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HomeMy WebLinkAbout17- Notice of Claim Against Security - High Country Paving, Inc. against JR Civil, LLC and City of Bozeman - East Peach Street Reconstruction Project NOTICE OF CLAIM AGAINST SECURITY l `mil TO: The City of Bozeman, a municipal corporation, and JR Civil, LLC, its General Contractor NOTICE IS HEREBY GIVEN, pursuant to Mont. Code Ann. §§18-2-201 and 204, that the undersigned, High Country Paving, Inc. ("High Country"), a concrete and paving subcontractor, has a claim in the sum of $121,359.50, plus interest, attorneys' fees, and collection costs, against the security taken from JR Civil, LLC ("JR"), General Contractor, as Principal, and Western Surety Company, as Surety, Bond Number 30007453 in the amount of$856,246.92, for unpaid work on the East Peach Street Reconstruction project. Attached in support of this claim is a copy of the Subcontract Agreement between JR and High Country, and High Country's Invoice Nos. 2639D and 2694D. Dated this ' day of December, 2017. HIGH COUNTRY PAVING, INC., a Montana corporation By: Derek Swenson, its Vice President Mark L. Evans AXILON LAW GROUP, PLLC 895 Technology Blvd., Suite 102 Bozeman, MT 59718 Direct:406.548.6720 Main: 406.922.4777 Fax: 406.294.9468 Attorneys for High Country Paving, Inc. Invoice AA VING,INC. Date Invoice# 5200 Thorpe Road, Belgrade,MT 59714 11/6/2017 2694D Ph: 406-388-9707 Fax: 406-388-0724 Bill To JR Civil 536 Kathy Lane Billings,MT 59105 P.O. No. Terms Due on receipt Description Quantity Rate Amount ***Pcach Street 10/31/17&11/01/17*** Item 212:Asphalt concrete surface course grade type B,Incl. 1,090 72.00 78,480.00 bitumen material Item 213:Combined curb&gutter 799 16.50 13,183.50 Thank you for your business. Please remit to above address. Total $91,663. 00 Invoice rAVING,.NC. Date Invoice# 5200 Thorpe Road, Belgrade,MT 59714 10/10/2017 2639D Ph: 406-388-9707 Fax: 406-388-0724 Bill To JR Civil 536 Kathy Lane Billings,NIT 59105 P.O. No. Terms Due on receipt Description Quantity Rate Amount ***Peach Street*** Item 213:Combined curb&gutter 1,559 16.50 25,723.50 Item 218:Concrete valley gutter 263 7.50 1,972.50 Item 219:Concrete curb return fillet d 500.00 2,000.00 Thank you for your business. Please remit to above address. Total $29,696.00 t JR CIVIL, LLC * An Equal Opportunity Employer* SUBCONTRACT AGREEMENT PROJECT NO. 10117103 THIS AGREEMENT, made and entered into this date, by and between JI2 CIVIL, LLC,a General Contractor,hereinafter referred to as the"CONTRACTOR,"and(High Country Paving, Ina),hereinafter called the"SUBCONTRACTOR". JR Civil,LLC Email: jrcivil@jrcivil.com PO Boa 51330 Phone: (307)752-7003 Billings,Montana 59105 Fax: (307)333-0279 and, High Country Paving, inc. Email: Attn: Home Office Phone: (406)388-9707 5200 Thorpe Road Home Office FAX: (406)388-0724 Belgrade,MT 59714 Cell: WITNESSETH: WHEREAS, the Contractor and Subcontractor, for the considerations hereinafter named, agree as follows on the project known as(East Peach Street Reconstruction)hereinafter referred to as"OWNER". Article I--Performance of Work The Subcontractor shall furnish all labor, materials, equipment, services, freight, repairs,supplies, and everything else of any nature whatsoever for the completion of said work hereinafter described, in accordance with all provisions ol'the principal contract, and of all the plans and specifications, statement of work, prepared by(KL.1 - April 14,2017)all of which by this reference are made a part of this Subcontract agreement. Article Ii--Schedule of Subcontract Prices and Description of Work In consideration of the promises, covenants and agreements herein contained, and the full and faithful and prompt performance of this agreement per plans and specifications, the Contractor shall pay the Subcontractor for the performance of the contract,subject to additions and deductions provided therein,as follows: insofar as possible, both parties will coordinate their work in a manner commensurate with the earliest possible completion of the job. The Contractor's Superintendent will at all times have jurisdiction over all matters pertaining to the scheduling and general prosecution of the work. The Subcontractor shall conduct his work in such a manner that his operations are in accord with those of the Contractor. Article III--Progress Payments The Contractor shall make payments on account of the contract,upon requisition by the Subcontractor,as follows: Partial payments will be made each month as the work satisfactorily progresses. The partial payments, based on the estimates prepared by the Owner of the value of the work performed and materials complete in place, in accordance with the contract, shall be made in the same manner as the Contractor is paid by the Owner. Subcontractor's invoicing will be based only on Owner's approved estimates. Early invoicing will not be accepted by Contractor. Only an Officer of JR CIVIL,LLC has the authority to make any special financial arrangement with a Subcontractor or Supplier Article IV-- Final Payment Final payment shall be due after completion and acceptance by the Owner of all work required hereunder, but not prior to receipt of final payment by the Contractor from the Owner. 