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HomeMy WebLinkAbout18- Contract Agreement - K&E Enterprises, Inc. - Lead Service Line Replacement Project CONTRACT.MRG CONTRACT AGREEMENT THIS CONTRACT AGREEMENT is dated as of the day of in the year 2018 by and between CITY OF BOZEMAN hereinafter called OWNER and K&E ENTERPRISES, INC. hereinafter called CONTRACTOR. OWNER AND CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows : Article 1. WORK. CONTRACTOR shall complete all Work as specified or indicated in the Contract. The Project Work is generally described as follows: Assigned individual lead service line replacement projects on a task order basis. For each task order, the contractor will provide the City with a cost estimate and schedule for the City' s approval prior to commencing work. The contractor (s) selected for each location will be responsible for the replacement of the lead service lines from the water main up to and including the curb stop and box inside of property. If lead or galvanized pipe still exists after the curb box inside of property, it will be the contractor' s responsibility to replace that service line to the residence. The contractor will also be responsible for abandoning the service lines at the water main per City of Bozeman Water Department policy. The contractor (s) will be responsible for the restoration of any asphalt, landscape or concrete removed during the project. Article 2 . CONTRACT TIME. 2 . 1 The Work will be completed within the agreed upon time for each location that is specified in the task order for that site. Final payment for each task order will be withheld until final completion and acceptance of the work as stipulated in the task order. 1 CONTRACT.MRG Article 3 . CONTRACT PRICE. 3 . 1 OWNER shall pay CONTRACTOR for performance of the Work specified in each task order that is awarded. Multiple task orders may be awarded under the provisions of this contract. Overall cumulative payment for all task orders awarded under this contract shall not exceed the sum (subject to adjustment as provided in the Contract Documents) of Seventy Five Thousand Dollars Dollars ($ 75, 000 ) . Article 4 . PAYMENT PROCEDURES. CONTRACTOR shall submit applications for payment in accordance with the Montana Public Works Standard Specification, Sixth Edition General Conditions. Applications for payment will be processed as provided in the General Conditions . 4 . 1 Payment. Upon satisfactory final completion and acceptance of the Work in accordance with the General Conditions, OWNER shall pay the full price agreed to for each task order. 4 . 1 . 1 Measurement and Payment . Payment for the work satisfactorily completed in accordance with this contract shall be made pursuant to the terms of each individual task order. No item that is required by Contract for the proper and successful completion of the Work will be paid for outside of or in addition to the prices submitted in a task order. All work not specifically set forth as a pay item in a task order shall be considered a subsidiary obligation of the CONTRACTOR and all costs in connection therewith shall be included in the contract price . Article S . CONTRACTOR' S REPRESENTATIONS. In order to induce OWNER to enter into this Agreement, CONTRACTOR makes the following representations : 5. 1 CONTRACTOR has familiarized himself with the nature and 2 extent of the Contract Documents, Work, locality, and with all local conditions and federal, state and local laws, ordinances, rules and regulations that in any manner may affect cost, progress or performance of the Work. 5 . 2 CONTRACTOR has studied carefully all reports of investigations and tests of subsurface and latent physical conditions at the site or otherwise affecting cost, progress or performance of the Work. 5 . 3 CONTRACTOR has made or caused to be made examinations, and investigations as he deems necessary for the performance of the Work at the contract price, within the contract time and in accordance with the other terms and conditions of the Contract Documents, and no additional examinations, investigations, tests, reports or similar data are or will be required by CONTRACTOR for such purposes . 5 . 4 CONTRACTOR has correlated the results of all such observa- tions, examinations, investigations, tests, reports and data with the terms and conditions of the Contract Documents . Article 6. CONTRACT DOCUMENTS. The Contract Documents which comprise the entire agreement between OWNER and CONTRACTOR as attached to or referenced in this Agreement, are made a part hereof and consist of the following: 6. 1 This Agreement . 6. 2 Certificates of Insurance and Performance and Payment Bonds . 6. 3 Montana Public Works Standard Specifications (MPWSS) , Sixth Edition, and as further amended by the City of Bozeman Modifications to MPWSS (by reference) . 6. 4 Notice to Proceed. There are no Contract Documents other than those listed above in this Article 6. 3 The Contract Documents may only be altered, amended or repealed by a modification (as defined in the Montana Public Works Standard Specifications, Sixth Edition, General Conditions) . Article 7 . GENERAL REQUIREMENTS. 7 . 1 Contractor Use of Premises . The CONTRACTOR shall confine his operations at site of the proposed work to within the right- of-way or construction easements provided. It shall be understood that the responsibility for protection and safekeeping of equipment and materials on or near the site will be entirely that of the CONTRACTOR and that no claim shall be made against the OWNER by reason of any act of an employee or trespasser. It shall be further understood that should any occasion arise necessitating access by the OWNER to the sites occupied by these stored materials and equipment, the CONTRACTOR owning or responsible for the stored materials or equipment shall immediately remove same. No materials or equipment may be placed upon any private property until the property OWNER has agreed in writing to the location contemplated by the CONTRACTOR to be used for storage. 