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2009-051ORDINANCE NO.,5? 007 -0jel AN ORDINANCE ACCEPTING COMPETITIVE BIDS AND AWARDING A PUBLIC WORKS CONTRACT FOR THE CONSTRUCTION OF FIVE OVERHEAD DISTRIBUTION LINE PROJECTS FOR DENTON MUNICIPAL ELECTRIC; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE (BID 4243-AWARDED TO THE LOWEST RESPONSIBLE BIDDER MEETING SPECIFICATION, FINWAY, INC. IN THE AMOUNT OF $364,146). WHEREAS, the City has solicited, received and tabulated competitive bids for the construction of public works or improvements in accordance with the procedures of State law and City ordinances; and WHEREAS, the City Manager or a designated employee has received and recommended that the herein described bids are the lowest responsible bids for the construction of the public works or improvements described in the bid invitation, bid proposals and plans and specifications therein; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The following competitive bids for the construction of public works or improvements, as described in the "Bid Invitations", "Bid Proposals" or plans and specifications on file in the Office of the City's Purchasing Agent filed according to the bid number assigned hereto, are hereby accepted and approved as being the lowest responsible bids: BID NUMBER CONTRACTOR AMOUNT 4243 Finway, Inc. $364,146 SECTION 2. The acceptance and approval of the above competitive bids shall not constitute a contract between the City and the person submitting the bid for construction of such public works or improvements herein accepted and approved, until such person shall comply with all requirements specified in the Notice to Bidders including the timely execution of a written contract and furnishing of performance and payment bonds, and insurance certificate after notification of the award of the bid. SECTION 3. The City Manager is hereby authorized to execute all necessary written contracts for the performance of the construction of the public works or improvements in accordance with the bids accepted and approved herein, provided that such contracts are made in accordance with the Notice to Bidders and Bid Proposals, and documents relating thereto specifying the terms, conditions, plans and specifications, standards, quantities and specified sums contained therein. SECTION 4. Upon acceptance and approval of the above competitive bids and the execution of contracts for the public works and improvements as authorized herein, the City Council hereby authorizes the expenditure of funds in the manner and in the amount as specified in such approved bids and authorized contracts executed pursuant thereto. SECTION 5. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this theday of ,2009. 1 G MARK A. - URROtPG , MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY r BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: r 4-ORD-BV 4243 CI M CONTRACT AGREEMENT STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT, made and entered into this 3 day of March A.D., 2009, by and between City of Denton of the County of Denton and State of Texas, acting through George C. Campbell thereunto duly authorized so to do, hereinafter termed "OWNER," and Finway Inc. PO Box 682 Conroe TX 77305 of the City of Conroe, County of Montgomery State of Texas , hereinafter termed "CONTRACTOR." WITNESSETH: That for and in consideration of the payments and agreements hereinafter mentioned, to be made and performed by OWNER, and under the conditions expressed in the bonds attached hereto, CONTRACTOR hereby agrees with OWNER to commence and complete performance of the work specified below: Bid 4243 Overhead Electric Distribution Projects in the amount of $364,145.22 and all extra work in connection therewith, under the terms as stated in the General Conditions of the agreement; and at his (or their) own proper cost and expense to furnish all materials, supplies, machinery, equipment, tools, superintendence, labor, insurance, and other accessories and services necessary to complete the work specified above, in accordance with the conditions and prices stated in the Proposal and the Performance and Payment Bonds, attached hereto, and in accordance with all the General Conditions of the Agreement, the Special Conditions, the Notice to Bidders (Advertisement for Bids), and Instructions to Bidders, as referenced herein and on file in the office of the Purchasing Agent, and in accordance with all local, state and federal laws; and plans, which includes all maps, plats, blueprints, and other drawings and printed or written explanatory matter thereof, and the Specifications therefore, as prepared by: Denton Municipal Electric Engineering staff all of which are referenced herein and made a part hereof and collectively evidence and constitute the entire contract. CA-1 Independent Status It is mutually understood and agreed by and between City and Contractor that Contractor is an independent contractor and shall not be deemed to be or considered an employee of the City of Denton, Texas, for the purposes of income tax, withholding, social security taxes, vacation or sick leave benefits, worker's compensation, or any other City employee benefit. City shall not have supervision and control of Contractor or any employee of Contractor, and it is expressly understood that Contractor shall perform the services hereunder according to the attached specifications at the general direction of the City Manager of the City of Denton, Texas, or his designee under this agreement. Indemnification Contractor covenants and agrees to and does hereby indemnify, hold harmless and defend, at its own expense, Owner, its officers, servants and employees, from and against any and all claims or suits for property loss or damage and/or personal injury, including death, to any and all persons, of whatsoever kind or character, whether real or asserted, arising out of the Work and services to be performed hereunder by Contractor, its officers, agents, employees, subcontractors, licensees or invitees, whether or not caused, in whole or in part, by the alleged negligence of the officers, servants, employees, of the Owner. Contractor likewise covenants and agrees to, and does hereby, indemnify and hold harmless Owner during the performance of any of the terms and conditions of this Contract, whether arising out of in whole or in part, any and all alleged acts or omissions of officers, servants, or employees of Owner. The provisions of this paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. Choice of Law and Venue This agreement shall be governed by the law of the State of Texas and venue for its construction and enforcement shall lie in the courts of Denton County, Texas. The CONTRACTOR hereby agrees to commence work on or after the date established for the start of work as set forth in written notice to commence work and complete all work within the time stated in the Proposal, subject to such extensions of time as are provided by the General and Special Conditions. The OWNER agrees to pay the CONTRACTOR in current funds the price or prices shown in the Proposal, which forms a part of this contract, such payments to be subject to the General and Special Conditions of the Contract. CA-2 Right to Audit The OWNER shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. The CONTRACTOR shall retain such books, records, documents and other evidence pertaining to this agreement during the contract period and five years thereafter, except if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within 10 business days of written request. Further, the CONTRACTOR shall also require all Subcontractors, material suppliers, and other payees to retain all books, 'records, documents and other evidence pertaining to this agreement, and to allow the OWNER similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the OWNER unless the audit reveals an overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the CONTRACTOR which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this section shall be a material breach of this contract and shall constitute, in the OWNER'S sole discretion, grounds for termination thereof. Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. CA-3 IN WITNESS WHEREOF, the parties of these presents have executed this agreement in the year and day first above written. ATTEST: City of Denton WNER BY: (SEAL) A I L/ ` ONTRACTOR C~nru~ "11398 MAILING ADDRESS ,q 3G - 9S~-- - 9 -v-5 PHONE NUMBER g3c~- r)56- Gay-5 Q FAX NUMBER BY: l C e.S l 6 C'C~r TITLE APPROVED AS TO FORM: ANITA BURGESS, CITY ATTORNEY PRINTE]b NAME (SEAT:) CA-4 AIA Document A312 PERFORMANCE BOND ANY SINGULAR REFERENCE TO CONTRACTOR, SURETY, OWNER OR OTHER PARTY SHALL BE CONSIDERED PLURAL WHERE APPLICABLE BOND NO.: SB1534/90018871 CONTRACTOR (Name and Address) TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA FINWAY, INC. ✓ The St. Paul Travelers Companies, Inc. 3517 N. Frazier Avenue One Tower Square, 6PB Conroe, Texas 77305 Hartford, Connecticut 06183 USA Telephone: 1-860-277-0779 OWNER / CITY OF DENTON✓ 901-B Texas Street \4~ Denton, Texas 76209 ~~rL CONSTRUCTION CONTRACT J Date: March 3, 2009 Amount: $364,145.22 Description (Name and Location): Overhead Electric Distribution Projects, Ordinance # 2009-051 BOND Date (Not earlier than Construction Contract Date): March 18, 2009 Amount: $364,145.22 Modifications to this Bond: ❑ None ❑ See Page 3 CONTRACTOR AS PRINCIPAL FINWAY, INC. (Corporate Seal) Signature: Name ,;(.Title: U J, 111A , Pv-c SURETY TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA (Corporate Seal) Signature: Name and Tit ne iller, Attomey-in-Fact (Any additional signatures appear on page 3) trUK itvrUXMAI1(JN UNLY -Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or other party): Marsh USA Inc. Dallas, Texas AIA DOCUMENT A312 Performance Bond December 1984 ED. AIA® THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W. WASHINGTON, D.C. 20006 THIRD PRINTING MARCH 1987 I . The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, 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 to participate in conferences as provided in Subparagraph 3.1. 3. If there is no Owner Default, the Surety's obligation under this bond shall arise after: 3.1 The Owner has notified the Contractor and the Surety at its address described in Paragraph 10 below that the Owner is considering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor and the Surety to be held not later than fifteen (15) days after receipt of such notice to discuss methods of performing the Construction Contract. 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; and 3.2 The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete the contract. Such Contractor Default shall not be declared earlier than twenty days after the Contractor and the Surety have received notice as provided in Subparagraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accordance with the terms of the contract with the Owner. 4. When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the Surety's expense take one of the following actions: 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract; or 4.2 Undertake to perform and complete the Construction contract itself, through its agents or through independent contractors; or 4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bond issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 6 in excess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or 4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, tender payment therefor to the Owner; or .2 Deny liability in whole or in part and notify the Owner citing reasons therefor. 5. If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen (15) days after receipt of an 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 Subparagraph 4.4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. 6. After the Owner has terminated the Contractor's right to complete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is obligated without duplication for: 6.1 The responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; 6.2 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 Paragraph 4; and 6.3 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. 7. The Surety shall not be liable to the Owner or others for obligation 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 or successors. 8. 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. 9. 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 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 to sureties as a defense in the jurisdiction of the suit shall be applicable. AIA DOCUMENT A312 Performance Bond December 1984 ED. AIA® THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W. WASHINGTON, D.C. 20006 THIRD PRINTING MARCH 1987 10. Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. 11. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 12. DEFINITIONS 12.1 Balance of the Contract Price: The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: Contractor 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. 12.2 Construction Contract: The agreement between the Owner and the Contractor indentified on the signature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform or otherwise comply with ther terms of the Construction Contract. 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) Signature: _ Name and Title: Address: SURETY Signature: Name and Title: Attorney-in-Fact Address: (Corporate Seal) AIA DOCUMENT A312 Performance Bond December 1984 ED. AIA® THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W. WASHINGTON, D.C. 20006 THIRD PRINTING MARCH 1987 POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER - POWER OF ATTORNEY TRAVELERS J Farmington Casualty Company St. Paul Guardian Insurance Company Fidelity and Guaranty Insurance Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company Attorney-In Fact No. .220854 Certificate No. 0 0 2 8 1 7 8 2 9 KNOW ALL MEN BY THESE PRESENTS: That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York, that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, that Farmington Casualty Company, Travelers Casualty and Surety Company, and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. is a corporation. duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Jacqueline Miller, Janice Oehm, Kathy Ness, Patrick W. Baker, and Shane Sinclair of the City of `1 orgnt9r()ntart9 State of Canada their true and lawful Attomey(s)-in-Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing' the performance of contracts and executing or guaranteeing bonds and undertakings required or pe'rmittedSin any=ac ions or-proceedings allowed by law. v ^9- k~j IN WITNESS WHEREOF, the Companies have caused this instrumenljtd'besiggn~ed .'and then corporate seals to be hereto affixed, this 9th day of February 2009 Farmington Casualty Company'St. Paul Guardian Insurance Company Fidelity and Guaranty4ust rant Compan O St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company Or(Gyglp.SpUq~,FJ,` Q9ttri~ SIWETj•~ J`FI0.E a ' o`~M. ~NSp9 Ma0 . i 1'.. ~ 6 5 ~~t/r9EC8tF2S~ . ` a D (O 1 ~ C-TY-~9~ ~ DX f? 1951 'ti 1'92~/ j ~ ha ~ f z ~~ri '~pSRE POAR~L) fi~pis nm f. 0 m 4 ~w~w~C1OrrAN.OvNar. 0 a. sG9 n ~tt1t'FOm~O~it8n1 aOa ~Q 5 p f„ Q_„mc_ t°1t"18+Y n y . i naOFnEW '2SANCf °•lg'. AN~at-~ 'ay aa~o~ O,e State of Connecticut City of Hartford ss. By: Georg Thompson, enior ice President On this the 9th day of February 2009 , before me personally appeared George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. In Witness Whereof, I hereunto set my hand and official seal. TINS My Commission expires the 30th day of June, 2011."GS `c'n c C . Marie C. Tetreault, Notary Public . 58440-5-07 Printed in U.S.A. THIS POWER OF THE •.nnl~n~u. 1 na ruvvtrt Ut ATTORNEY IS INVALID WITHOUT THE RED BORDER This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attomeys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attomeys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such power of attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kori M. Johanson, the undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Cgmpany, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Sure tc 93P ' ' n anY f meri acrd United States Fidelity and Guaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Po~~{~q[tomey~xe'cu ed by al Companies, which is in full force and effect and has not been revoked. IN IN TESTIMONY WHEREOF, I have hereunto set my hand` nd~'a xeU the-seals fsa dmpa this da of ,f qy. , Y /yA(O. 200 I 1A 7KoriM. Johans Assistant Secretary O ~~pY•4y'l ~~~y.TY `F10.E6 Y IN a V _19820 n0 ~ ! ~ plrypsv.,~ * Y `I' 'OO • ~SG~ `Jp•1•IN3Uy''L ~I,lfY 4,ype 3 1977 •MItD X927 - z ifs o a J~Mo a'°Tf;l~ bey . F~~ 7 # u ~:SEAL:o J"i~\ o m~5 <O c a'• 38A L?3 COra1 ° onw1. 1 ~PEtt BRA NCE ° S: Nat' ~..~-~r+° eo • e ~ 898 w... r8 • yf ~~a► ~ Akw rp To verify the authenticity of this Power of Attorney, call 1-800421-3880 or contact us at www.travelersbond.com. Please refer to the Attorney-In-Fact number, the above-named individuals and the details of the bond to which the power is attached. PERFORMANCE BOND STATE OF TEXAS § COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS: That FinwM Inc. whose address is PO Box 682 Conroe, TX 77305 hereinafter called Principal, and a corporation organized and existing under the laws of the State of , and fully authorized to transact business in the State of Texas, as Surety, are held and firmly bound unto the City of Denton, a municipal corporation organized and existing under the laws of the State of Texas, hereinafter called Owner, in the penal sum of Three Hundred Sixty Four Thousand One Hundred Forty Five and 22/100 DOLLARS ($364,145.22 ) plus ten percent of the stated penal sum as an additional sum of money representing additional court expenses, attorneys' fees, and liquidated damages arising out of or connected with the below identified Contract, in lawful money of the United States, to be paid in Denton County, Texas, for the payment of which sum well and truly to be made, we hereby bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. This Bond shall automatically be increased by the amount of any Change Order or Supplemental Agreement, which increases the Contract price, but in no event shall a Change Order or Supplemental Agreement, which reduces the Contract price, decrease the penal sum of this Bond. . THE OBLIGATION TO PAY SAME is conditioned as follows: Whereas, the Principal entered into a certain Contract, identified by Ordinance Number 2009-051, with the City of Denton, the Owner, dated the 3rd day of March A.D. 2009, for Bid #4243 Overhead Electric Distribution Projects. NOW, THEREFORE, if the Principal shall well, truly and faithfully perform and fulfill all of the undertakings, covenants, terms, conditions and agreements of said Contract in accordance with the Plans, Specifications and Contract Documents during the original term thereof and any extension thereof which may be granted by the Owner, with or without notice to the Surety, and during the life of any guaranty or warranty required under this Contract, and shall also well and truly perform and fulfill all the undertakings, covenants, terms, conditions and agreements of any and all duly authorized modifications of said Contract that may hereafter be made, notice of which modifications to the Surety being hereby waived; and, if the Principal shall repair and/or replace all defects due to faulty materials and workmanship that appear within a period of two (2) years from the date of final completion and final acceptance of the Work by the Owner; and, if the Principal shall fully indemnify and save harmless the Owner from all costs and damages which Owner may suffer by reason of failure to so perform herein and shall fully reimburse and repay Owner all outlay and expense which the Owner may incur in making good any default or deficiency, then this obligation shall be void; otherwise, it shall remain in full force and effect. PB - 1 PROVIDED FURTHER, that if any legal action be filed upon this Bond, exclusive venue shall lie in Denton County, State of Texas. AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder, or to the Plans, Specifications, Drawings, etc., accompanying the same, shall in anywise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder, or to the Plans, Specifications, Drawings, etc. This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Code, as amended, and any other applicable statutes of the State of Texas. The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in Denton County to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such suretyship, as provided by Article 7.19-1 of the Insurance Code, Vernon's Annotated Civil Statutes of the State of Texas. IN WITNESS WHEREOF, this instrument is executed in four copies, each one of which shall be deemed an original, this the day of , ATTEST: BY: SECRETARY ATTEST: BY: PRINCIPAL BY: PRESIDENT SURETY BY: ATTORNEY-IN-FACT The Resident Agent of the Surety in Denton County, Texas for delivery of notice and service of the process is: NAME: STREET ADDRESS: (NOTE: Date of Performance Bond must be date of Contract. If Resident Agent is not a corporation, give a person's name) PB-2 PAYMENT TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA BOND Hartford, Connecticut 06183 Bond No.: SB1534/90018871 Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): FINWAY, INC. 3517 N Frazier Avenue Conroe, Texas 77305 OWNER (Name and Address): CITY OF DENTON,-'~ 901-B Texas Street Denton, Texas 76209 SURETY (Name and Principal Place of Business): Travelers Casualty and Surety Company of America One Tower Square Hartford, CT 06183 lfi4~ CONSTRUCTION CONTRACT Date: March 3, 2009 Amount: $364,145.22 Description (Name and Location): Overhead Electric Distribution Projects, Ordinance # 2009-051 BOND Date (Not earlier than Construction Contract Date): March 18, 2009 Amount: $364,145.22 ~ Modifications to this Bond: ❑ None ® See Page 6~ CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) FINWAY, INCn: . I" SignaturName a Itle: -.i-, (Any additional signatures appear on page 6) SURETY Company: (Corporate Seal) Travelers Casualty and Surety Company of America Signature: Name andTitle: Jac er, At ey-in-fact (FOR INFORMATION ONLY - Name, Address and Telephone) AGENT or BROKER: Marsh USA Inc. Dallas, Texas 1 The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference. 2 With respect to the Owner, this obligation shall be null and void if the Contractor: 2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants, and OWNER'S REPRESENTATIVE (Architect, Engineerorother party): 2.2 Defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity whose claim, demand, lien or suit is for the payment for labor, materials or equipment furnished for use in the performance of the Construction Contract, provided the Owner has promptly notified the Contractor and the Surety (at the address described in Paragraph 12) of any claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety, and provided there is no Owner Default. • ••it n-1-r---r --111W -1b uonu voucnes tnat this document conforms to American Institute of Architects Document A312, 1984 editi oon 4 3 With respect to Claimants, this obligation shall be null and void if the Contractor promptly makes payment, directly or indirectly, for all sums due. 4. The Surety shall have no obligation to Claimants under this Bond until: 4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim. 4.2 Claimants who do not have a direct contract with the Contractor: .1 Have furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner, within 90 days after having last performed labor or last furnished materials or equipment included in the claim stating, with substantial accuracy, the amount of the claim and the name of the party to whom the materials were furnished or supplied or for whom the labor was done or performed; and 2 Have either received a rejection in whole or in part from the Contractor, or not received within 30 days of furnishing the above notice any communication from the Contractor by which the Contractor has indicated the claim will be paid directly or indirectly; and 3 Not having been paid within the above 30 days, have sent a written notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to the Contractor. 5 If a notice required by Paragraph 4 is given by the Owner to the Contractor or to the Surety, that is sufficient compliance. 6 When the Claimant has satisfied the conditions of Paragraph 4, the Surety shall promptly and at the Surety's expense take the following actions: 6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed. 6.2 Pay or arrange for payment of any undisputed amounts. 7 The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. 8 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any Construction Performance Bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and the Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. 9 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond. 10 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 11 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the location in which the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 12 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be sufficient compliance as of the date received at the address shown on the signature page. 13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 14 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be made. 15 DEFINITIONS 15.1 Claimant: An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Contract. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312,1984 edition 15.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. 15.3 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: to perform and complete or comply with the other terms thereof. Paragraph 6 is deleted in its entirety and the following is substituted in its place: 6. When the Claimant has satisfied the conditions of Paragraph 4, and has submitted all supporting documentation and any proof of claim requested by the Surety, the Surety shall, within a reasonable period of time, notify the Claimant of the amounts that are undisputed and the basis for challenging any amounts that are disputed, including, but not limited to, the lack of substantiating documentation to support the claim as to entitlement or amount, and the Surety shall, within a reasonable period of time, pay or make arrangements for payment of any undisputed amount; provided, however, that the failure of the Surety to timely discharge its obligations under this paragraph or to dispute or identify any specific defense to all or any part of a claim shall not be deemed to be an admission of liability by the Surety as to such claim or otherwise constitute a waiver of the Contractor's or Surety's defenses to, or right to dispute, such claim. Rather, the Claimant shall have the immediate right, without further notice, to bring suit against the Surety to enforce any remedy available to it under this Bond. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Name and Address: Title: Signature: Name and Address: Title: The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312,1984 edition 6 WARNING: THIS POWER OF RED BORDER POWER OF ATTORNEY TRAVELERS J Farmington Casualty Company St. Paul Guardian Insurance Company Fidelity and Guaranty Insurance Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company Attorney-In Fact No. 220854 Certificate No. 002817830 KNOW ALL MEN BY THESE PRESENTS: That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York, that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of. the State of Minnesota, that Farmington Casualty Company, Travelers Casualty and Surety Company, and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Jacqueline Miller, Janice Oehm, Kathy Ness, Patrick W. Baker, and Shane Sinclair of the City of Taro1nto, bntnrio , State of Canada , their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fdelity.of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or pe~l~e,&m any ,actions or-proceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this instrume~td'be.signed nd theiveorporate seals to be hereto affixed, this day of February 2009 9th armtngton asualty Company . St. Paul Guardian Insurance Company. Fidelity and GuarantyrInsuran, ro ompa ~y St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company Or,(GypI.PS.OUq~,~~~ f` ~ fly ' y 80.E a 4 O\EN u~MS`9 Jp+• INSUq' J~~ir µo Y.