contract. If the Owner, the Contractor and the Surety agree; the Contractor shall be allowed a reasonable time to None _%• • 1v f$•{r,, rtfri r-See,Page2 = r --?r +.. may" k? ♦ .044 SURETY 2 'a"„4 Sot y' Company: Employers Mutual Casualty: (Cgrpmate Se"a» Pan Y E�w r4 y- -t:v Com Si Name and Title: fi,, ,"'— dud choggen — Attorney -In, nc ••.,vx OWNER'S REPRESENTATIVE (Architect, Engineer or other party)' ft • perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; and 3.2 The Owner has declared a Contractor Default and formally terminated the Conn -actor's right to complete the contract. Such Contractor Default shall not be declared earlier than twenty days after the Contractor and the Surety have received notice as provided in Subparagraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform rhe Construction Contract in accordance with the terns of the contract with the Owner. • 4 When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the Suretys expense take one of the following actions: SURETY 5026 (6-92) S-1852/GEEF10/99 Page 1 of 2 • 4.1 Arrange for the Contractor, with consent of Owner, to perform and complete the Construction Contract: or 4.2 Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors; or 4.3 Obtain bids or negotiatedproposals from qualified contractors acceptabletothe Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to thc Owner the amount of damages as described in Paragraph 6 in excess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or • 4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount isdetermined, tender payment therefor to the Owner; or ,2 Deny liability in whole or in part and notify the Owner citing reasons therefor. 5 If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or thc Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. 6 After the Owner has terminated the Contractors right to complete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is obligated without duplication for: 6.1 The responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; 6.2 Additional legal, design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Paragraph 4; and 6.3 Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor. MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: • .a 7 The Surety shall not be liable to the Owner or others for obligations of thc 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 thc Owner or its heirs, executors, administrators or successors. • 8 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. 9 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or • part of the work is located and shall be instituted within two years after Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. lithe provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in thc jurisdiction of the suit shall be applicable. 10 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. 11 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be • performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. " 12 DEFINITIONS 12.1 Balance of the Contract Price: The total amount payable by the Owner to the Contractor under thc Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Construction Contract. 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. • (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: Signature: Signature: Name and Title: Name and Title: Address: Address: S-7852/GEEF 10/99 Page 2 of 2 • • (Corporate Seal) • H`E y it -II DOC'UMetel A tCOL'OIIED‘ACKGHOUNDoNWHITE'PAPERTBACCO ,HISDOCUMENT-1ACASIMUCATEDYATERMARKIHOrDAVAt ANGLEYO;/)EW. 17IEDW©Insurance Companies No 684604 P.O Box 712 • Des Moines, IA 503030712 CERTIFICATE OF AUTHORITY INDIVIDUAL ATTORNEY-IN-FACT KNOW. ALL MEN BY THESE PRESENTS, that: 1. Employers Mutual Casualty Company, an Iowa Corporation 5. Dakota Fire Insurance Company, a North Dakota Corporation 2. EMCASCO Insurance Company, an lowa Corporation 6. EMC Property & Casualty Company, an Iowa Corporation 3. Union Insurance Company of Providence, an Iowa Corporation 7. Hamilton Mutual Insurance Company, an Iowa Corporation 4. Illinois EMCASCO Insurance Company, an Iowa Corporation hereinafter referred to severally as "Company' and collectively as 'Companies', each does, by these presents, make, constitute and appoint: PAMELA K. HAYS, BENSON A. CASHION, MATTHEW K. CASHION, JR., JUDY SCHOGGEN, WILLIAM H. GRIFFIN, CYNTHIA L. TRICKEY, NICK W. PETERS, KAREN W. FREELAND, INDIVIDUALLY, LITTLE ROCK, ARKANSAS its true and lawful attomeyin-fact, with full power and authority conferred to sign, seal, and execute its lawful bonds, undertakings, and other obligatory instruments of a similar nature as follows: IN AN AMOUNT NOT EXCEEDING TEN MILLION DOLLARS ($10,000,000.00) and to bind each Company thereby as filly and to the same extent as if such instruments were signed by the duly authorized officers of each such Company, and all of the acts of said attorney pursuant to the authority hereby given are hereby ratified and confirmed. The authority hereby granted shat expire April 1, 2008 ___ unless sooner revoked. AUTHORITY FOR POWER OF ATTORNEY This Power -of -Attorney is made and executed pursuant to and by the authority of the following resolution of the Boards of Directors of each of the Companies at a regularly scheduled meeting of each company duly called and held in 1999: RESOLVED: The President and Chief Executive Officer, any Vice President, the Treasurer and the Secretary of Employers Mutual Casualty Company shall have power and authority to (1) appoint attomeys-in4act and authorize them to execute on behalf of each Company