1 Article V--Contract Documents Contract Documents are as noted in Section I of the General Conditions. Article vi-scope or wori, SCOPE OF WORK: Except to the extent modified in the Special Conditions, Subcontractor shall rurnish all necessary labor, 111atcrials, supplies, cqtliprncril, and facilities to Pet-1,61-11i the following work for the construction and completion or the part(s) or the work of the Genend Contract hereaftcr enumerated and all work incidental thereto which is necessary or required in order that all Stich work covered by this Subcontract will be complete, in strict accordance and full compliance with the tertns of the General Contract and Oat this Subcontract,and as herein modified; Description Quantity Unit Price Total Asphalt Removal-Cold Mill(Bid Item 202) Concrete Pavement Patch(Asphalt Only-Does Not Include Plowable Fill (Bid Item 205) Asphalt Concrete Surrace Course Grade Type B, Incl. Bitumen Material (Bid Item 212) Combined Curb&Gutter(Bid Item 213) Concrete Sidewalk-4inch(Bid Item 214) Concrete Sidewalk-6inch(Bid Item 2 15) Detachable Warning Panels(Bid Item 216) Concrete Driveways-6inch(Bid Item 217) Concrete Valley Gutter(Bid Item 218) Concrete Curb Return Fillet(Bid Item 219) TOTAL CONTRACT VALUE Inclusions: 1.Work is covered by it 2 Year aysarramty 1"Acluslons: 1. [It-ice does not include cold weather costs 2. Ili-ice does not include I lardware, Lxcavation, Drilling or F-Itise Prep 1 trice does not include testing car-staking 4, Ili-ice does not include indfic control 2 SPECIAL CONIWrIONS: 1. All Change of Scope(Change Orders)will be reviewed and approved by JR Civil, LLC.Only Change Orders approved in writing by JR Civil will be accepted as a change in scope and pricing. 2. Subcontractor must adhere to the hours of work and if necessary to exceed 48 hours' notice needs to be provided to the Engineer. 3. Prior to daily activities a POD(Plan of the Day)will be coordinated with the JR Civil Site Representative. 4. Daily sign-in sheets including names and the activity being completed explaining the hazards of the work need to be submitted daily to the JR Site Representative. 5. All equipment must be in complete working order,Back-up Alarms,Lights,State Inspection Certificates, Seat belts,etc. 6. Do you plan to subcontract out any part of this agreement at any time during this project?Yes o&(please circle) 7. If yes,you will need to supply a copy of the contract between you and your sub-tier and the sub-tier's insurance certificate before they begin work."The parties hereto agree and acknowledge that the services/work/equipment to be provided hereunder by]subcontractor] will be incorporated into the East ['each street Reconstruction contract between JR Civil and the owner. As such,the parties expressly agree that Owner is a third-party beneficiary of this (Agreement] entitled,in its own name or in the name of [Contractor[,to enforce this [Agreement] against [subcontractor]. Contractor must submit a request to sublet in order to be authorized to subcontract any part of this Work. Sub-tier as follows: Sub-tier's Name and Address Scope of Work Date Working Subcontractor needs to submit the following items: 1. A copy of the contract between you and your sub-tier.(Within your contract,you will need to reference our subcontract and the General Contract). 2. Sub-tier's insurance certificate prior-to beginning work.(Your sub should make,you the certificate holder and reference JR Civil,LLC as additional insured). GENERAL CONDITIONS Section 1. Contract Documents The contract includes the Agreement and its General Conditions, Drawings, and Specifications between Owner and Contractor. The intent of these documents is to include all labor, materials, and services of every known kind necessary for the proper execution of the work and the terms and conditions of payment therefor. The documents are to be considered as one,and whatever is called for by any one of them shall be binding as if called for by all. Section 2. Samples The Subcontractor shall Furnish for approval all samples as directed. The work shall be in accordance with