~.~ 3 A 9 <'OF pRRA M1'1f 4: b JL yaE~ ~.Y ".o i (982 O ~ 1977 RAtFD 927 z ~/c ~ ~f'm v:'caa?naq>f i~^I ~ ~ f7 ~ f~f• ~y~~aa ~ ~ 1951 miO ~$~o ~'.SEALIO"1 ~i ~o m ~ J @ m / . ~y . ti~ i 1~ +i,t. o J•! ~b,S8AL=3 'v o ~ .'r OFtkN 'R/{AHCE °fS . Ada ~ °1 ' 'daD `r ~ ~ O State of Connecticut City of Hartford ss. By: Georg Thompson, enior Ice President On this the 9th day of February 2009 , before me personally appeared George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. ~.TET In Witness Whereof, I hereunto set my hand and official seal. Tlw My Commission expires the 30th day of June, 2011. 'OLeUG~* Marie C. Tetreault, Notary Public 58440-5-07 Printed in U.S.A. WAHNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attomeys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such power of attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kori M. Johanson, the undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Sure, Qimpanyo'fl~ men'g and United States Fidelity and Guaranty Company do hereby certify that the above and foregoing is a rive and correct copy of the Po> ofArtmeyt~ e'acued bHsalh?id.Companies, which is in full force and effect and has not been revoked. 11 ~LD IN TESTIMONY WHEREOF, I have hereunto set my hand agd affiXe(i the-seails of said!Cmpanies this ay of / "t C /t q 20 03 Kori M. Johans Assistant Secretary ~~L i~,Y 4F10.E 6 M IM ~To verify the authenticity of this Power of Attorney, call 1-800-421-3880 or contact us at www.travelersbond.com. Please refer to the Attorney-In-Fact number, the above-named individuals and the details of the bond to which the power is attached. PAYMENT BOND STATE OF TEXAS § COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS: That Finway Inc. whose address is PO Box 682, Conroe, Texas 77305 hereinafter called Principal, and , a corporation organized and existing under the laws of the State of and fully authorized to transact business in the State of Texas, as Surety, are held and firmly bound unto the City of Denton, a municipal corporation organized and existing under the laws of the State of Texas, hereinafter called Owner, and unto all persons, firms, and corporations who may furnish materials for, or perform labor upon, the building or improvements hereinafter referred to, in the penal sum of Three Hundred Sixty Four Thousand One Hundred Forty Five and 22/100 DOLLARS ($364,145.22) in lawful money of the United States, to be paid in Denton, County, Texas, for the payment of which sum well and truly to be made, we hereby bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. This Bond shall automatically be increased by the amount of any Change Order or Supplemental Agreement which increases the Contract price, but in no event shall a Change Order or Supplemental Agreement which reduces the Contract price decrease the penal sum of this Bond. THE OBLIGATION TO PAY SAME is conditioned as follows: Whereas, the Principal entered into a certain Contract, identified by Ordinance Number 2009- 051, with the City of Denton, the Owner, dated the 3rd day of March A.D. 2009, for Bid #4243 Overhead Electric Distribution Construction Projects. NOW, THEREFORE, if the Principal shall well, truly and faithfully perform its duties and make prompt payment to all persons, firms, subcontractors, corporations and claimants supplying labor and/or material in the prosecution of the Work provided for in said Contract and any and all duly authorized modifications of said Contract that may hereafter be made, notice of which modifications to the Surety being hereby expressly waived, then this obligation shall be void; otherwise it shall remain in full force and effect. PROVIDED FURTHER, that if any legal action be filed on this Bond, exclusive venue shall lie in Denton County, Texas. AND PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder, or to the Plans, Specifications, Drawings, etc., accompanying the same, shall in anywise affect its obligation on this Bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder, or to the Plans, Specifications, Drawings, etc. PB-3 This Bond is given pursuant to the provisions of Chapter 2253 of the Texas Government Code, as amended, and any other applicable statutes of the State of Texas. The undersigned and designated agent is hereby designated by the Surety herein as the Resident Agent in Denton County to whom any requisite notices may be delivered and on whom service of process may be had in matters arising out of such surety, as provided by Article 7.19-1 of the Insurance Code, Vernon's Annotated Civil Statutes of the State of Texas. IN WITNESS WHEREOF, this instrument is executed in four copies, each one of which shall be deemed an original, this the day of , ATTEST: BY: SECRETARY PRINCIPAL BY: PRESIDENT ATTEST: SURETY BY: BY: ATTORNEY-IN-FACT The Resident Agent of the Surety in Denton County, Texas for delivery of notice and service of the process is: NAME: STREET ADDRESS: (NOTE: Date of Payment Bond must be date of Contract. corporation, give a person's name.) If Resident Agent is not a PB-4 CITY OF DENTON CONSTRUCTION OF OVERHEAD ELECTRIC DISTRIBUTION PROJECTS APPENDIX A Specification for: CONSTRUCTION OF OVERHEAD ELECTRIC DISTRIBUTION PROJECTS BID #4243 BID PROPOSAL INSTRUCTIONS: Return only this cover sheet and the following eight (8) pages as the "BID PROPOSAL" BIDS DUE: February 12, 2009 at 2:00pm Bidder: tin way, me. PAGE 32 OF 56 BID # 4243 CITY OF DENTON CONSTRUCTION OF OVERHEAD ELECTRIC DISTRIBUTION PROJECTS BID PROPOSAL To Denton Municipal Electric (DME) Overhead Electric Distribution Projects In Denton, Texas The undersigned, as bidder, declares that the only person or parties interested in this proposal as principals are those named herein, that this proposal is made without collusion with any other person, firm or corporation. The undersigned has also carefully examined the form of the contract, Notice to Bidders, specifications and the construction units therein referred to, and agree to provide all the necessary labor, machinery, tools, apparatus, and other items incidental to construction. Denton Municipal Electric will provide all materials required for construction. The undersigned will do all the work called for in the contract and specifications in the manner prescribed herein and according to the requirements of Denton Municipal Electric as therein set forth. It is understood that the following work, shall be done at the quoted turnkey lumpsum price stated below for each of the five projects. The undersigned hereby proposes and agrees to perform all work of whatever nature required to complete each of the five projects, in strict accordance with the plans, specifications and to DME's full satisfaction, for the following turnkey lumpsum prices to wit for each project": 1. Co-Gen Site @ Landfill 12008 Bio-Mass Line Project Q✓~ 5O~SC~ncI 0^100/ 0 o '40, ©00. O O (Price in Words) 2. FM 1515 Double Circuit, Project hases 1& II Our. (itundad. v4 rip, ~}-I~►o an4 ~ur hund4e4 4nir#j 4 ae- aid 2'0/o0 Oq ~-3 3. 