HomeMy WebLinkAboutCain Enterprises, LLC (dba Engineering Solutions International) Construction Agreement - Water Treatment Plant No. 2 Electrical Improvements - 2021 08 04 CONSTRUCTION AGREEMENT
WATER TREATMENT PLAN NO. 2 ELECTRICAL IMPROVEMENTS
THIS AGREEMENT is made this t day of as _ , 2021 by and between the
CITY OF WINTER SPRINGS, a Florida municipal corporation (herein referred to as OWNER)
and CAIN ENTERPRISES, LLC, dba ENGINEERING SOLUTIONS INTERNATIONAL, a
Florida limited liability company authorized and duly licensed to do business in the State of Florida
(herein referred to as CONTRACTOR),as follows:
1. DESCRIPTION OF WORK-CONTRACTOR shall perform the work,in accordance with
the Contract Documents for the construction of WTP No. 2 Electrical Improvements.
2. CONTRACT DOCUMENTS - The Contract Documents consist of this Agreement;
Exhibits and Addendum to the Agreement; the Construction Drawings for City of Winter Springs
WTP No. 2, dated February 2021; Final Bid Set Specifications dated April 2021; ITB Documents
issued by the City, dated April 2021; including Addenda, if any; Contractor's Bid Submittal, dated
May 21,2021;General Conditions,if any;Supplemental Terms and Conditions by the City,if any; all
Change Orders approved by the City after execution of this Agreement. These Contract Documents
are hereby incorporated into this Contract by this reference. The CONTRACTOR represents and
agrees that it has carefully examined and understands this Agreement and the other Contract
Documents, has investigated the nature, locality and site of the Work and the conditions and
difficulties under which it is to be performed and that it enters into this Agreement on the basis of its
own examination, investigation and evaluation of all such matters and not in reliance upon any
opinions or representations of the OWNER, or of any of their respective officers, agents, servants, or
employees. The Contract Documents are complementary, and what is called for by any one shall be
as binding as if called for by all. The intent of the Contract Documents is to include all labor,
materials,equipment,transportation,taxes, fees and incidentals necessary for the proper and complete
execution of the Work for each Project. Materials or Work described in words which so applied have
a well-known technical or trade meaning shall be held to refer to such recognized standards. Any
discrepancies or omissions found in the Contract Documents shall be reported to the City's Project
Manager immediately_ The City's Project Manager will clarify discrepancies or omissions,in writing,
within a reasonable time.
3. ORDER OF PRECEDENCE- In case of any inconsistency in any of the documents bearing
on the Agreement between the OWNER and the CONTRACTOR, the inconsistency shall be
resolved by giving precedence in the following order:
a. Change Orders
b. Agreement,Exhibits and Addenda
c. Supplemental Terns and Conditions
d. General Terms and Conditions
e. Engineering Plans and Drawings
f. ITB for Water Treatment Plant No. 2 Electrical Improvements issued by
the City of Winter Springs dated April 2021, including any subsequently
issued Addenda
g. Contractor's Bid Submittal
Any inconsistency in the work description shall be clarified by the OWNER and performed by
the CONTRACTOR.
4. AGREEMENT INTERPRETATION - At its discretion, during the course of the work,
should any errors, ambiguities, or discrepancies be found in the Contract Documents, the
OWNER at its sole discretion will interpret the intent of the Contract Documents and the
CONTRACTOR hereby agrees to abide by the OWNER's interpretation and agrees to carry
out the work in accordance with the decision of the OWNER.
5. BRAND NAME MATERIALS - Whenever Materials or Equipment are specified or
described in the Drawings or Specifications by using the name of a proprietary item or the
name of a particular Supplier,the naming of the item is intended to establish the type,function
and quality required. The CONTRACTOR will be responsible for all coordination necessary
to accommodate the material, article, or equipment being provided without additional cost to
the OWNER. Unless the name is followed by words indicating that no substitution is
permitted, a substitute material, article, or equipment is allowed if it is reasonably equivalent
to the brand name specified and CONTRACTOR certifies in writing that the proposed
substitute will perform adequately the functions called for by the general design, be similar
and of equal substance to that specified and be suited to the same use and capable of
performing the same fiuiction as that specified. . The OWNER has full discretion to decide
whether a substitute is reasonably equivalent. CONTRACTOR must notify the OWNER in
writing prior to use of the substitute for a specified brand name and allow the OWNER to
make a determination before CONTRACTOR uses the substitute.
6. CONTRACT TIME-
a. All provisions regarding Contract Time are essential to the performance of this Contract.
b. The Work shall be substantially completed within ninety (90) calendar days after the
date when the Contract Time begins to run. The Work shall be finally completed, ready
for Final Payment within one hundred twenty (120) calendar days after the date the
contract time begins to run.
The date of Substantial Completion of the Work is the date certified in writing by the
OWNER when (1) construction is sufficiently complete, in accordance with the contract
documents, so the OWNER can occupy or utilize the work for its intended purpose, as
expressed by the contract documents, and(2)any additional project-specific requirements
or milestones for "Substantial Completion" identified in the general, special, or technical
conditions or construction plans have been satisfied.
c. The parties acknowledge that the Contract Time provided in this Section includes
consideration of adverse weather conditions common to Central Florida including the
possibility of hurricanes and tropical storms.
d. If applicable to the particular Work required by this Agreement, Float time is allocated
specifically to the Contractor's responsibility for coordination of utility relocations as
described in the General Conditions and is included in the Contract Time provided by this
Section. OWNER will not consider any Contract Time extensions related to utility
coordination matters including, but not limited to, utility relocations and conflicts, unless the
utility relocation delays exceed the float time and also extend the Project Schedule's Critical
Path.
e. In the event that the Work requires phased construction,then multiple points of Substantial
Completion may be established in the Supplementary Conditions.
7. LIQUIDATED DAMAGES - OWNER and CONTRACTOR recognize that time is of the
essence of this Agreement and that OWNER will suffer financial loss if the Work is not
substantially complete within the time specified in Paragraph 6 above, plus any extensions
thereof allowed in accordance with the General Conditions. OWNER and CONTRACTOR
also recognize the delays,expense,and difficulties involved in proving in a legal or arbitration
preceding the actual loss suffered by OWNER if the Work is not substantially complete on
time. Accordingly,instead of requiring any such proof, OWNER and CONTRACTOR agree
that as liquidated damages for delay (but not as a penalty) CONTRACTOR shall pay
OWNER$500 for each day that expires after the time specified in Paragraph 6 for substantial
completion until the work is substantially complete and $500 for each day that expires after
the time specified in Paragraph 6 for final completion until the work is finally complete, and
that OWNER has paid to CONTRACTOR the consideration of Ten ($10.00) Dollars as
consideration for this provision. The liquidated damages provided in this Section are intended
to apply even if CONTRACTOR is terminated, in default, or if the CONTRACTOR has
abandoned the Work.
