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HomeMy WebLinkAboutContract 39666-CA1 (3)CITY SECRETARY CONTRACT NOJa to to - Cn I Assignment of Contract WHEREAS, W. R. Hodgson Co., LP ("Contractor") and the City of Fort Worth, Texas ("Owner") entered into a written contract dated December 8, 2009, in the original amount of $4,762,729.50 ("Original Contract"), whereby Contractor agreed to construct that certain construction project known as the Village Creek Reclaimed Water Eastern Delivery System Distribution Main Part 2, P257-705140021387, Project No. 00213, Fort Worth, Texas (the "Project"), in accordance with the terms and provisions of the Original Contract; and WHEREAS, as required by law and under the terms of the Original Contract, Contractor and Surety executed and delivered to Owner a Performance Bond No. 2105800 and a Maintenance Bond No. 2105801 (collectively referred to herein as the "Performance Bond") along with a Payment Bond No. 2105800 ("Payment Bond"), each in the penal sum of $4,762,729.50; and WHEREAS, Contractor voluntarily defaulted and terminated the Original Contract, and Surety has arranged for the completion of the work under the Original Contract pursuant to a Completion Contract dated March, 2011, a copy of which is attached hereto and made a part hereof ("Completion Contract"), made and entered into by and between Surety and William J. Schultz, Inc. d/b/a Circle C Construction Company ("Completion Contractor") in conjunction with that certain Takeover Agreement entered into by and between Surety and Owner dated March �-'4_, 2011 ("Takeover Agreement") concerning the Project; and WHEREAS, the Takeover Agreement and Completion Contract contemplate an assignment by Surety to Owner of all of Surety's rights and interest under the Completion Contract in accordance with the terms of said agreements. NOW, THEREFORE, in consideration of the agreements and for other good and valuable consideration, the receipt and sufficiency of which being hereby acknowledged, Surety does hereby sell, assign, transfer and set over unto Owner all of Surety's rights and interest in and to the Completion Contract. Surety further acknowledges and consents to Completion Contractor being paid directly by Owner all amounts to be paid under the Completion Contract under and pursuant to the Takeover Agreement, and Surety waives any and all subrogation rights it has to such payments for purposes of effecting this assignment (save and except the anticipated remaining balance of $450,160.87 to be paid to Surety upon completion of the Completion Contract per ¶5 of the Takeover Agreement, which right is expressly reserved unto Surety and is not assigned herein). Signed and dated this �Aay of March, 2011. NORTH AMERICAN SPECIALTY INSURANCE COMPANY By: effrey Goldberg, Vice President OFFICIAL RECORD CITY SECRETARY Assignment of Contract - Page 1 FT. WORTH, TX Recommended. - Frank Crumb Director, Water Department ApPrOved as to F orrn and Legality; uglas W. Black Assistant City Attorney ATTEST: Hendriay City Secretary Date: March a� It 2o11 No A &C Required _ Assignment o.1 �Contracf -Page 2 ACCEPTED By pVVNER: CITY OF FORT FORTH, TEXAS By: Fernando Costa Assistant Cit �— y Manager 5 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX COMPLETION CONTRACT for Village Creek Reclaimed Water Eastern Delivery System Distribution Main Part 2 Fort Worth, Texas This Completion Contract ("Contract") is entered into by and between North American Specialty Insurance Company ("Surety") and William J. Schultz, Inc. d/b/a Circle C Construction Company ("Completion Contractor"). RECITALS WHEREAS, W. R. Hodgson Co., LP ("Former Contractor") and the City of Fort Worth, Texas, ("Owner") entered into a written contract dated December 8, 2009, in the original amount of $4,762,729.50 (M&C C-23962) ("Original Contract"), for the Former Contractor to furnish all labor and materials and perform all work for a project generally known and identified as the Village Creek Reclaimed Water Eastern Delivery System Distribution Main Part 2, P257- 705140021387, Project No. 00213, Fort Worth, Texas (the "Project"),all in accordance with the terms and provisions of the Original Contract; and WHEREAS, as required by law and under the terms of the Original Contract, the Former Contractor as principal and the Surety made, executed and delivered to the Owner/Obligee a Performance Bond No. 2105800 ("Performance Bond") and a Payment Bond No. 2105800 ("Payment Bond"), each in the penal sum of $4,762,729.50 (referred to from time to time herein collectively as "Original Bonds"); and WHEREAS, Former Contractor voluntarily terminated its performance of the Original Contract, and/or was terminated by the Owner and the Surety intends to fulfill its obligations as surety under the terms of the Performance Bond through the utilization of this Contract with Completion Contractor; and WHEREAS, Completion Contractor has submitted a Bid to the Owner to complete the remaining work required on portions of the work not yet undertaken by the Former Contractor, said Bid being attached hereto and incorporated herein by reference as Exhibit "A"; and WHEREAS, the Surety and the Completion Contractor desire to enter into this Contract under the terms and conditions hereinafter set forth. NOW, THEREFORE, the Surety and the Completion Contractor, for and in consideration of the mutual obligations and promises hereinafter set forth, do contract and agree as follows: Completion/Takeover Agreement Page 1 of 6 AGREEMENT 1. Contract Documents. This Contract consists of the terms and provisions contained herein, including the Instructions to Bidders and all of the Bid Documents described in the Instructions to Bidders, if any; the Completion Contractor's Bid (Exhibit "A"); all documents or specific portions of documents which may be referred to herein or in any Exhibits attached hereto and incorporated herein by reference, thereby making them a part hereof; the Original Contract, including all General, Supplementary and Special Conditions, drawings, specifications, forms, addenda and documents forming a part of the Original Contract and any modifications to the Original Contract, all of which are incorporated herein by reference all which are hereinafter referred to collectively as the "Contract Documents." 