approved samples. Section 3. Materials, Labor Except as otherwise noted, the Subcontractor shall provide and pay for all materials, labor, tools,water,power,and any other items necessary to complete the work. Unless otherwise specified, all materials shall be new, and both workmanship and materials shall be of good quality. All workmen and subcontractors shall be skilled in their trades. Section 4. Royalties and Patents The Subcontractor shall pay all royalties and license fees. He shall defend all suits or claims for infringement of any patent rights and shall save the Contractor harmless from loss on account thereof. Section 5. Permits and Regulations Permits and licenses of a temporary nature necessary for the prosecution of the work, shall be secured and paid for by the Subcontractor. The Subcontractor shall comply with all laws and regulations bearing on the conduct of the work and shall notify the Contractor if the drawings and specifications are at variance therewith. 3 Section 6. Protection of Work,Property and Persons The Subcontractor shall adequately protect the work, adjacent property, and the public, and shall be responsible for any damage or injury due to his act or neglect,including flares and barricades. Section 7. Bonds and Insurance If the Contractor requires of the Subcontractor,he is to furnish on forms acceptable to the Contractor,a 100%Performance and Payment Bond in the full amount of the subcontract, said Bond payable to the benefit of the Contractor. If Bond is required,Subcontractor will pay the premium.Subcontractor agrees at all times during the Work and until this Agreement has been fully performed to be responsible for theft from and damage to the Premises caused by its employees, licensees and invitees, and have in full force and effect the insurance described below for, without limitation, public liability,automobile, the perils of fire,theft,vandalism and other extended coverage,with the Contractor and Owner as Additional Named Insureds on all policies. Subcontractor also waives all rights of subrogation against Contractor and Owner,and should Subcontractor fail to name Contractor and Owner as Additional Named Insureds in violation hereof,Subcontractor shall procure waivers of subrogation from its insurers, but such waivers shall not cure the default. Any deductible shall not exceed $1,000. All Subcontractors policies shall by their terms be primary coverages, with all the Contractor's or Owner's policies being non- contributing or excess. Subcontractor further agrees that in the event any work to be performed under this subcontract is further sublet,the Subcontractor will be required to arrange for insurance as herein provided. The Subcontractor shall require all insurance companies issuing any policies of insurance to the Subcontractor, which Subcontractor may be required to produce hereunder,to certify to the Contractor in writing that such policies have been issued and are in force and will not be canceled or annulled except upon ten (10)days' notice in writing to the Contractor. The Subcontractor shall not cancel any policies or insurance required hereunder, either before or after completion of the work, without the consent in writing of the Contractor. It is agreed that the Subcontractor will submit to the contractor evidence of: Public Liability and Property Damage Bodily Injury-- each person$1,000,000,each accident$1,000,000; Property Damage--each accident$1,000,000, aggregate $2,000,000; Automobile Public Liability and Property Damage Bodily Injury -- each person $1,000,000, each accident $1,000,000; Property Damage and Extended Coverage -- each occurrence $1,000,000, aggregate $2,000,000; Umbrella Liability 41,000,000 each occurrence, $1,000,000 aggregate; Workman's Compensation as required by statute, Employer's Liability, $500,000 per occurrence; naming Contractor as additional insured. Contractor may at its option, upon refusal of Subcontractor, place insurance of the nature described above the cover the operations of the Subcontractor, paying the premium for same and charging the same to the Subcontractor. All insurance policies shall be with an insurance company qualified to insure in North Dakota with an A.M.Best rating A+or better. Subcontractor shall furnish Contractor with Certificate of insurance for ah policies as described herein before commencing work under, which Certificates shall provide that the policy shall not be canceled or reduced in coverage until at least ten(10)days after delivery of written notice from the insurance carrier to the Contractor. Upon request, Subcontractor shall provide Contractor with full copies of all insurance policies. Without