8. CONTRACT PRICE, _UNIT PRICE CONTRACT - The OWNER will pay the
CONTRACTOR in current funds for the performance of the work in accordance with the
Contract Documents, subject to additions and deductions approved by Change Order, the
Total Contract Price of Two Hundred Thirty-Four Thousand Two Hundred and Sixty-
Five Dollars and Fifty-Five Cents ($234,265.55). CONTRACTOR agrees to accept the
Contract Price as full compensation for performing all Work, furnishing all Materials, and
performing all Work embraced in the Contract Documents.
The CONTRACTOR acknowledges that CONTRACTOR studied, considered, and included
in CONTRACTOR's Total Bid all costs of any nature relating to: (1) performance of the
Work under Florida weather conditions; (2) applicable law, licensing, and permitting
requirements; (3) the Project site conditions, including but not limited to, subsurface site
conditions; (4)the terms and conditions of the Contract Documents,including,but not limited
to,the indemnification and no damage for delay provisions of the Contract Documents.
The CONTRACTOR acknowledges that performance of the Work may involve significant
Work adjacent to, above, and in close proximity to Underground Facilities including utilities
which will require the support of active utilities, as well as, the scheduling and sequencing of
utility installations,and relocations(temporary and permanent)by CONTRACTOR.
(1) In addition to the acknowledgments previously made, the CONTRACTOR
acknowledges that the CONTRACTOR's Total Bid (original Contract Price)
specifically considered and relied upon CONTRACTOR's own study of Underground
Facilities,utilities in their present, relocated(temporary and permanent) and proposed
locations,and conflicts relating to utilities and Underground Facilities.
(2) The CONTRACTOR acknowledges that CONTRACTOR's Total Bid (original
Contract Price) considered and included all of CONTRACTOR's costs relating to
CONTRACTOR's responsibilities to coordinate and sequence the Work of the
CONTRACTOR with the work of the OWNER, if any,with its own forces, the work
of other contractors,if any,and the work of others at the Project site.
Payments will be made to the CONTRACTOR for actual quantities installed on the
basis of the Schedule of Unit Prices included as a part of the Bid, which shall be as
fully a part of the Contract as if attached or repeated herein. Where the Contract
Documents provide for Unit Price Work, the Contract Price stated in the Agreement
will include for all Unit Price Work an amount equal to the sum of the Unit Prices for
each item of Unit Price Work times the estimated quantity of each item as indicated in
the Contract Documents. Each Unit Price will be deemed to include an amount
considered by CONTRACTOR to be adequate to cover all costs, including
supplemental and administrative costs,and profit.
9. TERMINATION; DEFAULT BY CONTRACTOR AND OWNER'S REMEDIES -The
OWNER reserves the right to revoke and tenninate this Agreement and rescind all rights and
privileges associated with this Agreement, without penalty, for convenience. Further, the
OWNER reserves the right to revoke and terminate this Agreement in the following
circumstances,each of which shall represent a default and breach of this Agreement:
a. CONTRACTOR defaults in the performance of any material covenant or condition of
this Agreement and does not cure such other default within seven (7)calendar days after
written notice from the OWNER specifying the default complained of, unless, however,
the nature of the default is such that it cannot, in the exercise of reasonable diligence,be
remedied within seven (7) calendar days, in which case the CONTRACTOR shall have
such time as is reasonably necessary to remedy the default,provided the CONTRACTOR
promptly takes and diligently pursues such actions as are necessary therefore;or
b. CONTRACTOR is adjudicated bankrupt or makes any assignment for the benefit of
creditors or CONTRACTOR becomes insolvent,or is unable or unwilling to pay its debts;
or
c. CONTRACTOR has acted negligently, as defined by general and applicable law, in
performing the Work hereunder,or
d. CONTRACTOR has committed any act of fraud upon the OWNER;or
e. CONTRACTOR has made a material misrepresentation of fact to the OWNER while
performing its obligations under this Agreement;or
f. CONTRACTOR is experiencing a labor dispute,which threatens to have a substantial,
adverse impact upon performance of this Agreement without prejudice to any other right,
or remedy OWNER may have under this Agreement.
Notwithstanding the aforementioned, in the event of a default by CONTRACTOR, the
OWNER shall have the right to exercise any other remedy the OWNER may have by
operation of law, without limitation,and without any further demand or notice. In the event of
such termination, OWNER shall be liable only for the payment of all unpaid charges,
determined in accordance with the provisions of this Agreement, for Work properly
performed prior to the effective date of termination.
10. FORCE MAJEURE-Any delay or failure of either party in the performance of its required
obligations hereunder shall be excused if and to the extent caused by acts of God; fire; flood;
windstorm; explosion; riot; war; sabotage; strikes (except involving CONTRACTOR's labor
force); extraordinary breakdown of or damage to OWNER's affiliates'generating plants,their
equipment,or facilities; court injunction or order; federal andlor state law or regulation; order
by any regulatory agency; or cause or causes beyond the reasonable control of the party
affected; provided that prompt notice of such delay is given by such party to the other and
each of the parties hereunto shall be diligent in attempting to remove such cause or causes. If
any circumstance of Force Majeure remains in effect for sixty days,either party may terminate
this Agreement.
11. SEVERABILITY - In the event any portion or part thereof of this Agreement is deemed
invalid, against public policy,void, or otherwise unenforceable by a court of law, the parties,
at the sole discretion and option of the OWNER,shall negotiate an equitable adjustment in the
affected provision of this Agreement.The validity and enforceability of the remaining parts of
Us Agreement shall otherwise be fully enforceable
12. PROGRESS PAYMENTS; DUE DATE FOR PROGRESS PAYMENTS;.
SUBMITTAL OF PAYMENT RE-QUESTS — No payments shall be made where a
Payment and Performance Bond is required herein until OWNER receives a certified copy of
the recorded Bond.OWNER shall make progress payments on account of the contract price to
CONTRACTOR, on the basis of application for payments submitted to the OWNER or
OWNER's Project Manager, by CONTRACTOR as the work progresses, and in accordance
with the Contract Documents.
Progress payments may be withheld if:
a. Work is found defective and not remedied;
b. CONTRACTOR does not make prompt and proper payments to subcontractors;
c. CONTRACTOR does not make prompts and proper payments for labor,materials,or
equipment furnished him;
d. Another contractor is damaged by an act for which CONTRACTOR is responsible;
e. Claims or liens are filed on the job;or
f. In the opinion of the OWNER that CONTRACTOR's work is not progressing
satisfactorily.
OWNER herein (X) designates or (_) does not designate an agent, i.e., an architect or
engineer, that must approve any payment request or invoice before the payment request or
invoice is submitted to OWNER for payment. If an agent must approve the payment request
or invoice before the payment request or invoice is submitted to OWNER,payment is due 25
business days after the date on which the payment request or invoice is stamped as received as
provided in s.Ll 8.74(l), Florida Statutes, except to the extent that the payment request or
invoice does not meet contract requirements. The CONTRACTOR may send OWNER an
overdue notice. If the payment request or invoice is not rejected within 4 business days after
delivery of the overdue notice, the payment request or invoice shall be deemed accepted,
except for any portion of the payment request or invoice that is fraudulent or misleading. If an
agent need not approve the payment request or invoice submitted by CONTRACTOR,
payment is due 20 business days after the date on which the payment request or invoice is
stamped as received as provided in s.218.74(1), Florida Statutes, except to the extent that the
payment request or invoice does not meet contract requirements. If OWNER disputes a
portion of a payment request or an invoice, the undisputed portion shall be timely paid.
OWNER shall reject payment requests or invoices in accordance with the procedure
established in s.218.735,Florida Statutes.
OWNER hereby identifies the City's Finance Department as the office to which the
CONTRACTOR must submit payment requests or invoices to OWNER. The OWNER
further hereby identifies Kimley-Hom and Associates, Inc., Attn: Lance Littrell, PE, as the
agent that must approve payment requests prior to their submission to OWNER.
13. FINAL PAYMENT, CHANGE ORDERS - OWNER shall withhold up to 5% of the
Contract Price throughout the project in accordance with the Local Government Prompt
Payment Act ("Act"). The retainage amount withheld shall be released with the Final
Payment after the issuance of the Final Completion Certificate. OWNER shall make final
payment to CONTRACTOR within thirty (30) days after the work is fully and properly
completed, if the contract has been fully and timely performed, but subject to the condition
that final payment shall not be due until CONTRACTOR has delivered to OWNER a
complete release of liens arising out the contract, or receipt releases of lien fully coveting all
labor, materials and equipment for which a lien could be filed, or in the alternative a bond
satisfactory to OWNER and its engineer indemnifying them against such claims.
By making payments OWNER does not waive claims including but not limited to those
relating to:
a. Faulty work appearing after substantial completion has been granted;
b. Work that does not comply with the Contract Documents:
c. Outstanding claims of liens;or
d. Failure of Contractor to comply with any special guarantees required by the
Contract Documents.
Progress payments may be withheld if Work is found defective and not remedied;
CONTRACTOR does not make prompt and proper payments to subcontractors;
CONTRACTOR does not make prompt and proper payments for labor, materials, or
equipment furnished him; a subcontractor is damaged by an act for which
CONTRACTOR is responsible; claims of liens are filed on the job; or in the opinion of
the OWNER, C'ONTRACTOR'S work is not progressing satisfactorily. Further,
OWNER may withhold additional retainage in anticipation of liquidated damages equal
to the product of the number of Days after the scheduled Contract Time (Substantial
Completion or Final Completion) and the amount of liquidated damages set forth in this
Contract if CONTRACTOR is behind schedule and it is anticipated by OWNER that the
Work will not be completed within the Contract Time. The additional retainage, under
this subsection, may at the OWNER'S discretion be withheld from subsequent Progress
Payments. Any additional retainage held under this subsection shall be released to
CONTRACTOR in the next Progress Payment following the OWNER's approval of a
supplemental Progress Schedule demonstrating that the requisite progress will be
regained and maintained as required by the General Conditions.
The City, by written change order and without invalidating the Agreement, may order
extra Work or make changes by altering, adding to, or deducting from the Work, the
contract sum being adjusted accordingly. Additional time required for any change in
Work must be included with the requested Change Order.
In giving instructions, the City's Project Manager will have authority to make minor
changes in the Work, not involving extra cost or time, and not inconsistent with the
purpose of the Work, but otherwise, except in an emergency endangering life or property,
no extra work or change will be made; unless it goes through the City's written Change
Order process and is approved by the City, and no claim for an addition to the contract
sum or time will be valid unless so ordered in writing.
The value of any such extra Work or change will be determined in one or more of the
following ways:
1. By mutual acceptance of a lump sum.
2. By unit prices named in the contract or subsequently agreed upon.
3. By cost and percentage or by cost and a fixed fee.
If none of the above methods is agreed upon, the CONTRACTOR, provided it receives
an order as above, shall proceed with the work. In such case and also under case (3)
above, the CONTRACTOR shall keep and present in such form as the City's Project
Manager may direct, a correct account of the net cost of labor and materials, together
with vouchers. In any case, the City's Project Manager will certify to the amount,
including reasonable allowances for overhead and profit, due to the CONTRACTOR.
Pending final determination of value, payments on account of changes will be made on
the City's Project Manager's estimate. Furthermore, if the CONTRACTOR claims that
any instructions by drawings or otherwise involve extra cost under the Contract
Documents, it shall five the City written notice thereof within ten (10) days after the
receipt of such instructions, and in any event before proceeding to execute the work,
except in emergency endangering life or property, and the procedure shall then be as
provided above under this section. Claims will not be processed unless filed in writing
before any work has commenced. In addition, if the City's Project Manager deems it
inexpedient to correct work injured or done not in accordance with the Contract
Documents, an equitable deduction from the Contract Price will be made therefor by
Change Order.
14, DESIGNATION OF PROJECT MANAGER OR ARCHITECT OR LANDSCAPE
ARCHITECT: DUTIES AND AUTHORITY - The duties and authority of the OWNF,R
are as follows:
a. General Administration of Contract. The primary function of the OWNER is to
provide the general administration of the contract. In performance of these duties, City
Manager or his authorized representative is the OWNER's Project Manager during the
entire period of construction. The OWNER (CITY) may change the Project Manager
during the term of this contract.
b. Inspections,Opinions,and Prouress Reports. The OWNER and its representatives
shall be kept familiar with the progress and quality of the work by CONTRACTOR and
may make periodic visits to the work site. The OWNER will not be responsible for the
means of construction, or for the sequences,methods, and procedures used therein, or for
the CONTRACTOR's failure to perform the work in accordance with the Contract
Documents.
c. Access to Worksite for Inspections. The OWNER and its representatives shall be
given free access to the worksite at all times during work preparation and progress. The
Project Manager is not obligated to make exhaustive or continuous on-site inspections to
perform his duties of checking and reporting on work progress, and any such inspections
shall not waive Owner's claim regarding defective work by Contractor. No inspector is
authorized to change any provision of the specifications without written authorization of
the City's Project Manager, nor shall the presence or absence of an inspector relieve the
CONTRACTOR from any requirements of the Contract Documents.
