Loading...
HomeMy WebLinkAboutBerschaurer Construction BondsPHILADELPHIA INSURANCE COMPANIES A Member of the Tokio Marine Group Premium Based on Final Contract Prue, Not Penal Sum Bond Number: PB12538600080 Initial Premium: $6,984.00 PERFORMANCE BOND Take notice that Berschauer Construction, Inc., 730 O'Leary Street NW, Olympia, WA 98502 , as Principal (hereinafter called "the Principal"), and PHILADELPHIA INDEMNITY INSURANCE COMPANY, as Surety (hereinafter called "the Surety"), are held and firmly bound unto City of Bremerton, 100 Oyster Bay Ave N, Bremerton, WA 98312 , as Obligee, (hereinafter called "the Obligee"), in the amount of Three Hundred Ninety Eight Thousand Nine Hundred Forty & No/100ths------- DOLLARS �$398,940.00i (hereinafter called "the Penal Sum"), for the payment whereof the Principal and the Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS. The Principal has by written agreement dated 12/02/2020 , entered into a contract with Obligee for Fire Station #2 and Fire Station #3 Dormitory Remodel (hereinafter called "the Contract") NOW THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if the Principal shall promptly and faithfully furnish all labor, material, and equipment necessary to complete the Principal's scope of work under the Contract (hereinafter collectively called "the Construction Work"), then this obligation shall be null and void, otherwise it shall remain in full force and effect subject to the terms and conditions of this Performance Bond. Although the Surety waives notice of any reasonable modifications to the terms of the Contract, the Surety's obligations under this Performance Bond are expressly conditioned upon: a. The Obligee's compliance with the material terms of the Contract including, but not limited to, payment to the Principal as required by the Contract; and j. b. The Obligee's written notice to the Principal and the Surety that it is considering declaring a Contractor Default. Within 5 business days of the Surety's receipt of the written notice described in this Paragraph l(b), the Surety, in its sole discretion, may request a conference among the Obligee, the Principal and the Surety to discuss the Principal's completion of the Construction Work, which conference shall be conducted within 10 business days of the Surety's request for said conference; and c. The Obligee's written notice to the Principal and the Surety of the Obligee's formal declaration of a Contractor Default and the termination of the Principal's right to complete the Construction Work, which formal declaration and termination shall not be made until 10 business days from the date of the Surety's receipt of the written notice required by Paragraph l (b) or the date the conference described in Paragraph l (b) of this Performance Bond occurs, whichever date last occurs; and d. The Obligee's written notice to the Principal and the Surety of the Obligee's agreement to pay the Contract Balance to the Surety (or at the Surety's direction to a contractor selected by the Surety to perform the Construction Work as set forth herein). If there is no Obligee Default and when all of the conditions precedent set forth in Paragraph 1 of this Performance Bond have been satisfied; the Surety shall, within 21 business days, provide written notice to the Obligee of the Surety's election of one of the following options: a. Directing the Principal to complete the Construction Work with the Obligee's consent, which consent will not be unreasonably withheld; or b. Undertaking to complete the Construction Work itself or through others (including the Principal) upon entering into an acceptable completion agreement with the Obligee; or c. Arranging for a separate contract between the Obligee and a completion contractor, who is reasonably acceptable to the Obligee, for the completion of the Construction Work, which separate contract will be secured by a performance bond and a payment bond furnished by the completion contractor in favor of the Obligee and the Surety; or d. Waiving the Surety's right to direct, undertake, or arrange for the completion of the Construction Work and pay the Obligee the amount the Surety has determined it is liable to the Obligee under this Performance Bond; or e. Waiving the Surety's right to direct, undertake, or arrange for the completion of the Construction Work, and deny liability to the Obligee under this Performance Bond, and notifying the Obligee of the bases of the Surety's denial of liability. 