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Home My WebLink AboutBNBuilders, Inc. Performance Bond for City Landfill AdditionTHE AMERICAN INSTITUTE OF ARCHITECTS ~~~~ ~.~, i''; ~ 1, Bond No. 6642077 A!A Document A312 Performance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): BNBuilders, Inc. 2601 4th Ave., #350 Seattle, WA 98121 OWNER (Name and Address): City of Bozeman 2143 North Story Mill Road Bozeman, MT 59715 SURETY (Name and Principal Place of Business): Safeco Insurance Company of America Safeco Plaza Seattle, WA 98185 CONSTRUCTION CONTRACT Date: May 27, 2009 Amount: $271,648.00 Two Hundred Seventy One Thousand Six Hundred Forty Eight Dollars and 00/100 Description (Name and Location): City Landfill Addition, Project # DSA-08-263 BOND Date (Not earlier than Construction Contract Date): June 2, 2009 Amount: $271,648.00 Two Hundred Seventy One Thousand Six Hundred Forty Eight Dollars and 00/100 Modifications to this Bond: ® None ^ See Page 3 CONTRACTOR AS P L Company: (Corporate Sea BNBuilders, Inc. Signature: Name and Titie: (Any additional signatures appear on page 3) SURETY Company: (Corporate Seal) Safeco Insurance Company of America Signature; ~ Name and Title:Pamela A. Nelson Attorney-in-Fact SEAL I) (FOR /NFORMATlON ONLY -Name, Address and Telephone) OWNER'S REPRESENTATIVE (Architect, E',$~.efFer AGENT or BROKER: party) Willis HRH 505 Fifth Avenue South, Suite 200 Seattle, WA 98104 206-386-7400 ' AIA DOCUMENT A312 . PERFORMANCE BOND AND PAYMENT BOND .DECEMBER 1984 ED.. AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 '! THIRD PRINTING .MARCH 1987 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, +vhich is incorporated herein by reference. 2 fi4 the Contractor performs the Construction Contrau, the Surety and the Contractor shall have no obligation under this Bond, except to participate in con#erences as provided in Subparagraph 3.1. 3 tf there is no Owner Default, the Surety's obligation under this Bond shalt arise after: 3.1 The Owner has notified the Contractor and the Surety at its address described in Paragraph 1a below that the Chvner 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 Construe lion Contract. if the Owner, the Contractor and the Surety agree, the Contractor shalt be allowed a reason- ab~e time to parform the Construction Contract, but such an agreement shalt not waive the O+vner's right, if arty, subsequently to declare a Contractor Default; and 3.2 The Owner has dettared a Contractor DefauH and formally terminated the Contractor's right to complete the contract. Such Contractor Default shat) not be de- ctaredearlier than twenty days after the Contractor and the Surety have received notice as provided in Sub- paragraph 3.2; and 3.3 't'he Owner has agreed to pay the Bafiance of the Contract Price to the Suretysn accordance with the terms Of the COnStfuGtion Contract Dr l0 a CantraClOr selected to perform the Construttion Contract Ln accor- dance with the terms of the contract with the Or+•ner, 4 When the Owner has satisfied the conditions of Para- graph 3, the Surety shall promptly and at the Surety's ex- pense take one of the follow'sng actions: 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract;. or 4.2 Undertake io perform and cornpfiete the Construe lion Contract itself, through its agents or through inde- pendent 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 Con- struction Contract, arrange for a contract to be pre- pared 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 ex- cess 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 tompletion, 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 O+vner and, as soon as practicable after the amount is deter- mined, tender payment therefor to the Ct++•ner; or -2 Deny Liability ifi 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 shalt be deemed to be in default on this t3ond fifteen da1•s after receipt of an additional written notice from the Owner to the Surety demanding that tl~e Surety perform its obligations under this Bond, and the O+vner shat) be entitled to enforce arn~ remedy available to the Chvner. If the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or the Surety has denied liability,. in whole or in part. without further notice the O+vner shall be entitled to enforce any remedy available to the Owner, 6 After the O+vner has terminated the Contractor's right to complete the Construction Contract, and ii the Surety elects to act under Subparagraph 4,i, 4 ~, or d.3 above, then the responsibilities of the Surety to the O+vner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shalt not be greater than those of the O-vner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by the Owner of the 8atance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Sure• ty is obligated without duplication for: 6.1 The responsibilities of the Contractor for correc- tion of defective work and tompEetion of the Construc- tion Contract; 6.2 Additional legal, design professional and delay costs resulting from the Contractor's Default, and re- sulting from the actions or faitu:e 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 dam- ages caused by delayed performance or non-pertor- mance of the Contractor. 7 The Surety shall not be liable to the Owner or others for obligationsof the Contractor that are unrelated to the Con• struction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. NI+Q right of action shall accrue on this Bond to any person or entity other than the Ow•r-er or its heirs, executors, administrators or successors. 8 The Surety hereby waives notice of any change, inc~ud- ing changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obliga- tions. 9 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdittian in the location in ++fitch the work or past of the worts is located and shad 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 fat#s to perform its obligations urldtr Chia !land, whichever oc- curs first, if the provisions of this Paragraph arc void or prohibited by taw, the minimum period of limitation avail- AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND .DECEMBER 1984 ED. •AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON. D.C. 200D6 A312-1984 2 THIRD PRINTING. MARCH 1987 able 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 sig- nature 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 con- forming 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 Con- MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: tractor 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, re- duced by all valid and proper payments made to or on behalf of the Contractor under the Construction Con- tract. 