2 Co (Price in Words) 3. Rails to Trails Double Circuit Phase III Project ,5xygm~4 OVl2 4i1DQ9WWJ and 00100 l l i oo0.O O (Price in Words) PAGE 33 OF 56 BID # 4243 CITY OF DENTON CONSTRUCTION OF OVERHEAD ELECTRIC DISTRIBUTION PROJECTS 4. Water Reclamation Plant Feeder Project 4 +Vi 0 4Aoviud eiq W- kvndre,,,t tnetu awt g(#/) o 5 2, SCCO- q (Price in Words) 5. Underwood & Ave A System Improvement Project ~tq ~ dour ~-N~ousav>c! eiq~.-f ~,undv~ol -btu one 00 oo E5+ ~ -1-0-0 ) (Price in Words) *In case of discrepancy, each project pricing in words shall prevail. . Z Z ) A Cumulative Lump Sum Total Price for all five Projects is: SO 40 **Bidder shall include in their proposed bid quotation or make available upon request their unit or structure pricing which was used to determine each project's lump sum turnkey cost. Should additions or future requirements become necessary, then the bidder's unit or structure pricing shall be utilized at DME's discretion. In submitting this bid, the vendor agrees that acceptance of any or all bid items by Denton Municipal Electric within a reasonable period of time constitutes a contract. The completed Bid Proposal must be properly priced, signed, and returned. The undersigned agrees this bid becomes the property of the City of Denton after the official opening. The undersigned affirms he has familiarized himself with the local conditions under which the work is to be performed; satisfied himself of the conditions of delivery, handling and storage of equipment and all other matters that may be incidental to the work, before submitting a bid. The undersigned agrees, if this bid is accepted, to furnish any and all items/services upon which prices are offered, at the price(s) and upon the terms and conditions contained within this Specification. The period for acceptance of this Bid Proposal will be ninety (90) calendar days or until award is made; whichever comes first. The undersigned affirms that they are duly authorized to execute this contract, that this bid has not been prepared in collusion with any other Bidder, nor any employee of the City of Denton, and that the contents of this bid have not been communicated to any other bidder or to any employee of the City of Denton prior to the official opening of this bid. Vendor hereby assigns to purchaser any and all claims for overcharges associated with this contract which arise under the antitrust laws of the United States, 15 USCA Section 1 et seq., and which arise under the antitrust laws of the State of Texas, Tex. Bus. & Com. Code, Section 15.01, et seq. PAGE 34 OF 56 BID # 4243 ACORD CERTIFICATE OF LIABILITY INSURA DATE 'MWDDIYYYY) F NCE 3/16/2009 PRODUCER (281)421-7605 FAX: (866)652-9381 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Guaranty Insurance Services Inc ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE , . HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 6011 Garth Road ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Suite A Baytown TX 77521 INSURERS AFFORDING COVERAGE NAIC # INSURED INSURERA:Travelers Property 36161 Finway, Inc. INSURER B: Travelers Property 25674 P. O. Box 682 \ INSURERc:Texas Mutual Ins. Co. 22945 L~ INSURER D: Phoenix Insurance Com an 25623 Conroe TX 77305 INSURER E: OVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING AN REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREG A LIMITS SHOWN MAY HAVE BE REDUCED BY PAID CLAIMS- INSR ADD'L POLICY EFFECTIVE POLICY EXPIRATION INSR TYPE OF INSURANC POLICY NUMBER DATEMWDD/YY MM/DD/YY DATE LIMITS GENERAL LIABILITY EACH OCCURRENCE S 1,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED EMISES Ea occurrence $ 300, 000 A CLAIMSMADE a OCCUR TCO7246B779TLC08 / 1/23/2009 1/23/2010 MEDEXP An one person) S 5,000 PERSONAL B ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'LAGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG S 2,000,000 X POLICY JECOT- LOC AU TOMOBILE LIABILITY / COMBINED SINGLE LIMIT S 1,000,000 X ANY AUTO (Ea accident) B ALL OWNED AUTOS BA7246577908CNS / 1/23/2009 1/23/2010 BODILY INJURY SCHEDULEDAUTOS (Per person) S X HIREDAUTOS BODILY INJURY $ X NON-OWNED AUTOS (Per accident) PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ I E ANY AUTO OTHER THAN EA A S AUTO ONLY: AGG $ EXCESSIUMBRELLA LIABILITY - EACH RR N $ ICLAIMS MADE OCCUR F AGGREGATE S S DEDUCTIBLE $ RETENTION $ $ C WORKERS COMPENSATION AND / ' TORY LIMIT OER EMPLOYERS LIABILITY ANY PROPRIETORMARTNER/EXECUTIVE F.L. .EACH ACCIDENT S 1,000,000 OFFICER/MEMBER EXCLUDED? / TSFOOOIOB5524 1/26/2009 1/26/2010 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 If yes, describe under SPECIAL PROVISIONS below E.L. DISEASE - POLICY LIMIT $ 1,000,000 D OTHER Contractor's Equip QT6607264B527TLC67 1/23/2009 1/23/2010 Amount of Insurance 250,000 Rented/Leased Per Item Limit 250,000 DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENTISPECIAL PROVISIONS Cit of Den on, its Officials, Agents, Employees and Volunteers are named Additional Ineed with regards to all policies exc t workers Compensation and w iv~ of Subrogation is provided in favor of the same with regards to all policies General Liability is Primary with regards to insureds work performed`-ALL as required by written contract. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE City of Denton EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 215 E McKinney St 3 0 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT Denton, TX 76201 FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE AUTHORIZED REPRESENTATIVE ✓ Brook Crawford/KNAGEL r ACORD 25 (2001108) © ACORD CORPORATION 1988 imQn,jc ,n- no.. Pane I M 7 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001/08) INS025 (ofo8p8a Page 2 of 2 CITY OF DENTON INSURANCE REQUIREMENTS FOR CONTRACTORS Bidder's attention is directed to the insurance requirements below. It is highly recommended that bidders confer with their respective insurance carriers or brokers to determine in advance of Bid submission the availability of insurance certificates and endorsements as prescribed and provided herein. If an apparent low bidder fails to comply strictly with the insurance requirements, that bidder may be disqualified from award of the contract. Upon bid award, all insurance requirements shall become contractual obligations, which the successful bidder shall have a duty to maintain throughout the course of this