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Performance Bond
Bond No. 1946390 Document A312 TM - 2010 Conforms with The American Institute of Architects AIA Document 312 Performance Bond CONTRACTOR: SURETY: (Nance, legal status and address) (Name, legal status and principal place of business) Burke Construction Group, Inc. The Hanover Insurance Company 440 Lincoln Street 10145 N.W. 19th Street Thls document has Important legal Donal FL 33172 Worcester MA 01653 consequences. Consultation with Mailing Address for Notices an attomey is encouraged with respect to its completion or modification. OWNER: Any singular reference to (Name, legal status and address) Contractor, Surety, Owner or other party shall be considered Board of County Commissioners Monroe County, FL plural where applicable. 1100 Simonton Street, Room 1 -213 Key West FL 33040 -9018 CONSTRUCTION CONTRACT Date: Amount: $ 3,256,250.00 Three Million Two Hundred Fifty Six Thousand Two Hundred Fifty Dollars and 00/100 Description: (Name and location) Construction of New Stock Island Fire Station, Stock Island, Florida BOND Date: (Not earlier than Construction Contract Date) Amount: $3,256,250.00 Three Million Two Hundred Fifty Six Thousand Two Hundred Fifty Dollars and 00/100 Modifications to this Bond: ❑ None © Scc Scction 16 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Burke Construction G'•up, Inc. The Hano nsurance m Signature: / Signature: Name / I �' Y �� Name Charles J. ielson and Title: it b and Title: Attorney -in -Fact (Any additional signatures appear on the last page of this Performance Bond.) (FOR INFORtIA77ON ONLY —Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: Nielson, Hoover & Associates (Architect, Engineer or other party:) 8000 Governors Square Blvd. #101 William P. Horn Architect, P.A. Miami Lakes FL 33016 915 Eaton Street Key West FL 33040 305 - 722 -2663 S- 1852/AS 8/10 §1 The Contractor and 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 when applicable to participate in a conference as provided in Section 3. §3 If there is no Owner Default under the Construction Contract,the Surety's obligation under this Bond shall arise after .1 the Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring a Contractor Default.Such notice shall indicate whether the Owner is requesting a conference among the Owner,Contractor and Surety to discuss the Contractor's performance.If the Owner docs not request a conference,the Surety may,within five(5)business days after receipt of the Owner's notice,request such a conference.If the Surety timely requests a conference,the Owner shall attend.Unless the Owner agrees otherwise,any conference requested under this Section 3.1 shall be held within ten(10)business days of the Surety's receipt of the Owner's notice.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; .2 the Owner declares a Contractor Default,terminates the Construction Contract and notifies the Surety;and .3 the Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perform the Construction Contract. §4 Failure on the part of the Owner to comply with the notice requirement in Section 3.1 shall not constitute a failure to comply with a condition precedent to the Surety's obligations,or release the Surety from its obligations,except to the extent the Surety demonstrates actual prejudice. §5 When the Owner has satisfied the conditions of Section 3,the Surety shall promptly and at the Surety's expense take one of the following actions: §5.1 Arrange for the Contractor,with the consent of the Owner,to perform and complete the Construction Contract; §5.2 Undertake to perform and complete the Construction Contract itself,through its agents or independent contractors; §6.3 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 a 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 Section 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default;or §5.4 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 practicable after the amount is determined,make payment to the Owner;or .2 Deny liability in whole or in part and notify the Owner,citing the reasons for denial. §6 If the Surety does not proceed as provided in Section 5 with reasonable promptness,the Surety shall be deemed to be in default on this Bond seven 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 Section 5.4,and the Owner refuses the payment 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. 5-1852/AS 8/10 § 7 If the Surety elects to act under Section 5.1, 5.2 or 5.3, 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 thc Owner under the Construction Contract. Subject to the commitment by the Owner to pay the Balance of the Contract Price, the Surety is obligated, without duplication, for .1 the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; .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 Section 5; and .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. § 8 If the Surety elects to act under Section 5.1, 5.3 or 5.4, the Surety's liability is limited to the amount of this Bond. § 9 The Surety shall not be liable to the Owner or others for obligations 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, successors and assigns. § 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 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 thc work is located and shall be instituted within two years after a declaration of 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 of the suit shall be applicable. § 12 Notice to the Surcty, thc Owner or thc Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. § 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. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 14 Definitions § 14.1 Balance of the Contract Price. The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustmcnts have bccn made, including allowance to the Contractor of 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. § 14.2 Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and changes made to the agreement and the Contract Documents. § 14.3 Contractor Default. Failure of the Contractor, which has not been remedied or waived, to perform or otherwise to comply with a material term of the Construction Contract. § 14.4 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. § 14.6 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 15 If this Bond is issued for an agreement between a Contractor and subcontractor, the teen Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. S- 1852/AS 8/10 § 16 Modifications to this bond are as follows: If no specific periods of warranty are stated in the Contract for any particular item or Work, material or equipment, the warranty shall be deemed to be a period of one (1) year from the date of final acceptance by the County. This Bond does not limit the County's ability to pursue suits directly with the Principal and not its Surety seeking damages for latent defects in materials or workmanship, such actions being subject to the limitations found in Section 95.11(3)(c), Florida Statutes. (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: Signature: Name and Title: Name and Title: Address Address S- 1852/AS 8110 Bond No. 1946390 • Document A312 - 2010 Conforms with The American Institute of Architects AIA Document 312 Payment Bond CONTRACTOR: SURETY: (Name, legal status and address) (Nance, legal status and principal place of business) Burke Construction Group, Inc. The Hanover Insurance Company 10145 N.W. 19th Street 440 Lincoln Street This document has important legal Worcester MA 01653 consequences. Consultation with Dora! FL 33172 Mailing Address for Notices an attomey Is encouraged with respect to its completion or modification. OWNER: Any singular reference to (Name, legal status and address) Contractor, Surety, Owner or Board of County Commissioners Monroe County, FL other party shall be considered plural where applicable. 1100 Simonton Street, Room 1 -213 Key West FL 33040 -9018 CONSTRUCTION CONTRACT Date: Amount: $3,256,250.00 Three Million Two Hundred Fifty Six Thousand Two Hundred Fifty Dollars and 00/100 Description: (Nance and location) Construction of New Stock Island Fire Station, Stock Island, Florida BOND Date: (Not earlier than Construction Contract Date) Amount $ 3,256,250.00 Three Million Two Hundred Fifty Six Thousand Two Hundred Fifty Dollars and 00/100 Modifications to this Bond: El None © See Section 18 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Burke Constructio roup, Inc. The Hanr surance Signature: �/ Signature: Name e / (t' l� oko y 18 ✓ a. �C Name Cha es J. ielson and Title: 2s b� r - and Title: Attorney -in -Fact (Any additional signatures appear on the last page of this Payment Bond) (FOR INFORMATION ONLY — Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: Nielson, Hoover & Associates (Architect, Engineer or other party:) 8000 Governors Square Blvd. #101 William P. Horn Architect, P.A. Miami Lakes FL 33016 915 Eaton Street 305 - 722 -2663 Key West FL 33040 S- 2149/AS 8/10 § 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 duc 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 thc Surcty (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 performance of the Construction Contract and tendered defense of such claims, demands, liens or suits 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, Hen or suit. § 5 The Surety's obligations to a Claimant under this Bond shall arise after the following: § 6.1 Claimants, who do not have a direct contract with the Contractor, .1 have furnished a written notice ofnon- payment to the Contractor, stating with substantial accuracy the amount claimed and the name of the party to whom 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 scnt a Claim to thc Surcty (at the address described in Section 13). § 6.2 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 thc 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 Surcty under this Bond, subject to the Owner's priority to use the funds for the completion of the work. S- 2149/AS 8/10 § 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 undcr 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 tune, 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 subjcct 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 Scction 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 arc 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 permit 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 famished as of the date of the Claim; .7 the total amount of previous payments received by the Claimant; and .8 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 term 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 