7 . 2 Protection of Existing Structures . The CONTRACTOR shall be solely responsible for locating all existing underground installations, including service connections, in advance of excavating or trenching, by contacting the OWNERS thereof and prospecting. The CONTRACTOR shall use his own information and shall not rely solely upon information shown on the drawings concerning existing underground installations . The CONTRACTOR shall repair all damage to existing utilities or property at his own expense. The CONTRACTOR shall, at a minimum, call the "One- Call" utility locate system (Phone: 1-800-424-5555) at least 72 hours in advance of starting construction. Where excavation will be required adjacent to existing struc- tures, the CONTRACTOR shall be solely responsible to maintain the structural integrity of the existing structures . The CONTRACTOR shall take whatever means necessary to insure that the existing structure is not damaged and if necessary shall install sheet piling. The CONTRACTOR shall repair all damage to the existing structures at his own expense. Any fences destroyed during construction shall be repaired to the satisfaction of the property owner. Any delay, additional work, 4 or extra cost to the CONTRACTOR caused by existing underground installations shall not constitute a claim for extra work, additional payment or damages . 7 . 3 Protection of Existing Mailboxes, Curbs and Gutters and Driveways, etc. The CONTRACTOR shall take whatever means necessary to insure that the existing mailboxes, curbs and gutters and driveways, and other public or private improvements are not damaged during construction. If it is necessary to remove or disturb mailboxes during construction, the CONTRACTOR shall repair and restore the mailboxes at his own expense to the satisfaction of the property owner. Any curb, gutter, or driveways damaged during construction, not noted to be replaced on the drawings, shall be replaced by the CONTRACTOR at his own expense. 7 . 4 Surface Drainage. Water from such sources as surface runoff, dewatering and flushing of water lines during project construction shall not be allowed to enter into drainage ways or open areas that will cause flooding of existing structures, street intersections, or lawn areas . 7 . 5 Work Sequence. The CONTRACTOR shall schedule the work to minimize inconvenience to the OWNER and to adjacent property owners and to minimize interruptions to utility service. This shall include minimizing obstruction to local traffic especially on dead end streets. Work shall be scheduled so as to minimize disruptions to local mail delivery. Close coordination will be required between the CONTRACTOR, OWNER, and COUNTY. The utility service companies such as power, gas, telephone, and video shall be contacted at least 72 hours in advance of when locating of services will be required. Article 8 . Warranty and Guarantee. 8 . 1 CONTRACTOR warrants and guarantees to OWNER that all Work will be in accordance with the Contract Documents and will not be defective. Prompt notice of all defects shall be given to CONTRACTOR. All defective Work, whether or not in place, may be rejected, corrected or accepted as provided in the Montana Public Works Standard Specification, Sixth Edition (MPWSS) . 5 Article 9. Traffic Control. 9. 1 The CONTRACTOR shall conduct his work so as to interfere as little as possible with public travel, whether vehicular or pedestrian. Whenever it is necessary to cross, obstruct, or close roads and walks, the CONTRACTOR shall obtain approval of such actions from the appropriate road agency and shall provide and maintain suitable and safe lighted detours or other temporary expedients for the accommodation of public and private travel in accordance with the current edition of the Manual on Uniform Control Devices for Streets and Highways (MUTCD) . The CONTRACTOR shall not occupy the work site or initiate construction until all traffic control provisions are in place and the OWNER has been so notified. 9. 2 Safety Provisions . Safety provisions must be entirely adequate and meet with City, County, State and Federal regulations to protect the public on these streets and roads . 9. 3 Barricades and Lights . Prior to the start of construction across roads or walks, all construction permits shall be obtained, utility companies notified, and traffic patterns, signing, location of flagmen, barricades and other safety measures arranged. Providing and maintaining safety barricades, and other work site safety measures shall be the responsibility of the CONTRACTOR and shall be included in the contract price. The CONTRACTOR shall cooperate and coordinate his methods with the OWNER' S traffic control plans prior to the disruption of the normal flow of any traffic. All open trenches and other excavations shall be provided with suitable barriers, signs, and lights to the extent that adequate protection is provided to the public. Obstructions, such as material piles and equipment, shall be provided with similar warning signs and lights . All barricades and obstructions shall be illuminated by means of warning lights from sunset to sunrise. Materials stored upon or alongside public streets and highways shall be provided with similar warning signs and lights. All barricades, signs, lights and other protective devices shall be installed and maintained in conformity with applicable statutory requirements and, where within railroad and highway right-of-way, as required by the authority having jurisdiction 6 thereover. Work performed within property under the OWNER' S jurisdiction shall have all barricades, signs, lights and protective devices installed and maintained. Article 10 STATE LAWS AND REGULATIONS. 