2. Strict Compliance. The Completion Contractor shall be bound to the Surety by all of the terms and provisions of the Contract Documents, including administrative as well as technical provisions, and shall strictly comply therewith in all respects. The Completion Contractor shall be bound in the same manner and to the same extent that the Surety and the Completion Contractor or either of them would be bound to the Owner under the Original Contract, including but not limited to the conditions or determinations by the Owner with respect to all work done thereunder. However, the Completion Contractor shall have no responsibility or liability for indebtedness incurred by the Former Contractor nor for work undertaken by the Former Contractor and not completed. 3. Full Investigation. By entering this Contract the Completion Contractor represents that it has fully investigated and is fully informed as to the status and conditions affecting the work to be done and that no representations in reference thereto have been made to it by the Surety or any of its representatives. By entering this Contract the completion Contractor also represents that it is familiar with the special and unique conditions associated with completing work started and partially performed by another contractor. The Surety makes no warranties or representations, express or implied, to the Completion Contractor with respect to the Contract Documents or the work to be performed. 4. Scope of Work — Original Contract. The Completion Contractor shall furnish and pay for all supervision, labor, materials, supplies, services, tools and equipment and shall do everything else necessary to perform and satisfactorily complete the unfinished portions of the work associated with the Original Contract as required by the Contract Documents to the satisfaction of the Surety and the Owner in such a manner as to fully protect and save the Surety harmless as to its liability to the Owner for the completion of the work. 5. Time for Performance of the Work. The Completion Contractor shall commence work within seven (7) calendar days, or sooner if so stated on Exhibit "A", of the date specified in a written Notice to Proceed issued by the Owner and shall complete all work in accordance with the terms and conditions of the Contract Documents and Exhibit "A" from the Notice to Proceed date. Time is of the essence. Subject to allowable time extensions as provided under the terms of the Original Contract, if the Completion Contractor fails to complete the work under the Contract in the time allowed by this paragraph, the Completion Contractor will be liable and subject to all damages assessed by the Owner under the Original Contract after the date of completion. It is the Completion Contractor's responsibility to present and to document for Owner any requests for extensions of time Completion/Takeover Agreement Page 2 of 6 that may arise during prosecution of the work under this Contract, as required under the Original Contract. 6. Price. A. For work remaining to complete the unfinished scope of work under Original Contract, the Completion Contractor will be paid the remaining contract balance up to an amount of $961,397.00 as set forth on Exhibit "A" as adjusted for quantities and change orders. B. In addition to the above, the Completion Contractor may be paid additional sums for the work pursuant to a separate agreement with Surety. No additional sums shall be paid for additional or corrective work unless paid for by the Owner by change order. 7. Assignment. It is contemplated by the Owner, Completion Contractor and Surety that this Contract will be assigned by Surety to Owner promptly after execution. Completion Contractor hereby concurs with the anticipated assignment. As assignor, Surety does not here pursuant to this Contract undertake to warrant, assure or provide a guarantee to Completion Contractor of Owner's past, present or future obligations under the Original Contract. It is contemplated that the Completion Contractor shall be paid by the Owner pursuant to the terms of the Original Contract, as modified by Exhibit "A", and will, after assignment, be a party in privity with the Owner in all respects. Once the assignment has been delivered by the Surety to the Owner, the Surety will be released from and shall have no further liability or obligation to Completion Contractor under this Contract. 8. Independent Contactor. Completion Contractor will be permitted to exercise the full prerogatives of a prime contractor in prosecuting the work. It is further understood and agreed that the Completion Contractor is an independent contractor in connection with all work to be performed by it pursuant to the Contract Documents. The Completion Contractor agrees to indemnify and hold the Surety harmless and reimburse the Surety for any expense or liability incurred in connection with performance of the work, under any law or regulation in connection with employees of the Completion Contractor or any subcontractor. 9. Latent Defects and Warranty Work Applicable to the Work of the Former Contractor. The Completion Contractor shall obtain the approval of the Owner and the Surety in writing before proceeding to correct any work attributable to the Former Contractor. The Completion Contractor shall not be paid for any corrective work without prior written approval. 10. Defects in Work. The Completion Contractor warrants and guarantees the work covered by this Contract in the same manner called for in the Original Contract. The Completion Contractor shall be responsible for any and all defects in the work which is performed by it or any of Completion Contractor's subcontractors or materialmen. 