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Performance BondBond No. SU1139509 ,� 0 TrIn Conforms - CONTRACTOR: (Name, legal slants and address) Burke Construction Group, Inc. 10145 N.W. 19th Street Doral FL 33172 OWNER: (Name; legal status and address) Monroe County Board of County Commissioners 500 Whitehead Street Key West FL 33040 CONSTRUCTION CONTRACT Date: April 20, 2016 Amount: S 7,921,975.00 Description: (Nance and location) Redevelopment of Berstein Park BOND Date: April 22, 2016 Wol earlier than Construction Contract Date) Amount: S 7, 921, 975. 00 SURETY: (Ncune, legal status and principal place of 6:tsinesg) Arch Insurance Company 300 Plaza Three Jersey City NJ 07311 Mailing Address for Notices (Same as Above) 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. Seven Million Nine Hundred Twenty One Thousand Nine Hundred Seventy Five Dollars and 001100 Seven Million Nine Hundred Twenty One Thousand Nine Hundred Seventy Five Dollars and 001100 :dodiffaarions to this Bond: ® None See Section 16 C—ON T RACTOR AS PRINCIPAL Company: AN (Corporate Seal) signshm, Name ........ and'Titie: (arty additional signatrtres appear on the last page of this performance Bond) (FOR MOXMI7IONONLY ---Name; address and telephone) l Company: (Cotporate Seal) Arch Insue Company Signature• �, C' rles ielson Name and Title: Attorney -in -Fact AGENT or BROKER: OWNER'S REPRESENTATIVE: Nielson, Hoover&Associates(Rrchltect,Engineer orother Pony.) 8000 Governors Square Blvd. #101 NIA Miami Lakes FL 33016 305-722-2663 S-185WJAS 8/10 § 1 The Contractor and Surety, jointly and severally, bind themselves, their helm executors, administrators, successors and assigns to the {homer for the performance of the Constriction 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 oonfauce as provided in Section 3. § 3 If dun is no Ownernefaultunder 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 Surely to discuss the Contractor's performance. If the Owner does not request a conference, the Surety nmay, 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 o 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 Owners 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 term of the Construction Contact 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 shaft 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; § 6.2 Undertake to perform. and complete the Construction Contract itself, through its agents or independent contractors; § 5.3 Obtain bids or negotiated proposals fronm qualified contractors acceptable to the Owner for a contract for petftrumce 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 pruner as a result of the ConbutorDefoulh or § Sal Waive its right to pezfm 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 Ifthe 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 aaa receipt of an additional written notice ftm 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 5A and the Owner ref es 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. § 7 If the Surety elects to act under Section 5.1, 5.2 or 53, then the responsibilities of the Surety to the Owner shall not be greater than time 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. 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. § S If the Surety elects to act under Section 5.I, 53 or 5.4, the SurWs 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 unrAatdd 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 the work is located and shall be instituted within two years after a declaration of Contractor Default or within two years after the Contractor cossod 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 Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which theirsignature 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 lawbond. $14 Definitlons $14.1 Balance of the Contract Price. The total amount payable by the Owner to the Contractor under the Construction Contract alter all proper adjustments have been mado, including allowance to the Contractor of any amounts received or to he 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. 'Ilse 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 oomplete or comply with the other material terms ofthe Construction Contract § 14.5 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 terns Contractor in this Bond shall be deemed to be Subcontractor and the tern Owner shall be deemed to be Contractor. S-1=/As a/1 o 98 ModificaUons to this bond are as Pon (Space Fs pvovAkd belaw far additional signatures of addedpardw, other than those appearing on the covoerpage°) CONTRACTOR AS PRINCIPAL SURETY Company. (Corporate Sea!) Company: signatim.. Name and�t8em Addmu 8-48WAS BHO (Corporate Seal) !: t OF ATTORNEY Kww All ftmons By Those Any and t s and edhor surety obligullam. In the panel sum riot exceeft Im " v. lu t r+ kF as t 7 u ��. ..� u „• �.. Ai i 1 i`.4 4 FA Patrick K. Nails, Swetafy i, STATE OF COUNTY OF PHILADELPHLA ■ . 07 _ =its a: purposes therain set ftih, H ' + , &Z"J" a., PbbBeF 10/0312017 -�t - r .,. i c t. z t +w 4 I 4 f-_.:T i -Corporate1M _ hereunto } �,. • _ Insurance .rCompany We i - 1 _ 1. +. o authority to bird the Company except In the manner and to the extent harain stated. e r' 0ML000`1300 0303'_r: 2. Document A312 TM -2010 Conforms with The American Institute of Architects AIA Document 312 CONTRACTOR: {Nave, legal status and address) Burke Construction Group, Inc. 10145 N.W. 19th Street Doral FL 33172 OWNER: (Name, legal status and address) Monroe County Board of County Commissioners 500 Whitehead Street Key West FL 33040 CONSTRUCTION CONTRACT Date: April 20, 2016 Amount: $ 7, 921, 975.00 Description: (Ndnre and location) Redevelopment of Berstein Park BOND Date: April 22, 2016 (llot earlier than Constriction Contract Date) Amount: $ 7, 921, 975.00 SURETY: (Name, legal staters and principal place of business) Arch insurance Company 300 Plaza Three Jersey City NJ 07311 Maf ling Ad Hess for Notices (Same as Above) 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, Seven Million Nine Hundred Twenty One Thousand Nine Hundred Seventy Five Dollars and 00110o Seven Million Nine Hundred Twenty One Thousand Nine Hundred Seventy Five Dollars and 001100 (piny additional signatures appear on the last page of this Payment Band.) (FOR )NFOAVATlON ONLY — Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: Nielson, Hoover &Associates (Architect, Engineer or other party.) 