and attach the seal of the Company thereto, bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature thereof, and (2) to remove any such attomeyin•fad at any time and revoke the power and authority Oren him or her. Attorneys -in -fact shall have power and authority, subject to the terms and limitations of the power-of-attorney issued to them, to execute and deliver on behalf of the Company, and to attach the seal of the Company thereto, bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory n the nature thereof, and anysuch instrument executed by any such attorney-in-fact shall be tuty and in all respects b;nd!ng upon the Company. Certification as to the va:qty of any power-of-attorney authorized herein made by an officer of Employers Mutual Casualty Company shall be folly and in all respects Finding upon this Company. The facs!mia or mechanically reproduced signature of such officer, whether made heretofore or hereafter, wherever appearing upon a certifiedcopy of any power-of•attomey of the Company, shall be valid and bindng upon the Company with the same force and affect as though manually affixed. IN WITNESS WHEREOF, the Companies haveraused these presents to be signed for each by their officers as shown, and the Corporate seals to be hereto affixed this 17th day of January , .2005_,11. Kelley, Charman "A,,,,,,u,,,,, ;e' QS 6 rp A,,,, ,• =owe/rt„�,: o': •••,,...-v„,,. 1863 ``_0 ii 4%E\Oil Akee 4 ilei/RRIi Co :Q 4 Ai SEAL ?Y SEAL- eti •• . 4 4 ;owa , • C,;;;,,,,,;;;;* •n tea. PATRICIA A. WRIGHT Commission Number 176255 My Comm Exp. Nov. 1.20n3 Bruce G. K y, //JJ JJffrey S. Birdsley of Companies 2, 3, 4, 5 & 6 'President Assistant Secretary of Company 1; Vice Chairman and CEO o! Company 7 Onthis 17th day of January AD 2005 before me a Notary Public in and for the State of Iowa, personaLy appeared Bruce G. Kelley and Jeffrey S. Bardsley who, being by me dully swom, did say that they are, and are known to me to be the Charman, President, Vice Chairman and CEO, and/or Assistant Secretary, respectively, of each of The Companies above; that the seafs affixed to this instrument are the seats of said corporations; that said instrument was signed and sealed on behalf of each of the Companies by author'. of their respective Boards of Directors; and that the said Bruce G. Kelley and Jeffrey S.B!rdsley, as such ofacers, acknowledge the execution of said instrument to be the vauntary act and deed of each of the Companies. My Commsslon Expires No ber 1, 2008. atAgcLa-, 12-1) CERTIFICATE I, David L. Hixenbaugh, Vice President of the Companies, do hereby catty that the foregoing resolution of the Boards of Directors by each of the Companies, and firs Power of Attorney issued pursuant thereto on January 17, 2005 on behalf of Pamela K. Hays, Benson A. Cashion, Matthew K. Cashion, Jr., Judy Schoggen, William H. Griffin, Cynthia L. Trickey, are true and correctand are stil in full force and effect Nick W. Peters, Karen W Freeland In Testimony Whereof I have subscribed my name and affixed the facs'.:re seal of each Company this., _ day of Notary Pub^c in and for the State of Iowa 'Fear rertfrc.tion of the.. thenticit of+the _o^er of Attorne 11 ou a ?Willi (515) 280-2689: Vice -President • AIA Document A312 Payment Bond Bond No.: 5352061 Conforms with the American institute of Architects, AIA Document A312. Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): Cando, Inc. 305 West Center Street, Morrilton, AR 72110 • OWNER (Name and Address): City of Fayetteville, Arkansas 113 W Mountain St, Fayetteville, AR 72701 CONSTRUCTION CONTRACT Date: Amount: ONE HUNDRED FIFTY-SEVEN THOUSAND NINE HUNDRED EIGHTY AND 22/100THS Dollars ($157,980.22) SURETY (Name and Principal Place of Business): Employers Mutual Casualty Company P.O. Box 712 Des Moines, Iowa 50303-0712 • Description (Name and Location): Salem Meadows Park Land Construction, Bid #06-52; Fayetteville, Arkansas BOND Date( Not earlier than Construction Contract Date): i �Airiount: ONE HUNDRED FIFTY-SEVEN THOUSAND "^1 t''(4`,�.'"(S1$7,988.22) G^ r''Modifica'fions10 this Bond: CONTRA CTOR.AS PRI:NCIPA L Coinpaiy:,y ando,rinc.; Signature: Name and Title. Steve Edd Secretary/Treasurer (Any additional signatures appear on page 2.) (FOR INFORMATION ONLY - Name, Address and Telephone) AGENT or BROKER: The Cashion Company, Inc. P. O. Box 550 Little Rock, AR 72203 501-376-0716 1 The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference. NINE HUNDRED EIGHTY AND 22/100THS Dollars (Corporate Seal) 2 With respect to the Owner, this obligation shall be null and void if the Contractor: 2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants, and 2.2 Defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity whose claim, demand, lien or suit is for the payment for labor, materials or equipment furnished for use in thc performance of the Construction Contract, provided the Owner has promptly notified the Contractor and the Surety (at the address described in Paragraph 12) of any claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety, and provided there is no Owner Default. SURETY 5026 (6.92) $.1853/GEEF 3100 Paget of 2 None SURETY. Company: Company Signatu Name an • See Page 2 Employers Mutual Casuaay �CorporraateSeal) , e4 \.