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Performance/Payment Bond JBI GROUP, INC. 10014 N. Dale Mabry Hwy., Suite 101 , Tampa, Florida 33618 Phone (813) 333-5880 · Fax (813) 333-5605 Monroe County A~ ... 'FRONTPAGE flME: ~_'_;'_'_";_""' ."._ RECEIVED BY Attached To and Part of Bond No. 929405945 In compliance with Florida Statute Chapter 255.05(1)(a), Public Work. All other Bond pages are deemed subsequent to this page regardless of any page numbers that may be pre- printed thereon. Contractor Name: B&M Constmction Company. Inc. Contractor Address: 1412 SW 34 Ave.. Deerfield Beach. FL 33442 Contractor Phone Number: 954-427-4886 Surety Company: Western Surety Company Surety Address: 2405 Lucien Way. Maitland. FL 32751 Surety Phone Number: 407-919-3942 Owner Name: Monroe County Board of County Commissioners Owner Address: 500 Whitehead Street. Key West FL 33040 Owner Phone Number: Bond AmoUDt: $274..000.00 Description of Work: Construction of new Plantation Key Fueling Facility Project Location: 88820 Overseas Highwav.. Tavernier.. Florida Legal Description: Construction of new Plantation Kev Fuelintl Facilitv Monroe Countv.. Florida /. ec.'~ Monroe Counf" G>iet-~ IIMl ~ "(I' RECEiliED R;; ~ B dN 929405945 on o. Performance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): B&M Construction Company, Inc. 1412 SW 34 Ave. Deerfield Beach, FL 33442 OWNER (Name and Address): Monroe County Board of County Commissioners 500 Whitehead Street Key West, FL 33040 CONSTRUCTION CONTRACT Date: April 15, 2009 Amount: $ 274,000.00 SURElY: Western Surety Company 2405 Lucien Way, Maitland, FL 32751 Two hundred seventy-four thousand and 00/100 DOLLARS Description (Name and Location): Plantation Key Fueling Facility - 88820 Overseas Highway, Tavernier, Florida BOND Date (Not earlier than Construction Contract Date): April 29, 2009 Amount: $ 274,000.00 Two hundred seventy-four thousand and 00/100 DOLLARS Modifications to this Bond: CONTRACTOR ASPRINCIP AL o None SURElY Company: Western Surety Company Signature: /~~/~~"~~~ ~ Name and Title: Robert H. Bond .. '~~,' ".. " ,: l ~.~',;' '.'''' ._,: ~.... . Attorney In Fact ~d LicenSedfL A~nt, ' .; ,..:} \.", \f" ~ See Page 3 ,...s'!.w. ~.It.r...B&~ '~. C?nstruct~ Company, Inc. ~...<."J>....~~~~~.~~_'.~ '. ", ~li.... .~ Corporate Seal <, . :'~ature~, : .rr ," ;~~8tJd~~: "fu,\\ \ 1(1 i4-, ~ I r Ite~tlQ'\t- --r '~., "'::~';'~JI!IlIUKlilal signatures appear on page 3) ~-,i!'~' <::Jj. f) ~ftt.:"I:'-{ftt.~tfJifFORMA.TJON ONLY-Name, Address and Telephone) AGENT or BROKER: Robert H. Bond 10014 N. Dale Mabry Hwy., Suite 101 Tampa, FL 33618 813-333-5880 OWNER'S REPRESENTATIVE (Architect, Engineer or other party): MBI K2M Architecture, Inc. Ponted m cooperation WIth the Amencan InstItute of ArchItects (AlA) by Western Surety Company . Western Surety Company vouches that the language m the document confonns exactly to the language used in AlA Document A-312. December 1984 Edition. PRF7600 lZZ060 1 f With Modifications 1 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 Sub- paragraph 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 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 for- mally terminated the Contractor's right to complete the con- tract. Such Contractor Default shall not be declared earlier than twenty days after the Contractor and the Surety have received notice as provided in Sub-paragraph 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 con- tractors acceptable to the Owner for a contract for perfor- mance 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 bonds 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: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as prac- ticable after the amount is determined, tender pay- ment 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 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 com- plete 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 obliga- tions 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 sub- contractors, 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 available to sureties as a defense in the jurisdiction language used in AlA Document A-312, December 1984 Edition. Printed in cooperation with the American Institute of Architects (AlA) by 2 vouches that the language in the document confonns exactly to the shall be applicable. 