11. Changes. Any and all provisions relating to changes contained in the Original Contract are specifically incorporated herein by reference. Completion/Takeover Agreement Page 3 of 6 12. Insurance and Bonding. The Completion Contractor shall indemnify the Surety and the Owner against any and all loss, liability, costs, expenses and attorney's fees on account of any injury or claimed injury to persons or property arising out of or claimed to arise out of any act or omission by the Completion Contractor, its agents, servants, employees or subcontractors. In this connection, the Completion Contractor shall provide the insurance in the amounts and types as required by the terms of the Original Contract, naming the Owner and Surety as additional insureds by way of a broad form endorsement under the policy or policies. All insurance shall provide for ten (10) days written notice to the Surety and Owner prior to the cancellation or modification of any insurance coverage. All insurance and certificates evidencing said insurance shall be provided to the Owner and Surety prior to the Completion Contractor commencing work. In addition, Completion Contractor shall furnish performance, payment and maintenance bonds each in the amount of $961,397.00 and provided in bond forms acceptable to the Owner and Surety, naming Owner and Surety as dual obligees. 13. Maintenance of Records and Accounts. The Completion Contractor shall maintain customary records in completing the work under the Contract and keep same as required under the Original Contract. 14. Indemnification. The Completion Contractor agrees to indemnify the Surety against and safe the Surety harmless from: A. Any and all claims, suits, liability, expense or damage for any alleged or actual infringement or violation of any patent or patent right, arising in connection with this Contract and anything done hereunder; B. Any and all claims, suits or liability, on account of any act or omission of the Contractor, or any of his officers, agents, employees or servants; C. Any and all claims, suits or liens for payment for labor, material and equipment; D. Any and all liability, loss, damage, costs, expenses, consultant fees, and attorney fees suffered or incurred on account of any breach of the obligations, covenants and provisions of this Contract. 15. Compliance with Law. The Completion Contractor agrees that it will comply with all applicable federal, state and local laws, ordinances and regulations and that it will keep and have available all necessary records and make all payments, reports, collections and deductions, and otherwise do any and all things necessary so as to fully comply with all federal, state and local laws, ordinances and regulations in regard to any and all said matters insofar as they affect or involve the Contractor's performance of this Contract, all so as to fully relieve the Surety from and protect the Surety against any and all responsibility or liability therefore or in regard thereto. 16. Protection of Work. The Contractor specifically agrees that it is responsible for the protection of its work until final completion and acceptance thereof by the Owner and that it will make good or replace, at no expense to the Owner, any damage to its work which occurs prior to said final acceptance. Completion/Takeover Agreement Page 4 of 6 17. Disputes with the Owner. In the event that the Completion Contractor has any claim(s) for additional compensation from any cause whatsoever, or for extension of the time for performance of the work, Completion Contractor shall be entitled to pursue such claim(s), at its own expense, in the manner and by the procedures provided in the Original Contract. Completion Contractor agrees that the exclusive remedy for any and all of said claims for additional compensation or time extensions shall be as provided in the Original Contract and Completion Contractor shall be bound by and accept as final any decision of any tribunal with respect to such claim(s) and shall have no recourse against Surety. 18. Disputes Between the Completing Contractor and Surety. Any dispute between the Surety and the Completion Contractor not involving the Owner in any way shall be determined as follows: A. Arbitration. At the sole option and election of Surety, claims, disputes or other matters in auestion between the parties to this Contract arisine out of or relating to this Contract or breach thereof shall be subiect to and decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association in effect as of the date of this Contract. Additional persons or entities may be joined in any arbitration instituted under this Contract in any circumstances where such joinder would be authorized by the laws of the State of Texas in a court of competent jurisdiction. Any arbitration award will be enforceable in a court of competent jurisdiction. B. Litigation. In the absence of the Surety exercising its right to arbitrate, all disputes shall be resolved in a court of competent jurisdiction. 19. Surety's Rights. Nothing contained in this Contract shall be construed to be in substitution of or a derogation of any of Surety's common law or statutory rights as surety. 20. Entire Agreement. This Contract contains the entire understandings and agreements of the parties hereto. Any modification of this Contract must be made in writing and executed by the parties hereto. Any written or oral discussions conducted prior to the effective date of this Contract shall not in any way vary or alter the terms of this Contract. 21. Construction of Contract. It is understood and agreed by the Surety and Completion Contractor that this Contract shall be construed without regard to any presumption or other rule requiring construction against the parry causing this Contract, or any exhibits thereto, to be drafted. 22. Interpretation. In the event that there is any provision of this Contract which is inconsistent or conflicting with any other document forming a part of this Contract, including but not limited to the Original Contract referred to herein, the terms and conditions of this Contract shall govern and control. 