< •/V �. F5a - F t e: Judy ggen ttor-ney- n=Fa f` i �. REPRESENTATIVE (Architect;,Engtneer or,$other �S zrs j•• • OWNER'S PAY): r 3 With respect to Claimants, this obligation shall be null and void if the Contractor promptly makes payment, directly or indirectly, for all sums due. 4 The Surety shall have no obligation to Claimants under this Bond until: 4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim. 4.2 Claimants who do not have a direct contract with the Contractor: • •1 Have furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner, within 90 days after having last performed labor or last furnished materials or equipment included in the claim stating, with substantial accuracy, the amount of the claim and the name of the party to whom thc materials were furnished or supplied or for whom the labor was done or performed: and • .2 Have either received a rejection in whole or in part from the Contractor, or not received within 30 days of furnishing the above notice any communication from the Contractor by which the Contractor has indicated the claim will be paid directly or indirectly; and .3 Not having been paid within the above 30 days, have sent a written notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to the Contractor. 5 If a notice required by paragraph 4 is given by Owner to the Contractor or to the Surety, that is sufficient compliance. 6 When the Claimant has satisfied the conditions of Paragraph 4. the Surety shall promptly and at the Surety's expense take the following actions: 6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that arc disputed. 6.2 Pay or arrange for payment of any undisputed amounts. 7 The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. 8 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the 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 gamed by thc Contractor in the performance of the Construction Contract arc dedicated to satisfy obligations of thc Contractor and the Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work, 9 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that arc unrelated to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claimant under this Bond, and shall have under this bond no obligations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond. 10 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 11 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the location in which • MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: 4 the work or part of the work is located or after the expiration of one year from the dale (I) on which the Claimant gave the notice required by Subparagraph 4. I or Clause 4.2.3, or (2) on which thc last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (I) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law. the minimum period of limitation ava'Iable to sureties as a defense in the jurisdiction of the suit shall be applicable. 12 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be sufficient compliance as of the date received at the address shown on thc signature page. 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. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 14 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be made. 15 DEFINITIONS 15.1 Claimant: An individual or cntity having a direct contract with the Contractor or with a subcontractor of the Contractor to fumish labor, materials or equipment for use in the performance of the Contract. The intent of this Bond shall be to include without limitation in terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for. which a mechanic's lien may be asserted in the jurisdiction where thc labor, materials or equipment were furnished. 15.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. 15.3 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: Signature: Name and Title: Address: Signature: • (Corporate Seal) Name and Title: Address: S-1853/GEEF 3/00 Page 2 of 2 THE :. -ACE OF THIS DOCUMENT NAVA COLORED BACKGROUND ON WHITE PAPER • BACK OF THIS DOCUMENT HAS A SIMULATED WATERMARK - HOLD AT AN ANGLE :It VIEW. . ,, EMC Insurance. Companies ,,R>; No � �' P.O. Box 712.• Des Moines, IA 50301. •3-0712 - [ •r .:: 3 ;CERTIFICATE OF AUTHORITY.INDIVIDUA•LATT_ORNEY IN=FACT • °•KNOW ALL MEN BYTHESE PRESENTS, that 5 r t • =r; . .f. v� >, • ;1: EnfployeraMutual Ca?;ualty Cofnpariy;:agtowa Corporation :' :,, . -5. Dakota FIre,InsurahceCompafry, allorth Dakdta Corpbratio>n r' 2. EMCASCO Insurance Company; an Iowa Corporation 6. EMC Property & Casualty Company antowa.Corporation: • 3.' Union Insurtince;Company.of Providence, anlowa Corporation :7. Hamilton Mutual, Insurance•Company anaowa.CorporatIon l s 4. Illinois EMCASCO insurance Company,anlowaCorporationt- , + ' of , s, : e . 'c ,•• , • 43-• e were:: 40- ti hereinafter referred tb severallyas ".Company and celiectiveiy as "Companies", each does by these presents, make; co,L9titute and appoint:?E,' = j, WAMELAIK: HAYS -BENSON A? CA$HION'IOATTHW K:CASHION, JR:, JUDY SCHOGGEN, WILLIAM H .GRIFFIN -CYNTHIA L. TRICKEY,-NICK W. PETERS .KAREN W. FREELAND„INDIVIDUALLY, LITTLEROCK,,ARKANSAS .. .F- ... . ..tom �; :., -*t a •• s` .:+L,,. , ,: .. �ry o , -..,..y . . r vir5s `�XFt; r its true and lawful-attomey rn-fact with full power and authority conferred to sign seal, and execute its lawful bonds, undertakings, and other obligatory instnimenfs of ahx similar.riature as follows •:z is . . • : - , , ':. • - •r •b _if {M= ✓I {fix T r IN AN AMOUNT NOT:EXCEEDINGTEN MILLION DOLLARS - - ($10,000;000.00) and to bind each Company; thereby as fully and fo` the aarneextent as if 'each instruments were signed by the duly authorized officers ofeaeh such •Company; and all of'e the acts otsaid attorney pursuaht to the authorhy hereby given are hereby ;ratified and confirmed..: • ; � j 4 7'_- ,,A ' ,. t .. __i". , Ir. r ; The auth'onty hereby granted shall expire ` : April 1• , 2008 unless sooner revoked.: