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HomeMy WebLinkAboutPayment Bond - Yardberry - $112,323 • THE AMERICAN INSTITUTE OF ARCHITECTS • Bond No. INC 44694 AlA Document A3 1 2 Payment Bond Any singular reference to Contractor,Surety,Owner or other party shall be considered plural where applicable. CONTRACTOR(Name and Address): SURETY(Name and Principal Place of Business): Yardberry Landscape Company dba Yardberry Merchants Bonding Company(Mutual) Landscaping&Excavating 2100 Fleur Drive 9940 South 1000 West Des Moines IA 50321-1158 Anderson, IN 46017 OWNER(Name and Address): City of Carmel 30 West Main Street,Suite 220 Carmel, Indiana CONTSTRUCTION CONTRACT Date: January 25,2010 Amount: $112,323.00 Description(Name and Location): Parcel 47-Storm Drainage and Site Utilities BOND Date(Not earlier than Construction Contract Date): February 5,2010 Amount: $112,323.00 Modifications to this Bond: ❑ None ® See Page 6 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Yardberry Lan. ape Comp,,,y dba Yardberry Merchants Bon. g Company(Mutual) Landscaping : Ex.,.vatist • Signature: 'tf Signature: 1�_. - . ./1 1 . -� Li.. -(� QC/ Name and Title: Ti lothy C. Yarberry Name and Title: NA Y E STOLL President Attorney-In-Fact (Any additional signatures appear on page 6) (FOR INFORMATION ONLY—Name,Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE(Architect, Engineer or other THE LON BROWN COMPANY INC Ism'): 2009 EAST 10TH STREET ANDERSON,IN 46012 765-643-5555 AlA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND• DECEMBER 1984 ED. • AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 4 • 1 The Contractor and the Surety, jointly and severally, 5 If a notice required by Paragraph 4 is given by the bind themselves, their heirs, executors, administrator, Owner to the Contractor or to the Surety, that is sufficient successors and assigns to the Owner to pay for labor, compliance. materials and equipment furnished for use in the 6 When the Claimant has satisfied the conditions of performance of the Construction Contract, which is Paragraph 4, the Surety shall promptly and at the Surety's incorporated herein by reference. expense take the following actions: 2 With respect to the Owner, this obligation shall be null 6.1 Send an answer to the Claimant, with a copy to and void if the Contractor: the Owner, within 45 days after receipt of the claim, 2.1 Promptly makes payment, directly or indirectly, stating the amounts that are undisputed and the for all sums due Claimants,and basis for challenging any amounts that are disputed. 2.2 Defends, indemnities, and holds harmless the 6.2 Pay or arrange for payment of any undisputed Owner from all claims,demands, liens or suits by any amounts. person or entity who furnished labor, materials or equipment for use in the performance of the 7 The Surety's total obligation shall not exceed the Construction Contract, provided the Owner has amount of this Bond, and the amount of this Bond shall be promptly notified the Contractor and the Surety (at credited for any payments made in good faith by the the address described in Paragraph 12) of any Surety. claims, demands, liens or suits and tendered defense 8 Amounts owed by the Owner to the Contractor under of such claims, demands, liens or suits to the the Construction Contract shall be used for the Contractor and the Surety, and provided there is no performance of the Construction Contract and to satisfy Owner Default. claims, if any, under any Construction Performance Bond. By the Contractor furnishing and the Owner accepting this 3 With respect to Claimants, this obligation shall be null Bond, they agree that all funds earned by the Contractor and void if the Contractor promptly makes payment, in the performance of the Construction Contract are directly or indirectly,for all sums due. dedicated to satisfy obligations of the Contractor and the Surety under this Bond, subject to the Owner's priority to 4 The Surety shall have no obligation to Claimants under use the funds for the completion of the work. this Bond until: 4.1 Claimants who are employed by or have a direct 9 The Surety shall not be liable to the Owner, Claimants contract with the Contractor have given notice to the or others for obligations of the Contractor that are Surety (at the address described in Paragraph 12) unrelated to the Construction Contract. The Owner shall and sent a copy, or notice thereof, to the Owner, not be liable for payment of any costs or expenses