10 . 1 All applicable laws, ordinances and the rules and regula- tions of all authorities having jurisdiction over construction of the project shall apply to the contract throughout . 7 10 . 1 . 1 MONTANA CONTRACTOR REGISTRATION REQUIREMENTS No bids will be considered that do not carry the Bidder' s Certificate of Contractor' s Registration number on the envelope containing the Bid and on the Bid. Information pertaining to the Montana Contractor Registration requirements may be obtained from the Montana State Department of Revenue, Helena, Montana. (1-800-556-6694) 10 . 1. 2 ADDITIONAL CONTRACTOR LICENSE FEE (MONTANA CONTRACTORS GROSS RECEIPTS TAX) In accordance with Title 15, Chapter 50, MCA, the Owner shall withhold, in addition to other amounts withheld as provided by law or specified herein, 1 percent (1%) of all payments due the Contractor and shall transmit such moneys to the Montana Department of Revenue. 10 . 1 . 3 The CONTRACTOR' S attention is called to the Industrial Accident Insurance laws in force in Montana and to the responsibility of the OWNER for the collection of premiums thereunder. The CONTRACTOR' S compliance with said laws is required and shall relieve the OWNER of any responsibility for payment of premiums thereunder and shall furnish the OWNER with satisfactory evidence showing that all premiums arising from this contract have been paid before payment is made on the final estimate. 10 . 1. 4 LOCAL LABOR Contractor shall give preference to the employment of Montana residents in accordance with applicable portions of Title 18, Chapter 2, Part 4, MCA. 10 . 1 . 5 PREVAILING WAGE RATES On all projects and contracts with the Owner in excess of $25, 000 . 00, Contractor and all subcontractors shall pay for all labor employed the standard prevailing rate of wages . The standard prevailing rate of wages as used herein means that standard prevailing rate of wages in the locality where the work is to be performed as determined by the Montana Commissioner of Labor pursuant to MCA 18-2-402 and as bound herein. The Contractor and subcontractors are directed to the Montana Commissioner of Labor for information on the standard prevailing rate of wages applicable to this contract within this area. Article 11 . PERFORMANCE AND PAYMENT BONDS . The CONTRACTOR shall furnish a Performance Bond and a Payment Bond in favor of the OWNER each in an amount equal to one-hundred Percent (100%) of the Agreement amount . Article 12 . INSURANCE. Without limiting any of the other obligations or liabilities of the CONTRACTOR, CONTRACTOR shall secure 8 and maintain such insurance from an insurance company (or companies) authorized to write insurance in the State of Montana, with minimum "A.M. Best Rating" of B+, VI, as will protect himself, his subcontractors, the Owner and their respective agents and employees from claims for bodily injury, death or property damage which may arise from operations and completed operations under this Agreement . Such coverage shall be written for claims arising out of all premises/ operations, sub-contracted operations, products/completed operations, and all liability assumed by the CONTRACTOR under any contract or agreement. CONTRACTOR shall not commence work under this Agreement until such certified copies of the insurance policy shall have been filed with the OWNER. The City of Bozeman shall be named as additional insured on any insurance certificates . All insurance coverages shall remain in effect throughout the life of the Agreement . Each insurance policy shall contain a clause providing that it will not be cancelled by the insurance company without 30 days written notice to the OWNER and Engineer of intention to cancel . The minimum amounts of such insurance coverages being as per Section SC-5 . 04, Supplementary Conditions to the General Conditions, Montana Public Works Standard Specifications, Sixth Edition, and included herein: SC - 5 . 04 CONTRACTOR' S LIABILITY INSURANCE Add the following new paragraphs immediately after Paragraph 5. 04 .B: C. The limits of liability for the insurance required by Paragraph 5. 04 of the General Conditions shall provide coverage for not less than the following amounts or greater where required by Law or Regulations : 1 . Workers' Compensation, etc. under Paragraphs 5 . 04 . 1 and 5. 04 . 2 of the General Conditions . a. State Statutory b. Applicable Federal (e. g. Longshoremans) Statutory c. Employer' s Liability $ 500, 000 . 00 2 . Contractor' s Liability Insurance under Paragraphs 5 . 04 .A. 3 through 5 . 04 . A. 6 of the General Conditions which shall also include completed operations and product liability coverage. a. GENERAL AGGREGATE $ 3, 000, 000 . 00 b. Products-Completed Operations Aggregate $ 3, 000, 000 . 00 9 c. Personal and Advertising d. Each Occurrence (Bodily Injury and Property Damage) $ 1, 000, 000 . 00 e. Coverage will include: 1 . Premises - Operations 2 . Operations of Independent Contractor 3 . Contractual Liability 4 . Personal Injury 5 Products and Completed Operations6. Broad Form Property Damag will include explosion, collapse, blasting and underground where applicable. 7 . Per Project Aggregate Endorsement 3 . Automobile Liability under Paragraph 5. 04 .A. 6 of the General Conditions : a. Bodily Injury: Each Person $ 500, 000 . 00 Each Accident $ 1, 000, 000 . 