2013-04-22 Paving-Luxa1 2013/02/08
2 SECTION
3 AGREEMENT
4
5
6 THIS AGREEMENT is by and between The City of Blair, Nebraska, hereinafter called OWNER, and Luxa
7 Construction Co., Inc., hereinafter called CONTRACTOR. OWNER and CONTRACTOR, in consideration
8 of the mutual covenants hereinafter set forth, agree as follows:
9
10 Article 1. WORK
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12 CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents for the Project
13 identified herein.
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15 Article 2. PROJECT
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17 The Project for which the Work under the Contract Documents may be the whole or only a part is generally
18 described as follows:
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20 The Work is for furnishing all labor, materials, equipment, and services for the construction of 3,750 SY of
21 PCC or ACC paving including site preparation and stripping.
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23 Article 3. ENGINEER
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25 The Project has been designed by HDR Engineering, Inc., who is hereinafter called ENGINEER and who is
26 to act as OWNERs representative, assume all duties and responsibilities, and have the rights and authority
27 assigned to ENGINEER in the Contract Documents in connection with completion of the Work in accordance
28 with the Contract Documents.
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30 Article 4. CONTRACT TIMES
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32 4.1. Time of the Essence.
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34 A. All time limits for Substantial Completion, and completion and readiness for final payment as stated
35 in the Contract Documents are of the essence of the Contract.
36
37 4.2. Days to Achieve Substantial Completion and Final Payment.
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39 A. The Work will be substantially completed within 45 days after the date when the Contract Times
40 commence to run as provided in Paragraph 2.03 of the General Conditions, and completed and ready
41 for final payment in accordance with Paragraph 14.07 of the General Conditions within 60 days after
42 the date when the Contract Times commence to run.
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134- 196364 City of Blair, NE
Optimist Park Paving -
AGREEMENT
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4.3. Liquidated Damages.
A. OWNER and CONTRACTOR recognize that time is of the essence of this AGREEMENT and that
OWNER will suffer financial loss if the Work is not completed within the times specified in
Paragraph 4.2. above, plus any extensions thereof allowed in accordance with Article 12 of the
General Conditions. The parties also recognize the delays, expense and difficulties involved in
proving in a legal or arbitration proceeding the actual loss suffered by OWNER if the Work is not
completed on time. Accordingly, instead of requiring any such proof, OWNER and
CONTRACTOR agree that as liquidated damages for delay (but not as a penalty), CONTRACTOR
shall pay OWNER one thousand dollars ($1,000.00) for each day that expires after the time specified
in Paragraph 4.2. for Substantial Completion until the Work is substantially complete. After
Substantial Completion, if CONTRACTOR shall neglect, refuse or fail to complete the remaining
Work within the time specified in Paragraph 4.2. for completion and readiness for final payment or
any proper extension thereof granted by OWNER, CONTRACTOR shall pay OWNER five hundred
dollars ($500.00) for each day that expires after the time specified in Paragraph 4.2. for completion
and readiness for final payment.
Article 5. CONTRACT PRICE
5.1. OWNER shall pay CONTRACTOR for completion of the Work in accordance with the Contract
Documents an amount in current hinds equal to the sum of the amounts determined pursuant to
Paragraphs 5.1.A. below:
A. For all Work as stated in Contractor's Bid, attached hereto as an exhibit.
5.2 As provided in Paragraph 11.03 of the General Conditions, estimated quantities are not guaranteed,
and determinations of actual quantities and classification are to be made by ENGINEER as provided
in Paragraph 9.08 of the General Conditions. Unit prices have been computed as provided in
Paragraph 11.03B. of the General Conditions.
Article 6. PAYMENT PROCEDURES
6.1. Submittal and Processing of Payments.
A. CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General
Conditions. Applications for Payment will be processed by ENGINEER as provided in the General
Conditions.
6.2. Progress Payments; Retainage.
A. OWNER shall make monthly progress payments on account of the Contract Price on the basis of
CONTRA.CTOR's Applications for Payment as recommended by ENGINEER, during construction
as provided in Paragraphs 6. 1.1 and 6.1.2 below. All such payments will be measured by the
schedule of values established in Paragraph 2.07A. of the General Conditions (and in the case of
Unit Price Work based on the number of units completed) or, in the event there is no schedule of
values, as provided in the General Requirements.
Prior to Substantial Completion, progress payments will be made in an amount equal to the
percentage indicated below, but, in each case, less the aggregate of payments previously
made and less such amounts as accordance with Paragraph 14.02 of the General Conditions.
134- 196364
City of Blair, NE
Optimist Park Paving -
AGREEMENT
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a. 90 percent of Work completed (with the balance being retainage). If Work has
been 50 percent completed as determined by ENGINEER, and if the character and
progress of the Work have been satisfactory to OWNER and ENGINEER,
OWNER, on recommendation of ENGINEER, may determine that as long as the
character and progress of the Work remain satisfactory to them, there will be no
additional retainage on account of Work completed.
6.3. Final Payment.
A. Upon final completion and acceptance of the Work in accordance with Paragraph 14.07 of the
General Conditions, OWNER shall pay the remainder of the Contract Price as recommended by
ENGINEER as provided in said Paragraph 14.07
Article 7. NOT USED
Article 8. CONTRACTOR'S REP RESENTA T'JLONS
8.1. In order to induce OWNER to enter into this Agreement, CONTRACTOR makes the following
representations:
A. CONTRACTOR has examined and carefully studied the'Contract Documents (including the
Addenda listed in Article 9.) and the other related data identified in the Bidding Documents.
B. CONTRACTOR has visited the site and become familiar with and is satisfied as to the general, local
and site conditions that may affect cost, progress, performance or furnishing of the Work.
C. CONTRACTOR is familiar with and is satisfied as to all federal, state and local Laws and
Regulations that may affect cost, progress, performance or furnishing of the Work.
D. CONTRACTOR acknowledges that OWNER and ENGINEER do not assume responsibility for the
accuracy or completeness of information and data shown or indicated in the Contract Documents
with respect to Underground Facilities at or contiguous to the Site.
E. CONTRACTOR has obtained and carefully studied (or assumes risk for not doing so) all reasonable
additional or supplementary examinations, investigations, explorations, tests, studies, and data
concerning conditions (surface, subsurface, and Underground Facilities) at or contiguous to the Site
which may affect cost, progress, or performance of the Work or which relate to any aspect of the
means, methods, techniques, sequences, and procedures of construction to be employed by
Contractor, including any specific means, methods, techniques, sequences, and procedures of
construction expressly required by the Bidding Documents, and safety precautions and programs
incident thereto.
F. CONTRACTOR does not consider that any additional examinations, investigations, explorations,
tests, studies or data are necessary for the performance and furnishing of the Work at the Contract
Price, within the Contract Times and in accordance with the other terms and conditions of the
Contract Documents.
G. CONTRACTOR is aware of the general nature of work to be performed by OWNER and others at
the site that relates to the Work as indicated in the Contract Documents.
H. CONTRACTOR has correlated the information known to CONTRACTOR, information commonly
known to contractors doing business in the locality of the Site, information and observations
obtained from visits to the site, reports and drawings identified in the Contract Documents and all
additional examinations, investigations, explorations, tests, studies and data with the Contract
Documents.
134 - 196364
City of Blair, NE
Optimist Park Paving -
AGREEMENT
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I. CONTRACTOR has given ENGINEER written notice of all conflicts, errors, ambiguities or
discrepancies in the Contract Documents and the written resolution thereof by ENGINEER through
issued addendum or addenda is acceptable to CONTRACTOR, and the Contract Documents are
generally sufficient to indicate and convey understanding of all terms and conditions for
performance and furnishing of the Work. When said conflicts, etc., have not been resolved through
interpretation or clarification by ENGINEER, because of insufficient time or otherwise,
CONTRACTOR has included in the Bid the greater quantity or better quality of Work, or
compliance with the more stringent requirement resulting in a greater cost; and said greater cost is
included in the Contract Price.