23. Governing Law and Jurisdiction. This Contract shall be governed by and controlled by the laws of the State of Texas and the parties to this Contract, in the event of any dispute involving this Agreement, agree that venue shall lie exclusively in Tarrant County, Texas. Completion/Takeover Agreement Page 5 of 6 24. Execution in Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. 25. Captions. The captions at the beginning of each section of this Contract are for convenience only and are not to be given any meaning in construing the provisions of this Contract. 26. Contract Binding. The Contract shall be binding upon the parties hereto, their respective heirs, executors, administrators, successors and permitted assigns. 27. No Third Party Beneficiaries. This Contract is intended to be solely for the benefit of the parties hereto and shall not create a right or benefit in favor of any person not a party hereto or in any way increase the rights of third persons or increase the obligations of any party hereto to any third person. 28. Effective Date. This Contract shall become effective upon the last date any party signs same. 29. Changes. This Agreement shall not be changed, amended or altered in any way except in writing and executed by both the Owner and the Surety. IN WITNESS WHEREOF, the parties hereto have executed this Contract on the day and year as set forth below, and each of the undersigned individuals personally represent and warrant that they have the full right, power and authority to execute this Contract on behalf of the respective parties. WILLIAM J. SCHULTZ, INC. d/b/a CIRCLE C CONSTRUCTION COMPANY Authorized Representative Printed Name Date NORTH AMERICAN SPECIALTY INSURANCE COMPANY Jeffrey Goldberg, Assistant Vice President Date Completion/Takeover Agreement Page 6 of 6 24. Execution in Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. 25. Captions. The captions at the beginning of each section of this Contract are for convenience only and are not to be given any meaning in construing the provisions of this Contract. 26, Contract Binding. The Contract shall be binding upon the parties hereto, their respective heirs, executors, administrators, successors and permitted assigns. 27. No Third Party Beneficiaries. This Contract is intended to be solely for the benefit of the parties hereto and shall not create a right or benefit in favor of any person not a party hereto or in any way increase the rights of third persons or increase the obligations of any party hereto to any third person. 28. Effective Date. This Contract shall become effective upon the last date any party signs same. 29. Changes. This Agreement shall not be changed, amended or altered in any way except in writing and executed by both the Owner and the Surety. IN WITNESS WHEREOF, the parties hereto have executed this Contract on the day and year as set forth below, and each of the undersigned individuals personally represent and warrant that they have the full right, power and authority to execute this Contract on behalf of the respective parties. WILLIAM J. SCHULTZ, INC. d/b/a NORTH AMERICAN SPECIALTY CIRCLE C CONSTRUCTION COMPANY INSURANCE COMPANY Authorized Representative Printed Name �.22 II Date CompletionlTakeover Agreement Page 6 of 6 rey Goldberg, *S114d;4 Vice President Date Item Quantity Unit 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 295 LF 295 LF 345 LF 2 EA 6.15 TN 1 LS 13 EA 5 EA 1 EA 2 EA 1 EA 1 EA 3117 SY 445 SY 450 CY 345 LF 1 LS 5 EA Circle C Construction Co. P.O. Box 40328 Fort Worth, Texas 76140 817-572-7278 metro tine 817-293-1957 fax line Proposal for: Village Creek Reclaimed Water Eastern Delivery System Distribution Main - Part 2 Description 42" Steel Casing by Other Than Open Cut Install 30" DI Pipe inside Casing 30" DI Pipe by Open Cut Install City Supplied 30" Gate Valve Cl Fittings' Tie in to Existing 30" DI Pipe Complete 2" Comb. Air Release Valve Complete 30" Gate Valve Complete 24" Gate Valve Install 8" Gate Valve & Plug exist. Stubout Install 6" Meter Station Install 4" Meter Station Trench Repair 2" Surface Mill W HMAC Overlay Concrete Pavement Repair Gabion Mattress Trench Safety Clean up 4 Final Project Deholes Total City is to Supply: 2 EA 30 Gate Valves 1 EA 6" Turbine Meter 1 EA 4" Turbine Meter 295 LF 42" Casing Pipe 640 LF 30" DI Pipe & Fittings Survey Unit Price Total $ 925.00 $ 272,875.00 $ 250,00 $ 73,750.00 $ 225.00 $ 77,625.00 $ 8,500.00 $ 17,000.00 $ 10,500.00 $ 64,575.00 $ 6,500.00 $ 6,500.00 $ 2,500.00 $ 32,500.00 $ 2,500.00 $ 12,500.00 $ 2,500.00 IS 2,500.00 $ 1,750.00 $ 3,500.00 $ 85,000.00 $ 85,000.00 $ 75,000.00 $ 75,000.00 $ 18.50 $ 57,664.50 $ 78.50 $ 34,932.50 $ 225.00 $ 101,250.00 $ 5.00 $ 1,725.00 $ 35,000.00 $ 35,000.00 $ 1,500.00 $ 7,500,00 $ 961,397.00 Exhibit "A" Submitted by: Teri Skelly Circle C Construction Price includes bond and insurance Minority Participation 6% due to material being supplied by others. Work can start within 5 days after notice to proceed and water line in service withen 60 days. Exhibit "A" PERFORMANCE BOND Bond No. TXC71326 THE STATE OF TEXAS § § KNOW ALL BY THESE PRESENTS: COUNTY OF TARRANT § That we, (1) William J. Schultz, Inc., dba Circle C Construction Comuanv. as Principal herein, and (2) Merchants Bonding Comuanv (Mutual), a corporation organized under the laws of the State of (3) Iowa, and who is authorized to issue surety bonds in the State of Texas, Surety herein, are held and firmly bound unto the City of Fort Worth, a municipal corporation located in Tarrant and Denton Counties, Texas, Obligee herein, in the sum of **Nine Hundred Sixtv-One Thousand, Three Hundred Ninety -Seven and No/100** Dollars ($*961,397.00*) for the payment of which sum we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, Principal has entered into a certain written contract with the Obligee dated the 7, Z "� day of March, 2011, a copy of which is attached hereto and made