00 Property Damage: Each Accident $1, 000, 000 . 00 (or) b. Combined Single Limit $ 1, 000, 000 . 00 Coverage to Include 1 . All Owned 2 . Hired 3 . Non-Owned 4 . Contractor' s Liability Insurance under 5. 04 .A. 3 through 5 . 04 .A. 6 may be satisfied by primary insurance or a combination of primary and excess or umbrella insurance. Primary occurrence limit cannot be less than $1, 000, 000 . 00 . Deductible not to exceed $5, 000 . 00 per occurrence on property damage. 5 . Add a new paragraph at the end of Paragraph 5 . 04 .B. 1 of the General Conditions as follows : The Contractor' s insurance coverage shall name the Owner, and Engineer and Engineer' s Consultants as an additional insured under Commercial General Liability, Automobile Liability, Excess or Umbrella polices . 10 6. The Contractual Liability coverage required by Paragraph 5 . 04 . B. 4 . of the General Conditions shall provide coverage for not less than the following amounts : Each Occurrence $ 1, 000, 000 . 00 Aggregate $ 3, 000, 000 . 00 Article 13 . MISCELLANEOUS. 13. 1 Terms used in this Agreement which are defined in the General Conditions shall have the meanings indicated in the General Conditions of the Montana Public Works Standard Specifications, Sixth Edition. 13 . 2 This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the OWNER and the CONTRACTOR respectively and his partners, successors, assigns, and legal representatives . Neither the OWNER nor the CONTRACTOR shall have the right to assign, transfer or sublet his interest or obligations hereunder without written consent of the other party. The Owner reserves the right to withdraw at any time from any subcontractor whose work has proven unsatisfactory the right to be engaged in or employed upon any part of the Work. 13 . 3 In the event it becomes necessary for either party to this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing party or the party given notice shall be entitled to reasonable attorney' s fees and costs, including fees, salary, and costs of in-house counsel. 13. 4 Any amendment of modifications of this Agreement or any provisions herein shall be made in writing and executed in the same manner as this original document and shall after execution become a part of the Agreement . 13. 5 The CONTRACTOR hereby agrees to indemnify, defend, and hold the OWNER harmless from all claims and liability due to the activities of CONTRACTOR, their agents, employees, or both, in performing the work required. The CONTRACTOR is and shall perform this agreement as an independent contractor, and as such, is responsible to the OWNER only as to the results to be obtained in the work herein specified, and to the extent that the work shall be done in accordance with the terms, plans and specifications . The 11 CONTRACTOR shall have and maintain complete control over all of its employees, subcontractors, agents and operations, being responsible for any required payroll deductions and providing required benefits, such as, but not limited to, workman' s compensation and unemployment insurance . 13. 6 The Contractor agrees not to discriminate in the fulfillment of this Agreement on the basis of race, color, religion, creed, sex, age, marital status, national origin, or actual or perceived sexual orientation, gender identity or disability. The Contractor agrees this requirement shall apply to the hiring and treatment of the Contractor' s employees and to all subcontracts . 13 . 7 CITY OF BOZEMAN BUSINESS LICENSE All Contractors conducting work within the City of Bozeman are required to have a current Business License. Applications for Business Licenses may be obtained through the Planning Office, 20 E. Olive, Bozeman, Montana. Article 14 . Special Provisions 14 . 1 All debris resulting from the work shall be promptly removed and disposed of and any disturbed landscaped areas shall be properly restored. 12 i IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. K&E ENTERPRISES, INC. (Contractor) By e� ej�� Title Montana Contractor Registration Number SEAL AND ATTEST: City of Bozeman (Owne ) By _'itle SEAL AND ATTEST: ' r By Title `� ••• •••��', ' �TIN C�•,. 13 EJCDC MINERS JOINT CONTRACT DOCUMENTS COMMITTEE PERFORMANCE BOND CONTRACTOR (name and address): SURETY(name and address of principal place of business): K& E Enterprises, Inc. The Cincinnati Insurance Company PO Box 1410 PO Box 145496 Belgrade, MT 59714 Cincinnati, OH 45250-5496 OWNER(name and address): City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 CONSTRUCTION CONTRACT Effective Date of the Agreement: Amount: $75,000.00 (Seventy Five Thousand Dollars and 00/100) Description (name and location): Lead Service Replacement Project Bozeman, Montana BOND Bond Number: B2795320 Date (not earlier than the Effective Date of the Agreement of the Construction Contract): Amount: $75,000.00 (Seventy Five Thousand Dollars and 00/100) Modifications to this Bond Form: x❑ None ❑ See Paragraph 16 Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth below, do each cause this Performance Bond to be duly executed by an authorized officer, agent, or representative. CONTRACTOR AS PRINCIPAL SURETY K& E Enterprises, Inc. (seal) The Cincinnati Insurance Company (seal) Contractor's Name and Corporate Seal Surety's N e d Cor ate Seal By: By: Signature Signature(attach power of attorney) � (� K i� Richard B. Deming Print Name Print Name Pr es"d 0-n-�- Attorney-in-Fact Titlll-e--�� Title Attest: ,/ �, Attest: / ^Signature Signature Marci Stoppel PSurety Account Manager Title Title Notes:(1)Provide supplemental execution by any additional parties,such as joint venturers. (2)Any singular reference to Contractor,Surety, Owner,or other party shall be considered plural where applicable. EJCDC®C-610,Performance Bond Copyright©2013 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 1 of 3 1. The Contractor and Surety, jointly and severally, bind Owner and a contractor selected with the Owners concurrence, themselves, their heirs, executors, administrators, successors, and to be secured with performance and payment bonds executed assigns to the Owner for the performance of the Construction by a qualified surety equivalent to the bonds issued on the Contract,which is incorporated herein by reference. Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 7 in excess of the Balance of 2. If the Contractor performs the Construction Contract,the Surety the Contract Price incurred by the Owner as a result of the and the Contractor shall have no obligation under this Bond, except Contractor Default;or when applicable to participate in a conference as provided in Paragraph 3. 5.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor, and with reasonable 3. If there is no Owner Default under the Construction Contract, promptness under the circumstances: the Surety's obligation under this Bond shall arise after: 5.4.1 After investigation, determine the amount for 3.1 The Owner first provides notice to the Contractor and which it may be liable to the Owner and, as soon as the Surety that the Owner is considering declaring a Contractor practicable after the amount is determined, make payment Default. Such notice shall indicate whether the Owner is to the Owner;or requesting a conference among the Owner, Contractor, and Surety to discuss the Contractor's performance. If the Owner 5.4.2 Deny liability in whole or in part and notify the does not request a conference, the Surety may, within five (5) Owner,citing the reasons for denial. business days after receipt of the Owner's notice,request such a conference. If the Surety timely requests a conference, the 6. If the Surety does not proceed as provided in Paragraph 5 with Owner shall attend. Unless the Owner agrees otherwise, any reasonable promptness,the Surety shall be deemed to be in default conference requested under this Paragraph 3.1 shall be held on this Bond seven days after receipt of an additional written notice within ten (10) business days of the Surety's receipt of the from the Owner to the Surety demanding that the Surety perform its Owner's notice. If the Owner, the Contractor, and the Surety obligations under this Bond, and the Owner shall be entitled to agree, the Contractor shall be allowed a reasonable time to enforce any remedy available to the Owner. If the Surety proceeds as perform the Construction Contract, but such an agreement shall provided in Paragraph 5.4,and the Owner refuses the payment or the not waive the Owner's right, if any, subsequently to declare a Surety has denied liability, in whole or in part,without further notice Contractor Default; the Owner shall be entitled to enforce any remedy available to the Owner. 3.2 The Owner declares a Contractor Default, terminates the Construction Contract and notifies the Surety;and 7. If the Surety elects to act under Paragraph 5.1, 5.2,or 5.3,then the responsibilities of the Surety to the Owner shall not be greater 3.3 The Owner has agreed to pay the Balance of the than those of the Contractor under the Construction Contract, and Contract Price in accordance with the terms of the Construction the responsibilities of the Owner to the Surety shall not be greater Contract to the Surety or to a contractor selected to perform the than those of the Owner under the Construction Contract. Subject to Construction Contract. the commitment by the Owner to pay the Balance of the Contract Price,the Surety is obligated,without duplication for: 4. Failure on the part of the Owner to comply with the notice requirement in Paragraph 3.1 shall not constitute a failure to comply 7.1 the responsibilities of the Contractor for correction of with a condition precedent to the Surety's obligations,or release the defective work and completion of the Construction Contract; Surety from its obligations, except to the extent the Surety demonstrates actual prejudice. 7.2 additional legal, design professional, and delay costs resulting from the Contractor's Default, and resulting from the 5. When the Owner has satisfied the conditions of Paragraph 3,the actions or failure to act of the Surety under Paragraph 5;and Surety shall promptly and at the Surety's expense take one of the following actions: 7.3 liquidated damages, or if no liquidated damages are specified in the Construction Contract,actual damages caused by 5.1 Arrange for the Contractor, with the consent of the delayed performance or non-performance of the Contractor. Owner,to perform and complete the Construction Contract; 8. If the Surety elects to act under Paragraph 5.1, 5.3, or 5.4, the 5.2 Undertake to perform and complete the Construction Surety's liability is limited to the amount of this Bond. Contract itself,through its agents or independent contractors; 9. The Surety shall not be liable to the Owner or others for 5.3 Obtain bids or negotiated proposals from qualified obligations of the Contractor that are unrelated to the Construction contractors acceptable to the Owner for a contract for Contract, and the Balance of the Contract Price shall not be reduced performance and completion of the Construction Contract, or set off on account of any such unrelated obligations. No right of arrange for a contract to be prepared for execution by the action shall accrue on this Bond to any person or entity other than E1CDC®C-610,Performance Bond Copyright©2013 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 2 of 3 the Owner or its heirs, executors, administrators, successors, and allowance for the Contractor for any amounts received or to be assigns. received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all 10. The Surety hereby waives notice of any change, including valid and proper payments made to or on behalf of the changes of time, to the Construction Contract or to related Contractor under the Construction Contract. subcontracts,purchase orders,and other obligations. 