If the specifications, the City's instructions, laws, ordinances, or any public authority,
require any work to be specially tested or approved, the CONTRACTOR shall give the
City timely notice of its readiness for inspection, and of the date fixed for such inspection.
Inspections by the City's Project Manager will be promptly made.
If upon inspection such work is found not in accordance with the Contract Documents,the
CONTRACTOR shall pay such cost, including compensation for professional services,
and an appropriate deductive Change Order shall be issued.
d. Interpretation of Contract Documents: Decisions on Disputes. The OWNER will
be the initial interpreter of the contract document requirements, and make decisions on
claims and disputes between Contractor and Owner.
e. Reiection and Stoppage of Work. The OWNER shall have authority to reject work
which in its opinion does not conform to the Contract Documents, and in this connection
may stop the work or a portion thereof,when necessary.
f. Pavment Certificates. The OWNER will determine the amounts owing to
CONTRACTOR as the work progresses, based on CONTRACTOR's applications and
OWNER's inspections and observations,and will issue certificates for progress payments
and final payments in accordance with the terms of the Contract Documents.
g. City Reviews and Stahis. The City's review, inspection, or approval of any Work,
applications for payment,or other submittals shall be solely for the purpose of determining
whether the same are generally consistent with the City's scope and requirements for the
project. No review, inspection, or approval by the City of such Work or documents shall
relieve the CONTRACTOR of its responsibility for the performance of its obligations
under the Contract Documents or the accuracy, adequacy, fitness, suitability, or
coordination of the Work. Approval by any governmental or other regulatory agency or
other governing body of any Work,design document,or construction document shall not
relieve CONTRACTOR of responsibility for the performance of its obligations under the
Contract Documents. Payment by the City pursuant to the Contract Documents shall not
constitute a waiver of any of the City's rights under the Contract Documents or at law,and
CONTRACTOR expressly accepts the risk that defects in its performance,if any,may not
be discovered until after payment, including final payment, is made by the City.
Notwithstanding the foregoing, prompt written notice shall be given by the City or City
Project Manager to the CONTRACTOR if the City becomes aware of any fault or defect
in the Projects or non-conformance with the Contract Documents. Furthermore, the City
shall not have control or charge of construction means,methods,techniques,sequences,or
procedures,or for safety precautions and programs in connection with the Work,nor shall
the CONTRACTOR, for any of the foregoing purposes,be deemed the agent of the City.
15. PROGRESS MEETINGS — OWNER'S Project Manager may hold periodic progress
meetings on a monthly basis,or more frequently if required by the OWNER, during the term
of work entered into under this Agreement. CONTRACTOR's Project Manager and all other
appropriate personnel shall attend such meetings as designated by the OWNER'S Project
Manager.
16. RESPONSIBILITIES OF CONTRACTOR - CONTRACTOR's duties and rights in
connection with the project herein are as follows:
a. Responsibility for Supervision and Construction. CONTRACTOR shall be solely
responsible for all construction under this contract, including the techniques, sequences,
procedures and means, for the coordination of all work. CONTRACTOR shall supervise
and direct the work, and give it all attention necessary for such proper supervision and
direction.
b. Discipline and Employment. CONTRACTOR shall maintain at all times strict
discipline among his employees,and he agrees not to employ for work on the project any
person unfit or without sufficient skill to perfonii the job for which he was employed.
c. Furnishing of Labor, Materials. etc. CONTRACTOR shall provide and pay for all
labor, materials and equipment, including tools, construction equipment and machinery,
utilities, including water,transportation, and all other facilities and work necessary for the
proper completion of work on the project m accordance with the Contract Documents.
d. Pavment of Taxes: Procurement of Licenses and Permits. CONTRACTOR shall
secure all licenses and permits necessary for proper completion of the work, paying the
fees thereof. CONTRACTOR warrants that it (and subcontractors or tradesmen, if
authorized in the Contract Documents)hold or will secure all trade or professional licenses
required by law for CONTRACTOR to undertake the contract work.
e. Guarantee. The CONTRACTOR hereby guarantees the Work to the full extent
provided in the Plans, Specifications, General Conditions, Special Conditions and other
Contract Documents. The CONTRACTOR shall remove, replace and/or repair at its own
expense and at the convenience of the OWNER any faulty, defective or improper Work,
materials or equipment discovered within one(1)year from the date of the acceptance of
the project as a whole by the Owner or for such longer period as may be provided in the
Plans, Specifications, General Conditions, Special Conditions or other Contract
Documents. Without limiting the generality of the foregoing, the CONTRACTOR
warrants to the OWNER,that all materials and equipment furnished under this Agreement
will be of first class quality and new, unless otherwise required or permitted by the other
Contract Documents, that the Work performed pursuant to this Agreement will be free
from defects and that the Work will strictly conform with the requirements of the Contract
Documents. Work not conforming to such requirements, including substitutions not
properly approved and authorized,shall be considered defective. All warranties contained.
in this Agreement and in the Contract Documents shall be in addition to and not in
limitation of all other warranties or remedies required and/or arising pursuant to applicable
law. Furthermore,CONTRACTOR will provide written guarantee for work and materials
for one (1) calendar year after acceptance by OWNER. The one (1) period is not a
limitation upon manufacturer warranties or CONTRACTOR's payment and perfonnance
Bond(s).
f. Project Site. The CONTRACTOR shall, among other things, (i) visit and
thoroughly inspect the project site and any structure(s) or other man-made features to be
modified and become familiar with local conditions under which the project will be
constructed and operated;(ii)if applicable,familiarize itself with the survey, including the
location of all existing buildings,utilities,conditions, streets,equipment,components, and
other attributes having or likely to have an impact on the project; (iii) familiarize itself
with the City's layout and design requirements, conceptual design objectives, and budget
for the project; (iv) familiarize itself with pertinent Project dates, including the Project
Schedule; (v) review and analyze all project geotechnical, hazardous substances,
structural, chemical, electrical, mechanical, and construction materials tests,
investigations, and recommendations; and(vi)gather any other information necessary for
a thorough understanding of the project. If the project involve modifications to any
existing stnrcture(s)or other man-made feature(s)on the project site,the CONTRACTOR
shall also review all as-built and record drawings, plans, and specifications of which the
CONTRACTOR has been informed by the City, and shall thoroughly inspect the existing
structure(s) and man-made feature(s) to identify existing deficiencies and ascertain the
specific locations of pertinent structural components. Claims by the CONTRACTOR
resulting Gam its failure to familiarize itself with the project site or pertinent documents
shall be deemed waived.