J. The Contract Documents are generally sufficient to indicate and convey understanding of all terms
and conditions for performance and furnishing of the Work.
Article 9. CONTRACT DOCUMENTS
9.1. Contents.
A. The Contract Documents which comprise the entire agreement between OWNER and
CONTRACTOR concerning the Work consist of the following:
1. This Agreement (pages 1 to 6, inclusive).
2. Performance, Payment, and other Bonds.
3. Notice to Proceed.
4. General Conditions (pages 1 to66, inclusive).
5. Supplementary Conditions (pagesl to4, inclusive).
6. Specifications as listed in Table of Contents of the Project Manual.
7. Drawings consisting of a cover sheet and sheets numbered COI through C08.
8. Addenda numbers Ito 2 inclusive.
9. CONTRACTORS Bid (pages 00301- ADM2 -1 to00301- ADM2 -6, inclusive).
10. The following which may be delivered or issued after the Effective Date of the
AGREEMENT and are not attached thereto:
a. Notice to Proceed. _ ..
b. Field Orders.
134 - 196364
C. Work Change Directives.
d. Change Orders.
e. There are no Contract Documents other than those listed above in this Article 9.
The Contract Documents may only be amended, modified or supplemented as
provided in Paragraph 3.04. of the General Conditions.
City of Blair, NE
Optimist Park Paving -
AGREEMENT
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Article 10. MISCELLANEOUS
10.1 Terms.
A. Terms used in this Agreement which are defined in Article 1 of the General Conditions will have the
meanings indicated in the General Conditions.
10.2. Assignment of Contract.
A. No assignment by a party hereto of any rights under or interests in the Contract Documents will be
binding on another party hereto without the written consent of the party sought to be bound; and,
specifically but without limitation, moneys that may become due and moneys that are due may not
be assigned without such consent'(except to the extent that the effect of this restriction may be
limited by law), and unless specifically stated to the contrary in any written consent to an
assignment, no assignment will release or discharge the assignor from any duty or responsibility
under the Contract Documents.
10.3. Successors and Assigns.
A. OWNER and CONTRACTOR each binds itself, its partners, successors, assigns and legal
representatives to the other party hereto, its partners, successors, assigns and legal representatives in
respect to all covenants, agreements and obligations contained in the Contract Documents.
10.4. Severability.
A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or
Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and
binding upon OWNER and CONTRACTOR, who agree that the Contract Documents shall be
reformed to replace such stricken provision or part thereof with a valid and enforceable provision
that comes as close as possible to expressing the intention of the stricken provision.
10.5 CONTRACTOR'S Certifications.
A. CONTRACTOR certifies that it has not engaged in corrupt, fraudulent, collusive, or coercive
practices in competing for or in executing the Contract. For the purposes of this Paragraph:
1. "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value
likely to influence the action of a public official in the bidding process or in the Contract
execution.
2. "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence
the bidding process or the execution of the Contract to the detriment of OWNER, (b) to
establish Bid or Contract prices at artificial non - competitive levels, or (c) to deprive
OWNER of the benefits of free and open competition.
3. "collusive practice" means a scheme or arrangement between two or more BIDDERS, with
or without the knowledge of OWNER, a purpose of which is to establish Bid prices at
artificial, non - competitive levels.
4. "coercive practice" means harming or threatening to harm, directly or indirectly, persons or
their property to influence their participation in the bidding process or affect the execution
of the Contract.