14.2 Construction Contract: The agreement between the 11. Any proceeding, legal or equitable, under this Bond may be Owner and Contractor identified on the cover page,including all instituted in any court of competent jurisdiction in the location in Contract Documents and changes made to the agreement and which the work or part of the work is located and shall be instituted the Contract Documents. within two years after a declaration of Contractor Default or within two years after the Contractor ceased working or within two years 14.3 Contractor Default: Failure of the Contractor, which after the Surety refuses or fails to perform its obligations under this has not been remedied or waived, to perform or otherwise to Bond, whichever occurs first. If the provisions of this paragraph are comply with a material term of the Construction Contract. void or prohibited by law, the minimum periods of limitations available to sureties as a defense in the jurisdiction of the suit shall be 14.4 Owner Default: Failure of the Owner, which has not applicable. been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or 12. Notice to the Surety, the Owner, or the Contractor shall be comply with the other material terms of the Construction mailed or delivered to the address shown on the page on which their Contract. signature appears. 14.5 Contract Documents:All the documents that comprise 13. When this Bond has been furnished to comply with a statutory the agreement between the Owner and Contractor. or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said 15. If this Bond is issued for an agreement between a contractor and statutory or legal requirement shall be deemed deleted herefrom and subcontractor, the term Contractor in this Bond shall be deemed to provisions conforming to such statutory or other legal requirement be Subcontractor and the term Owner shall be deemed to be shall be deemed incorporated herein. When so furnished,the intent Contractor. is that this Bond shall be construed as a statutory bond and not as a common law bond. 16. Modifications to this Bond areas follows: 14. Definitions 14.1 Balance of the Contract Price: The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made including EJCDC®C-610,Performance Bond Copyright©2013 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 3 of 3 Ex: E N(i I -Rs JOIN t CJNTRAN UC,i`,T6(110;1.,!TT@E PAYMENT BOND CONTRACTOR(name and address): SURETY(name and address of principal place of business): K& E Enterprises, Inc. The Cincinnati Insurance Company PO Box 1410 PO Box 145496 Belgrade, MT 59714 Cincinnati, OH 45250-5496 OWN E R (name and address): City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 CONSTRUCTION CONTRACT Effective Date of the Agreement: Amount: $75,000.00 (Seventy Five Thousand Dollars and 00/100) Description (name and location): Lead Service Replacement Project Bozeman, Montana BOND Bond Number: B2795320 Date (not earlier than the Effective Dote of the Agreement of the Construction Contract) Amount: $75,000.00 (Seventy Five Thousand Dollars and 00/100) Modifications to this Bond Form: x❑ None ❑ See Paragraph 18 Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth below, do each cause this Payment Bond to be duly executed by an authorized officer, agent, or representative. CONTRACTOR AS PRINCIPAL SURETY K&E Enterprsies, Inc. (seal) The Cincinnati Insurance Company (seal) Contractor's Name and Corporate Seal Sure=Ni �ed Cor rate Seal By: By: Signature Signature(attach power of attor e Richard B. Deming Print Name Print Name Attorney-in-Fact Title Title Attest: Attest: r ,} ✓ �� Signature Signature Marci Stoppel Surety Account Manager Title Title Notes: (1)Provide supplemental execution by any additional parties,such as joint venturers. (2)Any singular reference to Contractor,Surety, Owner,or other party shall be considered plural where applicable. E1CDC®C-615,Payment Bond Copyright©2013 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 1 of 3 6. If a notice of non-payment required by Paragraph 5.1.1 is 1. The Contractor and Surety, jointly and severally, bind given by the Owner to the Contractor,that is sufficient to themselves, their heirs, executors, administrators, satisfy a Claimant's obligation to furnish a written notice of successors, and assigns to the Owner to pay for labor, non-payment under Paragraph 5.1.1. materials, and equipment furnished for use in the performance of the Construction Contract, which is 7. When a Claimant has satisfied the conditions of Paragraph incorporated herein by reference,subject to the following 5.1 or 5.2, whichever is applicable, the Surety shall terms. promptly and at the Surety's expense take the following actions: 2. If the Contractor promptly makes payment of all sums due to Claimants, and defends, indemnifies, and holds 7.1 Send an answer to the Claimant,with a copy to the harmless the Owner from claims, demands, liens, or suits Owner, within sixty (60) days after receipt of the by any person or entity seeking payment for labor, Claim,stating the amounts that are undisputed and materials, or equipment furnished for use in the the basis for challenging any amounts that are performance of the Construction Contract,then the Surety disputed;and and the Contractor shall have no obligation under this Bond. 7.2 Pay or arrange for payment of any undisputed amounts. 