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HomeMy WebLinkAbout69-11 RESOLUTIONRESOLUTION NO. 69-11 A RESOLUTION AWARDING BID #11-32 AND AUTHORIZING A CONTRACT WITH NICHOLS EROSION CONTROL, INC. IN THE AMOUNT OF $31,430.00 FOR THE PURCHASE AND INSTALLATION OF SOD FOR TWO NEW SOCCER FIELDS AT THE LEWIS SOCCER COMPLEX 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 ##11-32 and authorizes a contract with Nichols Erosion Control, Inc. in the amount of $31,430.00 for the purchase and installation of sod for two new soccer fields at the Lewis Soccer Complex. PASSED and APPROVED this 3rd day of May, 2011. APPROVED: ATTEST: B ON ' LD JO ' ► ayor By:R)491A.A4‘..) • !4'%?M�- NA, SO A E. SMITH, City Clerk/Treasurer 5tinrrrrrrr IUTR FAYETFEVILLE; • -qSp`.s ', ,;,°. R KAN c0 0.• �Q���p9a` Byron Humphry Submitted By City of Fayetteville Staff Review Form City Council Agenda Items and Contracts, Leases or Agreements 5/3/2011 City Council Meeting Date Agenda Items Only Parks Maintenance Division Action Required: Approve a resolution awarding BID #11-32 and a contract with Nichols Erosion Control, Inc. in the amount of $31,430 for the sod and installation of the sod for two new soccer fields at Lewis Soccer Complex. Parks and Recreation Department $31,430 Cost of this request 2250.9255.5806.00 Account Number 11001.1 Project Number Budgeted Item X 60,000.00 Category l Project Budget Lewis Soccer Field Improvements Program Category / Project Name Park Improvements Funds Used to Date Program / Project Category Name $ 60,000.00 Parks Development Remaining Balance Fund Name Budget Adjustment Attached � partDirect � Date-// Attorney `J k.k)o.icx Date W -IS-2411 Finance and Internal Services Director P14--" C ief of St,,,t Date Date Previous Ordinance or Resolution # Original Contract Date: Original Contract Number: r Comments: Sod installation must be completed and fields playable by mid-August for the beginning of the fall soccer season, Revised January 15, 2009 ave eviARKANSAS le THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENT CORRESPONDENCE CITY COUNCIL AGENDA MEMO To: Mayor Lioneld Jordan and City Council Thru: Don Marr, Chief of Staff Connie Edmonston, Parks and Recreation Director From: Byron Humphry, Park Maintenance Superintendent O Date: April 13, 2011 Subject: Bid # 11-32 Construction — Installation of Sod for Soccer Field PROPOSAL: The Parks Department utilizes soccer fields at Asbell Elementary, Lewis Soccer Complex, and Walker Park for spring and fall soccer leagues that have over 1,448 participants. The fields at Asbell are leased from Fayetteville Public Schools and the fields at the Lewis Soccer Complex are leased from the University of Arkansas. Last June, the Fayetteville Public School system informed us they were terminating our 10 year lease at Asbell to build tennis courts. According to the terms of the lease agreement, they were required to give us a one year notice of termination. The one year notice ends on June 4, 2011. With the loss of Asbell's soccer fields, we would have to limit the number of kids playing soccer. To help offset this loss of soccer fields, the Parks Department plans to construct two additional fields at the Lewis Soccer Complex. The lease agreement with the University of Arkansas for the Lewis Soccer Complex expires on June 30, 2018. These two additional fields will accommodate our soccer program until new fields are developed at the Regional Park. The University of Arkansas has given us approval to construct the additional fields. Minor grading will be required to create a smooth playing surface which will be permitted by Development Services Once grading is complete and irrigation is installed by Park staff, sod installation of approximately 140,000 sq ft will be contracted. The bid for sodding the newly constructed fields opened on April 4th. Three vendors including Goodwin & Goodwin Inc., GroundSERV, and Nichols Erosion Control, Inc. submitted bids with Nichols Erosion Control, Inc. being the low bid in the amount of $31,430. If approved, the sodding of the soccer fields is anticipated to begin in mid-May, 2011. Fields must be completed and playable by mid-August for the beginning of the fall soccer season. RECOMMENDATION: A resolution awarding BID #11-32 and approval of a contract with Nichols Erosion Control, Inc. in the amount of $31,430 for the sod and installation of the sod for two new soccer fields at Lewis Soccer Complex. THE CITY OF FAYETTEVILLE, ARKANSAS BUDGET IMPACT: The project is funded with 2011 Park Development funds. The total project budget is $60,000 that will include grading, irrigation, and sod installation. Attachments: Bid Tab Contract Agreement Signed by Contractor