17. ASSIGNMENT - CONTRACTOR shall not assign or subcontract this Agreement, or any
rights or any monies due or to become due hereunder without the prior.written consent of the
OWNER.
a. If upon receiving written approval from OWNER, any part of this Agreement is
subcontracted by CONTRACTOR, CONTRACTOR shall be fully responsible to
OWNER for all acts and/or omissions performed by the subcontractor as if no subcontract
had been made.
b. If OWNER determines that any subcontractor is not perforniing in accordance with
this Agreement,OWNER shall so notify CONTRACTOR who shall take immediate steps
to remedy the situation.
c. If CONTRACTOR,prior to the commencement of any Work subcontracts any part of
this Agreement by the subcontractor, CONTRACTOR shall require the subcontractor to
provide OWNER and its affiliates with insurance coverage as set forth by the OWNER.
d. If upon receiving written approval from OWNER, any part of this Agreement is
subcontracted by CONTRACTOR, CONTRACTOR and subcontractors shall make
prompt payments to subcontractors in accordance with s.218.735,Florida Statutes.
18. THIRD PARTY RIGHTS-Nothing in this Agreement shall be construed to give any rights
or benefits to anyone other than OWNER and CONTRACTOR.
19. PROHIBITION AGAINST CONTINGENT FEES-CONTRACTOR warrants that it has
not employed or retained any company or person, other than a bona fide employee working
solely for the CONTRACTOR,to solicit or secure this Agreement, and that it has not paid or
agreed to pay any person, company, corporation, individual, or firm, other than a bona fide
employee working; solely for the CONTRACTOR, any fee, commission, percentage, gift, or
other consideration contingent upon or resulting from the award or making of this Agreement.
20. NO JOINT VENTURE - Nothing herein shall be deemed to create a joint venture or
principal-agent relationship between the parties and neither party is authorized to, nor shall
either party act toward third persons or the public in any manner which would indicate any
such relationship with the other party.
21. INDEMNIFICATION—CONTRACTOR shall indemnify and hold harmless the OWNER,
its officers, employees, agents, engineer, and city attorneys (individually and in their official
capacity, from liability, losses, damages, and costs, including, but not limited to, reasonable
attorney's fees, to the extent caused by the negligence, recklessness or intentional wrongful
misconduct of CONTRACTOR and persons employed or utilized by CONTRACTOR in the
performance of this Agreement.
CONTRACTOR specifically assumes potential liability for actions brought by
CONTRACTOR'S own employees against the OWNER and, solely for the purpose of
this indemnification and defense, CONTRACTOR specifically waives its entitlement, if
any, to immunity under Section 440.11, Florida Statutes. This waiver has been
specifically and mutually negotiated by the parties.
The indemnification provided above shall obligate the CONTRACTOR to defend at its own
expense or to provide for such defense, at the option of the OWNER, as the case may be, of
any and all claims of liability and all suits and actions of every name and description that may
be brought against the OWNER or its officers, employees, and city attorneys which may
covered by this indemnification. In all events the OWNER and its officers, employees,
engineer, and city attorneys shall be permitted to choose legal counsel of its sole choice, the
fees for which shall be reasonable and subject to and included with this indemnification
provided herein.
In consideration of the CONTRACTOR's indemnity obligations,OWNER specifically agrees
to pay the CONTRACTOR the sum of TWO HUNDRED FIFTY AND NO/100 DOLLARS
($250.00) or ONE PERCENT (1%) OF THE CONTRACT SUM WHICHEVER IS
GREATER. The CONTRACTOR acknowledges receipt of the specific consideration for
CONTRACTOR's indemnification of OWNER and that the specific consideration is included
in the original Contract Price allocated by CONTRACTOR among all pay items - receipt of
which is acknowledged
The indemnity provisions set forth in this Paragraph shall survive termination of this
Agreement.
22. SAFETY - CONTRACTOR shall be solely and absolutely responsible and assume all
liability for the safety and supervision of its principals, employees, contractors, and agents
while perfom-ing work provided hereunder. More specifically, the CONTRACTOR shall be
responsible for initiating,maintaining, and supervising all safety precautions and programs in
connection with the Work. The CONTRACTOR shall take all necessary precautions for the
safety of,and shall provide the necessary protection to prevent damage, injury,or loss to:
1. All employees on the project site and other persons who maybe affected thereby.
2. All the Work and all materials or equipment to be incorporated therein, whether in
storage on or off the project site.
3. Other property at the project site or adjacent thereto.
CONTRACTOR shall comply with all applicable Federal Occupational Safety and Health
Administration(OSHA) and Florida Department of Transportation safety standards and shall
assure and monitor the compliance of its Subcontractors with those same standards.
Further, CONTRACTOR shall work in compliance with the OSHA Hazardous
Communication Standard and Florida Department of Environmental Protection guidelines,
and shall supply all information about hazardous chemical being brought onto City property as
required by any applicable City Safety and Loss Control Program.
23. CORPORATE REPRESENTATIONS BY CONTRACTOR - CONTRACTOR hereby
represents and warrants to the OWNER the following:
a. CONTRACTOR is duly registered and licensed to do business in the State of Florida
and is in good standing under the laws of Florida, and is duly qualified and authorized to
carry on the functions and operations set fbrth in this Agreement.
b. The undersigned signatory for CONTRACTOR has the power,authority,and the legal
right to enter into and perform the obligations set forth in this Agreement and all
applicable exhibits thereto, and the execution, delivery, and performance hereof by
CONTRACTOR has been duly authorized by the board of directors and/or president of
CONTRACTOR. In support of said representation,CONTRACTOR agrees to provide a
copy to the OWNER of a corporate certificate of good standing provided by the State of
Florida prior to the execution of this Agreement.
c. CONTRACTOR is duly licensed under all local, state and federal laws to provide the
work stated in paragraph 1.0 herein. In support of said representation, CONTRACTOR
agrees to provide a copy of all said licenses to the OWNER prior to the execution of this
Agreement.