134 - 196364 City of Blair, NE
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AGREEMENT
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IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in triplicate. One
counterpart each has been delivered to OWNER, CONTRACTOR, and ENGINEER. All portions of the
Contract Documents have been signed, initialed or identified by OWNER and CONTRACTOR or identified
by ENGINEER on their behalf
This AGREEMENT will be effective on .4 / Z2- , 26 13 (which is the Effective
Date of the AGREEMENT).
OWNER: CITY OF BLAIR, NEBRASA
By:
[CORPORA SEAL]
Attest UQ
Address for giving notices:
216 South 16 Street
Blair, NE 68008
Agent for service of process:
NOTE: If CONTRACTOR is a corporation, attach
evidence of authority to sign.
134 196364
CONTRACTOR: LUXA CONSTRUCTION CO. INC
` � [CORP �RA'T SFIAL]
Attest /i , (,( �
Address for giving notices:
925 East Iiion Road
Blair, NE 68008
Agent for service of process:
License No.
q - o tp skl o � �
City of Blair, NE
Optimist Park Paving -
AGREEMENT
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m
H! A L # LIJ
Performance Bond
CONTRACTOR:
(Name, legal status and address)
Luxa Construction Company, Inc.
P.O. Box 105
Blair, NE 68008
OWNER:
(Name, legal status and address)
City of Blair -
216 S. 16th St.
Blair, NE 68008
CONSTRUCTION CONTRACT
Date:
Amount: $198,047.77
Description Optimist Park Paving
(Name and location)
Bond Number CMIFSU 0616677
SURETY:
(Name le
,gal status and principal place of business)
International Fidelity Insurance Company
One Newark Center
Newark, NJ 07102
BOND
Date: April 19, 2013
(Not earlier than Construction Contract Date)
Amount: $198,047.77
Modifications to this Bond: [H] None ❑ See Section 16
CONTRACTOR AS PRINCIPAL
SURETY
Company: (Corporate Seal)
Company:
LUXA CONSTRUCTION COMPANY, INC.
INTEL NAT
%
C PANY
Signature:
Signature
Name
and Title:
—
Name
an
(Any additional signatures appear on the lastpage of this Pe
ce Bond.)
o�
--- `~` (Corporate S
FIDELITY INSURANes
M. King, Attorney -in -Fact
(FOR IlVFOBMATION ONLY— Name, address and telephone)
AGENT or BROKER: OWNER' S PRESENTAT :
Gene Lilly Surety Bonds, Inc. ( Architect, Engineer orotherparty)
3440 O St. HDR Engineering, Inc.
Lincoln, NE 68510
This document has important legal consequences. Consultation with an attorney is encouraged with respect to its
completion or modification.
Any* singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable.
This document combines two separate bonds, a Performance Bond and a Payment Bond, into one form This is not
a sin le combined Performance and Payment Bond
By arrangement with the American Institute of Architects, the National Association of Surety Bond Producers (NASBP) (g><uw.nasbP•o$1 makes P age
this form document available to its members, af&}iates, and associates in Miimsoft Word format for use in the regular course of surety business.
NASBP vouches that the original text of this document conform exactly to the text in AIA Document A312 -2010, Performance Bond and 1 /9
6 Payment Bond. Subsequent modifications may be made to the original text of this document by users, so careful review of its wording and
consultation with an attorney are encouraged before its completion, execution or acceptance
S 1 The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors
and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference.
§ 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under
this Bond, except when applicable to participate in a conference as provided in Section 3.
§ 3 If there is no Owner Default under the Construction Contract, the Surety's obligation under this Bond shall arise
after
.1 the Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring
a Contractor Default. Such notice shall indicate whether the Owner is requesting a conference among
the Owner, Contractor and Surety to discuss the Contractor's performance. If the Owner does not
request a conference, the Surety may, within five (5) business days after receipt of the Owner's notice,
request such a conference. If the Surety timely requests a conference, the Owner shall attend. Unless the
Owner agrees otherwise, any conference requested under this Section 3.1 shall be held within ten (10)
business days of the Surety's receipt of the Owner's notice. If the Owner, the Contractor and the Surety
agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such
an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default;
.2 the Owner declares a Contractor Default, terminates the Construction Contract and notifies the Surety;
and
.3 the Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the
Construction Contract to the Surety or to a contractor selected to perform the Construction Contract.
