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Performance_Payment Bond •`=, . —1—" % l BOARD OF COUNTY COMMISSIONERS MAYOR Charles Sonny"McCoy,District3 yT 4 r Mayor Pro T Dixie M.Spehar,District 1 OUNTY111A0NROE F ." 5(� George Neugent District KEY WEST oAionsvw tt 4� rat Whirr BM Jimenez,District uos IYs.-• L[ Murray E.Nelson,District 5 • Office of the County Attorney " ) PO Box 1026 Key West,FL 33041-1026 305/292-3470-Phone 305/292-3516-Fax MEMORANDUM TO: Danny L. Kolhage Clerk of the Court FROM: Robert N. Wolfe Chief Assistant County Attorne DATE: August 14,2002 SUBJECT: Performance and Payment Bonds, KWRU project on South Stock Island I have examined the faxed documents submitted and conferred with Mr. Hendrick. This office finds the bonds satisfactory as submitted. tired �d�aapp / CJ Cy� sc & ro07/12,o9L II EAST ADAMS • SUITE 1400 • CHICAGO,ILLINOIS 00003-0304 (312) 030-0100 . FAX (312) 030-7705 www.shbb-law.com WILLIAM L.SMITH,JR. DONALD F. EEMMESCH, JR. KEVIN P. BUEEE Txoies E. BEANNIGAN SCOTT M. GUETZOW CHRIsroPHER B. EACZYNSKI August 27, 2002 VIA FEDERAL EXPRESS Mr. Danny Kohledge Monroe County Clerk 500 Whitehead Street, Suite 101 Key West,Florida 33040 Dear Danny: Enclosed please find an original performance and payment bonds, a surety rider adding Monroe County B.O.C.C. as an additional obligee and a certificate of liability insurance. Trusting that everything is in order,please forward to me an original signed copy of the South Stock Island Sewer Contract for my file. Sincerely yours, William . Smit , Jr. WLS/jng Enclosures 44 CHUBB GROUP OF INSURANCE COMPANIES OIiuJ66 15 Mountain View Road,P.O. Box 1615,Warren,New Jersey 07061-1615 Bond NO. 81887798 AIA DOCUMENT A312 PERFORMANCE BOND Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY(Name and Principal Place of Business): E.T. MacKenzie of Florida, Inc. Federal Insurance Company 4301 32nd Street West, Ste A8 15 Mountain View Road Bradenton, Fl 34205 Warren, N.J.07059 OWNER (Name and Address): K.W. Resort Utilities 6450 Junior College Road Key West, FL 33040 CONSTRUCTION CONTRACT Date: Kl tat 2Z , Lee'Z Amount: - $3,546,285.00 Description (Name and Location): Stock Island Sewer Expansion BOND Date(Not earlier than Construction Contract Date): Amount $3,546,285.00 Modifications to this Bond: MX None ❑ See Page 3 CONTRACTORS AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) E.T. MacKenzie of Florida, Inc. Federal Insuran p y Signature: - — �— P 'e I Signature: Name and Title: a,.“l °`k-'n .r FresYAfM1. Name and Title: Robe G Chapman Attorney-in-fact (Any additional signatures appear on page 3) Countersigned: �,,, — `„ C. e Q7 / tic2-, Jame C Congelfo, Florifl2 Resident (FOR INFORMATION ONLY—Name,Address and Telephone) Agent AGENT or BROKER:: OWNER'S REPRESENTATIVE(Architect, Engineer or avid Chapman Agency Inc. other party): PO Box 20186 Lansing, MI 48901 517-321-4600 Punted in cooperation with the American Institute of Architects (A/A)by the Chubb Group of Insurance Companies. The language in this document conforms exactly to the language used in AM Document A312 December 1984 edition, Third Printing,March 1987 A312-1984 1 Form 15MM70(Rev.4 93) • 1 The Contractor and the Surety,jointly and severally,bind .1 After investigation, determine the amount for themselves,their heirs,executors,administrators,successors which it may be liable to the Owner and,as soon and assigns to the Owner for the performance of the Con- as practicable after the amount is determined, stmction Contract,which is incorporated herein by reference. tender payment therefor to the Owner,or 2 If the Contractor performs the Construction Contract,the 2 Deny liability in whole or in part and notify the Surety and the Contractor shall have no obligation under this Owner citing reasons therefor. Bond,except to participate in conferences as provided in Sub 5 If the Surety does not proceed as provided in Paragraph paragraph 3.1. 