Purchase Requisition va'F�fte v`ille THE CITY QF FAYETTEVILLE, ARKANSAS ARKANSAS www.accessfayetteville.org CONTRACT REFE. ENCE BID: 11-32, Construction — Installation of Sod for Soccer Field Contractor: Nichols Erosion Control, Inc. Terrn: Single Project This contract executed this 5 ' day of , 2011, between the City of Fayetteville, Arkansas, and Nichols. Erosion Controi. Inc. In consideration the mutual covenants contained herein, the parties agree as follows: Nichols. Erosion Control, !pc. at its own cost and expense shall furnish all labor, materials, supplies, machinery, equipment, tools, supervision, bonds, insurance, tax permits, and all other accessories and services necessary to complete items bid per Bid 11-34 as stated in Nichols Erosion Control. Inc. bid proposal, and in accordance with specifications attached hereto and made a part hereof under Bid 11- 34, all included herein as if spelled out word for word. 2. The City of Fayetteville shall pay Nicholls Erosion. Control.Inc. based on their bid proposal in an amount not to exceed $31,430..00. Payments will be made after approval and acceptance of work and submission of invoice. Payments will be made approximately 30 days after receipt of invoice. Not to exceed price shall include any applicable local, state, and federal taxes as stated in the bid documents. 3. The Contract documents which comprise the contract between the City of Fayetteville and Nichols Erosion. Control Inc. consist of this Contract and the following documents attached hereto, and made a part hereof: A. Bid form identified as Invitation to Bid 11-34 with the specifications and conditions typed thereon. B. Nichols_ Erosi n..Cantrol,.Inc. bid proposal. C. The Notice to Prospective Bidders and the Bid Tabulation. 4. These Contract documents constitute the entire agreement between the City of Fayetteville and Nichols Erosion Control. Inc. and may be modified only by a duly executed written instrument signed by the City of Fayetteville and Njctols resign CgntrgI�.In�c. 5. Nk iQIs.tErosion Coctrgl, Inc. shall not assign its duties under the terms of this agreement. 6. Nichols Erosion Control. Inc. agrees to hold the City of Fayetteville harmless and indemnify the City of Fayetteville, against any and all claims for property damage, personal injury or death, arising from Nichols Erosion .Control,. Inc. performance of this contract. This clause shall not in any form or manner be construed to waive that tort immunity set forth under Arkansas Law. 7. Nichols Erosion., Control. Inc. shall furnish a certificate of insurance addressed to the City of Fayetteville, showing that he carries the following insurance which shall be maintained throughout the term of the Contract. Any work sublet, the contractor shall require the subcontractor similarly to provide worker's compensation insurance. In case any employee engaged in work on the project under this City of Fayetteville, AR Contract for Bid 11-32, Construction — Installation of Sod for Soccer Field Page 1 of 2 contract is not protected under Worker's Compensation Insurance, Nichols Erosion Control, Inc. shall provide and shall cause each Subcontractor to provide adequate employer's liability insurance for the protection of such of his employees as are not otherwise protected. Workmen's Compensation Statutory Amount Comprehensive General & Automobile Insurance Bodily Injury Liability Property Damage Liability $500,000 for each person injured. $1,000,000 for each accident. $1,000,000 aggregate. The premiums for all insurance and the bond required herein shall be paid by Nichols Erosion Control, Inc. 8. Nichols Erosion Control, Inc. to furnish proof of licensure as required by all local and state agencies. 9. This contract may be terminated by the City of Fayetteville or Nichols Erosion Control, Inc. with 10 days written notice. 10. Freedom of Information Act: City of Fayetteville contracts 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, the contractor 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 photo coping costs pursuant to the FOIA may be assessed for this compliance. 