3. If, but only if, each of the conditions precedent set forth in Paragraph 1 of this Performance Bond have been satisfied and the Surety fails to provide written notice to the Obligee of the Surety's election of one of the options set forth in Paragraph 2 within 21 business days, the Surety shall be deemed to be in default under this Performance Bond if Surety fails to elect an option under Paragraph within 7 business days after receipt of an additional written notice from the Obligee to the Surety demanding that Surety perform its obligations under the Performance Bond, after which the Obligee may then exercise any right or remedy granted to it by the Contract. 4. If the Surety elects the option set forth in Paragraph 2(a) or set forth in Paragraph 2(b) of this Performance Bond, the Obligee shall pay the Contract Balance to the Surety at the times and in the manner that payments would have been owed to the Principal had no Contractor Default existed under the Contract, free from any reduction or offset on account of any obligation that is unrelated to the Contract. All amounts the Surety expends in excess of the Contract Balance paid to the Surety to complete the Construction Work shall reduce the Penal Sum. If Surety elects any of the options set forth in Paragraph 2(c), Paragraph 2(d), or Paragraph 2(e), the Surety's liability under this Performance Bond may not exceed the reasonable cost to complete the Construction Work minus the Contract Balance paid to the Surety or its completion contractor up to the Penal Sum of the Performance Bond. Notwithstanding the option elected by the Surety under Paragraph 2 of this Performance Bond and/or the Surety's failure to make such an election, the Surety's aggregate liability is limited to and shall not exceed the Penal Sum under any circumstances. The Penal Sum may only be modified by means of a written rider to this Performance Bond executed by an authorized representative of the Surety. 6. The Obligee is the only intended beneficiary of this Performance Bond. Any suit or action by Obligee relating to this Performance Bond shall be: a. Commenced or instituted in a court of competent jurisdiction in the location in which the Construction Work or a part of the Construction Work is situated; b. Commenced or instituted within 1 year of the earlier of: i. the Principal's cessation of performing the Construction Work; ii. the substantial completion of the Construction Work; or iii. the Obligee's satisfaction of the conditions precedent set forth in Paragraph 1 of this Performance Bond; c. Commenced or instituted within the shortest period of limitation enforceable by sureties in the jurisdiction at issue if the limitation period set forth in Paragraph 6(b) is void or is otherwise in that jurisdiction. Philadelphia Indemnity Insurance Company, P.O. Box 3636, Bala Cynwyd, PA 19004 7. Definitions: a. Contract Balance: The total amount payable by the Obligee to the Principal under the Contract after all proper adjustments are made, including any amounts received or to be received by the Obligee in settlement of insurance or other claims for damages to which the Principal is entitled, reduced by all valid and proper payments made to or on behalf of the Principal under the Contract. b. Contractor Default: The failure of the Principal, which has not been remedied or waived, to perform or otherwise comply with a material term of the Contract relative to the Construction Work. c. Obligee Default: The failure of the Obligee, which has not been remedied or waived, to comply with a material term of the Contract relative to the Construction Work. DATED: 2nd day of December, 2020. Berschauer Construction, Inc. F' incipal) By: Its: Philadelphia I ni"urance Company (Surety) By: c Marie Paulin , Attorney In Fact Philadelphia Indemnity Insurance Company, F.O. Box 3636, Bala Cynwyd, PA 19004 PHILADELPHIA INSURANCE COMPANIES A Member of the Tokio Marine Groul, Premium Based on Final Contract Price, Not Penal Sum Bond Number: PB12538600080 Initial Premium: $6,984.00 PAYMENT BOND Take notice that Berschauer Construction, Inc., 730 O'Leary Street NW, Olympia, WA 98502 ,, as Principal, (hereinafter called "the Principal"), and PHILADELPHIA INDEMNITY INSURANCE COMPANY, as Surety (hereinafter called "the Surety"), are held and firmly bound unto City of Bremerton, 100 Oyster Bay Ave N, Bremerton, WA 98312 , as Obligee, (hereinafter called "the Obligee") for the use and benefit of Claimants as defined herein, in the amount of Three Hundred Ninety Eight Thousand Nine Hundred Forty & No/100ths----------- DOLLARS (1198.940.00) (hereinafter called "the Penal Sum"), for the payment whereof the Principal and the Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS. The Principal has by written agreement dated 12/02/2020, entered into a