4 with reasonable promptness,the Surety shall be deemed to 3 If there is no Owner Default,the Surety's obligation un- be in default on this Bond fifteen days after receipt of an addi- der this Bond shall arise after: tional written notice from the Owner to the Surety demanding 3.1 The Owner has notified the Contractor and the that the Surety perform its obligations under this Bond, and Surety at its address described in Paragraph 10 below the Owner shall be entitled to enforce any remedy available to the Owner is considering declaring a Contractor the Owner. If the Surety proceeds as provided in Subpara- that and has requested and attempted to arrange a graph 4.4, and the Owner refuses the payment tendered or Default conference with the Contractor and the Surety to be held the e has denied lia lllibe in whole or inf part,without fur- conference not later than fifteen days after receipt of such notice to aver notice the Owner shall be entitled to enforce any remedy available to the Owner. discuss methods of performing the Construction Con- tract. If the Owner,the Contractor and the Surety agree, 6 After the Owner has terminated the Contractor's right to the Contractor shall be allowed a reasonable time to complete the Construction Contract,and if the Surety elects perform the Construction Contract, but such an agree- to act under Subparagraph 4.1, 4.2, or 4.3 above, then the ment shall not waive the Owner's right, if any, subse- responsibilities of the Surety to the Owner shall not be greater quently to declare a Contractor Default;and than those of the Contractor under the Construction Contract, 3.2 The Owner has declared a Contractor Default and and the responsibilities of the Owner to the Surety shall not be Con- formally terminated the Contractor's right to complete the greater than those of the Owner under the Construction contract. Such Contractor Default shall not be declared tract. To the limit of the amount of this Bond,but subject to earlier than twenty days after the Contractor and the commitment by the Owner of the Balance of the Contract Price have received notice as provided in Subparagraph to mitigation of costs and damages on the Construction Con- Suretytract,the Surety is obligated without duplication for: 3.1;and 6.1 The responsibilities of the Contractor for correction 3.3_The_Owner has agreed to pay the Balance of the defective work and completion of the Construction Con- Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected tract; to perform the Construction Contract in accordance with 6.2 Additional legal,design professional and delay costs the terms of the contract with the Owner. resulting from the Contractors Default,and resulting from 4 When the Owner has satisfied the conditions of Para- the actions or failure to act of the Surety under Paragraph 4:and graph 3, the Surety shall promptly and at the Surety's ex- pense take one of the following actions: 8.3 Liquidated damages,or if no liquidated damages are specified in the Construction Contract, actual damages 4.1 Arrange for the Contractor, with consent of the Owner,to perform and complete the Construction Con- caused by delayed performance or non-performance of the Contractor. tract;or 4.2 to perform the Construc- 7 The Surety shall not be liable to the Owner or others for 4.2 Contract UndertakeIt tof, through anditd agentscompleteo through inde- obligations of the Contractor that are unrelated to the Con- tion of contractors;or struction Contract,and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated 4.3 Obtain bids or negotiated proposals from qualified obligations. No right of action shall accrue on this Bond to contractors acceptable to the Owner for a contract for any person or entity other than the Owner or its heirs,execu- performance and completion of the Construction Con- tors,administrators or successors. tract,arrange for a contract to be prepared for execution by the Owner and the contractor selected with the 8 The surety hereby waives notice of any change,includ- Owner's concurrence,to be secured with performance ing changes of time,to the Construction Contract or to related and payment bonds executed by a qualified surety subcontractors,purchase orders and other obligations. equivalent to the bonds issued on the Construction Con- 9 Any proceeding,legal or equitable,under this Bond may tract,and pay to the Owner the amount of damages as be instituted in any court of competent jurisdiction in the Iota- described in Paragraph 6 in excess of the Balance of Lion in which the work or part of the work is located and shall the Contract Price incurred by the Owner resulting from be instituted within two years after Contractor Default or within the Contractor's