8000 Governors Square Blvd. #101 NIA Miami Lakes FL 33016 S-21491AS 8Mtl § 117re 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 fumisbed ror use in the performance of the Construction Contract, which is i.neorpomted herein by reference, subject to the following terms, § 2 If the Contraetorpromptly 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 Irthere is no Owner Default under the Construction Contract, the Surety's obligation to the Owner under this Bond shall arise afterthe 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 Owncrs pmPOrtY by any lemon 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, indernnh� 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 a@er the following: § 6.1 Claimants, who do not have a direct contract with the Contractor, .1 have fumished a written notice afnon-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 have sent a Claim to the Surety (at the address described in Section I3). § 8.2 Claimants, who am 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.I is given by the Owner to the Contractor, that is sufficient to satisfy a Claimant's obligation to finnish a written notice of non-payment under Section 5.1.1. § 7 When a Claimanthas 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 am 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 felts to discharge its obligations under Section 7.1 or Section TZ the Surety shall indemnify the Claimant for the reasonable at[arrney's fees Hie Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. § A The Surety's total obligation shall not exceed the amount orthis Bond, plus the amount ofreasonable 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 Constmction Contract and to satisfy claims, if any, under any construction performance bond. By the Contractor fimrdshing and the Owner accepting this Bond, they agree that all funds earned by the ConWr 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 far the completion of the work. S-21491AS 8110 § 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. Me Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond, and shall have uadcr this Bond no obligation to stake 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 obit § 12 No suit or action shall be commenced by a Claimant under this Bond other than in a court of odinpetent jurisdiction in the state in which the project that Is the subject of the Construction Contract is located or dtar the expiration of one year from the date (1) on which the Claimant sart 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 (I) or (2) first occurs. If the provisions of this Paragraph am 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 appeals. Actual receipt ofnolice or Claims, however accomplished, shall be sufficient compliance as of the date received. § 14 When this Bond has been finnishod 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 shell be deemed deleted h and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so famished, the intent is that this Bond shall be coushuod as a statutory band and not as a common law bond. § 15 Upon request by any person or entity appearing to be a potential bonefroiaxy of this Bond, the Contractor and Owner shall promptly famish a copy of this Bond or shall permit a copy to be made. § 18 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 agrocment or purchase order pursueaeto which Iabor, materials or equipment was furnished for in the peribrmance of the Construction Contract; A a brief description of the labor, materials or equipment furnished; .6 the date on which the Claimant last performed labor or last furnished materials or equipment far use in the performance of the Construction Contract; .6 the total amount canad by the Claimant for labor, materials or equipment furnished as of the date of the Claim; .7 the total amount ofpmvious payments received by the Claimant; and .8 the total amount duo and unpaid to the Claimant for labor, materials or equipment famished as ofthe 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 orequipment 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 statu4 against the real property upon which the Project Is located. The intent of this Bond shall be to include without limitation is the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasollue, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for pert rmmance of the work of the ContmoW and the Contractors subcontractors, and all other items for which a mechanic's lien may be asserted in tho jurisdiction where the labor, materials or equipment were famished. § 16.3 Construction Contract. The agreement between the Owner and Contractor idend-ficd on the cover page, Including alI Contract Documents and all changes made to the agreement and the Contract Documents. IP214WAS 6M 0 § 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 Perfonn and complete or comply with the other material terms of the Construction Contract. § 16.6 Contract Documents. All the documents that comprise die agreement between the Owner and Contractor. § 17 If We 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: including but not limited to the notice and time limitations in Sections 255.05(2) and 255.05(10), are incorporated in this bond by reference. (*ace isprovided Below for additional stgnalitres ofadded parties, other than chase appearing on the