of any stating that a claim is being made under this Bond Claimant under this Bond, and shall have under this Bond and, with substantial accuracy, the amount of the no obligations to make payments to, give notices on claim. behalf of, or otherwise have obligations to Claimants 4.2 Claimants who do not have a direct contract with under this Bond. the Contractor: 10 The Surety hereby waives notice of any change, .1 Have furnished written notice to the Contractor including changes of time, to the Construction Contract or and sent a copy, or notice thereof, to the to related subcontracts, purchase orders and other Owner, within 90 days after having last per- obligations. formed labor or last furnished materials or equipment included in the claim stating, with 11 No suit or action shall be commenced by a Claimant substantial accuracy, the amount of the claim under this Bond other than in a court of competent juris- and the name of the party to whom the mater- diction in the location in which the work or part of the work ials were furnished or supplied or for whom is located or after the expiration of one year from the date the labor was done or performed; and (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2.3, or (2) on which the .2 Have either received a rejection in whole or in last labor or service was performed by anyone or the last part from the Contractor, or not received within materials or equipment were furnished by anyone under 30 days of furnishing the above notice any the Construction Contract, whichever of(1) or (2) first communication from the Contractor by which occurs. If the provisions of this Paragraph are void or the Contractor has indicated the claim will be prohibited by law, the minimum period of limitation paid directly or indirectly; and available to sureties as a defense in the jurisdiction of the .3 Not having been paid within the above 30 days, suit shall be applicable. have sent a written notice to the Surety(at the 12 Notice to the Surety, the Owner or the Contractor shall address described in Paragraph 12) and sent be mailed or delivered to the address shown on the a copy, or notice thereof, to the Owner, stating signature page. Actual receipt of notice by Surety, the that a claim is being made under this Bond and Owner or the Contractor, however accomplished, shall be enclosing a copy of the previous written notice sufficient compliance as of the date received at the furnished to the Contractor. address shown on the signature page. AIA DOCUMENT A312•PERFORMANCE BOND AND PAYMENT BOND•DECEMBER 1984 ED.•AIA A312-1984 5 THE AMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORK AVE.,N.W. WASHINGTON,D.C. 20006 • 13 When this Bond has been furnished to comply with a The intent of this Bond shall be to include without statutory or other legal requirement in the location where limitation in the terms "labor, materials or equipment" the construction was to be performed, any provision in that part of water, gas, power, light, heat, oil, this Bond conflicting with said statutory or legal gasoline, telephone service or rental equipment used requirement shall be deemed deleted herefrom and in the Construction Contract, architectural and provisions conforming to such statutory or other legal engineering services required for performance of the requirement shall be deemed incorporated herein. The work of the Contractor and the Contractor's intent is that this Bond shall be construed as a statutory subcontractors, and all other items for which a bond and not as a common law bond. mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were 14 Upon request by any person or entity appearing to be furnished. a potential beneficiary of this Bond, the Contractor shall 15.2 Construction Contract: The agreement between promptly furnish a copy of this Bond or shall permit a copy the Owner and the Contractor identified on the to be made. signature page, including all Contract Documents and changes thereto. 15 DEFINITIONS 15.3 Owner Default: Failure of the Owner, which has 15.1 Claimant: An individual or entity having a direct neither been remedied nor waived, to pay the contract with the Contractor or with a subcontractor of Contractor as required by the Construction Contract the Contractor to furnish labor, materials or or to perform and complete or comply with the other equipment for use in the performance of the Contract. terms thereof. MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: Section 6 is modified by adding section 6.3. 