default;or two years atter the Contractor ceased working or within two 4.4 Waive its right to perform and complete,arrange for years after the Surety refuses or fails to perform its obligations completion,or obtain a new contractor and with reason- under this Bond, whichever occurs first. If the provisions of able promptness under the circumstances: this Paragraph are void or prohibited by law,the minimum Printed in cooperation with the American Institute of Architects MIA)by the Chubb Group of Insurance Companies. The language in this document conforms exactly to the language used in NA DocumentA312 December 1984 edition, Third Piloting,March 1987A312-1984 2 period of limitation available to sureties as a defense in the made, including allowance to the Contractor of any jurisdiction of the suit shall be applicable. amounts received or to be received by the Owner in settle- 10 Notice to the Surety,the Owner or the Contractor shall be merit of insurance or other claims for damages to which mailed or delivered to the address shown on the signature the Contractor is entitled,reduced by all valid and proper page. payments made to or on behalf of the Contractor under the Construction Contract. 11 When this Bond has been furnished to comply with astatu- tory or other legal requirement in the location where the con- 12.2 Construction Contract The agreement between the stmction was to be performed,any provisionin this Bond con- Owner and the Contractor identified on the signature page, flitting with said statutory or legal requirement shall be deemed including all Contract Documents and changes thereto. deleted herefrom and provisions conforming to such statutory 12.3 Contractor Default:Failure of the Contractor,which or other legal requirement shall be deemed incorporated has neither been remedied nor waived, to perform or herein. The intent is that this Bond shall be construed as a otherwise to comply with the terms of the Construction statutory bond and not as a common law bond. Contract. 12 DEFINITIONS 12.4 Owner Default: Failure of the Owner, which has 12.1 Balance of the Contract Price:The total amount pay- neither been remedied nor waived,to pay the Contractor able by the Owner to the Contractor under the Con- as required by the Construction Contract or to perform struction Contract after all proper adjustments have been and complete or comply with the other terms thereof. MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: (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) Federal Insurance Company Signature: Signature: Name and Title: Name and Title: Address: Address: Printed in cooperation with the American Institute of Architects (AIA)by the Chubb Group of Insurance Companies. The language in this document conforms exactly to the language used in AIA Document A312 December 1984 edition, Third Printing, March 1987 A312-1984 3 rCHUBB GROUP OF INSURANCE COMPANIES CHUBB 15 Mountain View Road, P.O. Box 1615,Warren,New Jersey 07061-1615 Bond No. 81887798 AIA DOCUMENT A312 PAYMENT BOND Any singular reference to Contractor, Surety,Owner or other party shall be considered plural where applicable. CONTRACTOR(Name and Address): SURETY(Name and Principal Place of Business): E.T. MacKenzie of Florida, Inc. Federal Insurance Company 4301 32nd Street West , Ste A8 15 Mountain View Road Bradenton, a 34205 Warren, N.J.07059 OWNER(Name and Address): K.W. Resort Utilities 6450 Junior College Road Key West, FL 33040 CONSTRUCTION CONTRACT Date: Ald.. 27 , 2.cuZ Amount: $3,546,285.00 Description(Name and Location): Stock Island-Sewer Expansion BOND Date(Not earlier than Construction Contract Date): Amount $3,546,285.00 Modifications to this Bond: ❑ None U See Page 6 CONTRACTORS AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) E.T. MacKenzie of Florida, Inc. Federallnsuran m Signature: G-- - —,� 1 R - ' 1 Signature: • Name and Title: Eretnv, T 1NMC3(Aztie y T Name and Title: Robert G Chapman r <srae... Attorney-in-fact (Any additional signatures appear on page 6) -- - -- - -- Countersigned: \ y0 „ _ e �.,, �1� (FOR INFORMATION ONLY—Name,Address and Telephone) James C gelio, Florida Re ident Agent AGENT or BROKER: OWNER'S REPRESENTATIVE(Architect, Engineer or David Chapman Agency Inc. other party): PO Box 20186 Lansing, MI 48901 517-321-4600 Printed in cooperation with