cover page.) CONTRACTOR ASP I IPL SURETY Company: (Corporate Seal) Company: Signature: Name and Tide: Address (Corporate Seal} S-2149/AS 8M 0 THIS POWER qFATTQRN9YWA?T` VAUD UNLESS IT IS PRWTED ON BLUE BACKGROUND. In thi; -manner and to the extent herein stated. Not valid thr Mortgage, Note, Loan, Letter of Credit, Bank Deposit, Currency Rate, !nterest Rate or Residential Value Guarantees. �11 POWER OF ATTORAE' Know All Persons By These Presents, That the Arch Insurance Company, a corporation organized and existing under the laws at the State of Missouri, having its principal administrative office in Jersey City, New Jers.ey (hereinafter referred to as the "Company") does Ivreby appoint Arthur Lawrence Colley of Charlotte NC, Brett Rosenhaus of Lake Worth, FL Charles D. Nielson, Charles J. Nielson and David R Hoover of Miami Lakes, FL (EACH) R Danny Gann, Edward T Ward and Audna R Ward of Atlanta, GA (EACH) John R Neu and Kevin Wojtowicz of St Petersburg, FL (EACH) Laura D, Mosholder of Orlando, FL its true and lawful Attorney(s)in-Fact, to make, execute, seal, and deliver frorhthe dat4 of isl:uance of this power for wW on its behalf as surety, and as its act and deed. Any and all bonds, undertakings, recognizances and other surety obligations, in the penal sum not exceeding N&UM Dollars ($90,0000a.00), This authority does not permit the t ame obligation , to be split into two or more bonds trt order to bring each such bond within the dollar limit of authority as set forth herein The execution of such bonds, undertakings, reoognizences and other surety obligations in pursuance of these presents shall be as binding upon the said Company as fully and amply to all intents and puWPps', as -if the a ' ame had been duly executed end acknowledged by its regularly efecftd offmirs at its ptilricipeill administrative inJerqlaybity,.N" Jersey. This Power of Attorney Is executed by authority of resolutions adopted by unhimou§ consent of the Board of Directors of the Company on September 15, 2011, true and accurate copies of which are hereinafter set forth and are hereby certified to by the undersigned Secretary as being in full force and effect VOTED, That the Chairman of tq BoirO, the. Pro . siqont, or the Executive Vice President, or any Senior Vice President of the Sur* Business Divisign, or their appoiii,44. disigo'eted irl"Wd and filed with the Secretary, , I Vhg - ry, or the Secretary shall have the power and authority to appoint agents and and to authorize them subjed to the limitations set forth in their respective powers of attorney, to execute on behalf of the Company, and attach the seal of the Company thereto, bonds, undertakings, recognizances and other surety obligations obligatory in the nature thereof, and any such officers of the Company may appoint agents for acceptance of process This Power of Attorney is signed, sealed and ceffled by facsimile under and `W:aufho�, 0 ithefollowing resokftn Mopted by the unanimous consent of the Board of Dkeclors of the Company on Septembet, 2 VOTED, That the signature of the Chairman of the Board, the President, or the Executive Vice President, or any Senior Vice President, of the Surety Business Division, or their appointees designated In writing and filed with the Secretary, and the signature of the Secretary, the wal of the Company, and ce ificptionr 'mile on any power of attorney or bond A . . ? tty the Secretary, may be affixed by facsimile exec- Ud pursuard to the resolution Odopted by1he.Boor.0 of Directors on September 15, 201. and any such power so executed, mled and cariliffed with respect to. any borid or" . u . no6rf6king to which it is aftached, shafl oDndme to be valid and binding upon the Company OOMLOO13 00 03 03 Page 1 of 2 Printed in U.S.A. AIC 0000176358 In Testimony Whereof, the Company has caused this instrument to be signed and its corporate seal to be affixed by their authorized officers, this 26"' day of Janua , 2016. Attested and Certified e SIM Patrick K. Nails, Secretary STATE OF PENNSYLVANIA SS COUNTY OF PHILADELPHIA SS Arch Insurance Company ai i I, Helen Szafran, a Notary Public, do hereby certify that Patrick K. Nails and David M. Finkelstein personally Known to me to be the same persons whose names are respectively as Secretary and Executive Vice President of the Arch Insurance Company, a Corporation organized and existing under the laws of the State of Missouri, subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that they being thereunto duly authorized signed, sealed with the corporate seal and delivered the said instrument as the free and voluntary act of said corporation and as their own free and voluntary acts for the uses and purposes therein set forth. �, 17 A..nza n, 6.1, My commission expires 10/03/2017 CERTIFICATION I, Patrick K. Nails, Secretary of the Arch Insurance Company, do hereby certify that the attached Power of Attorney dated January 26, 2016 on behalf of the person(s) as listed above is a true and correct copy and that the same has been in full force and effect since the date thereof and is in full force and effect on the date of this certificate, and I do further certify that the said David M. Finkelstein, who executed the Power of Attomey as Executive Vice President, was on the date of execution of the attached Power of Attorney the duly elected Executive Vice President of the Arch Insurance Company. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seal of the Arch insurance Company on this 22 day of April _, 201_. Patrick K. Nails, Secretary This Power of Attorney limits the acts of those named therein to the bonds and undertakings specifically named therein and they have no authority to bind the Company except in the manner and to the extent herein stated. Arch Insurance — Surety Division goes -- 3 Parkway, Suite 1500 Philadelphia, PA 19102 WRMWAY9 S ion OOMLOO13 00 03 03 Page 2 of 2 Printed in U.S.A.