24. BOND - CONTRACTOR shall supply a materials, performance and payment bond(s) in
accordance with Florida law and in substantially in conformance with the forms attached to
the Agreement as Exhibit "A" and approved by the City Attorney. The materials,
performance, and payment amounts shall be in an amount equal to 110%of the Contract Price
for the work prescribed herein. The issuance of bonds required under this Agreement shall not
relieve Contractor of any liability under the Agreement. Contractor shall remain jointly and
severally liable with any surety issuing a bond under the Contract. The premium for such
bonds shall be paid by the CONTRACTOR. CONTRACTOR shall be required to provide
certification from all laborers, materialmen, and subcontractors that such laborers,
materiahnen, and subcontractors have no claims against CONTRACTOR resulting from
completion of the Work in accordance with Paragraph 12 above. The CONTRACTOR shall
provide a certified list of all subcontractors, laborers, and material suppliers to the OWNER
within twenty(20) days of receiving the Notice to Proceed with the work. This list shall be
updated thereafter as necessary with a certified statement that the list and its updates include
the names and addresses of all of those subcontractors, laborers, and material suppliers
finnishing labor and/or material for the work.
25. INSURANCE-During the term of this Agreement,CONTRACTOR shall be responsible for
providing the types of insurance and limits of liability as set forth under this Paragraph.
Additionally, all independent contractors or agents employed by CONTRACTOR to perform
any Work hereunder shall fully comply with the insurance provisions contained in these
Contract Documents.
a. The CONTRACTOR shall maintain comprehensive general liability insurance in the
minimum amount of $2,000,000 as the combined single limit for each occurrence to
protect the CONTRACTOR from claims of property damages which may arise from any
Work performed under this Agreement whether such Work are performed by the
CONTRACTOR or by anyone directly employed by or contracting with the
CONTRACTOR.
b. The CONTRACTOR shall maintain comprehensive automobile liability insurance in
the minimum amount of$1,000,000 combined single limit bodily injury and minimum
$1,000,000 property damage as die combined single limit for each occurrence to protect
the CONTRACTOR from claims for damages for bodily injury,including wrongful death,
as well as from claims from property damage, which may arise from the ownership, use,
or maintenance of owned and non-owned automobiles, including rented automobiles
whether such operations be by the CONTRACTOR or by anyone directly or indirectly
employed by the CONTRACTOR.
c, The CONTRACTOR shall maintain, during the life of this Agreement, adequate
Workers' Compensation Insurance in at least such amounts as are required by law and
Employer's Liability Insurance in the minimum amount of $2,000,000 for all of its
employees performing Work for the OWNER pursuant to this Agreement.
d. The CONTRACTOR shall maintain comprehensive builder risk insurance, which
shall cover CONTRACTOR'S labor, and any materials and equipment to be used for
completion of the Work performed under this Agreement,. against all risks of direct
physical loss, excluding earthquake and flood, for a minimum amount of the Total
Contract Price. CONTRACTOR shall maintain the builder risk insurance required by this
subsection until the date a certificate of occupancy is issued issuance of a certificate of
occupancy for the Work.
a. The CONTRACTOR shall maintain Pollution Liability Insurance in the minimum amount
of$1,000,000 per loss and $1,000,000 in the aggregate, covering third-party injury and
property damage claims, including clean-up costs, as a result of pollution conditions
arising from CONTRACTOR's operations and completed operations. This insurance
shall be maintained for no less than three years after final completion.
Current, valid insurance policies meeting the requirements herein identified shall be
maintained during the term of this Agreement.A copy of a current Certificate of Insurance
shall be provided to the OWNER by CONTRACTOR upon the Effective Date of this
Agreement which satisfied the insurance requirements of this Paragraph 25. Renewal
certificates shall be sent to the OWNER 30 days prior to any expiration date. There shall
also be a 30-day advance written notification to the OWNER in the event of cancellation
or modification of any stipulated insurance coverage. The OWNER and its engineer
shall be an additional named insured on all stipulated insurance policies as its
interest may appear, from time to time, excluding worker's compensation and
professional liability policies.
Insurance covering the specified additional insureds shall be primary insurance, and all
other insurance carried by the additional insured shall be excess insurance; and with
respect to workers' compensation and employer's liability, comprehensive automobile
liability, commercial general liability, and umbrella liability insurance, CONTRACTOR
shall require CONTRACTOR's insurance carriers to waive all rights of subrogation
against OWNER and its engineer,the engineer's consultants, and their respective officers,
directors,partners,employees and agents.
Each policy shall contain a cross liability or severability of interest clause or endorsement.
26. MEDIATION/VENUE - The parties agree that should any dispute arise between them
regarding the terms or performance of this Agreement, both parties will participate in
mediation.The parties agree to equally share the cost of the mediator.Should the parties fail to
resolve their differences through mediation,then any cause of action filed hereunder shall be
filed in the Circuit or County Court for SEMINOLE County,Florida.
27. GOVERNING LAW & VENUE - This Agreement is made and shall be interpreted,
construed,governed,and enforced in accordance with the laws of the State of Florida Venue
for any state action or litigation shall be SEMINOLE County, Florida. Venue for any federal
action or litigation shall be Orlando,Florida.
28. ATTORNEY'S FEES-Should either party bring an action to enforce any of the terms of this
Agreement, each party shall bear its own costs and expenses of such action including,but not
limited to,reasonable attorney's fees,whether at settlement,trial or on appeal.
29. NOTICES -Any notice or approval under this Contract shall be sent,postage prepaid,to the
applicable party at the address shown on the first page of this Contract.
30. WORK IS A PRIVATE UNDERTAKING - With regard to any and all Work performed
hereunder, it is specifically understood and agreed to by and between the parties hereto that
the contractual relationship between the OWNER and CONTRACTOR is such that the
CONTRACTOR is an independent contractor and not an agent of the OWNER. The
CONTRACTOR, its contractors, partners, agents, and their employees are independent
contractors and not employees of the OWNER.Nothing in this Agreement shall be interpreted
to establish any relationship other than that of an independent contractor, between the
OWNER, on one hand, and the CONTRACTOR, its contractors, partners, employees, or
agents,during or after the performance of the Work under this Agreement.