contract. STANDARD PROVISIONS: Without limiting any of the other obligations or liabilities of the Contractor, the Contractor shall provide and maintain until the contracted work has been completed and accepted by the City of Denton, Owner, the minimum insurance coverage as indicated hereinafter. As soon as practicable after notification of bid award, Contractor shall file with the Purchasing Department satisfactory certificates of insurance, containing the bid number and title of the project. Contractor may, upon written request to the Purchasing Department, ask for clarification of any insurance requirements at any time; however, Contractors are strongly advised to make such requests prior to bid opening, since the insurance requirements may not be modified or waived after bid opening unless a written exception has been submitted with the bid. Contractor shall not commence any work or deliver any material until he or she receives notification that the contract has been accepted, approved, and signed by the City of Denton. All insurance policies proposed or obtained in satisfaction of these requirements shall comply with the following general specifications, and shall be maintained in compliance with these general specifications throughout the duration of the Contract, or longer, if so note& • Each policy shall be issued by a company authorized to do business in the State of Texas with an A.M. Best Company rating of at least A. • Any deductibles or self-insured retentions shall be declared in the bid proposal. If requested by the City, the insurer shall reduce or eliminate such deductibles or self-insured retentions with respect to the City, its officials, agents, employees and volunteers; or, the contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. • Liability policies shall be endorsed to provide the following: • Name as additional insured the City of Denton, its Officials, Agents, Employees and volunteers. CI-9 • That such insurance is primary to any other insurance available to the additional insured with respect to claims covered under the policy and that this insurance applies separately to each insured against whom claim is made or suit is brought. The inclusion of more than one insured shall not operate to increase the insurer's limit of liability. • Cancellation: The City requires 30 day written notice should any of the policies described on the certificate be cancelled or materially changed before the expiration date. • Should any of the required insurance be provided under a claims-made form, Contractor shall maintain such coverage continuously throughout the term of this contract and, without lapse, for a period of three years beyond the contract expiration, such that occurrences arising during the contract term which give rise to claims made after expiration of the contract shall be covered. • Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit providing for claims investigation or legal defense costs to be included in the general annual aggregate limit, the Contractor shall either double the occurrence limits or obtain Owners and Contractors Protective Liability Insurance. • Should any required insurance lapse during the contract term, requests for payments originating after such lapse shall not be processed until the City receives satisfactory evidence of reinstated coverage as required by this contract, effective as of the lapse date. If insurance is not reinstated, City may, at its sole option, terminate this agreement effective on the date of the lapse. Cl - 10 SPECIFIC ADDITIONAL INSURANCE REQUIREMENTS: All insurance policies proposed or obtained in satisfaction of this Contract shall additionally comply with the following marked specifications, and shall be maintained in compliance with these additional specifications throughout the duration of the Contract, or longer, if so noted. [X ] -A. General Liability Insurance: General Liability insurance with combined single limits of not less than $1,000,000.00shall be provided and maintained by the Contractor. The policy shall be written on an occurrence basis either in a single policy or in a combination of underlying and umbrella or excess policies. If the Commercial General Liability form (ISO Form CG 0001 current edition) is used: • Coverage A shall include premises, operations, products, and completed operations, independent contractors, contractual liability covering this contract and broad form property damage coverage. Coverage B shall include personal injury. Coverage C, medical payments, is not required. If the Comprehensive General Liability form (ISO Form GL 0002 Current Edition and ISO Form GL 0404) is used, it shall include at least: Bodily injury and Property Damage Liability for premises, operations, products and completed operations, independent contractors and property damage resulting from explosion, collapse or underground (XC>) exposures. Broad form contractual liability (preferably by endorsement) covering this contract, personal injury liability and broad form property damage liability. [X] Automobile Liability Insurance: Contractor shall provide Commercial Automobile Liability insurance with Combined Single Limits (CSL) of not less than $500,000.00 either in a single policy or in a combination of basic and umbrella or excess policies. The policy will include bodily injury and property damage liability arising out of the operation, maintenance and use of all automobiles and mobile equipment used in conjunction with this contract. Satisfaction of the above requirement shall be in the form of a policy endorsement for: any auto, or all owned, hired and non-owned autos. CI_ 11 [X] Workers Compensation Insurance Contractor shall purchase and maintain Worker's Compensation insurance which, in addition to meeting the minimum statutory requirements for issuance of such insurance, has Employer's Liability limits of at least $100,000 for each accident, $100,000 per each employee, and a $500,000 policy limit for occupational disease. The City need not be named as an "Additional Insured" but the insurer shall agree to waive all rights of subrogation against the City, its officials, agents, employees and volunteers for any work performed for the City by the Named Insured. For building or construction projects, the Contractor shall comply with the provisions of Attachment 1 in accordance with §406.096 of the Texas Labor Code and rule 28TAC 110.110 of the Texas Worker's Compensation Commission (TWCC). Owner's and Contractor's Protective Liability Insurance The Contractor shall obtain, pay for and maintain at all times during the prosecution of the work under this contract, an Owner's and Contractor's Protective Liability insurance policy naming the City as insured for property damage and bodily injury which may arise in the prosecution of the work or Contractor's operations under this contract. Coverage shall be on an "occurrence" basis, and the policy shall be issued by the same insurance company that