limiting the foregoing, Subcontractor shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Work is located insurance for protection for claims under the State Industrial Insurance System or Workman's Compensation Acts and other Employee Benefit Acts which are applicable, claims for damage because of bodily injury, including death, and from claims for damages,other than to the Work itself, to property which may arise out of or result from the Subcontractor's operations under the Agreement, whether such operations be by the Subcontractor or by a Subcontractor or anyone directly or indirectly employed or utilized by any of them. This insurance shall be written for not less than limits of liability specified in the contract documents or required by law or as may be normal in the industry,whichever coverage is greater,and shall include a contractual liability applicable to the Subcontractor's obligations under the indemnity and any other applicable provisions of this Agreement. Certificates and Additional Insured Endorsements of such insurance shall be filed with the Contractor prior to the commencement of the Work. INDEMNITY: For all matters arising, directly or indirectly, out of or in connection with the Work and its performance by the Subcontractor (including without limitation acts or omissions by its employees, agents, licensees, invitees and contractees), and also arising out of any breach of the Subcontractor's Agreement with Contractor, to the fullest extent permitted by law, Subcontractor agrees to defend, indemnify and save Contractor, the Owner and their engineers and architects and the employees and the agents of the foregoing, harmless from and against all claims, demands, suits and judgments of any nature whatsoever, whether groundless or not, and all costs and expenses thereof(including without limitation attorney fees)whether,without limitations,such claim is a result of a failure to discover a dangerous condition or arises out of negligently caused or dangerous condition,general negligence,theft,vandalism,bodily injury,sickness,disease, death, injury to or destruction of tangible property (whether the Work or otherwise), wages or materials including any expense, loss or damage,whether consequential, incidental or otherwise,resulting from any of the foregoing,and whether or not, the claim or other matter is caused in whole or part, directly or indirectly, by the active or passive negligence of any indemnified party or its agents, employees, or contractees, except a loss arising out of the sole negligence and sole willful misconduct of the indemnitee. This indemnity is in addition to any other rights or indemnity Contractor may have in law or equity and shall not be limited by any amounts payable or damages covered by,any State Industrial Insurance Act,Worker's Compensation Acts,Disability Benefit Acts or other Employee Benefit Acts. Section 8. Inspection of Work 4 The Subcontractor shall permit and facilitate inspection of the work by the Contractor and his agents and public authorities at all times. Section 9. Changes in Work The Contractor may order changes in the work,the Contract sum being adjusted accordingly. All such orders and adjustments shall be in writing. Claims by the Subcontractor for extra cost must be made in writing before executing the work involved. Change orders will only be accepted and paid if approved by Owner and Engineer as an addition to the Subcontractors scope. Subcontractor will only be paid for their requested change order if approved by Owner and Engineer, and will not receive payment for change order work until Contractor receives payment. Section 10. Correction of Work The Subcontractor shall re-execute any work that fails to conform to the requirements of the Contract and that appears during the progress of the work, and shall remedy any defects due to faulty materials or workmanship which appear before the completion and final acceptance of the contract by the Owner. The provisions of this section apply to work done by subcontractors of the Subcontractor,as well as to work by direct employees of the Subcontractor. Section 11. Contractor's Right to Terminate the Contract Time is of the essence of this Subcontract. Subcontractor shall not delay,hinder,disrupt,or interfere with Contractor. Should the Subcontractor neglect to prosecute the work properly, promptly, or fail to perform any provision of the contract, the Contractor, after 48 hours written notice to the Subcontractor,may without prejudice to any other remedy he may have, make good the deficiencies and may deduct the cost thereof from the payment then or thereafter due the Subcontractor,or,at his option,may