31. DOCUMENTS-Public Records: It is hereby specifically agreed that any record, document,
computerized information and program, audio or video tape, photograph, or other writing of
the CONTRACTOR and its independent contractors and associates related, directly or
indirectly,to this Agreement,may be deemed to be a Public Record whether in the possession
or control of the OWNER or the CONTRACTOR. Said record, document, computerized
information and program, audio or video tape, photograph, or other writing of the
CONTRACTOR is subject to the provisions of Chapter 119, Florida Statutes, and may not be
destroyed without the specific written approval of the OWNER's City Manager. Upon request
by the OWNER, the CONTRACTOR shall promptly supply copies of said public records to
the OWNER. All books, cards, registers, receipts, documents,and other papers in connection
with this Agreement shall at any and all reasonable times during the normal working hours of
the CONTRACTOR be open and freely exhibited to the OWNER for the purpose of
examination and/or audit. Failure by CONTRACTOR to grant such access and comply with
public records laws and/or requests shall be grounds for immediate unilateral cancellation of
this Agreement by the OWNER upon delivery of a written notice of cancellation. If
CONTRACTOR fails to comply with this Section, and the OWNER must enforce this
Section, or the OWNER suffers a third party award of attorney's fees and/or damages for
violating Chapter 119, Florida Statutes, due to CONTRACTOR's failure to comply with this
Section,the OWNTER shall collect from CONTRACTOR prevailing party attorney's fees and
costs, and any damages incurred by the City, for enforcing this Section against
CONTRACTOR. And, if applicable, the OWNER shall also be entitled to reimbursement of
all attorneys' fees and damages which the OWNER had to pay a third party because of the
CONTRACTOR's failure to comply with this Section. The terms and conditions set forth in
this Section shall survive the termination of this Agreement.
The CONTRACTOR acknowledges that the OWNER is a Florida municipal corporation and
subject to the Florida Public Records Law. CONTRACTOR agrees that to the extent any
document produced by CONTRACTOR under this Agreement constitutes a Public Record;
CONTRACTOR shall comply with the Florida Public Records Law.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT
THE CUSTODIAN OF PUBLIC RECORDS,THE CITY CLERK,AT(407)327-6560,
c!owan(W,rwintersFrinQsll.orQ,Christian Gowan,City Clerk's Office, 1126 E.State Road
434,Winter Springs,Florida 32708.
32. SOVEREIGN IMMUNITY - The OWNER intends to avail itself of the benefits of Section
768.28, Florida Statutes and any other statutes and common law governing sovereign
immunity to the fullest extent possible. Neither this provision nor any other provision of this
Agreement shall be construed as a waiver of the OWNER's right to sovereign immunity under
Section 768.28, Florida Statutes, or other limitations imposed on the OWNER's potential
liability under state or federal law. CONTRACTOR agrees that OWNER shall not be liable
under this Agreement for punitive damages or interest for the period before judgment.
Further,OWNER shall not be liable for any claim or judgment,or portion thereof,to any one
person for over two hundred thousand dollars ($200,000.00), or any claim or judgment, or
portion thereof,which,when totaled with all other claims or judgments paid by the State or its
agencies and subdivisions arising out of the same incident or occurrence, exceeds three
hundred thousand dollars($300,000.00). Nothing in this Agreement is intended to inure to the
benefit of any third parry for the purpose of allowing any claim which would otherwise be
barred under the doctrine of sovereign immunity or by operation of law. This paragraph shall
survive termination of this Agreement.
33. HEADINGS - Paragraph headings are for the convenience of the parties only and are not to
be construed as part of this Agreement.
34. INTEGRATION; MODIFICATION - The drafting, execution, and delivery of this
Agreement by the Parties has been induced by no representations, statements, warranties, or
agreements other than those expressed herein. This Agreement embodies the entire
understanding of the parties, and there are no further or other-agreements or understandings,
written or oral, in effect between the parties relating to the subject matter hereof unless
expressly referred to herein. 'Modifications of this Agreement shall only be made in writing
signed by both parties.
35. WAIVER AND ELECTION OF REMEDIES - Waiver by either party of any terms, or
provision of this Agreement shall not be considered a waiver of that term, condition, or
provision in the futwe. No waiver, consent, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized representative of
each party hereto. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be considered an original agreement; but such
counterparts shall together constitute but one and the same instrument.
36. DRAFTING - OWNER and CONTRACTOR each represent that they have both shared
equally in drafting this Agreement and no party shall be favored or disfavored regarding the
interpretation of this Agreement in the event of a dispute between the parties.
37. NOTICE-Any notices required to be given by the terms of this Agreement shall be delivered
by hand or mailed,certified mail,return receipt requested,postage prepaid to:
For CONTRACTOR:
Company Name: Cain Ente rises LLC dba En si neering Solutions International
Attn: Fred Lane—General Manager
Address: 3780 NE 400'Place
Ocala,FL 34479
Phone: (352) 390-6555
Email: esi.offim-gi:esi-usa.net and/or fred.lanekf esi-usa net
For OWNER:
City of Winter Springs
Attn:City Manager
1126 E. State Road 434
Winter Springs,Florida 32708
(407)327-1800
Either party may change the notice address by providing the other party written notice of the
change.Any Notice given as provided herein shall be deemed received as follows: if delivered
by personal service, on the date so delivered; if delivered to an overnight courier service, on
the business day immediately following delivery to such service; and if mailed, on the third
business day after mailing.
38. CONFLICT OF INTEREST.
a.The CONTRACTOR agrees that it will not engage in any action that would create a conflict
of interest in the performance of its obligations pursuant to this Contract with the OWNER or
which would violate or cause others to violate the provisions of Part III, Chapter 112, Florida
Statutes,relating to ethics in government and the OWNER's Personnel Policies.
b. The CONTRACTOR hereby certifies that no officer, agent or employee of the OWNER
has any material interest (as defined in Section 112.312 (15), Florida Statutes, as over five
percent (5%) either directly or indirectly, in the business of the CONTRACTOR to be
conducted here, and that no such person shall have any such interest at any time during the
term of this CONTRACT.
c. Pursuant to Section 216.347, Florida Statutes, the CONTRACTOR hereby agrees that
monies received from the OWNER pursuant to this Agreement will not be used for the
purpose of lobbying the Legislature or any other State or Federal Agency.
39. ADDITIONAL ASSURANCES.
a. No principal (which includes officers, directors, or executive) or individual
holding a professional license and performing Work under this Agreement is presently
debarred, suspended,proposed for debarment, declared ineligible or voluntarily excluded
from participation in any Work required by this Agreement by any Federal, State, or local
governmental commission,department, corporation, subdivision,or agency;
b. No principal (which includes officers, directors, or executive), individual holding
a professional license and performing Work under this Agreement, employee, or agent
has employed or otherwise provided compensation to, any employee or officer of the
OWNER; and
C. No principal (which includes officers, directors, or executive), individual holding
a professional license and performing Work under this Agreement,employee or agent has
willfully offered an employee or officer of the OWNER any pecuniary or other benefit
with the intent to influence the employee or officer's official action or judgment.