6.3 The Surety's failure to discharge its obligations under this Section 6 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a claim. However, if the Surety fails to discharge its obligations under this Section 6,the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs to recover any sums found to be due and owing to the Claimant. (Space is provided below for additional signatures of added parties,other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: Company: (Corporate Seal) (Corporate Seal) Signature: Signature: Name and Title: Name and Title: Address: Address: AIA DOCUMENT A312•PERFORMANCE BOND AND PAYMENT BOND•DECEMBER 1984 ED.•AIA® THE AMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORK AVE.. N.W. WASHINGTON,D.C. 20006 A312-1984 6 MERCHANTS BONDING COMPANY Bond#: INC 44694 POWER OF ATTORNEY Know All Persons By These Presents,that the MERCHANTS BONDING COMPANY(MUTUAL),a corporation duly organized under the laws of the State of Iowa,and having its principal office in the City of Des Moines,County of Polk, State of Iowa, hath made, constituted and appointed,and does by these presents make,constitute and appoint NANCY E STOLL of ANDERSON and State of IN its true and lawful Attorney-in-Fact,with full power and authority hereby conferred in its name, place and stead,to sign, execute,acknowledge and deliver in its behalf as surety any and all bonds,undertakings, recognizances or other written obligations in the nature thereof,subject to the limitation that any such instrument shall not exceed the amount of: TWO MILLION($2,000,000.00)DOLLARS and to bind the MERCHANTS BONDING COMPANY(MUTUAL)thereby as fully and to the same extent as if such bond or undertaking was signed by the duly authorized officers of the MERCHANTS BONDING COMPANY(MUTUAL),and all the acts of said Attomey-in-Fact,pursuant to the authority herein given,are hereby ratified and confirmed. This Power-of-Attomey is made and executed pursuant to and by authority of the following Amended Substituted and Restated By- Laws adopted by the Board of Directors of the MERCHANTS BONDING COMPANY(MUTUAL)on November 16,2002. ARTICLE II,SECTION 8-The Chairman of the Board or President or any Vice President or Secretary shall have power and authority to appoint Attomeys-in-Fact,and to authorize them to execute on behalf of the Company,and attach the Seal of the Company thereto,bonds and undertakings,recognizances,contracts of indemnity and other writings obligatory in the nature thereof. ARTICLE II,SECTION 9-The signature of any authorized officer and the Seal of the Company may be affixed by facsimile to any Power of Attorney or Certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or other suretyship obligations of the Company, and such signature and seal when so used shall have the same force and effect as though manually fixed. In Witness Whereof,MERCHANTS BONDING COMPANY(MUTUAL)has caused these presents to be signed by its President and its corporate seal to be hereto affixed,this 28th day of May , 2009 . MERCHANTS BONDING COMPANY(MUTUAL) •moo. �PPU9'••4.. •a' 1933 7 7 :yJ. ti. By• •STATE OF IOWA President COUNTY OF POLK ss. On this 28th day of May 2009 .before me appeared Larry Taylor,to me personally known,who being by me duly sworn did say that he is President of the MERCHANTS BONDING COMPANY(MUTUAL), the corporation described in the foregoing instrument,and that the Seal affixed to the said instrument is the Corporate Seal of the said Corporation and that the said instrument was signed and sealed in behalf of said Corporation by authority of its Board of Directors. In Testimony Whereof,I have hereunto set my hand and affixed my Official Seal at the City of Des Moines, Iowa,the day and year first above written. �p CINDY SMYTH /p1�d /� F Commission Number 173504 (%// • ow My Commission Expires /jA March 16,2012 Notary Public,Polk County,Iowa STATE OF IOWA COUNTY OF POLK ss. I,Wiliam Warner,Jr.,Secretary of the MERCHANTS BONDING COMPANY(MUTUAL),do hereby certify that the above and foregoing is a true and correct copy of the POWER-OF-ATTORNEY executed by said MERCHANTS BONDING COMPANY(MUTUAL),which is still in full force and effect and has not been amended or revoked. In Witness Whereof,I have hereunto set my hand and affixed the seal of the Company on this 5th day of February 2010 ••< G �• h/^�^/ yc/ Z>✓� .�, A' •Al.* k P 0 9.7•0.. Secretary •t : -0- v y _ m• •Z; M •y•• 1933 .•c .•J4*1� 64,.;• POA 0005 (1/09)