a part hereof for all purposes, for the construction of: Village Creek Reclaimed Water Eastern Delivery, Svstem Distribution Main Part 2, P257-705140021387, Proiect No. 00213. Fort Worth, Texas. NOW, THEREFORE, the condition of this obligation is such, if the said Principal shall faithfully perform the work in accordance with the plans, specifications, and contract documents and shall fully indemnify and hold harmless the Obligee from all costs and damages which Obligee may suffer by reason of Principal's default, and reimburse and repay Obligee for all outlay and expense that Obligee may incur in making good such default, then this obligation shall be void; otherwise, to remain in full force and effect. PROVIDED, HOWEVER, that this bond is executed pursuant to Chapter 2253 of the Texas Government Code, as amended, and all liabilities on this bond shall be determined in accordance with the provisions of such statute, to the same extent as if it were copied at length herein. IN WITNESS WHEREOF, the duly authorized representatives of the Principal and the Surety have executed this instrument. SIGNED and SEALED this Z 2-day of March. 2011. William J. Schultz, Inc., dba Circle C Construction Company PRINCIPAL ATTEST: By: Z-1 a Sf� Name: Teresa S. Skelly, Vice- esident (Principal) Secretary Address: P. O. Box 40328 Fort Worth, TX 76140 Witness as to Principa 4692 ATTEST: Secretary (SEAL) Witness as to Surety, John A. iller Merchant;BonZd"iCompany (Mutual) SURETY By: Name: Sheryl A. Klutts, Attorney -in -Fact Address: 2100 Fleur Drive Des Moines, IA 50321-1158 Telephone Number: 1-800-678-8171 NOTE: (1) Correct name of Principal (Contractor). (2) Correct name of Surety. (3) State of incorporation of Surety Telephone number of surety must be stated. In addition, an original copy of Power of Attorney shall be attached to Bond by the Attorney -in -Fact. The date of bond shall not be prior to date of Contract. NATIONS MERCHANT�S� BONDING COMPANY BONDING COMPANY POWER OF ATTORNEY Bond No. TXC71326 KNOW ALL PERSONS BY THESE PRESENTS: That MERCHANTS BONDING COMPANY (MUTUAL) is a corporation duly organized under the laws of the State of Iowa, and that NATIONS BONDING COMPANY is a corporation duly organized under the laws of the State of Texas (herein collectively called the "Companies'), and that the Companies do hereby make, constitute and appoint John A. Miller, K.R. Harvey, Sheryl A. Klutts, John R. Stockton of Fort Worth and State of Texas their true and lawful Attorney -in -Fact, with full power and authority hereby conferred in their name, place and stead, to sign, execute, acknowledge and deliver in their behalf as surety any and all bonds, undertakings, recognizances or other written obligations in the nature thereof, subject to the limitation that any such instrument shall not exceed the amount of: TEN MILLION ($10,000,000.00) DOLLARS and to bind the Companies thereby as fully and to the same extent as if such bond or undertaking was signed by the duly authorized officers of the Companies, and all the acts of said Attorney -in -Fact, pursuant to the authority herein given, are hereby ratified and confirmed. This Power-of-Attomey is made and executed pursuant to and by authority of the following bylaws adopted by the Board of Directors of Merchants Bonding Company (Mutual) on November 16, 2002 and adopted by the Board of Directors of Nations Bonding Company on April 19, 2003. "The Chairman of the Board or President or any Vice President or Secretary shall have power and authority to appoint Attorneys -in -Fact, and to authorize them to execute on behalf of the Company, and attach the Seal of the Company thereto, bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature thereof. The signature of any authorized officer and the Seal of the Company may be affixed by facsimile to any Power of Attorney or Certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or other suretyship obligations of the Company, and such signature and seal when so used shall have the same force and effect as though manually fixed." In Witness Whereof, the Companies have caused this instrument to be signed and sealed this 16th day of March , 2011. � OD/.. p.�PUq .C�• . UJ ' V qr; Z r -o- 00. ;o' 2003 a •IV .1 STATE OF IOWA '' • • •' COUNTY OF POLK ss. MERCHANTS BONDING COMPANY (MUTUAL) NATIONS BONDING COMPANY By 7,7� President On this 16th day of March , 2011, before me appeared Larry Taylor, tome personally known, who being by me duly sworn did say that he is President of MERCHANTS BONDING COMPANY (MUTUAL) and NATIONS BONDING COMPANY; and that the seals affixed to the foregoing instrument are the corporate seals of the Companies; and that the said instrument was signed and sealed in behalf of the Companies by authority of their respective Boards of Directors. In Testimony Whereof, I have hereunto set my hand and affixed my Official Seal at the City of Des Moines, Iowa, the day and year first above written. > CommiCINDY SMYTH ssion Number 173504 ow' My Commission Expires UUU STATE OF IOWA March 16, 2012 Notary Public, Polk County, Iowa COUNTY OF POLK ss. I, William Warner, Jr., Secretary of MERCHANTS BONDING COMPANY (MUTUAL) and NATIONS BONDING COMPANY, do hereby certify that the above and foregoing is a true and correct copy of the POWER -OF -ATTORNEY executed by said Companies, which is still in full force and effect and has not been amended or revoked. II In Witness Whereof, I have hereunto set my hand and affixed the seal of the Companies on this ZZday of ll (1 N D/ �0O�ppA G ...- q _ ' Z: 2 -o- o •.�i', 2003 a .