contract with Obligee for Fire Station #2 and Fire Station #3 Dormitory Remodel (hereinafter called "the Contract"). NOW THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if the Principal shall pay for labor, materials and equipment furnished by Claimants for use in the performance of the Principal's scope of work under the Contract (hereinafter collectively called "the Construction Work"), then this obligation shall be null and void, otherwise it shall remain in full force and effect subject to the terms and conditions of this Payment Bond. 1. Although the Surety waives notice of any reasonable modifications to the terms of the Contract, the Surety's obligations to Claimants under this Payment Bond are expressly conditioned upon: a. Claimants employed by or having a direct contract with the Principal having famished a Claim to the Surety. b. Claimants, who do not have a direct contract with the Principal, having furnished a written notice of non-payment to the Principal, stating with substantial accuracy, the amount claimed and the name of the party to whom 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 or last furnished materials or equipment included in the Claim; and have sent a Claim to the Surety. 2. When a Claimant has satisfied the conditions of Paragraphs l(a) or 1(b), whichever is applicable, the Surety shall take the following actions: a. Send an answer to the Claimant within sixty (60) days after receipt of the Claim, stating the amounts that are undisputed and the basis for challenging the amounts that are disputed; and b. Pay or arrange for payment of any undisputed amounts. The Surety's failure to discharge its obligations under this Paragraph 2 shall not be deemed to constitute a waiver of defenses the Surety or Principal may have or acquire as to a Claim, except as to undisputed amounts for which the Surety and Claimant have reached agreement. The Surety's total obligation shall not exceed the amount of Penal Sum of this Payment Bond and the Penal Sum shall be credited for any payments made by the Surety under this Payment Bond. The Penal Sum may Philadelphia Indemnity Insurance Company, P.O. Box 3636, Bala Cynwyd, PA 19004 only be modified by a written rider to this Payment Bond executed by an authorized representative of the Surety. 4. Principal and Obligee agree that all funds earned by Principal in the performance of the Construction Work are dedicated to satisfy obligations of the Principal and Surety under this Payment Bond. The Surety shall not be liable to the Obligee, Claimants or others for obligations of the Principal that are unrelated to the Construction Work. The Obligee shall not be liable for payment of any costs or expenses of any Claimant under this Payment Bond and shall have no obligation to make payments to, or give notice on behalf of Claimants or otherwise have any obligations to Claimants under this Payment Bond 5. No suit or action shall be commenced under this Payment Bond by a Claimant other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Work is located; and after the expiration of one (1) year from the date (1) on which the Claimant sent a Claim to the Surety pursuant to Paragraph 2, or (2) on which the last labor or service was performed by Claimant or the last materials or equipment were furnished by Claimant, whichever of (1) or (2) first occurs. 6. Notice and Claims to the Surety or Principal shall be mailed or delivered to the addresses shown on the first page of this Payment Bond, and sent in compliance with any applicable statutory notice requirements. 7. When this Payment Bond has been furnished to comply with a statutory requirement, any provision in this Payment Bond conflicting with said statutory requirement shall be deemed deleted herefrom and the provisions conforming to such statutory requirement shall be deemed incorporated herein. When so furnished, the intent of this Payment Bond shall be construed as a statutory bond, and not as a common law bond. 8. Definitions: a. Claim: A written statement by the Claimant including at a minimum: i. The name and contact information of the Claimant; ii. The name of the person or entity for whom labor was done or materials or equipment furnished; iii. A brief description of the labor, materials or equipment furnished; iv. The date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Work; v. The total amount due and unpaid to the Claimant for labor, materials or equipment furnished as of the date of the Claim. b. Claimant: An individual or entity having a direct contract with the Principal or with a subcontractor of the Principal to furnish labor, materials or equipment for use in the performance of the Construction Work. DATED: December 2, 2020 Berschauer Construction, Inc. Principal) By: i'hiladelphia Indemnity insurance Company (Surety) By: ❑ C Pam, _ Lga Marie Poulin , Attorney In Fact a �.