terminate the contract and take possession of all materials,equipment,tools, and appliances and finish work by such means as he sees fit, and if the unpaid balance of the contract price exceeds the expense of finishing the work,such excess shall be paid to the Subcontractor,but if such expense exceeds such unpaid balance, the Subcontractor shall pay the difference to the Contractor. Section 12. Payments Payments shall be made as provided in the Agreement. The making and acceptance of the final payment shall constitute a waiver of all claims by the Contractor,other than those arising from unsettled liens or from faulty work appearing thereafter, as provided for here,and of all claims by the Subcontractor except previously made and still unsettled. Payments otherwise due may be withheld on account of defective work not remedied, liens filed, damage by the Subcontractor to others not adjusted, or failure to make payments properly to subcontractors of the Subcontractor for materials or labor. Subcontractor will not be due payment unless Contractor receives payment from Owner. Subcontractor will be paid when Contractor is paid by Owner within 5 calendar days. Section 13. Indemnity For all matters arising,directly or indirectly,out of or in connection with the Work and its performance by the Subcontractor (including without limitation acts or omissions by its employees,agents, licensees, invitees and contractees), and also arising out of any breach of the Subcontractor's Agreement with Contractor, to the fullest extent permitted by law, Subcontractor agrees to defend, indemnify and save Contractor, the Owner and their engineers and architects and the employees and the agents of the foregoing, harmless from and against all claims, demands, suits and judgments of any nature whatsoever, whether groundless or not, and all costs and expenses thereof(including without limitation attorney fees) whether, without limitations, such claim is a result of a failure to discover a dangerous condition or arises out of negligently caused or dangerous condition, general negligence, theft, vandalism, bodily injury, sickness, disease, death, injury to or destruction of tangible property (whether the Work or otherwise), wages or materials including any expense, loss or damage, whether consequential, incidental or otherwise, resulting from any of the foregoing, and whether or not the claim or other matter is caused in whole or part, directly or indirectly, by the active or passive negligence of any indemnified party or its agents, employees,or contractees,except a loss arising out of the sole negligence and sole willful misconduct of the indemnitee. This indemnity is in addition to any other rights or indemnity Contract may have in law or equity and shall not be limited by any amounts payable or damages covered by,any State Industrial Insurance Act,Worker's Compensation Acts,Disability Benefit Acts or other Employee Benefit Acts. Section 14. Liens The final payment shall not be due until the Subcontractor has delivered to the Contractor a complete release of all liens arising out of this contract, or receipts, in full covering all labor and materials for which a lien could be filed, or a bond satisfactory to the Contractor indemnifying him against any lien. Section 15. Separate Contracts The Contractor has the right to let other contracts in connection with the work,and the Subcontractor shall properly cooperate with any such contractors. Section 16. Arbitration Any disagreement arising out of this contract or from the breach thereof shall be submitted to arbitration,and judgment upon award rendered may be entered in the court having jurisdiction. It is mutually agreed that the decision of the arbitrators shall be a condition precedent to any right of legal action that either party may have against the other. The arbitration shall be held under the Standard Form of Arbitration Procedure of the American Institute of Architects or under the Rules of the American Arbitration Association. Section 17. Cleaning Up 5 The Subcontractor shall keep the premises free from accumulation of waste material and rubbish,and at the completion of the work he shall remove from the premises all rubbish, false work, implements and surplus materials resulting from his operations. Subcontractor shall remove or obliterate, insofar as feasible,all objects or disturbances of the ground which mar the landscape, and were caused by his operations, but which are not part of the improvement. This shall be required on all areas used or occupied by the Contractor,regardless of right-of-way limits. Section 18. Non-Discrimination in Employment and Contract Labor Provision