§ 4 Failure on the part of the Owner to comply with the notice requirement in Section 3.1 shall not constitute a failure
to comply with a condition precedent to the Surety's obligations, or release the Surety from its obligations, except to the
extent the Surety demonstrates actual prejudice.
§ 5 When the Owner has satisfied the conditions of Section 3, the Surety shall promptly and at the Surety's expense take
one of the following actions:
§ 5.1 Arrange for the Contractor, with the consent of the Owner, to perform and complete the Construction Contract,
§ 5.2 Undertake to perform and complete the Construction Contract itself, through its agents or independent
contractors;
§ 5.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for
performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the
Owner and a contractor selected with the Owner's concurrence, to be secured with performance and payment bonds
executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the
amount of damages as described in Section 7 in excess of the Balance of the Contract Price incurred by the Owner as a
result of the Contractor Default; or
§ 5.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable
promptness under the circumstances:
.1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as
practicable after the amount is determined, make payment to the Owner; or
.2 Deny liability in whole or in part and notify the Owner, citing the reasons for denial.
§ 6 If the Surety does not proceed as provided in Section 5 with reasonable promptness, the Surety shall be deemed to
be in default on this Bond seven days after receipt of on additional written notice from the Owner to the Surety
demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any
remedy available to the Owner. If the Surety proceeds as provided in Section 5.4, and the Owner refuses the payment or
the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any
remedy available to the Owner.
By arrangement with the American Institnto of Architects, the National Association of Surety Bond Producers (Nc1SBP) (M�n.orgl makes Page
this foam document available to its members, affiliates, and associates in Microsoft Word for nut for use in the regular course of surety business.
NASBP vouches that the original text of this document conforms exactly to the text in AIA Document A312 -2010, Performance Bond and 2/9
Payment Bond. Subsequent modifications may be made to the original text of this document by users, so careful review of its wording and
cowultadonwith an attorney are encouraged before its completion, execution or acceptance.
S 7 If the Surety elects to act under Section 5.1, 5.2 or 5.3, then the responsibilities of the Surety to the Owner shall not
be greater than those of the Contractor under wn T o ur n id� the c Contract
Sub echo the commitment by
Surety shall not be greater than those of th
the Owner to pay the Balance of the Contract Price, the Surety is obligated, without duplication, for
.1 the responsibilities of the Contractor for correction of defective work and completion of the
Construction Contract;
.2 additional legal, design professional and delay costs resulting from the Contractor's Default, and
resulting from the actions or failure to act of the Surety under Section 5; and
.3 liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual
damages caused by delayed performance or non - performance of the Contractor.
8 If the Surety elects to act under Section 5.1, 5.3 or 5.4, the Surety's liability is limited to the amount of this Bond.
9 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the
Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such
unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or
its heirs, executors, administrators, successors and assigns. .
10 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to
related subcontracts, purchase orders and other obligations.
S 11 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in
the location in which the work or part of the work is located and shall be instituted within two years after a
declaration of Contractor Default or within two years after the Contractor ceased working or within two years after
the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this
Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the
jurisdiction of the suit shall be applicable.
S 12 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the page
on which their signature appears.
5 13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where
the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement
shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be
deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed as a statutory bond
and not as a common law bond.
14 Definitions
14.1 Balance of the Contract Price. The total amount payable by the Owner to the Contractor under the
Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any
amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which
the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the
Construction Contract.
S 14.2 Construction Contract. The agreement between the Owner and Contractor identified on the cover page,
including all Contract Documents and changes made to the agreement and the Contract Documents.