�^ Philadelphia Indemnity Insurance Company, P.O. Box 3636, Bala Cynwyd, PA 19004 WN PHILADELPHIA INDEMNITY INSURANCE COMPANY One Bala Plaza, Suite 100 Bala Cynwyd, PA 19004-0950 Power of Attorney KNOW ALL PERSONS BY THESE PRESENTS: That PHILADELPHIA INDEMNITY. INSURANCE COMPANY (the Company), a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, does hereby constitute and appoint Michael R. Highsmith, Jennifer K. Malismith and Marie Poulin of Kaye Associates U.C. its true and lawful Attorney -in -fact with full authority to execute on its behalf bonds, undertakings, recognizances and other contracts of indemnity and writings obligatory in the nature thereof, issued in the course of its business and to bind the Company thereby, in an amount not to exceed 50 000 This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of PHILADELPHIA INDEMNITY INSURANCE COMPANY on the 10 of November, 2016. RESOLVED: That the Board of Directors hereby authorizes the President or any Vice President of the Company: (1) Appoint Attomey(s) in Fact and authorize the Attomey(s) in Fact to execute on behalf of the Company bonds and undertakings, contracts of indemnity and other writings obligatory in the nature thereof and to attach the seal of the Company thereto; and (2) to remove, at any time, any such Attomey-in-Fact and revoke the authority given. And, be it FURTHER RESOLVED: That the signatures of such officers and the seal of the Company may be affixed to any such Power of Attorney or certificate relating thereto by facsimile, and any such Power of Attorney so executed and certified by facsimile signatures and facsimile seal shall be valid and binding upon the Company in the future with respect to any bond or undertaking to which it is attached. IN TESTIMONY WHEREOF, PHILADELPHIA INDEMNITY INSURANCE COMPANY HAS CAUSED THIS INSTRUMENT TO BE SIGNED AND ITS CORPORATE SEALTO BE AFFIXED BY ITS AUTHORIZED OFFICE THIS 271H DAY OF OCTOBER, 2017. (Seal) Robert D. O'Leary Jr., President & CEO Philadelphia Indemnity Insurance Company On this 27" day of October, 2017, before me came the individual who executed the preceding instrument, to me personally known, and being by me duly swom said that he is the therein described and authorized officer of the PHILADELPHIA INDEMNITY INSURANCE COMPANY; that the seal affixed to said instrument is the Corporate seal of said Company; that the said Corporate Seal and his signature were duly affixed OOMMOWIEAM OF v n+a�ny'4.nRKnappM.NoaoNlyS/ryoIBaLpP nLaryph5�Ck, o�um�y Notary Public: MycammwknrpY6NOTANwL 6E 1RW residing at: (Notary Seal) My commission expires: Bala Cynwyd. PA September 25, 2021 I, Edward Sayago, Corporate Secretary of PHILADELPHIA INDEMNITY INSURANCE COMPANY, do hereby certify that the foregoing resolution of the Board of Directors and the Power of Attorney issued pursuant thereto on the 2711 day of October, 2017 are true and correct and are still in full force and effect. I do further certify that Robert D. O'Leary Jr., who executed the Power of Attorney as President, was on the date of execution of the attached Power of Attorney the duly elected President of PHILADELPHIA INDEMNITY INSURANCE COMPANY. In Testimony Whereof I have subscribed my name and affixed the facsimile seal of each Company this ! 44 of , 20 __Q Edward Sayago, Corporate Secretary PHILADELPHIA INDEMNITY INSURANCE COMPANY RETAINAGE BOND Bond No. PB12538600081 KNOW ALL MEN BY THESE PRESENTS, that Berschauer Construction. Inc. authorized to do business in the State of Washington and Philadelphia Indeninft Insurance Company as Surety, a corporation organized and existing under the laws of the State of Pennsylvania , as Principal and authorized to transact business in the State of Washington as Surety, are jointly and severally held and bound unto City of Bremerton _ as Obligee in the penal sum of Thirtv'Vine Ti 1 _ ± i r ! _i i_ _1 r v r Ninetv Four : NoWiTthi Dollars ( i3&894.00 ), which is 5% of the Principal's bid. WHEREAS, on the _ _ __ 2nd day of December , 20--a—, the said Principal, herein, executed a contract with the Obligee, for Fire Station #2 & Fire Station #3 Dormitory Rem ,dA WHEREAS, said contract and RCW 60.28 require the Obligee to withhold from the Principal the sum of 5% from monies earned on estimates during the progress of the construction, hereinafter referred to as earned retained fund AND NOW WHEREAS, Principal has requested that the Obligee not retain