the American Institute of Architects(AIA)by the Chubb Group of Insurance Companies. The language in this document conforms exactly to the language used in AIA Document A312 December 1984 edition, Third Printing,March 1987 A312-1954 4 Form 15-02-0281(Rev.4-931 1 The Contractor and the Surety,jointly and severally,bind 5 If a notice required by Paragraph 4 is given by the Owner themselves,their heirs,executors,administrators,successors to the Contractor or to the Surety,that is sufficient compliance. and assigns to the Owner to pay for labor,materials and equip- 6 When the Claimant has satisfied the conditions of Para- ment furnished for use in the performance of the Construction graph 4,the Surety shall promptly and at the Surety's expense Contract,which is incorporated herein by reference. take the following actions: 2 With respect to the Owner, this obligation shall be null 6.1 Send an answer to the Claimant,with a copy to the and void if the Contractor. Owner,within 45 days after receipt of the claim, stating 2.1 Promptly makes payment, directly or indirectly,for the amounts that are undisputed and the basis for chal- all sums due Claimants,and lenging any amounts that are disputed. 2.2 Defends,indemnifies and holds harmless the Owner 6.2 Pay orarrange forpayment of any undisputed amounts. from claims, demands, liens or suits by any person or 7 The Surety's total obligation shall not exceed the amount entity whose claim,demand,lien or suit is for the payment of this Bond,and the amount of this Bond shall be credited for for labor,materials or equipment furnished for use in the any payments made in good faith by the Surety. performance of the Construction Contract,provided the Owner has promptly notified the Contractor and the 9 Amounts owed by the Owner to the Contractor under the Surety (at the address described in Paragraph 12) of Construction Contract shall be used for the performance of the any claims,demands,liens or suits and tendered defense Construction Contract and to satisfy claims,if any,under Con- of such claims,demands,liens or suits to the Contractor struction Performance Bond. By the Contractor furnishing and and the Surety,and provided there is no Owner Default. the Owner accepting this Bond,they agree that all funds earned 3 With respect to Claimants, this obligation shall be null by the Contractor in the performance of the Construction Con- and void if the Contractor promptly makes payment,directly tract are dedicated to satisfy obligations of the Contractor and or indirectly,for all sums due. the Surety under this Bond,subject to the Owner's priority to use the funds for the completion of the work 4 The Surety shall have no obligation to Claimants under this Bond until: 9 The Surety shall not be liable to the Owner,Claimants or others for obligations of the Contractor that are unrelated to 4.1 Claimants who are employed by or have a direct the Construction Contract. The Owner shall not be liable for contract with the Contractor have given notice to the payment of any costs or expenses of any Claimant under this Surety(at the address described in Paragraph 12) and Bond,and shall have under this Bond no obligations to make sent a copy,or notice thereof,to the Owner,stating that payments to,give notices on behalf of,or otherwise have ob- a claim-is-being made under this Bond and, with sub- Igafions to Claimants under this Bond. stantial accuracy,the amount of the claim. 10 The Surety hereby waives notice of any change,includ- 4.2 Claimants who do not have a direct contract with ing changes of time,to the Construction Contract or to related the Contractor subcontracts,purchase orders and other obligations. .1 Have furnished written notice to the Contractor 11 No suitor action shall be commenced by a Claimant un- and sent a copy,or notice thereof,to the Owner, der this Bond other than in a court of competent jurisdiction in within 90 days after having last performed la- the location in which the work or part of the work is located or bor or last furnished materials or equipment in- after the expiration of one year from the date(1)on which the eluded in the claim stating,with substantial ac- Claimant gave the notice required by Sub-paragraph 4.1 or curacy,the amount of the claim and the name Clause 4.2(iii), or(2) on which the last labor or service