14.3 Contractor Default. Failure of the Contractor, which has not been remedied or waived, to perform or
otherwise to comply with a material term of the Construction Contract.
S 14.4 Owner Default. Failure of the Owner, which has not been.remedied or waived, to pay the Contractor as
required under the Construction Contract or to perform and complete or comply with the other material terms of the
Construction Contract.
14.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor.
B arran theArnericanlnstituteofArdhtects, theNadonalAssodatlonofSuretyBond.Produceis (NASBP� (MMMd p=o makes page
�....;. this form document available to its members, affiliates, and associates in Microsoft Word forrmt for use in the regular course of surety business.
NASBP vouches that the original text of this document conforms exactly to the text in AIA Document A312 - 2010, Performance Bond and 3� 9
G Payment Bond. Subsequent modifications may be made to the original text of this document by users, so careful review of its wording and
c ousultation with an attorney are encouraged before its completion, execution or acceptance.
5 15 If this Bond is issued for an agreement between a Contractor and subcontractor, the term Contractor in this
Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor.
5 16 Modifications to this bond are as follows:
(Space is provided below for additional signatures of added parties, other than those appearing on the coverpage.)
CONTRACTOR AS PRINCIPAL SURETY
Company: (Corporate Seal) Company: (Corporate Seal)
Signature:
Name and Title:
Address:
Signature:
Name and Title:
Address:
B a aopment with the American Institute of Architects, the National association of Surety Bond Producers (NASBP) (m :z.aasbo.o t makes Page
• this force document avaflable to its members, affiliates, and associates in Microsoft Word format for use in the regular course of surety business.
NASBP vouches that the original tent of this document conforms exactly to the text in AIA Document A312 -2010, Performance Bond and 4/9
Payment Bond. Subsequent modifications may be made to the original text of this docurent by users, so careful review of its wording and
consultationwirh an attorney are encouraged before its completion, execution or acceptance.
CO CTOR:
(Name, legal status and address)
Luxa Construction Company, Inc.
P.O. Box 105
Blair, NE 68008
OWNER:
(Name, legal status and address)
City of Blair
216 S. 16th St.
Blair, NE 68008
Amount $198,047.77
Description: Optimist Park Paving
(Name and location)
BO
Date: April 19, 2013
(Not earlier than Construction Contract Date)
Amount: $198,047.77
S lY:
(Name, legal status and principal place of business)
International Fidelity Insurance Company
One Newark Center
Newark, NJ 07102
Modifications to this Bond: EI None ® See Section 18
CONT AS PRINCMAL SURETY
Company: (Corp n&Sea� Company:
LUXA CONSTRUCTION COMPANY, INC. INTERN�TI
Signatur e ! �r /-
Name and Tide
(Any additional signatures appear on the Iastpage of this Payment
(FOR IlVFOIi;MATION ONLY— Name, address and 4,
Gene Lilly Surety Bonds, Inc.
3440 O St.
Lincoln, NE 68510
O W NE R' S R K . RES1+.1®1 1 "L J am
(Architect, Engineer or otherpary'
HDR Engineering, Inc.
This document has important legal consequences. Consultation with an attorney is encouraged with respect to its
completion or modification.
Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable.
This document combines two separate bonds, a Performance Bond and a Payment Bond, into one form This is not a
single combined Per forman c e and Payment Bond
FIDELITY IN
(Corporate
Nam e,J ameS M. King, Attorney -in -Fact
B amt with the American Institute of Architec � the National Association of Surety Bond Producers VASBP) ��vu R' •o�� m alms Page
this form document available to its members, aff fates, and associates in Maosoft Word format for use in the regular course of surety business
NASBP vouches that the original text of this document
ent confors a cacdy to the Next in AIA Document A312-2010, Petfofxrhance Bond and 5 9
Payment Bond. Subsequent modifications may be made to the original M-d of this document by users, so careful review of its wording and
consultation with an attorney are encouraged before its completion, execution or acceptance
S 1 The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators,
successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance
of the Construction Contract, which is incorporated herein by reference, subject to the following terms.
