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HomeMy WebLinkAboutB & D Excavation and Construction Payment Bondvs, A TM Document A312 -2010 Payment Bond CONTRACTOR: B and D Excavation and Construction, Inc. 455 Horn Avenue Santa Rosa, CA 95407 OWNER: Town of Los Altos Hills 26379 Fremont Road Los Altos Hills CA 94022 CONSTRUCTION CONTRACT Date: Amount: $388,200.00 Three Hundred Eighty Eight Thousand Two Hundred Dollars and 00/100 Description: (Name and location) Matadero Creek Restoration and Bank Stabilization Project BOND Date: 05/20/2025 (Not earlier than Construction Contract Date) Amount: $388,200.00 Three Hundred Eighty Eight Thousand Two Hundred Dollars and 00/100 Modifications to this Bond: 0 None ❑ See Section 18 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: B and D Excavation and Construction, Inc. Bond No. UCSX2X5499 [.YI1RSII , United Surety Insurance Company 303 Congress Street, Suite 502 Boston, MA 02210 This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. AIA Document A312-2010 combines two separate bonds, a Performance Bond and a Payment Bond, into one form. This is not a single combined Performance and Payment Bond. United Surety Insurance Company Signature: Signature: Name 5 E fA/ / &.gil/S —CEO Name Gregory Yu and Title: and Title: Attomey-in-fact (Airy additional signatures appear on the last page ol'this Pet forniance Bond.) (FOR INFORMATION ONLY- Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: Walsh Carter & Associates Insurance Services, LLC (Architect, Engineer or other parry.) 423 Washington Street, Suite 500 San Francisco CA 94111 Init. AIA Document A312Th1— 2010. The American Institute of Architects. (Corporate Seal) 061110 5 § 1 The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference, subject to the following terms. § 2 If the Contractor promptly makes payment of all sums due to Claimants, and defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity seeking payment for labor, materials or equipment furnished for use in the performance of the Construction Contract, then the Surety and the Contractor shall have no obligation under this Bond. § 3 If there is no Owner Default under the Construction Contract, the Surety's obligation to the Owner under this Bond shall arise after the Owner has promptly notified the Contractor and the Surety (at the address described in Section 13) of claims, demands, liens or suits against the Owner or the Owner's property by any person or entity seeking payment for labor, materials or equipment furnished for use in the perfonnance of the Construction Contract and tendered defense of such claims, demands, liens or shits to the Contractor and the Surety. § 4 When the Owner has satisfied the conditions in Section 3, the Surety shall promptly and at the Surety's expense defend, indemnify and hold harmless the Owner against a duly tendered claim, demand, lien or suit. § 5 The Surety's obligations to a Claimant under this Bond shall arise after the following: § 5.1 Claimants, who do not have a direct contract with the Contractor, .1 have furnished a written notice of non-payment to the Contractor, stating with substantial accuracy the amount claimed and the name of the party to whotn the materials were, or equipment was, furnished or supplied or for whom the labor was done or performed, within ninety (90) days after having last performed labor or last furnished materials or equipment included in the Claim; and .2 have sent a Claim to the Surety (at the address described in Section 13). § 5.2 Claimants, who are employed by or have a direct contract with the Contractor, have sent a Claim to the Surety (at the address described in Section 13). § 6 If a notice of non-payment required by Section 5.1.1 is given by the Owner to the Contractor, that is sufficient to satisfy a Claimant's obligation to furnish a written notice of non-payment under Section 5,1.1. § 7 When a Claimant has satisfied the conditions of Sections 5.1 or 5.2, whichever is applicable, the Surety shall promptly and at the Surety's expense take the following actions: § 7.1 Send an answer to the Claimant, with a copy to the Owner, within sixty (60) days after receipt of the Claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed; and § 7.2 Pay or arrange for payment of any undisputed amounts. § 7.3 The Surety's failure to discharge its obligations under Section 7.1 or Section 7.2 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim, except as to undisputed amounts for which the Surety and Claimant have reached agreement. If, however, the Surety fails to discharge its obligations under Section 7.1 or Section 7.2, the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. § 8 The Surety's total obligation shall not exceed the amount of this Bond, plus the amount of reasonable attorney's fees provided under Section 7.3, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. § 9 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any construction performance bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. Init. AIA Document A3121m —2010. The American Institute of Architects. 6 § 10 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligation to make payments to, or give notice on behalf of, Claimants or otherwise have any obligations to Claimants under this Bond. § 11 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. § 12 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date (1) on which the Claimant sent a Claim to the Surety pursuant to Section 5.1.2 or 5.2, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. § 13 Notice and Claims to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. Actual receipt of notice or Claims, however accomplished, shall be sufficient compliance as of the date received, § 14 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 15 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor and Owner shall promptly furnish a copy of this Bond or shall pen -nit a copy to be made. § 16 Definitions § 16.1 Claim. A written statement by the Claimant including at a minimum: .1 the name of the Claimant; .2 the name of the person for whom the labor was done, or materials or equipment furnished; .3 a copy of the agreement. or purchase order pursuant to which labor, materials or equipment was furnished for use in the performance of the Construction Contract; .4 a brief description of the labor, materials or equipment furnished; .5 the date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; .6 the total amount earned by the Claimant for labor, materials or equipment furnished as of the date of the Claim; .7 the total amount of previous payments received by the Claimant; and .6 the total amount due and unpaid to the Claimant for labor, materials or equipment furnished as of the date of the Claim. § 16.2 Claimant. An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Construction Contract. The tern Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. § 16.3 Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and all changes trade to the agreement and the Contract Documents. Init. AIA Document A312T"' —2010. The American Institute of Architects. § 16.4 Owner Default. Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. § 16.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 17 If this Bond is issued for an agreement between a Contractor and subcontractor, the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. § 18 Modifications to this bond are as follows: (Space is provided below for additional signatures gfadded parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company:____`Corporate Seal) Company: (Corporate Seal) Signature: Z40 Signature: Name and Title: cS r+,1 CSu/ns - cco Name and Title: P Address: 45S N n Ave 4,5- 0- 3St,o Address: CAUTION: You should sign an original AIA Contract Document, on which this text appears in RED. An rlginal assures that changes will not be obscured. snit. AIA Document A312- —2010. The American institute of Architects. 8 UNITED CASUALTY AND SURETY INSURANCE COMPANY US Casualty and Surety Insurance Company United Surety Insurance Company ER OF ATTORNEY 172265 KNOW ALL MEN BY THESE PRESENTS: That United Casualty and Surety Insurance Company, a corporation of the State of Nebraska, and US Casualty and Surety Insurance Company and United Surety Insurance Company, assumed names of United Casualty and Surety Insurance Company (collectively, the Companies), do by these presents make, constitute and appoint: Gregory Yu, Brendan Walsh its true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, with full power and authority hereby conferred in its name, place and stead, to execute, acknowledge and deliver any and all bonds, recognizances, undertakings or other instruments or contracts of suretyship to include riders, amendments, and consents of surety, providing the bond penalty does not exceed Two Million &00/100 Dollars (,$2,000 000.00 ), This Power of Attorney shall expire without further action on December 311t, 2025. This Power of Attorney is granted under and by authority of the following resolutions adopted by the Board of Directors of the Companies at a meeting duly called and held on the 1St day of July, 1993: Resolved that the President, Treasurer, or Secretary be and they are hereby authorized and empowered to appoint Attorneys -in -Pact of the Company, in its name and as its acts to execute and acknowledge for and on Its behalf as Surety any and all bonds, recognizances, contracts of Indemnity, waivers of citation and all other writings obligatory in the nature thereof, with power to attach thereto the seal of the Company. Any such writings so executed by such Attorneys -in -Pact shall be binding upon the Company as if they had been duly executed and acknowledged by the regularly elected Officers of the Company in their own proper persons. That the signature of any officer authorized by Resolutions of this Board and the Company seal may be affixed by facsimile to any power of attorney or special power of attorney or certification of either given for the execution of any bond, undertaking, recognizance or other written obligation in the nature thereof, such signature and seal, when so used being hereby adopted by the Company as the original signature of such officer and the original seal of the Company, to be valid and binding upon the Company with the same force and effect as though manually affixed. IN WITNESS WHEREOF, the Companies have caused this instrument to be signed and their corporate seals to be hereunto affixed, this 29th day of July, 2024 6uaErydp",. a`�`S�yRETYty\N5..... %. `tea ' `'rGp�" ��q•"` ':'tai, �% :',�Q';?' `4M+� z:: OOOIOyy, ,i j. �� C�yNPOaq YF. .•yw . W: "00 ORA . (15 '•i.W SPAt. Inc y;, SRAt, ,�: ` SHAY, J���,�p 1, .��,D. '�6.5 Y�D�p4 ~:�'>�'• i`r .. Corporate Seals Commonwealth of Massachusetts County of Suffolk ss; US Casualty and Surety insurance Company United Surety insurance Company R. Kyle Fowler, Treasurer On this 29th day of 1uly, 2024 before me, Colleen A. Cochrane, a notary public, personally appeared, R. Kyle Fowler, Treasurer of United Casualty and Surety Insurance Company, US Casualty and Surety Insurance Company and United Surety Insurance Company, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person(s), or the entity on behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the Commonwealth of Massachusetts that the foregoing paragraph is true and correct. WITNESS my hand and seal COUEENA.100com (Seal) Not" Puwl , aof uS h 4N,t,Pub1c commission Expires: ! 7/2028 My Commisft Expires IOMI2029 I, Robert F. Thomas, President of United Casualty and Surety Insurance Company, US Casualty and Surety Insurance Company and United Surety Insurance Company do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney, executed by said Companies, which is still In full force and effect, furthermore, the resolutions of the Board of Directors, set out In the Power of Attorney are in full force and effect. In Witness Whereof, I have hereunto set my hand and affixed the seals of said Companies at Boston, Massachusetts this May 2025 5 ypucy6 Corporate Seals e4` % .. SEAL S -, SIiAl. +b; SL+AL .`,^ 20th Robert F. Thomas, President TO CONFIRM AUTHENTICITY OF THIS BONG OR DOCUMENT EMAIL: CONFIRMBOND@UNITEDCASUALTY.COM day of ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Califo pia County of M&jL% 1 ) On 5 12Z before me, T, ' vO U l `C. /' (,'I l,� (insert name and title of the offi er) personally appeared 6 ce-q %t _l L) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. ypL Oc r �_: TIFFANY BRAVO WITNESS my hand and official seal. V�• COMM. #2420119 NOTARY PUBLIC -CALIFORNIA I— w MARIN COUNTY My Comm. Expires OCT. 9. 2026 Signature (Seal)