3. If there is no Owner Default under the Construction Contract, the Surety's obligation to the Owner under this 7.3 The Surety's failure to discharge its obligations Bond shall arise after the Owner has promptly notified the under Paragraph 7.1 or 7.2 shall not be deemed to Contractor and the Surety (at the address described in constitute a waiver of defenses the Surety or Paragraph 13) of claims, demands, liens, or suits against Contractor may have or acquire as to a Claim, the Owner or the Owner's property by any person or except as to undisputed amounts for which the entity seeking payment for labor, materials,or equipment Surety and Claimant have reached agreement. If, furnished for use in the performance of the Construction however, the Surety fails to discharge its Contract, and tendered defense of such claims, demands, obligations under Paragraph 7.1 or 7.2, the Surety liens,or suits to the Contractor and the Surety. shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to 4. When the Owner has satisfied the conditions in Paragraph recover any sums found to be due and owing to 3, the Surety shall promptly and at the Surety's expense the Claimant. defend,indemnify,and hold harmless the Owner against a duly tendered claim,demand,lien,or suit. 8. The Surety's total obligation shall not exceed the amount of this Bond, plus the amount of reasonable attorney's 5. The Surety's obligations to a Claimant under this Bond fees provided under Paragraph 7.3,and the amount of this shall arise after the following: Bond shall be credited for any payments made in good faith by the Surety. 5.1 Claimants who do not have a direct contract with the Contractor, 9. Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance 5.1.1 have furnished a written notice of non- of the Construction Contract and to satisfy claims, if any, payment to the Contractor, stating with under any construction performance bond. By the substantial accuracy the amount claimed Contractor furnishing and the Owner accepting this Bond, and the name of the party to whom the they agree that all funds earned by the Contractor in the materials were, or equipment was, performance of the Construction Contract are dedicated furnished or supplied or for whom the to satisfy obligations of the Contractor and Surety under labor was done or performed, within this Bond,subject to the Owner's priority to use the funds ninety (90) days after having last for the completion of the work. performed labor or last furnished materials or equipment included in the 10. The Surety shall not be liable to the Owner, Claimants, or Claim;and others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be 5.1.2 have sent a Claim to the Surety (at the liable for the payment of any costs or expenses of any address described in Paragraph 13). Claimant under this Bond, and shall have under this Bond no obligation to make payments to or give notice on 5.2 Claimants who are employed by or have a direct behalf of Claimants, or otherwise have any obligations to contract with the Contractor have sent a Claim to Claimants under this Bond. the Surety (at the address described in Paragraph 13). 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. EJCDC®C-615,Payment Bond Copyright©2013 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 2 of 3 12. No suit or action shall be commenced by a Claimant under 8. The total amount due and unpaid to the this Bond other than in a court of competent jurisdiction in Claimant for labor, materials, or equipment the state in which the project that is the subject of the furnished as of the date of the Claim. Construction Contract is located or after the expiration of one year from the date (1) on which the Claimant sent a 16.2 Claimant: An individual or entity having a direct Claim to the Surety pursuant to Paragraph 5.1.2 or 5.2, or contract with the Contractor or with a (2) on which the last labor or service was performed by subcontractor of the Contractor to furnish labor, anyone or the last materials or equipment were furnished materials,or equipment for use in the performance by anyone under the Construction Contract, whichever of of the Construction Contract. The term Claimant (1) or (2) first occurs. If the provisions of this paragraph also includes any individual or entity that has are void or prohibited by law, the minimum period of rightfully asserted a claim under an applicable limitation available to sureties as a defense in the mechanic's lien or similar statute against the real jurisdiction of the suit shall be applicable. property upon which the Project is located. The intent of this Bond shall be to include without 13. Notice and Claims to the Surety, the Owner, or the limitation in the terms of "labor, materials, or Contractor shall be mailed or delivered to the address equipment" that part of the water, gas, power, shown on the page on which their signature appears. light, heat, oil, gasoline, telephone service, or Actual receipt of notice or Claims, however accomplished, rental equipment used in the Construction shall be sufficient compliance as of the date received. Contract, architectural and engineering services required for performance of the work of the 14. When this Bond has been furnished to comply with a Contractor and the Contractor's subcontractors, statutory or other legal requirement in the location where and all other items for which a mechanic's lien may the construction was to be performed, any provision in be asserted in the jurisdiction where the labor, this Bond conflicting with said statutory or legal materials,or equipment were furnished. requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal 16.3 Construction Contract: The agreement between requirement shall be deemed incorporated herein. When the Owner and Contractor identified on the cover so furnished,the intent is that this Bond shall be construed page, including all Contract Documents and all as a statutory bond and not as a common law bond. changes made to the agreement and the Contract Documents. 