2 If the Contractor promptly makes payment of all sums due to Claimants, and defends, indemnifies and holds
rm
haless the Owner from claims, demands, liens or suits by any person or entity seeking payment for labor, materials
or equipment furnished for use in the performance of the Construction Contract, then the Surety and the Contractor
shall have no obligation under this Bond.
S 3 If there is no Owner Default under the Construction Contract, the Surety's obligation to the Ownei under this
Bond shall arise after the Owner has promptly notified the Contractor and the Surety (at the address described in
Section 13) of claims, demands, liens or suits against the Owner or the Owner's property by any person or entity
seeking payment for labor, materials or equipment furnished for use in the performance of the Construction Contract
and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety.
S 4 When the Owner has satisfied the conditions in Section 3, the Surety shall promptly and at the Surety's expense
defend, indemnify and hold harmless the Owner against a duly tendered claim, demand, lien or suit.
5 The Surety's obligations to a Claimant under this Bond shall arise after the following.
5.1 Claimants, who do not have a direct contract with the Contractor,
.1 have furnished a written notice of non - payment to the Contractor, stating with substantial accuracy
the amount claimed and the name of the party to whom the materials were, or equipment was,
furnished or supplied or for whom the labor was done or performed, within ninety (90) days after
having last performed labor or last furnished materials or equipment included in the Claim; and
.2 have sent a Claim to the Surety (at the address described in Section 13).
5.2 Claimants, who are employed by or have a direct contract with the Contractor, have sent a Claim to the Surety
(at the address described in Section 13).
S 6 If a notice of non - payment required by Section 5. 1.1 is given by the Owner to the Contractor, that is sufficient to
satisfy a Claimant's obligation to fami a written notice of non - payment under Section 5.1.1.
S 7 When a Claimant has satisfied the conditions of Sections 5.1 or 5.2, whichever is applicable, the Surety shall
promptly and at the Surety's expense take the following actions:
7.1 Send an answer to the Claimant, with a copy to the Owner, within sixty (60) days after receipt of the Claim,
stating the amounts that are undisputed and the basis for challenging any amounts that are disputed; and
7.2 Pay or arrange for payment of any undisputed amounts.
�C 7.3 The Surety's failure to discharge its obligations under Section 7.1 or Section 7.2 shall not be deemed to
constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim, except as to undisputed
amounts for which the Surety and Claimant have reached agreement. If, however, the Surety fails to discharge its
obligations under Section 7.1 or Section 7.2, the Surety shall indemnify the Claimant for the reasonable attorney's
fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant.
S 8 The Surety's total obligation shall not exceed the amount of this Bond, plus the amount of reasonable attorney's
fees provided under Section 7.3, and the amount of this Bond shall be credited for any payments made in good faith
by the Surety.
§ 9 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the
performance of the Construction Contract and to satisfy claims, if any, under any construction performance bond. By
the Contractor furnishing and the Owner accepting this Bond, they agree that all funds eared by the Contractor in
the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and Surety under
'this Bond, subject to the Owner's priority to use the funds for the completion of the work.
By auangcrnmt with the American Institute of Architects, the National Association of Surety Bond Producers (NASBI) (,www.n?sbo makes P age
• this forn document available to its metnben, affiliates, and associates in Microsoft Word fount for use in the regular course of surety business.
NASBP vouches that the original text of this document conforms exactly to the textin AIA Document A312 -2010, Performance Bond and 6� 9
Payment Bond. Subsequent modifications may be made to the original text of this document by users, so careful review of its wording and
consultationwith an attorney are encouraged before its completion, execution or acceptance.
10 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are
unrelated to the Construction Contract. The Owner shall not be liable for the payment of any costs or expenses of
any Claimant under this Bond, and shall have udder this Bond no obligation to make payments to, or give notice on
behalf of, Claimants or otherwise have any obligations to Claimants under this Bond.