• •• NC G •. p\...p,�j A' •�O.O�POq •.q' 1: _ -o- o • z:' : 3• a 1933 .y :y • •Cy. Secretary NBC 0103 (1/09) PAYMENT BOND Bond No. TXC71326 THE STATE OF TEXAS § § KNOW ALL BY THESE PRESENTS: COUNTY OF TARRANT § That we, (1) William J. Schultz, Inc., dba Circle C Construction Companv, as Principal herein, and (2) Merchants Bonding Companv (Mutual), a corporation organized and existing under the laws of the State of (3) Iowa, as surety, are held and firmly bound unto the City of Fort Worth, a municipal corporation located in Tarrant and Denton Counties, Texas, Obligee herein, in the amount of *Nine Hundred Sixtv-One Thousand, Three Hundred Ninetv-Seven and No/100 Dollars ($*961,397.00*) for the payment whereof, the said Principal and Surety bind themselves and their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents: WHEREAS, the Principal has entered into a certain written contract with the Obligee dated the 7 Z " day of March, 2011, which contract is hereby referred to and made a part hereof as if fully and to the same extent as if copied at length, for the following project: Village Creek Reclaimed Water Eastern Delivery Svstem Distribution Main Part 2, P257- 705140021387, Proiect No. 00213, Fort Worth, Texas. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall faithfully make payment to each and every claimant (as defined in Chapter 2253, Texas Government Code, as amended) supplying labor or materials in the prosecution of the work under the contract, then this obligation shall be void; otherwise, to remain in full force and effect. PROVIDED, HOWEVER, that this bond is executed pursuant to Chapter 2253 of the Texas Government Code, as amended, and all liabilities on this bond shall be determined in accordance with the provisions of said statute, to the same extent as if it were copied at length herein. IN WITNESS WHEREOF, the duly authorized representatives of the Principal and the Surety have executed this instrument. SIGNED and SEALED this ZZ`"f day of March, 2011. William J. Schultz, Inc., dba Circle C Construction Company PRINCIPAL r / / ATTEST: By: Name: Teresa S. Skelly, Vice -Pr ent (Principa cretary Address: P. O. Box 40328 Fort Worth, TX 76140 Witness as to Principal ATTEST: Secretary (SE Witness as to Surety, John . Miller Merchants Bond' g Company (Mutual) SURETY /V By: Azlt4d(� � Name: Sheryl A. Klutts , Attorney -in -Fact Address: 2100 Fleur Drive Des Moines, IA 50321-1158 Telephone Number: 1-800-678-8171 NOTE: (1) Correct name of Principal (Contractor). (2) Correct name of Surety. (3) State of incorporation of Surety Telephone number of surety must be stated. In addition, an original copy of Power of Attorney shall be attached to Bond by the Attorney -in -Fact. The date of bond shall not be prior to date of Contract. MERCHANT�S� BONDING COMPANY POWER OF ATTORNEY NATION S BONDING COMPANY Bond No. TXC71326 KNOW ALL PERSONS BY THESE PRESENTS: That MERCHANTS BONDING COMPANY (MUTUAL) is a corporation duly organized under the laws of the State of Iowa, and that NATIONS BONDING COMPANY is a corporation duly organized under the laws of the State of Texas (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint John A. Miller, K.R. Harvey, Sheryl A. Mutts, John R. Stockton of Fort Worth and State of Texas their true and lawful Attorney -in -Fact, with full power and authority hereby conferred in their name, place and stead, to sign, execute, acknowledge and deliver in their behalf as surety any and all bonds, undertakings, recognizances or other written obligations in the nature thereof, subject to the limitation that any such instrument shall not exceed the amount of: TEN MILLION ($10,000,000.00) DOLLARS and to bind the Companies thereby as fully and to the same extent as if such bond or undertaking was signed by the duly authorized officers of the Companies, and all the acts of said Attorney -in -Fact, pursuant to the authority herein given, are hereby ratified and confirmed. This Power -of -Attorney is made and executed pursuant to and by authority of the following bylaws adopted by the Board of Directors of Merchants Bonding Company (Mutual) on November 16, 2002 and adopted by the Board of Directors of Nations Bonding Company on April 19, 2003. "The Chairman of the Board or President or any Vice President or Secretary shall have power and authority to appoint Attorneys -in -Fact, and to authorize them to execute on behalf of the Company, and attach the Seal of the Company thereto, bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature thereof. The signature of any authorized officer and the Seal of the Company may be affixed by facsimile to any Power of Attorney or Certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or other suretyship obligations of the Company, and such signature and seal when so used shall have the same force and effect as though manually fixed." In Witness Whereof, the Companies have caused this instrument to be signed and sealed this 16th day of March , 2011. Z.— -0- o •.Oi' 2003 -be STATE OFIOWA ••••"'•� COUNTY OF POLK ss. MERCHANTS BONDING COMPANY (MUTUAL) NATIONS BONDING COMPANY By 7--X� President On this 16th day of March , 2011, before me appeared Larry Taylor, to me personally known, who being by me duly sworn did say that he is President of MERCHANTS BONDING COMPANY (MUTUAL) and NATIONS BONDING COMPANY; and that the seals affixed to the foregoing instrument are the corporate seals of the Companies; and that the said instrument was signed and sealed in behalf of the Companies by authority of their respective Boards of Directors. In Testimony Whereof, I have hereunto set my hand and affixed my Official Seal at the City of Des Moines, Iowa, the day and year first above written. CINDY SMYTH �. Commission Number 173504 oW� My Commission Expires STATE OF IOWA March 16, 2012 Notary Public, Polk County, Iowa COUNTY OF POLK ss. I, William Warner, Jr., Secretary of MERCHANTS BONDING COMPANY (MUTUAL) and NATIONS BONDING COMPANY, do hereby certify that the above and foregoing is a true and correct copy of the POWER -OF -ATTORNEY executed by said Companies, which is still in full force and effect and has not been amended or revoked. In Witness Whereof, I have hereunto set my hand and affixed the seal of the Companies on this Z Z day of (/YI.iC,rX\. A' O(iPOA .q' :ry-:? _0- c; -Me Q' 1933 cam. •;�b�iW ... • A NBC 0103 (1/09) Secretary MAINTENANCE BOND Bond No. TXC71326 THE STATE OF TEXAS § COUNTY OF TARRANT § KNOW ALL BY THESE PRESENTS: That William