made to the agreement and the Contract Documents. S- 2149/AS 8/10 • § 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: THIS BOND IS HEREBY AMENDED SO THAT THE PROVISIONS AND LIMiT4 i OILS O F F SECTION 255.05 OR SECTION 713.23 FLORIDA STATUTES, WHICHEVER 1S APPLICABLE, ARE INCORPORATED HEREIN BY REFERENCE. This bond is given to comply with section 255.05 Flor' Statutes, and any action instituted by a claimant under t bond for payment must be in accordance with the notice time limitation provisions in Section 255.05(2), Florida Statt. (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: Signature: Name and Title: Name and Title: Address Address S- 2149/AS 8110 THE HANOVER INSURANCE COMPANY MASSACHUSETTS BAY INSURANCE COMPANY CITIZENS INSURANCE COMPANY OF AMERICA POWERS OF ATTORNEY CERTIFIED COPY KNOW ALL MEN BY THESE PRESENTS: That THE HANOVER INSURANCE COMPANY and MASSACHUSETTS BAY INSURANCE COMPANY, both being corporations organized and existing under the laws of the State of New Hampshire, and CITIZENS INSURANCE COMPANY OF AMERICA, a corporation organized and existing under the laws of the State of Michigan, do hereby constitute and appoint Charles J. Nielson, David R. Hoover, Charles D. Nielson and /or Joseph P. Nielson of Miami Lakes, FL and each is a true and lawful Attorney(s) -in -fact to sign, execute, seal, acknowledge and deliver for, and on its behalf, and as its act and deed any place within the United States, or, if the following line be filled in, only within the area therein designated any and all bonds, recognizances, undertakings, contracts of indemnity or other writings obligatory in the nature thereof, as follows: Any such obligations in the United States, not to exceed Twenty Five Million and No /100 ($25,000,000) in any single instance. and said companies hereby ratify and confirm all and whatsoever said Attorney(s) -in -fact may lawfully do in the premises by virtue of these presents. These appointments are made under and by authority of the following Resolution passed by the Board of Directors of said Companies which resolutions are still in effect: "RESOLVED, That the President or any Vice President, in conjunction with any Vice President, be and they are hereby authorized and empowered to appoint Attorneys -in -fact 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 -fact shall be as 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." (Adopted October 7, 1981 - The Hanover Insurance Company; Adopted April 14, 1982 - Massachusetts Bay Insurance Company; Adopted September 7, 2001 - Citizens Insurance Company of America) IN WITNESS WHEREOF, THE HANOVER INSURANCE COMPANY, MASSACHUSETTS BAY INSURANCE COMPANY and CITIZENS INSURANCE COMPANY OF AMERICA have caused these presents to be sealed with their respective corporate seals, duly attested by two Vice Presidents, this 28th day of November 2011. THE HANOVER INSURANCE COMPANY MASSACHU TTS SAY INSURANCE COMPANY ,y CITIZENS IN ' - ANCE 9 PANY OF AMERICA fir, ftI i f 0 Robert Th`amas, Vice President Ali THE COMMONWEALTH OF MASSACHUSETTS ) ar. ° ,r' Vice P COUNTY OF WORCESTER ) ss. On this 28th day of November 2011 before me came the above named Vice Presidents of The Hanover Insurance Company, Massachusetts Bay Insurance Company and Citizens Insurance Company of America, to me personally known to be the individuals and officers described herein, and acknowledged that the seals affixed to the preceding instrument are the corporate seals of The Hanover Insurance Company, Massachusetts Bay Insurance Company and Citizens Insurance Company of America, respectively, and that the said corporate seals and their signatures as officers were duly affixed and subscribed to said instrument by the authority and direction of said Corporations. w 3 S nw' BARBARA A. GARLICK ' Notary Public Catr re weaeh of Masseuse; tly ?.21.2Ct9 p Jf -' Barbara A. Garlick, Notary Public My Commission Expires September 21, 2018 I, the undersigned Vice President of The Hanover Insurance Company, Massachusetts Bay Insurance Company and Citizens Insurance Company of America, hereby certify that the above and foregoing is a full, true and correct copy of the Original Power of Attorney issued by said Companies, and do hereby further certify that the said Powers of Attorney are still in force and effect. This Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of The Hanover Insurance Company, Massachusetts Bay Insurance Company and Citizens Insurance Company of America. "RESOLVED, That any and all Powers of Attorney and Certified Copies of such Powers of Attorney and certification in respect thereto, granted and executed by the President or any Vice President in conjunction with any Vice President of the Company, shall be binding on the Company to the same extent as if all signatures therein were manually affixed, even though one or more of any such signatures thereon may be facsimile." (Adopted October 7, 1981 - The Hanover Insurance Company; Adopted April 14, 1982 - Massachusetts Bay Insurance Company; Adopted September 7, 2001 - Citizens Insurance Company of America) GIVEN under my hand and the seals of said Companies, at Worcester, Massachusetts, this day of 20 . THE HANOVER INSURANCE COMPANY MASSACHUSETTS BAY INSURANCE COMPANY CITIZENS INSURANCE COMPANY OF AMERICA r` f Ie nn Margosian, Vice President