EQUAL OPPURTUNITY PROVISIONS (a) Equal Employment Opportunity (Executive Order 11246). During the performance of this contract, the subcontractor agrees as follows: (1) The subcontractor will not discriminate against any employee or applicant for employment because of race, color, religion,sex or national origin.The subcontractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection of training, including apprenticeship,The subcontractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. (2) The subcontractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. (3) The subcontractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the Departments contracting officer advising the labor union or workers representative of the subcontractors commitments under Section 202 of Executive Order 11246 of September 24, 1965,and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (4) The subcontractor will comply with all provisions of Executive Order 11246 of September, 1965 and of the rules, regulations and relevant orders of the Secretary of Labor. (5) The subcontractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965,and by the rules,regulations,and orders of the Secretary of Labor, or pursuant thereto,and will permit access to its books, records and accounts by the Department and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules,regulations and orders. (6) In the event of the Subcontractors noncompliance with the non-discrimination clauses of this contract or with any of such rules,regulations or orders,this contract may be canceled,terminated or suspended in whole or in part and the contractor may be declared ineligible for further government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, or by rules, regulations, or order of the Secretary of Labor, or as otherwise provided by law. The contractor will include the provisions of paragraph 1 through 7 in every subcontract or purchase order unless exempted by rules, regulations or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965,so that each provision will be binding upon each subcontractor or vendor.The contractor will take such action with respect to any subcontract or purchase order as the Department may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, however, that in the event the contractor becomes involved in or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the Department,the contractor may request the United States to enter into such litigation to protect the interest of the United States. Section 19. Liquidated Damages It is agreed by Subcontractor,that if liquidated damages are assessed against the General Contractor by the Owner, and said liquidated damages are due to negligence or inability to perform on the part of any subcontractor,then that subcontractor shall be assessed said liquidated damages by the Contractor. Section 20. Safety Clause Subcontractor agrees to comply with all provisions of the Williams-Steiger Occupational Safety and Health Act of 1970 (OSHA), and all rules and regulations promulgated hereunder, and hold the Contractor harmless from any claims or fines arising thereunder occasioned by the Subcontractor's failure to comply. Subcontractor agrees to furnish Contractor with a copy of its Written Safety Program and certifies its understanding that Contractor will,when necessary,enforce its own Safety Program in order to maintain compliance with city and state regulations. Subcontractor agrees to enforce Contractor's Drug and Alcohol Policy and Contractor's requirements for personal protective equipment, including but not limited to hard hats, reflective vests and appropriate work clothing for all personnel on the Project. The following are minimum onsite project safety requirements that must be conveyed to onsite personnel: 1. All onsite foreman and up to superintendents must attend weekly management safety meetings. 2. Conduct JHA Daily Task Analysis. 6 3. All onsite tools and equipment are in a safe and maintained condition.Daily equipment walk around inspection form must be completed. 4. Any and all onsite incidents are to be reported in writing to JR Civil Supervision. S. Perform accident investigation for each incident must be completed within 3 days,and submitted to JR Civil. 6. Provide conduct warnings to employees violating procedures. 