15. Upon requests by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor and 16.4 Owner Default: Failure of the Owner, which has Owner shall promptly furnish a copy of this Bond or shall not been remedied or waived, to pay the permit a copy to be made. Contractor as required under the Construction Contract or to perform and complete or comply 16. Definitions with the other material terms of the Construction Contract. 16.1 Claim: A written statement by the Claimant including at a minimum: 16.5 Contract Documents: All the documents that comprise the agreement between the Owner and 1. The name of the Claimant; Contractor. 2. The name of the person for whom the labor was done, or materials or equipment 17. If this Bond is issued for an agreement between a furnished; contractor and subcontractor, the term Contractor in this 3. A copy of the agreement or purchase order Bond shall be deemed to be Subcontractor and the term pursuant to which labor, materials, or Owner shall be deemed to be Contractor. equipment was furnished for use in the performance of the Construction Contract; 18.Modifications to this Bond are as follows: 4. A brief description of the labor, materials, or equipment furnished; 5. The date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; 6. The total amount earned by the Claimant for labor, materials,or equipment furnished as of the date of the Claim; 7. The total amount of previous payments received by the Claimant;and EJCDC®C-615,Payment Bond Copyright©2013 National Society of Professional Engineers,American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved. 3 of 3 ,r]IE CINCINNATI INSIIRANC:E CONIVANY Fairfield, Ohio PDXVER OF ATTORNEY KNOW ALL,MEN 131 I HL SF, PRE>SFNTS:That THE CINCINNATI INSURANCI COMPANY, a corporation organized under the laws of the State of Ohfo, and having its principal office in (lie City of Fairfield, Ohio, does hereby constitute and appoint Marc! Stoppel,Bryan Hall,Deborah Duneman,Mark Collins,Tyler Delaney,Julie Bennett,Richard Deming, of Bozeman, MT its true and lawful Attorney(s)-in-Fact to sign, execute, seal and deliver on its behalf as-Surety, Curd as its act and deed, any and all bonds, polities, undertakings, or other like instruments, as follows: Twenty Million Dollars and 00/100 ($20,000,000.00) This appointment is made under and by authority of the following resolution passed by the Board of Directors of'said Company at a meeting held in the principal office of the Company, it guoruni being present and voting, on the W! day of December, 1958, which resolution is still in effect: "RF>OLVED, that the President or tiny Vice ]'resident be hereby authorized, and empowered to appoint Attorneys-in- Fact of the Company to execute any and all bonds, policies, undertakings, or other like instruments on bchall'of the Corporation, and may authorize any officer or any such Attorney-in-Fact to affix the corporate seal; and may with or- without cause modify or revoke any such appointment or authority. Any such writings so executed by such Attorneys-in- Fact shall be binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company." This Power of Attorney is signed and sealed by facsimile under and by the authority of the follo-,v°ing Resolution adopted by the Board of Directors of the Company at a meeting duly called and held on the 7``1 day of December, 1973. "RLSOLVEL), that the signature of the President or a Vice President and the seal of the Company may be affixed by facsimile on any power of attorney granted, and the signature of the Secretary or Assistant Secretary and the sea] of the Company may be affixed by facsimile to any certificate of any such power and any such power of certificate hearing such fuesinaife signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certified by certificate so executed and sealed shall, with respect to any bond or undertaking to which it is attached, continue to be valid and binding oil the Company." IN WITNESS WHFRFOF,THE C INCINNA`I-I INSURANCE COMPANY has caused these presents to be sealed with its corporate seal, duly attested by its Vice President this 10"' day of lNelay, 2012, o�",a THE CINCINNATI INSURANCE COMPANY tiR CORPORATE o SEAL 4 � Vice; President STAID]l., OF' OHIO ) ss: COUNTY OF BUTLER ) Oil this 10"`day of flay,2012,before me came the above-named trice President of Tifr CINCINNATI INSURANCE'COMR)\NY, to me personally known to be 'tire officer described herein,and acknowledged that the seal affixed to the preceding instrument is the corporate seal of said Company and the corporate seal and the signature of the officer were duly affixed and subscribed to said instrument by the authority and direction of said corporation. Sol Is 111011 A L ♦��� p MARK J. H LLE�, Attorneyatl-aw �? NOTARY PUBLIC-STATE OF OHIO t} �`�� My commission has no expiration Ms>il f date.Section 147.03 O.R.C. O 1, tite undersigned Secretary or Assistant Secretary ofTIIF CINCINNATI INSURANCE COMPANY;hereby certify that the above is a true and cc:urect Copy of the Original Potiwer of Attorney issued by said Company, and do hereby further certify that the said power of' Attorney is still in Cliff turee and effect, GIVEN undcrainy hand and seal of said Company at Fairfield, Ohio. this day of inaL.,�ri u iRNRATE E A` Assistant Secretary a,o BN-1005 ( '12)