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 here from 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 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 identified 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 to comply with the terms of the Construction Contract. 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 Contractor of any amounts received or to be received by the MODIFICATIONS TO TIllS BOND ARE AS FOLLOWS: THERE ARE NO MODIFICATIONS TO THIS BOND. 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). CONTRACTORASPRmCWAL Company: (Corporate Seal) Signature: Name and Title: Address: SURETY: Company: (Corporate Seal) Signature: Name and Title: Address: Attorney In Fac Printed in cooperation with the American Institute of Architects (AlA) by vouches that the language in the document conforms exactly to the 3 language used in AlA Document A-312, December 1984 Edition. iIME; __._<_._.~ RECEIVED BY ._ Bond No. 92940594 5 Payment Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY: Western Surety Company B&M Construction Company, Inc. 2405 Lucien Way, Maitland, FL 32751 1412 SW 34 Ave. Deerfield Beach, FL 33442 OWNER (Name and Address): Monroe County Board of County Commissioners 500 Whitehead Street Key West, FL 33040 CONSTRUCTION CONTRACT Date: April 15, 2009 Amount: $ 274,000.00 Two hundred seventy-four thousand and 00/100 DOLLARS Description (Name and Location): Plantation Key Fueling Facility - 88820 Overseas Highway, Tavernier, FL BOND Date (Not earlier than Construction Contract Date): April 29, 2009 Amount: $ 274,000.00 Two hundred seventy-four thousand and 00/100 DOLLARS Modifications to this Bond: 0 None ~ See Page 3 CONTRACTOR AS PRINCIPAL SURETY :~ !tI.~,'t..,,~,.....m"~~~.~,.~..#t:..,..~,.... ".',''". n stru~n ~o~any, Inc. Company: Western Surety Company _,..."c,,'~.~~..f"t w'. ~,'.:e-.,..,j.'.'f'."."".,. '.~...." · f--A--1<- _Corporate Seal 1) ~ - ~- .,..~, Corporate,seal -"',.- - - -r- Signature: / ~. ~. - ,:" '. f )!~~'~'~\\\\p A. LeG I \.:ye\\~~\- NameandTitle: ~=~~" <. -:" ';," ..:~ "~~' , '....";:~ :',,~" , t ../.~'t. - (An) ~onal signatures appear on page 3) < .~; -"~":~(EQ~oie.Q8MA,TION ONLY-Name, Address and Telephone) '. . ' . . . ~',~\: ' ~ .:i......'.'.",.'f,.1..,,,..AWt.. '.r~~C.,.g.KER: OWNER'S REPRESENTATIVE (Architect, Engineer or ,,>,~~c"'tE'ROtiM'ii.Bohd '. other party): 10014 N. Dale Mabry Highway, Suite 101 MBI K2M Architecture, Inc. Tampa, FL 33618 813-333-5880 Printed in cooperation with The American Institute of Architects (AlA) by Western Surety Company Western Surety Company vouches that the language in the document conforms exactly to the language used in AlA Document A-312, December 1984 EDITION. PA Y7600 1 ZZOSO If With Modifications 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 Con- tract, 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 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 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, provided there is no Owner Default. 3 With respect to Claimants, this obligation shall be null and void if the Contractor promptly makes payment, directly or in- directly, 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 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 Payor 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 Con- struction Contract shall be used for the performance of the Con- struction Contract and to satisfY claims, if any, under any Con- struction 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 pay- ment 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 sub- contracts, 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 Claim- ant 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 oflimitation 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. Printed in cooperation with The American Institute of Architects (AlA) by vouches that the language in the document conforms exactly 2 to the language used in AlA Document A-12. December 1984 Edition. 