7. All onsite employees must have received required training for the task. 8. Remove employees who have been determined to be at risk to the site. Be mindful that all of your employees must use proper personal protective equipment (PPE) on this project. Each employee must have the following PPE at the time of arriving at the Job site. Seat Belts must be worn at all times in all equipment Safety Glasses* Hard Hats Leather/Steel-Toed Work Boots Hearing Protection Highly Visible(Reflectorized)Orange Vest Fall Protection Gloves as required *Any employee who wears prescription eye glasses and does not have ANSI Z—87 prescription safety glasses, must wear goggles over their glasses. Section 21.Exhibits 7 a The entire Agreement between Contractor and Subcontractor and their agents or representatives is contained herein, and it is agreed that the terms of this subcontract are contractual and not a mere recital. IN WITNESS WHEREOF,The Parties hereto executed this Agreement the day and year first written. Subcontractor High Country Paving,Inc. Seal By Date: r( Z Contractor JR Civil, LLC Seal By Date: 8 EJCDC fHCI\if RS 1M`;I C011"t/f..i uocualearscoafnnllie PERFORMANCE BOND CONTRACTOR(name and address), SURETY(name and address of principal place of business): ]R Civil LLC Western Surety Company 536 Kathy Ln P.O.Box 5077 Billings,MT'59105 Chicago,IL 60604 OWNER&me and address): City of Isozernan. 121 North Rouse,P.O.Box 1230 Bozeman,MT 59771 CONSTRUCTION CONTRACT Effective Date of the Agreement: NtgA(E Amount: Light Hundred Fifty-six Thousand Two hundred Forlyy-six And 92l100 ($856,246.92) Description(name and location): East Peach Street Reconstruction,Bozeman,MT BOND Bond Number: 30007453 Date(not earlier than the Effective Date of the Agreement of the Construction Contract): Amount: Eight Hundred Fifty-six Thousand Two Hundred Forty-six And 921100 ($856,246.92) Modifications to this Bond Form: ] None El 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 _j R Civil LLC (seal) Western Surety Company (seal) Contractor's Name and Corporate Seal Surety's Name and Corporate Seal By:r '` By: j i - — Signature Signature(attach pot4rW attorney) / Kimberly Hodson ,Print Name Print Name 4 < , Attorney-In-Fact Tl� --�; Title Attest; , r _. ,C �--! i 51.gnatur Sl liatur Brooke A.Garness,Bond Clerical 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. E1CDC1 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 COUNTERSIGNED: HUB INTERNATIONAL MOUNTAIN I'A�h LIMIT RENE C.LEVEAUX d- 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 on 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 53,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 i 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 S. 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; S. 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 i 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 EJCDC•C-610,Performance Bond } Copyright O 2013 National Society of Professional Engineers,American Council of Engineering Companies, i and American Society of Civil Engineers,All rights reserved. 2 of 3 { t! 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 falls 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 p common law bond. 16. Modificatlons to this Bond areas follows: 14. Definitions 1 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 I {I E 1 t 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 �g i FJCDC tRCI I EilS)01?'1 CU\pidCi f,OCUt.IUa.S UOl.t11111E1. PAYMENT BOND i CONTRACTOR(name and address): SURETY(name and address of principal place of business): J R Civil LLC Western Surety Company x 536 Kathy Ln P.O.Box 5077 Billings,MT 59105 Chicago,IL 60604 i OWNER(name and address):City OfDozemiul 121 North Rouse,RO,Box 1230 Bozeman,NIT 59771 CONSTRUCTION CONTRACT Effective Date of the Agreement: ,uN 1: /S! Z2 l/7 Amount: Fight Hundred Fifty-six Thousand Ttro Hundred Forty-six And 92/100 ($856,246.92) Description(name and location): East Peach Street Reconstruction,Bozeman,M'1' BOND Bond Number: 30007453 Date(not earlier than the Effective Date of the Agreement of the Construction Contract): Amount: Light Hundred Fifty-six Thousand Two Hundred Forty-six And 92/100 ($856,246.92) Modifications to this Bond Form: ® 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 - I 1 R Civil LLC (seal) Western Surety Company (seal) Contractor's Name and Corporate Seal Surety's Name and Corporate Seal B 4 c By: Signature Signature(attach poWe b attorney) i 1 Kimberly Hodson r Print Name Print Name Title Title Attest: U, Attest: t�rJ Signatur // 9fgn is ure v i Brooke A.Gayness Bond Clerical Title 1 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•615,Payment Bond COUNTERSIGNED: Copyright 0 2013 National Society of Professional Engineers,American Council of Engineering Companles, HUB INTERNATIONAL.MOUNTAIN and American society of Civil Cnginears;All rights reserved. 