11. Changes in Scope or Price: Changes, modifications, or amendments 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. WITNESS OUR HANDS THIS Yk DAY OF , 2011. CI OF FAYETTEVILLE, VETT E, ARKANSAS LIONELD J!,;T'N, Mayor Sondra Smith, City Clerk BY NT C NAME AND TITLE ATTEST: COMPANY SUPERVISOR L S',-,, ,%//f, o . -74857 BUSINESS ADDRESS City of Fayetteville, AR Contract for Bid 11-32, Construction — Installation of Sod for Soccer Field Page 2 of 2 RESOLUTION NO. A RESOLUTION AWARDING BID #11-32 AND AUTHORIZING A CONTRACT WITH NICHOLS EROSION CONTROL, INC. IN THE AMOUNT OF $31,430.00 FOR THE PURCHASE AND INSTALLATION OF SOD FOR TWO NEW SOCCER FIELDS AT THE LEWIS SOCCER COMPLEX 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 #11-32 and authorizes a contract with Nichols Erosion Control, Inc. in the amount of $31,430.00 for the purchase and installation of sod for two new soccer fields at the Lewis Soccer Complex. PASSED and APPROVED this 3'd day of May, 2011. APPROVED: ATTEST: By: By: LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer ye.vi.,le BID: 11-21 02108/11 2:00 PM CITY OF FAYETTEVILLE Bid 11-32, Construction - Installation of Sod for Soccer Field 1 Goodwin & Goodwin, Inc. Tifway 419 $0.28 140,000 $39,200.00 2 GroundSery Tifway Bermuda $0.2642 140,000 $36,988.00 3 Nichols Erosion Control, Inc_ Bermuda $0.2245 140,000 $31,430.00 'NOTICE: Bid award is contingent upon vendor meeting minimum specifications and formal authorization by City officials CERTIFIED: P. VICE, PURCH MGR :JabeueW yotedsla :aa6eueW saltlllt(1 0 m inance & Internal Services Director: :aa6eueW ta6pna z m 0 :io;aaala tuawpedaa :aa6eueW 6ulsey3Jnd o 0 c w x Q o m W N W A V 4.1. V0O ►y 0 0 as 0 Z1 Ul ♦ [p Qa v CD Ch A W N -�as 3.sa .� N 0 coco S. O CD w n al ° Ch N 1Z. ^.. O w = E= w 0 CO y su • O • M 3 GO r T 0. 0 0 0 0 0 O 0 0 0 0 0 0 X O C 7 N 71 N c-0 es ,}1 A O 0 Am'P m C V C CDN N ti N II1III1lITT n n 0 2 m a z 0. awe Jopue 0 CD CD N e"h 0 z c a uoglslnbaU m N O- 0 c 0. OP ID: BP A` �R�* CERTIFICATE OF LIABILITY INSURANCE DATE /12/11,"' 06!12111 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(les) 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 918-665-2663 JRJ An INSURICA Affiliate 918-665-3041 1715 South Baltimore Tulsa, OK 74119 Jeff R. Johnson Inc CONTACT NAME:The IA" Na E, FAX No): E-MAIL ADDRESS` PRODUCER NITRO -1 CUSTOMER ID N: INSURERS) AFFORDING COVERAGE NAIC N INSURED Nichols Erosion Control, Inc 27032 STATE HWY 144 SMITHVILLE, OK 74957 INSURER A: National American insurance Co 23663 INSURER B: INSURER C: MP08680035 INSURER D : 04115111 INSURER E : EACH OCCURRENCE INSURER F : 1,000,000 COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSR SUM WVD POLICYPOLICY POLY NUMBER EFF [MM1DDIYYYYI POLI Y EXP (MMIDDIYYYY) UMITS A GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY OCCUR MP08680035 04115111 04115/12 EACH OCCURRENCE S 1,000,000 X DAMAGE RTED PREMlSE3 [To Ea oENmxrer,ce) $ 100,000 , CLAIMS -MADE X MED EXP (Any one person) S 5,000 PERSONAL & ADV INJURY S 1,000,000 GENERAL AGGREGATE S 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: n j?T n LOC PRODUCTS - COMP/OP AGG S 2,000,000 nPOLICY S A A A AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS MP08680035 MP08680035 MP08680035 04/15/11 04/15/11 04/15/11 04/15/12 04115/12 04/15/12 COMBINED SINGLE LIMIT (Ea accident) S 1,000,000 X BODILY INJURY (Per person) S BODILY INJURY{Per accident) S _ X PROPERTY DAMAGE (Per accident} S X $ s UMBRELLA IJAB EXCESS UAB OCCUR CLAIMS -MADE EACH OCCURRENCE S AGGREGATE S DEDUCTIBLE RETENTION S S S A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y RIn ANY PROPETOR/PARTNERIEXECUTIVE OFFICER1MEMBER EXCLUDED? (Mandatory In NH) ;f yei, describe under DESCRIPTION OF OPERATIONS below N ! A CW24000035 03/15/11 03/15/12 X WC STATOTH- TORY LIMITU- S ER E.L. EACH ACCIDENT $ 100,000 E.L. DISEASE - EA EMPLOYEE S 100,000 E.L. DISEASE - POLICY LIMIT S 6600,000 DESCRIPTION OF OPERATIONS I LOCATIONS 1 VEHICLES (Attach ACORD t01, Addldonal Remarks Schedule If more space Is required) RE: Bid 11-32 Construction - Installation of Soccer Field CERTIFICATE HOLDER CANCELLATION City of FayettViile Attn: Purchasing 113 W Mountain Street Fayettville, AR 72701 I 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 A y ACORD 25 (2009/09) ©1988-2009 ACORD CORPORATION. All rights The ACORD name and logo are registered marks of ACORD CONTRACTOR: Nichols Erosion Control, Inc. 27032 State HWY 144 SMITHVILLE, OK, 74957 OWNER: City of Fayetteville 113 West Mountain Fayetteville, AR 72701 CONTRACT: Date: Amount: Description: BOND: Bond#: . Date: Amount : Granite Re, Inc. Payment Bond 11111111111111111111111111111111111111111111111111111111111111111111111111111 Doc ID 014067250004 Type: LIE Kind PERFORMANCE BOND Recorded: 06/16/2011 at 01:26:10 PM Fee Amt: t30.00 Page 1 of 4 Washington County. AR Bette Stamps Circuit Clerk FileBO30-00000549 SURETY: Granite Re, Inc. 14001 Quailbrook Drive Oklahoma City, OK 73134 5/3/2011 Thirty-one Thousand Four Hundred Thirty & 00/100 Dollars ($31,430.00) Bid 11-32, Construction - Installation of Sod for Soccer Field GRARI 8491 5/13/2011 Thirty-one Thousand Four Hundred Thirty & 00/100 Dollars ($31,430.00) Modifications to this Bond: CONTRACTOR AS PRINCIPAL Nichols Erosion Control, Inc. lZI No 0 Yes, see last page