was of the party to whom the materials were fur- performed by anyone or the last materials or equipment were nished or supplied or for whom the labor was furnished by anyone under the Construction Contract,which- done or performed;and ever of(1)or(2)first occurs. If the provisions of this Para- 2 Have either received a rejection in whole or in graph are void or prohibited by law, the minimum period of part from the Contractor,or not received within limitation available to sureties as a defense in the jurisdiction 30 days of furnishing the above notice any corn- of the suit shall be applicable. munication from the Contractor by which the 12 Notice to the Surety,the Owner or the Contractor shall be Contractor has indicated the claim will be paid mailed or delivered to the address shown on the signature directly or indirectly;and page. Actual receipt of notice by Surety, the Owner or the .3 Not having been paid within the above 30 days, Contractor,however accomplished,shall be sufficient oomph- have sent a written notice to the Surety(at the ance as of the date received at the address shown on the address described in Paragraph 12)and sent signature page. a copy,or notice thereof,to the Owner,stating 13 When this Bond has been furnished to comply with a statu- that a claim is being made under this Bond and tory or other legal requirement in the location where the con- enclosing a copy of the previous written notice struction was to be performed,any provision in this Bond con- furnished to the Contractor. flitting with said statutory or legal requirements shall be Printed in cooperation with the American Institute of Architects (AM)by the Chubb Group of Insurance Companies. The language in this document conforms exactly to the language used in AlA Document A312 December 1984 edition, Third Printing, March 1987 A312-1984 5 deemed deleted herefrom and provisions conforming to such ment used in the Constriction Contract,architectural and statutory or other legal requirement shall be deemed incorpo- engineering services required for performance of the work rated herein. The intent is that this Bond shall be construed of the Contractor and the Contractor's subcontractors,and as a statutory bond and not as a common law bond. all other items for which a mechanic's lien may be as- 14 Upon request by any person or entity appearing to be a sorted in the jurisdiction where the labor, materials or potential beneficiary of this Bond,the Contractor shall promptlyequipment were furnished. furnish a copy of this Bond or shall permit a copy to be made. 15.2 Construction Contract:The agreement between the 15 DEFINITIONS including and the Contractor Identified on the signature page, including all Contract Documents and changes thereto. 15.1 Claimant: An individual or entity having a direct contract with the Contractor or with a subcontractor of the 15.3 Owner Default: Failure of the Owner, which has Contractor to furnish labor,materials or equipment for use neither been remedied nor waived,to pay the Contractor in the performance of the Contract. The intent of this Bond as required by the Construction Contract or to perform shall be to include without limitation in the terms labor, and complete or comply with the other terms thereof. materials or equipment"that part of water, gas, power, light,heat,oil,gasoline,telephone service or rental equip- MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: **This bond is hereby amended as follows: The provisions and limitations of ,�,�x Section 713.23, Florida Statutes or Section 255.05, whichever is applicable, 'i"`— are incorporated in this bond by reference. (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) Federal Insurance Company Signature: Signature: Name and Title: Name and Title: Address: Address: Printed In cooperatlon with the American Institute of Architects (A/A) by the Chubb Group of Insurance Companies. The language in this document conforms exactly to the language used in A/A Document A312 December 1984 edition, Third Printing, March 1987 A312-1984 6 Chubb POWER Federal Insurance Company Attn.:Surety Department OF Vigilant Insurance Company 15 Mountain View Road ,r Surety ATTORNEY Pacific Indemnity Company Warren,NJ 07059 Know AA by These Presents,That FEDERAL INSURANCE COMPANY, an imam c aw is VIGILANT INSURANCE