J. Schultz, Inc., dba Circle C Construction Companv, ("Contractor"), as principal, and Merchants Bonding Companv (Mutual), a corporation organized under the laws of the State of Iowa, ("Surety"), do hereby acknowledge themselves to be held and bound to pay unto the City of Fort Worth, a Municipal Corporation chartered by virtue of Constitution and laws of the State of Texas, ("City") in Tarrant County, Texas, the sum of *Nine Hundred Sixty -One Thousand, Three Hundred Ninetv-Seven and No/100 Dollars ($*961,397.00*), lawful money of the United States, for payment of which sum well and truly be made unto said City and its successors, said Contractor and Surety do hereby bind themselves, their heirs, executors, administrators, assigns and successors, jointly and severally. This obligation is conditioned, however, that: WHEREAS, said Contractor has this day entered into a written Contract with the City of Fort Worth, dated the 22"I/ of March, 2011 a copy of which is hereto attached and made a part hereof, for the performance of the following described public improvements: Village Creek Reclaimed Water Eastern Delivery Svstem Distribution Main Part 2 the same being referred to herein and in said contract as the Work and being designated as Project Number(s): P257-705140021387; Protect No. 00213, Fort Worth, Texas and said contract, including all of the specifications, conditions, addenda, change orders and written instruments referred to therein as Contract Documents being incorporated herein and being made a part hereof, and, WHEREAS, in said Contract, Contractor binds itself to use such materials and to so construct the work that it will remain in good repair and condition for and during a period of two (2) vears after the date of the final acceptance of the work by the City; and WHEREAS, said Contractor binds itself to maintain said work in good repair and condition for said term of two (2) vears: and WHEREAS, said Contractor binds itself to repair or reconstruct the Work in whole or in part at any time within said period, if in the opinion of the Director of the City of Fort Worth Department of Engineering, it be necessary; and, WHEREAS, said Contractor binds itself, upon receiving notice of the need therefore to repair or reconstruct said Work as herein provided. NOW THEREFORE, if said Contractor shall keep and perform its said agreement to maintain, repair or reconstruct said Work in accordance with all the terms and conditions of said Contract, these presents shall be null and void, and have no force or effect. Otherwise, this Bond shall be and remain in full force and effect, and the City shall have and recover from Contractor and Surety damages in the premises as prescribed by said Contract. This obligation shall be a continuing one and successive recoveries may be had hereon for successive breaches until the full amount hereof is exhausted. IN WITNESS WHEREOF, this instrument is executed in 3 counterparts, each of which shall be deemed an original, this Z Z v--i day of March, A.D. 2011. ATTEST: (Principal) S�y fitness as to Principa ATTEST: Secretary (SE Witness as to Surety, JohnMiller William J. Schultz, Inc., dba Circle C Construction Company PRINCIPAL By: Name: Teresa S. Skelly, Vic esident Address: P. O. Box 40328 Fort Worth, TX 76140 Merchants Bo4ding Company (Mutual) SURETY By: ° Name: Sheryl A. Klutts , Attorney -in -Fact Address: 2100 Fleur Drive Des Moines, IA 50321-1158 Telephone Number: 1-800-678-8171 HOME OFFICE AUSTIN OFFICE 2100 FLEUR DRIVE �j /� AKTS P. 0. BOX 26720 DES MOINES, IOWA 50321-1158 ERCl AUSTIN, TEXAS 78755 71 FAX (515) 243-385d BONDING COMPANY FAX (512� 363 MULTIPLE OBLIGEE RIDER To be attached to and form part of Bond Number TXC71326 with Merchants Bonding Company (Mutual) as Surety, William J. Schultz. Inc., dba Circle C Construction Company as Principal, and City of Fort Worth as Obfigee, for valuable consideration, hereby agree respectively in connection with a Contract for Village Creek Reclaimed Water Eastern Delivery System Distribution Main Part 2, P257-705140021387, Project No. 00213, Fort Worth, Texas which bond and contract are made a part hereof by reference, shall now include as additional Obligee(s) North American Specialty Insurance Company The rights of the additional Obligee(s) shall be subject to the following conditions: (a) The Surety shall not be liable under this bond to the Obligee, or any additional Obligee, unless the Obligee, or any additional Obligee, shall make payments to the principal in accordance with the terms of said contract as to payments and shall perform all other obligations to be performed under said contract at the time and in the manner therein set forth. (b) The aggregate liability of the Surety under the Bond to the Obligees, as their interest may appear, is limited to the penal sum of this Bond. (c) The Surety, may at its option, make any payments under this Bond by check issued jointly to the Obligees. (d) The Surety shall not be liable to any of the Obligees if the contract between the Principal and Obligee is void or unenforceable. This rider is effective as of ►MAUC'1. ZZ-, Z" l 1 William J. Schultz, Inc., dba Circle C Construction City of tort Worth Company By: .� By: (Principal) Teresa S. Skely, Vic President (oge) North American Specialty Insurance Company MERCHA T ONDING COMPANY (MUTUAL)-- %,/ 7 By. Y.- (Surety) Sheryl .