Name and Title: SURETY Granite Re, Inc. Signature: Name and itle: Kenneth D. ?1ti .,gl : 1_ Attorney -in -Fact. "yF 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, 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 all claims, demands, liens or suits by any person or entity whose labor, materials or equipment were furnished for use in the 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. GR0709-15 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 the 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. Within a reasonable period of time after the claimant has satisfied the conditions of Paragraph 4 and after the Surety has reviewed all supporting documentation it requested to substantiate the amount of the claim, the Surety shall pay or arrange for payment of any undisputed and earned amounts. These amounts shall only be paid if previously certified by the Architect or Engineer and paid to Contractor by Owner. Failure of the Surety to satisfy the above requirements shall not be deemed a forfeiture or waiver of the Surety's or the Contractor's defenses under this Bond or their right to dispute such claim. However, in such event the Claimant may bring suit against the Surety as provided under this Bond. 6. 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. 7. 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 the Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. 8. 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 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. 9. 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. 10. 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 the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last labor or service was performed by Claimant or the last materials or equipment were furnished by Claimant 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. GR0709-15 •11. 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 the signature page. 12. 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. 13. 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. 14. DEFINITIONS 14.1 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 Contract. 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. 14.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. 14.3 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 15. Principal: The individual or entity named and listed under the section of the bond titled "Contractor". This individual or entity is not assignable. 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 Company: SURETY Company: Signature: Signature: Name and Title: Name and Title: GR0709-15 00. GRANITE RE, INC. GENERAL POWER OF ATTORNEY Know all Men by these Presents: That GRANITE RE, INC., a corporation organized and existing under the laws of the State of OKLAHOMA and having its principal office at the City of OKLAHOMA CITY in the State of OKLAHOMA does hereby constitute and appoint: KENNETH D. WHITTINGTON; KYLE MCDONALD its true and lawful Attorney-in-Fact(s) for the following purposes, to wit: To sign its name as surety to, and to execute, seal and acknowledge any and all bonds, and to respectively do and perform any and all acts and things set forth in the resolution of the Board of Directors of the said GRANITE RE, INC. a certified copy of which is hereto annexed and made a part of this Power of Attorney; and the said GRANITE RE, INC. through us, its Board of Directors, hereby ratifies and confirms all and whatsoever the said: KENNETH D. WHITTINGTON; KYLE MCDONALD may lawfully do in the premises by virtue of these presents. . In Witness Whereof, the said GRANITE RE, INC. has caused this instrument to be sealed with its corporate seal, duly attested by the signatures of its President and Secretary/Treasurer, this 1' day of February, 2011. STATE OF OKLAHOMA ) SS: COUNTY OF OKLAHOMA ) Kenneth D. Whitting[ President Rodman A. Frates, Secretary/Treasurer On this 1s` day of February, 2011, before me personally came Kenneth D. Whittington, President of the GRANITE RE, INC. Company and Rodman A. Frates, Secretary/Treasurer of said Company, with both of whom I am personally acquainted, who being by me severally duly sworn, said, that they, the said Kenneth D. Whittington and Rodman A. Frates were respectively the President and the Secretary/Treasurer of the GRANITE RE, INC., the corporation described in and which executed the foregoing Power of Attorney; that they each knew the seal of said corporation; that the seal affixed to said Power of Attorney was such corporate seal, that it was so fixed by order of the Board of Directors of said corporation, and that they signed their name thereto by like order as President and Secretary/Treasurer, respectively, of,the