COMPANY, a New York corporation,ad PACIFIC MEMMTY COMPANY,a Wisconsin corporation,do each hereby cooslaAe and appoint David G. Chapman, Robert G. Chapman and Cloyd W. Barnes of Lansing, Michigan each as trek true and lewd Attorney-In-Fact to wale under such designation In Rhea rams aid to Sib their corporate seek to and delver for end on let behalf as shy thereon or otherwise,bads and ucabldgs and War writings obligatory In the retire thereof(other than bar bands)given or executed kr the dense of business,end any Instruments amending or altering the same, and consents to the modification or alteration of any instilment referred to In said bonds or ablgaicrs. In Witness Whereof,said FEDERAL INSURANCE COMPANY,VIGILANT INSURANCE COMPANY,and PACFIC N1EMM1Y COMPANY haw each executed and attested these presents and affixed their corporate eels on VAs 20th dayof Ortnher 1999 Sherd B.Roberts,Assisted 4 c E.R S STATE OF NEW JERSEY 1 County wM a1San es. On this 20th my or October. 1999 before me,a ream Pubic of New Jersey,personally u,.Sheryl B.Roberts, _ to me bon lo be Assistant Secretary at FEDERAL INSURANCE COMPANY,VIGILANT INSURANCE COMPANY,and PACIFIC 'CBraTY COMPANY,the converges which nomad the foregoing Pose of Murry,and ore said Shang B.Roberts being by me d*Sam,did depose and cry sit she Is baimal Svetery or FEDERAL INSURANCE COMPANY.VIGILANT INSURANCE=ARANY.and PACIFIC INDEMNITY CCWMIY.y knows to awporab seals thereof, Ord the sate attend to the foregoing Poser of Niamey are ash moon*.seeks and were*web seised by assay of the By-laws dsaid Companies:and as she signed saki Power oAllomy as Asbvd Secretary at said Companies by b autarky;and as she Is acquahyd Mori Frio E.Robertson,and Maw lime be We Preoles et maid Companies;all aid the afgn eks•of Frank E.Robertson,subecrbed I.said Poor et Nbmey ts Is,the genuine hndwd&g of Frank E. Robertson.end was ninth subscribed by wax*Nsid Bylaw and In deponents preens. Medal Sad ay 'i I RUSSAK 1 fNderyR NaNaMew Jwe 11 bmtnkdnbipkes4a mlT,btpa Nobly Public MATS-CATION Dead from the By-laws of FEDERAL INSURANCE COMPANY,VIGILANT INSURANCE COMPANY,and PACIFIC INDEMNITY COMPANY: 'Al powers of attorney for and on behalf of the Company may and shall be executed in the name and on behalf of the Company,Sher by the Chairman or the Preddert make Vke President or an AssSNad We President,Infinity Nth the Secretary or an Assured Secretary,order their respertler,designations. The signature of such oThon may be engraved,printed or alcpapted. The sipahse of each of the following officers: CMMman,Preseaa,ay Vice President any Assistant Vice President,any Secretary,any Assistant Secretary and the wl of the Company may be affixed by faceenle to any pryer of attorney or to any certificate relates thereto eppoYBg Assisted Secretaries a Attorneys-in-Fed for exposes only of executing and attesting bands and usertaigs and other wame o_lpamry F the Sure thereof,and any such pawn of attorney or certificate hewed such beamae signature or facaenle seal shall be wild and binding upon the Company and any such paw so executed and certified by sup.WW1*signature and facsimile seal del be mid and bending upon the Company wen respect to any bond or udebrag to whim I is alydted• 1,Sheryl B.Roberts,Assistant Secretary of FEDERAL INSURANCE COMPANY,VIGILANT INSURANCE COMPANY,and PACIFIC INDEMNITY COMPANY(ti.e'Companies"do hereby certify that () the foregoing Snot of the Bylaws of the Companies is true and correct (m) the Carpals Se guy tensed and authorized to based surely b ei less m el 50 of the Urged SUSI of Amen a and the District of Calnda ad am authorize]by the U.S.Tway Department Nlw,Federal ad Vigilant are teased in Puerto Rico ad to U.S.Vkgln IsbMs,and Federal is teased in American Same,Gwen,ad each sfee Proems of Canada aced Mice Edward island:ex/ NI) the foregoing Power of Attorney is true,correct and in full face and effect. Men under my hand and seals of said Carpanies M Warren,NJ his day of dijikiett r 4) 4 ' (((1i)) wyDV,Nh 'y�e' a U-/ lcs^)vCJ ter -, / "��' Sheryl B.Roberts,Assistant Secretary IN THE EVENT YOU WISH TO NOTIFY US OF A CLAIM, VERIFY THE AUTHENTICITY OF THIS BOND OR NOTIFY US OF ANY OTHER MATTER, PLEASE CONTACT US AT ADDRESS LISTED ABOVE, OR BY Telephone (908)903-3485 Fax (908) 903-3856 e-mail: surety@chubb.com latao]EA IEd tor%caNSpR