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the sig- nature page, including a{I Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to per- form 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 Con- tractor as required by the Construction Contractor 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: (Corporate Seal) Signature: Name and Title: Address: Signature: Name and Title: Address: AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. •AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 3 THIRD PRINTING. MARCH 1987 Bond 6642077 PAYMENT BOND 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): SURETY: BNBuilders, Inc. 2601 4th Ave., #350 Seattle, WA 98121 OWNER (Name and Address): City of Bozeman 2143 North Story Mill Road Bozeman, MT 59715 CONSTRUCTION CONTRACT Date: May 27, 2009 Amount: $271,648.00 Safeco Insurance Company of America Safeco Plaza, Seattle, WA 98185 Two Hundred Seventy One Thousand Six Hundred Forty Eight Dollars and 00/100 Description (Name and Location): City Landfill Addition, Project # DSA-08-263 BOND Date (Not earlier than Construction Contract Date): June 2, 2009 Amount: $271,648.00 Two Hundred Seventy One Thousand Six Hundred Forty Eight Dollars and 00/100 Modifications to this Bond: CONTRACTOR AS PRIIv'CIPAL Company: BNBuilders, Inc. Signature: Name and'Iitie: None SURETY Safeco Insurance Company of America Signature: ~~~ze~e~ ~ Name and Title: Pamela A. Nelson Attorney-in-Fact See Page 3 SEAL (FOR INFORMATION ONLY-Name, Address and Telephone) OWNER'S REPRESENTATIVE (Architect, Engineer or other AGENT or BROKER: party): Willis HRH 505 Fifth Avenue South, Suite 200 Seattle, WA 98104 206-386-7400 , 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 3 S-2149GE 012008 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 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. With respect to Claimants, this obligation shall be null Page 1 of 3 XDP 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 fumishing 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 the 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 are 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 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. 9 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. 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 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 anyone or the last materials or equipment were furnished by anyone under the Construction contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 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 the 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 fumish a copy of this Bond or shall permit a copy to be made. 15 DEFINITIONS 15.1 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, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. 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. S-2149GE 012008 Page 2 of 3 MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: Sub paragraph 4.3 is added as follows: 4.3 Claimant has famished to Surety proof of claim duly sworn to by Claimant, along with adequate supporting documentation which proves the amount claimed is due and payable. Paragraph 5 is amended as follows: 5 If a notice required by paragraph 4 is given by Owner to the Contractor and to the Surety, that is sufficient compliance. Paragraph 6 is deleted in its entirety and the following is substituted in its place: 6 When the Claimant has satisfied the conditions of Paragraph 4, and has submitted all supporting documentation and any proof of claim requested by the Surety, the Surety shall, within a reasonable period of time, notify the Claimant of the amounts that are undisputed and the basis for challenging any amounts that are disputed, including, but not limited to, the lack of substantiating documentation to support the claim as to entitlement or amount, and the Surety shall, within a reasonable period of time, pay or make arrangements for payment of any undisputed amount; provided, however, that the failure of the Surety to timely discharge its obligations under this paragraph or to dispute or identify any specific defense to all or any part of a claim shall not be deemed to be an admission of liability by the Surety as to such claim or otherwise constitute a waiver of the Contractor's or Surety defenses to, or right to dispute such claim. Rather, the Claimant shall have the immediate right, without further notice, to bring suit against the Surety to enforce any remedy available to it under this Bond. (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: Name and Title: Address: S-2149GE 012008 Page 3 of 3 POWER OF ATTORNEY KNOW ALL BY THESE PRESENTS: No. That SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA, each a Washington corporation, does each hereby appoint Pamela A. Nelson Seattle, WA its true and lawful attorney(s)-in-fact, with full authority to execute on its behalf the following surety bond: Surety Bond Number. 6642077 Principal: BNBuilderS, Inc. obligee: City of Bozeman Amount of Bond: See Bond Form IN WITNESS WHEREOF, SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA has executed and attested these presents ~~' ~`~ 1 Dexter R. Legg, Secretary this 2nd t Timothy A. Mikolajewski, Vice President day of June 2009 CERTIFICATE Extract from the By-Laws of SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA: "Article 8, Section 8.1 1. -FIDELITY AND SURETY BONDS ... the President, any Vice President, the Secretary, and any Assistant Vice President appointed for that purpose by the officer in charge of surety operations, shall each have authority to appoint individuals as attorneys-in-fact or under other appropriate titles with authority to execute on behalf of the corporation fidelity and surety bonds and other documents of similar character issued by the corporation 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 corporation, the seal, or a facsimile thereof, may be impressed or affixed or in any other manner reproduced; provided, however, that the seal shall not be necessary to the validity of any such instrument or undertaking." I, Dexter R. Legg, Secretary of SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA, do hereby certify that the foregoing extracts of the By-Laws of this corporation, and of a Power of Attorney issued pursuant thereto, are true and correct, and that both the By-Laws and the Power of Attorney are still in full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the facsimile seal of said corporation this a~Cf. COAjo9yy ~`~ 0~o+~1r~ ~ ~ SEAL a sal 1953 0~' Fof tuASM~ S-4910/DA3 5/09 2nd day of June 2009 SJ~~~~E COAfp,~o CORPORATE '" ~~ ~ ~/~, y SEAL ~. x ~ !s2'~ '~ Dexter R. Legg, Secretary ~r~aWasti~~~ XFT