1 of 3 STATES'Ll,MI D� r1yRENE C, LEVEAUX � r 4 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 k 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 C 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 E 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. S. The Surety's total obligation shall not exceed the amount of this Bond; plus the amount of reasonable attorney's l 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. i performed labor or last furnished I( 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 I 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. E EJCDC'C•615,Payment Bond [ Copyright 0 2013 National Society of Professional Engineers,American Council of Engineering Companies, and American society of Civil Engineers.All rights reserved. 2 of 3 1 j 12. No suit or action shall be commenced by a Claimant under g, 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 1 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. l 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; 16.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 i the date of the Claim; 7. The total amount of previous payments jreceived by the Claimant;and f EJCDC•G615,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 I 1 j Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-PACT Know All Ivien By These Presents,That WESTERN SURETY COMPANY,a South Dakota corporation,is a duly organized and existing corporation i having its principal office in the City of Sioux Falls,and State of South Dakota,and that it does by virtue of the signature and seal herein nfffxed hereby make,constitute and appoint l Brooke A Garness, Chris Jermunson, Kristin A Piccioni, Jamie M Roe, Billy J Bolt, Michael E Depner, Kaye U Muzzana, Brooke Schmidt, Lynn St Pierre, Robert C Pfennigs, Michelle Schermerhorn, Marsha Hattel,Brady Leaf,John D Leaf,Kimberly Hodson,Individually i 1 of Great Falls,1v1T,its true and lawful Altorney(s)-in-Fact with full power and authority hereby conferred to sign,scat and execute for and on its behalf i bonds,undertakings and other obligatory instruments of similar nature -In Unlimited Amounts - and to bind it thereby as fully and to the sane extent as if such instruments were signed by it duly authorized officer of the corporation and all the acts of suid Attorney,putsuaru to the authority hereby given,are hereby ratified and confirmed. This Power of Attorney is made and executed pursuart to and by adhority of the Ry-I aw printed on the reverse hereof,duly adopted,as indicated,by the shareholders of the corporation. In Witness Whereof,WESTERN SURETY COMPANY has caused these presents to be signed by its Vice President and its corporate seal to be hereto affixed on this 3rd day of February,2017. ;wger"°ti WESTERN SURETY COMPANY �kY-4 QPOgq j�QY� P `S£A� wOV1ul QAK�, --s'�' ° Yal T.Bnrllat,Vice President Slate of South Dakota l J7 ss County oi-Minnehaha On this 3rd day of February,2017,before me personally cattle Paul T.Brunei,to nne known,who,being by me duly sworn,did depose and say: that he resides in the City of Sioux Fulls,State of South Dakota;that he is the Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument;that he knows the seal of said corporation;that the seal affixed to the said insbnnnenl is such corporate seal;that it was so affixed pursuant to authority given by the Board of Directors of said corporation nod (lint he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. My commission expires Ah�+atrrtirr J.MOHR t ARYFUBaC -- June 23,2021 0aOY1101 5 OTA FA rfY.ra.ssa+,frfY+rsrr+-r J.Mohr,Notary Public CERTIFICATE 1,L.Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinnbove set forth is still in force,and further certify that the By-Law of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporation tiiis day of J . \`yoR4iy� WESTERN SURETY COMPANY L.Nelson,Assistant Secretary Forni F4280-7-2012 Authorizing By-Law ADOPTED BY THE SHAREHOLDERS OF WESTERN SURETY COMPANY This Power of Attorney is made and executed pursuant to and by authority of the following By-Law duly adopted by the shareholders of the Company, Section 7. All bonds, policies, undertakings,Powers of Attorney, or other obligations of the corporation shall be executed in the corporate name of the Company by the President,Secretary,and Assistant Secretary,Treasurer,or any Vice President,or by such other officers as the Board of Directors may authorize, The President,any Vice President,Secretary, any Assistant Secretary,or the Treasurer may appoint Attorneys in Fact or agents who shall have authority to issue bonds,policies,or undertakings in the name of the Company. The corporate seal is not necessary for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation, The signature of any such officer and the corporate seal may be printed by facsimile.