� Klutts, Attomey-in-fact By: (015106) By. CON 0313 (7109) (mg") HOME OFFICE AUSTIN OFFICE 2100 FLEUR DRIVE j {�� ERCl P. 0. BOX 26720 DES MOINES, IOWA 50321-1168 11"11 rTS"%� AUSTIN, TEXAS 78755 FAX (5155 243-3854 BONDING COMPANY FAX �512243171 34a3-a9M3 MULTIPLE OBLIGEE RIDER To be attached to and form part of Bond Number TXC71326 with Merchants Bonding Company (Mutual) as Surety, William J. Schultz. Inc- dba Circle C Construction Company as Principal, and City of Fort Worth as Oblgee, for valuable consideration, hereby agree respectively in connection with a contract for Village Creek Reclaimed Water Eastern Delivery System Distribution Main Part 2, P257-705140021387, Project No. 00213, Fort Worth, Texas which bond and contract are made a part hereof by reference, shall now include as additional Obligee(s) North American Specialty Insurance Company The rights of the additional Obligee(s) shall be subject to the following conditions: (a) The Surety shall not be liable under this bond to the Obligee, or any additional Obligee, unless the Obligee, or any additional Obligee, shall make payments to the principal in accordance with the terms of said contract as to payments and shall perform all other obligations to be performed under said contract at the time and in the manner therein set forth. (b) The aggregate liability of the Surety under the Bond to the Obligees, as their interest may appear, is limited to the penal sum of this Bond. (c) The Surety, may at its option, make any payments under this Bond by check issued jointly to the Obligees. (d) The Surety shall not be liable to any of the Obligees if the contract between the Principal and Obligee is void or unenforceable. This rider is effective as of K4.,,c/L 2 Z , ?a I I William J. Schultz, Inc., dba Circle U Construction Company, By: (Principal) Teresa S. Skelly, Vic resident MERC7=. ANY (MUTUAL) By: (Surefy) Sheryl A.Xlutts, Attorney -in -fact CON 0313 (7/09) l t of tort worth By: (Obligee) North American Specialty Insurance Company By: (4bi►9ee) By: (Obligee) By: (Obligee) MERCHANTS BONDING COMPANY NATIONS BONDING COMPANY POWER OF ATTORNEY Bond No. TXC71326 KNOW ALL PERSONS BY THESE PRESENTS: That MERCHANTS BONDING COMPANY (MUTUAL) is a corporation duly organized under the laws of the State of Iowa, and that NATIONS BONDING COMPANY is a corporation duly organized under the laws of the State of Texas (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint John A. Miller, K.R. Harvey, Sheryl A. Klutts, John R. Stockton of Fort Worth and State of Texas their true and lawful Attorney -in -Fact, with full power and authority hereby conferred in their name, place and stead, to sign, execute, acknowledge and deliver in their behalf as surety any and all bonds, undertakings, recognizances or other written obligations in the nature thereof, subject to the limitation that any such instrument shall not exceed the amount of: TEN MILLION ($10,000,000.00) DOLLARS and to bind the Companies thereby as fully and to the same extent as if such bond or undertaking was signed by the duly authorized officers of the Companies, and all the acts of said Attorney -in -Fact, pursuant to the authority herein given, are hereby ratified and confirmed. This Power -of -Attorney is made and executed pursuant to and by authority of the following bylaws adopted by the Board of Directors of Merchants Bonding Company (Mutual) on November 16, 2002 and adopted by the Board of Directors of Nations Bonding Company on April 19, 2003. "The Chairman of the Board or President or any Vice President or Secretary shall have power and authority to appoint Attorneys -in -Fact, and to authorize them to execute on behalf of the Company, and attach the Seal of the Company thereto, bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature thereof. The signature of any authorized officer and the Seal of the Company may be affixed by facsimile to any Power of Attorney or Certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or other suretyship obligations of the Company, and such signature and seal when so used shall have the same force and effect as though manually fixed." In Witness Whereof, the Companies have caused this instrument to be signed and sealed this 16th day of March , 2011. Z:— -o- 2003 a STATE OFIOWA ••••••�• COUNTY OF POLK ss. Oo�O�P09'hA�. • a' 1933 .y : ly.0 MERCHANTS BONDING COMPANY (MUTUAL) NATIONS BONDING COMPANY By President On this 16th day of March , 2011, before me appeared Larry Taylor, tome personally known, who being by me duly sworn did say that he is President of MERCHANTS BONDING COMPANY (MUTUAL) and NATIONS BONDING COMPANY; and that the seals affixed to the foregoing instrument are the corporate seals of the Companies; and that the said instrument was signed and sealed in behalf of the Companies by authority of their respective Boards of Directors. In Testimony Whereof, I have hereunto set my hand and affixed my Official Seal at the City of Des Moines, Iowa, the day and year first above written. F CommiCINDY SMYTH ssion Number 173504 My Commission Expires STATE OF IOWA March 16, 2012 Notary Public, Polk County, Iowa COUNTY OF POLK ss. I, William Warner, Jr., Secretary of MERCHANTS BONDING COMPANY (MUTUAL) and NATIONS BONDING COMPANY, do hereby certify that the above and foregoing is a true and correct copy of the POWER -OF -ATTORNEY executed by said Companies, which is still in full force and effect and has not been amended or revoked. In Witness Whereof, I have hereunto set my hand and affixed the seal of the Companies on this 'I Z day of VV4WV�,, 2,I ) �•. • �GORP09 .+:� q' Z: -°- p' e •.� . 2003 ve �a . ���NG • Cph•. •Oo.oRPo9 •iO9y. a' 1933 c' Secretary NBC 0103 (1/09) IMPORTANT NOTICE To obtain information or make a complaint: You may contact your insurance agent at the telephone number provided by your insurance agent. You may call Merchants Bonding Company's toll -free telephone number for information or to make a complaint at: 1-800-678-8171 You may contact the Texas Department of Insurance to obtain information on companies, coverages, rights or complaints at: 1-800-252-3439 You may write the Texas Department of Insurance at: P. O. Box 149104 Austin, TX 78714-9104 Fax: (512) 475-1771 Web: http://voMLWi.state.b(.ul E-mail: ConsumerProtection@tdi.state,tx.us PREMIUM AND CLAIM DISPUTES: Should you have a dispute concerning your premium or about a claim you should contact the agent first. If the dispute is not resolved, you may contact the Texas Department of Insurance. ATTACH THIS NOTICE TO YOUR POLICY: This notice is for information only and does not become a part or condition of the attached document. SUP 0032 TX (7/07)