any earned retained funds as allowed under RCW 60.28. NOW, THEREFORE, the condition of this obligation is such that the Principal and Surety are held and bound unto the beneficiaries of the trust fund created by RCW 60.28 in the penal sum of 5% of the final contract cost which shall include any increases due to change orders, increases in quantities of work or the addition of any new item of work. If the Principal shall use the earned retained funds, which will not be retained, for the trus fund purposes of RCW 60.28, then this obligation shall be null and void; otherwise, it shall remain in full force and effect. This bond and any proceeds therefrom shall be made subject to all claims and liens and in the same manner and priority as set forth for retained percentages in RCW 60.28. PROVIDED HOWEVER, that. 1. The liability of the Surety under this bond shall not exceed 5% of the total amount earned by the Principal if no monies are retained by the Obligee on estimates during the progress of construction. 2. Any suit under this bond must be instituted within the time period provided by applicable law. WITNESS our hands this 2nd _ _ day of December , 2020 , Berschauer Cons u 'o nc. By: Principal P LL%A I My-111-1-CLA Ka-ve Associates LLC dba Kaye Surety Name and Address of Local Agent r 1011 E. Maine Ave, Suite 301, Tacoma, WA 98372 331 PHILADELPHIA INDEMNITY INSURANCE COMPANY One Bala Plaza, Suite 100 Bala Cynwyd, PA 19004-0950 Power of Attorney KNOW ALL PERSONS BY THESE PRESENTS: That PHILADELPHIA INDEMNITY INSURANCE COMPANY (the Company), a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, does hereby constitute and appoint Michael R. Highsmith, Jennifer K. N hsmtth and Marie Poulin of Kaye Associates I.I.C. its true and lawful Attorney -in -fact with full authority to execute on its behalf bonds, undertakings, recognizances and other contracts of indemnity and writings obligatory in the nature thereof, issued in the course of its business and to bind the Company thereby, in an amount not to exceed 50 000,000. This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of PHILADELPHIA INDEMNITY INSURANCE COMPANY on the 1416 of November, 2016. RESOLVED: That the Board of Directors hereby authorizes the President or any Vice President of the Company: (1) Appoint Attorney(s) in Fact and authorize the Attorney(s) in Fact to execute on behalf of the Company bonds and undertakings, contracts of indemnity and other writings obligatory in the nature thereof and to attach the seal of the Company thereto; and (2) to remove, at any time, any such Attomey-in-Fact and revoke the authority given. And, be it FURTHER RESOLVED: That the signatures of such officers and the seal of the Company may be affixed to any such Power of Attorney or certificate relating thereto by facsimile, and any such Power of Attorney so executed and certified by facsimile signatures and facsimile seal shall be valid and binding upon the Company in the future with respect to any bond or undertaking to which it is attached. IN TESTIMONY WHEREOF, PHILADELPHIA INDEMNITY INSURANCE COMPANY HAS CAUSED THIS INSTRUMENT TO BE SIGNED AND ITS CORPORATE SEALTO BE AFFIXED BY ITS AUTHORIZED OFFICE THIS 271a DAY OF OCTOBER, 2017 .:� (Seal) 1 . . Robert D. O'Leary Jr., President & CEO Philadelphia Indemnity Insurance Company On this 27"' day of October, 2017, before me came the individual who executed the preceding instrument, to me personally known, and being by me duly sworn said that he is the therein described and authorized officer of the PFULADELPE IA INDEMNITY INSURANCE COMPANY; that the seal affixed to said instrument is the Corporate seal of said Company; that the said Corporate Seal and his signature were duly affixed CD P NOTAR,4 SEa. —gmKnapp.NolaryPoNk Notary Public: Loin Mnion Np.. Mompo:neryCpunq 6bComnws..ew. �p1.25, 2021 rwn iwKm residing at (Notary Seal) My commission expires: Bala Cynwyd, PA September 25, 2021 I, Edward Sayago, Corporate Secretary of PHILADELPHIA INDEMNITY INSURANCE COMPANY, do hereby certify that the foregoing resolution of the Board of Directors and the Power of Attorney issued pursuant thereto on the 271 day of October, 2017 are true and correct and are still in full force and effect. I do further certify that Robert D. O'Leary Jr., who executed the Power of Attorney as President, was on the date of execution of the attached Power of Attorney the duly elected President of PHILADELPHIA INDEMNITY INSURANCE COMPANY. In Testimony Whereof I have subscribed my name and affixed the facsimile seal of each Company this �dly of Z,Q um 20 ✓ Edward Sayago, Corporate Secretary PHILADELPHIA INDEMNITY INSURANCE COMPANY