Company.,. My Commission Expires: May 9, 2012 Commission #: 00005708 Notary Public GRANITE RE, INC. Certificate THE UNDERSIGNED, being the duly elected and acting Secretary/Treasurer of Granite Re, Inc., an Oklahoma Corporation, HEREBY CERTIFIES that the following resolution is a true and correct excerpt from the July 15, 1987, minutes of the. meeting of the Board of Directors of Granite Re, Inc. and that said Power of Attorney has not been revoked and is now in full force and effect. "RESOLVED, that the President, any Vice President, the Secretary, and any Assistant Vice President shall each have authority to appoint individuals as attorneys -in -fact or under other appropriate titles with authority to execute on behalf of the company fidelity and surety bonds and other documents of similar character issued by the Company in the course of its business. On any instrument making or evidencing such appointment, the signatures may be affixed by facsimile. On any instrument conferring such authority or on any bond or undertaking of the Company, the seal, or a facsimile thereof, may be impressed or affixed or in any other manner reproduced; provided, however, thaf the_seal shall not be necessary to the validity of any such instrument or undertaking." IN WITNESS WHEREOF, the undersigned ha 13th day of May 2011 GRO800-1 .., s444 4 111„,,,, .,,...-� ibed:this Ceikrlcate,and affixed the corporate seal of the Corporation this . •;�• .• %" yi Rodman A. Frates, Secretary/Treasurer CONTRACTOR: Nichols Erosion Control, Inc. 27032 State HWY 144 SMITHVILLE, OK, 74957 OWNER: City of Fayetteville 113 West Mountain Fayetteville, AR 72701 CONTRACT: Date: Amount: Description: BOND: Bond#: Date: Amount : Granite Re, Inc. Performance Bond SURETY: Granite Re, Inc. 14001 Quailbrook Drive Oklahoma City, OK 73134 5/3/2011 Thirty-one Thousand Four Hundred Thirty & 00/100 Dollars ($31,430.00) Bid 11-32, Construction - Installation of Sod for Soccer Field GRAR18491 5/13/2011 Thirty-one Thousand Four Hundred Thirty & 00/100 Dollars ($31,430.00) Modifications to this Bond: CONTRACTOR AS PRINCIPAL Nichols Erosion Control, Inc. El No ❑ Yes, see last page SURETY Granite Re, Inc. � Signature: �UL`Y-1/1 Signature: Name and Title: Name andtt1Y e: Kenneth D. Whittington Attorney -in -Fact 1. The Contractor and the Surety, jointly and severally, hind 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 perforans the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to participate in conference; as provided in Subparagraph 3.1. 3. If there is no Owner Default, the Surety's obligation under this Bond shall arise after: CR0709-1 6 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 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 Contractor'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 the Construction Contract in accordance with the terms of the contract with the Owner. 4. When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the Surety's expense take one of the following actions: 4.1 Arrange for the Contractor, with consent of the 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 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 the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in 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 Atier investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, 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 docs 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 releases the payment tendered 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. 6. After the Owner has terminated the Contractor's 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 he 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. 7. 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 or successors. 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. 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. GR0709-16 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 one year after Contractor Default or within one year after the Contractor ceased working or within one year 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. 10. Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. 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 the Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to he 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 teens 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 13. Principal:The individual or entity named and listed under the section of this bond titled Contractor. The entity or individual named as Contractor is not assignable. 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 Company: SURETY Company: Signature: Signature: Name and Title: Name and Title: GR0709-T 6