carries the Contractor's liability insurance. Policy limits will be at least combined b d'1 injury and property damage per occurrence with a Fire Damage Legal Liability Insurance aggregate. Coverage is required if Broad form General Liability is not provided or is unavailable to the contractor or if a contractor leases or rents a portion of a City building. Limits of not less than each occurrence are required. Professional Liability Insurance Professional liability insurance with limits not less than per claim with respect to negligent acts, errors or omissions in connection with professional services is required under this Agreement. Builders' Risk Insurance Builders' Risk Insurance, on an All-Risk form for 100% of the completed value shall be provided. Such policy shall include as "Named Insured" the City of Denton and all subcontractors as their interests may appear. o iy Cl - 12 [ ] Commercial Crime Provides coverage for the theft or disappearance of cash or checks, robbery inside/outside the premises, burglary of the premises, and employee fidelity. The employee fidelity portion of this coverage should be written on a "blanket" basis to cover all employees, including new hires. This type insurance should be required if the contractor has access to City funds. Limits of not less than each occurrence are required. [ ] Additional Insurance Other insurance may be required on an individual basis for extra hazardous contracts and specific service agreements. If such additional insurance is required for a specific contract, that requirement will be described in the "Specific Conditions" of the contract specifications. Cl - 13 ATTACHMENT 1 [X] Worker's Compensation Coverage for Building or Construction Projects for Governmental Entities A. Definitions: Certificate of coverage ("certificate")-A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a coverage agreement (TWCC- 81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. Duration of the project - includes the time from the beginning of the work on the project until the contractor's/person's work on the project has been completed and accepted by the governmental entity. Persons providing services on the project ("subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the contractor and regardless of whether that person has employees. This includes, without limitation, independent contractors, subcontractors, leasing companies, motor carriers, owner-operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as foodibeverage vendors, office supply deliveries, and delivery of portable toilets. B. The contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any overage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. D. If the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. E. The contractor shall obtain from each person providing services on a project, and provide to the governmental entity: Cl - 14 1) a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and 2) no later than seven days after receipt by the contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. G. The contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. 1. The contractor shall contractually require each person with whom it contracts to provide services on aproject, to: 1) provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which - meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2) provide to the contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; 3) provide the contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; 4) obtain from each other person with whom it contracts, and provide to the contractor: a) certificate of coverage, prior to the other person beginning work on the project; and b) a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the project; Cl - 15 5) retain all required certificates of coverage on file for the duration of the project and for one year thereafter; 6) notify the governmental entity in writing by certified mail or personal delivery, within 10 days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7) contractually require each person with whom it contracts, to perform as required by paragraphs (1) - (7), with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the contractor is representing to the governmental entity that all employees of the contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self- insured, with the commission's Division of Self-Insurance Regulation. Providing false or misleading information may subject the contractor to administrative penalties, criminal penalties, civil penalties, or other civil actions. K. The contractor's failure to comply with any of these provisions is a breach of contract by the contractor which entitles the governmental entity to declare the contract void if the contractor does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. Cl - 16 CONFLICT OF INTEREST QUESTIONNAIRE FORM CIQ For vendor or other person doing business with local governmental entity This questionnaire reflects changes made to the law by H.B. 1491, 80th Leg., Regular Session. OFFICE USE ONLY This questionnaire is being filed in accordance with chapter 176 of the Local Government Code by a Date Received person doing business with the governmental entity. By law this questionnaire must be filed with the records administrator of the local government not later than the 7th business day after the date the person becomes aware of facts that require the statement to be filed. See Section 176.006, Local Government Code. A person commits an offense if the person violates Section 176.006, Local Government Code. An offense under this section is a Class C misdemeanor. 1 Name of person who has a business relationship with local governmental entity. 2 Check this box if you are filing an update to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day after the date the originally filed questionnaire becomes incomplete or inaccurate.) 3 Name of local government officer with whom filer has an employment or business relationship. Name of Officer This section, (item 3 including subparts A, B, C & D), must be completed for each officer with whom the filer has an employment or other business relationship as defined by Section 176.001(1-a), Local Government Code. Attach additional pages to this Form CIQ as necessary. A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment income, from the filer of the questionnaire? E -]N 0 Y es o B. Is the filer of the questionnaire receiving or likely to receive taxable income, other than investment income, from or at the direction of the local government officer named in this section AND the taxable income is not received from the local governmental entity? Yes Q No C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as anofficer or director, or holds an ownership of 10 percent or more? l El E::] N u Y es o D. Describe each affiliation or business relationship. 4 Signature of person doing business with the governmental entity Date CIQ - 1 adopted 0&29/2007