14 Upon request by any person or entity appearing to be a poten- tial beneficiary of this Bond, the Contractor shall promptly fur- nish 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 con- tract with the Contractor or with a subcontractor of the Con- tractor 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 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 to perform and complete or comply with the other terms thereof. MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: THE ATTACHED ~312 PAYMENT BOND RIDER IS A PART OF 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 Title: Address: Signature: Name and Title: Address: Printed in cooperation with The American Institute of Architects (AlA) by vouches that the language in the document confonns exactly to 3 the language used in AlA Document A-312, December 1984 EDITION. A 312 PAYMENT BOND RIDER This rider amends the provisions of the A312 Payment Bond as follows: Paragraph 5 is deleted in its entirety. Paragraph 6 is deleted in its entirety and replaced with the following: 6. When the Surety has received Notice as required in Paragraph 4 above, the surety shall take the following action: 6.1) Send an acknowledgment letter to the claimant, with a copy to the Owner, requesting information and documentation necessary to investigate the claim. 6.2) As soon as reasonably practical under all circumstances, and after having received the requested documentation from the claimant, including a properly executed Affidavit of Claim, advise the claimant of the status of the claim. No provision of this bond shall be interpreted to waive or discharge any right or defense of the Surety or the Contractor. No action or failure to act by the Surety or the Contractor shall be considered to be an admission of liability or a waiver of the Contractor or Surety's right to dispute a claim in whole or in part. Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and' existing corporation having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint Robert H Bond, Individually of Tanlpa, FL,its true and lawful Attomey(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature - In Unlimited Amounts - and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By-Law printed on the reverse hereof, duly adopted, as indicated, by the shareholders of the corporation. In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Senior Vice President and its corporate seal to be hereto affixed on this 10th day of October, 2006. WESTERN SURETY COMPANY -I?/~~ Paul . Brutlat, Senior Vice President State of South Dakota County of Minnehaha } ss On this 10th day of October, 2006, before me personally came Paul T. Bruflai, to me known, who, being by me duly sworn, did depose and say: that he resides in the City of Sioux Falls, State of South Dakota; that he is the Senior Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. My commission expires November 30, 2012 +~~~~~~~~~~~~~~~~~~~~~~+ ~ D.KRELL ~ I. I 1~NarARY PU8LIC~~ :\8P!SJSOUTH DAKOTA ~~ +~~~~~~~~~~~~~~~~~~~~~~~+ ~ ~~bIiC CERTIFICA TE I, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in force, and further certify that the By-Law of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporation this 29 day ofApr i 1 2009 WESTERN SURETY COMPANY g. ?~(~:{~ls~eCmmy Fonn F4280-09-06 RECEIVED Authorizing By-Law ADOPTED ByfIm':!~ftX1ffiHOLDEJ{S"()F'WEStER.N' sUREtv':coMPANv"; fl A tV 'j '...... n", ~. ~!,) , aUNT "". ..W Y ATTOr:, '1 ~ ~>;'.~t~::. ,:'.:> '",..' .:}~~~>~~~~ ,()fAtt,O~,~i~,~ZKte~d executed pursuant to and by authority ,oftheJ~lIowing By-Law duly adop~bythe spareholders oftbe Company. Section 7. All bonds, policies, undertakings, Powers of Attorney, or other obligadoris'"Br\'the'c(ji1iorafi()ri(~hllWt1eV~~liteifin the corporate name of the Company by the President, Secretary, and Assistant Secretary, Treasurer, or any Vice President, or by such other officers as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or agents who shall have authority to issue bonds, policies, or undertakings in the name of the Company. 'l11,e",;~1JJ~~s~ i~ Qq,tl!-~~ary:for the validity of any bonds, pQlicies, undertakings, Powers of Attorney or other obligatioQs:o[the corporation. The signature of any such officer and the corporate seal may be printed by facsimile. ,',