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.
12 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent
jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the
expiration of one year from the date (1) on which the Claimant sent a Claim to the Surety pursuant to
Section 5.1.2 or 5.2, or (2) on which the last labor or service was performed by anyone or the last materials or
equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) first occurs. If the
provisions of this Paragraph are void or prohibited by law, the minim period of limitation available to sureties as a
defense in the jurisdiction of the suit shall be applicable.
S 13 Notice and Claims to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown
on the page on which their signature appears. Actual receipt of notice or Claims, however accomplished, shall be
sufficient compliance as of the date received.
S 14 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where
the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement
shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be
deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed as a statutory bond
and not as a common law bond.
§ 15 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor and
Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made.
16 Definitions
16.1 Claim. A written statement by the Claimant including at a minimum:
.1 the name of the Claimant;
.2 the name of the person for whom the labor was done, or materials or equipment furnished;
.3 a copy of the agreement or purchase order pursuant to which labor, materials or equipment was
furnished for use in the performance of the Construction Contract;
.4 a brief description of the labor, materials or equipment furnis
.5 the date on which the Claimant last performed labor or last furnished materials or equipment for use
in the performance of the Construction Contract;
.6 the total amount earned by the Claimant for labor, materials or equipment furnished as of the date of
the Claim;
.7 the total amount of previous payments received by the Claimant; and
.8 the total amount due and unpaid to the Claimant for labor, materials or equipment furnished as of
the date of the Claim.
16.2 Claimant. An individual or entity having a direct contract with the Contractor or with a subcontractor of the
Contractor to furnish labor, materials or equipment for use in the performance of the Construction Contract. The
term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's
lien or similar statute against the real property upon which the Project is located. The intent of this Bond shall be to
include without limitation in the terms `labor, materials or equipment" that part of water, gas, power, light, heat, oil,
gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering
services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other
items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were
furnished
5 16.3 Construction Contract. The agreement between the Owner and Contractor identified on the cover page,
including all Contract Documents and all changes made to the agreement and the Contract Documents.
By arrangement with the Arne cm Institute of Architects, the National Association of Surety Bond Producers (NASBP) ( m nac ,� makes Page
Ns form document available to its members, affiliates, and associates in Microsoft Word format for use in the regular course of surety business.
NASBP vouches that the original text of this document conforms exacdy to the text in AIA Document A312 -2010, Performance Bond and 7 � 9
t Payment Bond. Subsequent modifications may be made to the original text of this document by users, so careful review of its wording and
consultationwith an attorney are encouraged before its coinpletion, execution or acceptance.
S 16.4 Owner Default. Failure of the Owner, which has not been remedied or waived, to pay the Contractor as
required under the Construction Contract or to perform and complete or comply with the other material terms of the
Construction Contract.
S 16.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor.
5 17 If this Bond is issued for an agreement between a Contractor and subcontractor, the terra Contractor in this
Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor.
S 18 Modifications to this bond are as follows:
(Space is provided below for additional signatures of added parties, other than those appearing on the cover page.)
CONTRACTOR AS PRINCIPAL SURETY
Company: (Corporate Seal) Company: (Corporate Seal)
Signature:
Name and Title:
Address:
Signature:
Name and Title:
Address:
By a .g rn= with the American lnsdtute of Architects, the National Assodadon of Surety Bond Producers (NASBP) (=naabi2.or gl makes Page
this form document available to its members, affiliates, and associates in Microsoft Word format for use in the regular course of•surety business.
NASBP vouches that the original = of this document conforms exactly to the tent in AIA Document A312 -2010, Performance Bond and 8/9
Payment Bond. Subsequent modi6cadons may be made to the original text of this document by users, so careful review of its wording and
consultadonwith an attorney are encouraged before its completion, execution or acceptance
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