40. E-VERIFY - Pursuant to section 448.095, Florida Statutes, beginning January 1, 2021, any
City contractors shall register with and use the U.S. Department of Homeland Security's E-
Verify system,httDs.//e-veri' ,uscis.govtem , to verify the work authorization status of all
employees hired on and after January 1, 2021. City Contractors must provide evidence of
compliance with section 448.095,Florida Statutes. Evidence shall consist of an affidavit from
the Contractor stating all employees hired on and after January 1, 2021 have had their work
authorization status verified through the E-Verify system and a copy of their proof of
registration in the E-Verify system. Failure to comply with this provision will be a material
breach of the contract, and shall result in the immediate termination of the contract without
penalty to the City. The City Contractor shall be liable for all costs incurred by the City
securing a replacement contract, including but not limited to,any increased costs for the same
services, any costs due to delay, and rebidding costs, if applicable. if the City Contractor
utilizes Subcontractors the following shall apply:
a. Contractor shall also require all subcontractors performing work under the Agreement
to use the E-Verily system for any employees they may hire during the term of the
Agreement.
b. Contractor shall obtain from all such subcontractors an affidavit stating the
subcontractor does not employ, contract with, or subcontract with an unauthorized
alien,as defined in section 448.095, Florida Statutes.
C. Contractor shall provide a copy of all subcontractor affidavits to the City upon receipt
and shall maintain a copy for the duration of the Agreement.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first
above written.
CITY OF WINTER SPRINGS
By: _6 _
Shawn Boyle, Ci Manager
Date: _ 2
Qq�1N6S..�.
ATTE T: a t Q h ':
Christian Gowan, City Clerk
•3fM10""
CONTRACT R
_ u
By: -red Lane
Print name/title: enera 11Q t'
Date: 7 ��
STATE OF PQIZ4D A
COUNTY OF W&2Ub/V
The foregoing instrument was acknowledged before me by means of(physical presence or
(_j online notarization,this c (M day of , 20-�D,
by fined Lane- jL of
u CAg Rt9Z[395 LLC ,who i ersona yow o me or who produced
as identification an w o I take an oath.
t
KYMBERLY M KNIGHT (Notary ublic Si ature)
ter° Notary Public-Sfat®of Florida I (f1'n] 1
=" �= Commission# HH 5785 !� CC'(tl !1i q
MY Commission Expires �—�
F ` + June 22, 2024 (Print N rne)
Notary Public, State of rtor45k
Commission No.: 51'7S
My Coinmission Expires:
Grant'Maloy,Clerk Of The Circuit Court&Comptroller Seminole County,FL
Inst#2021093656 Book:9988 Page:96-106;(11 PAGES)RCD:7/14/2021 9:45:01 AM
REC FEE$95.00
FRONT PAGE OF PUBLIC PAYMENT&PERFORMANCE BOND
In compliance with F.S.,Chapter 255.05(1)(a)
Bond No.: 1001571
Contractor Name: Cain EnteEprises,LLC dba En ine nLn Solutions 1nteMgjQpaJ
Contractor Address: 3780 NE 40th Place Ocala FL 3479
Contractor Phone No: if52)390-6555
Surety Company Name: FOCI Insurance Company
Surety Company Address: 6300 Universi1y PaLkway, Sarasota FL 34240-8424
Surety Company Phone No: 800-226-3224x 2726
Agent Name: Waldorff Insurance&Bonding,Inc.
Agent Address: 1110 NW 6th Street
Gainesville FL 32601
Agent Phone No: 352 374-7779
Obligee Name: Ci1y of Winter S fin s
Obligee Address: 11.26 SR 434 FL 32708
Obligee Phone No: 407-327-1800
Bond Amount: $257,692.11
Contract No:(if applicable)1TB 02-21 DS
Description-of Work: Water Treatment Plant No.2 Electrical.Improvements
Project Address: Winter Springs.FL
FRONT PAGE
All other bond page(s)are deemed subsequent to this page regardless ofany page number(s)that may be pre-printed thereon.
Book 9988 Page 97
Instrument#2621093656
Water.Treatment'Plant'No.2 Elecirical-Improvements '00610=4
SWVoN 06610
-PERFORMANCE BOND FORM
Bond No.1001571
Cahn Enterprises,LLC dba Enghreering Solutions International
Y ,i'HIS PERFORMANCE BOND, We , as ftici4a1whose address
is 3780 NE 40th Place,Ocala,FL 34478 and telephone number is,(352) -8555 and
FCCI Insurance Company # its .Stttt&y, Whose adclfess is .6300 University PKUYY.,Sarasota,FL 3424G4424
attd tele hone-nuir6er'is 80o-226-3224x2725 y. p ' gs, a F'!orida
A sn bound to the Cit of Whiter S" rut
municipal_cQrporation,,as OWNER, .whoseaddress is 1126 E. State Road,434, Winter"Springs,
Florida 32708 and telephone number is 447-327.-1800, in the initial sum ' of $257,692.11
Two Hundred Fifty-Seven Thousand Six Hundred Ninety- wo and 111100_(llIIN of Contract Price),"or such greater amount.as the
Contract may be adjusted from time to time in .ae6ordancb with the Contract between the
Piinc.pal and OWNAR)(the"Penal'Sumll).
WHEREAS, the Principal has executed a contract with the OWNER, dated 7/7/2021
for the construction of°the Water Treatment Plant No. 2 Electrical Improvements project in the
City of Winter'Springs, Seminole County,Florida(the"Project");and
WHERFA$, the OWNER has" required the .Principal to furnish a performance bond in
accordance with law and as a condition of executing the Contract with Principal; and
WHEREAS, this bond is being entered into to satisfy the requirements of Section 255,05(1),
Florida :Statutes, and the Contract referenced above, as the same may be amended, and
additionally,to provide common law rights more expansive than as required by statute.
NOW THEREFORE,the Surety and the Principal,.both joint and severally, and for themselves,
their heirs,administrators,executors,successors and assigns agree as follows:
1. CONTRACT INCORPORATED; SURETY AND PRINCIPAL ,BOUND FOR FULL
PER�+'aRMANCE. The Contract is'incorporated by reference and made.a part of this bond.
The Surety and the Principal are bound for the full performance of the Contract including
without exception all of the Contract Documents (as defined;in the Contract)and all of their
terms and conditions,both express and implied. Without limiting the Principal's and Surety's
obligations under the Contract and this bond,the Principal and.Surety agree:
D. Promptly and faithfully perform their duties and all the covenants,terms,conditions,and
obligations under the Contract including,but not limited to the insurance provisions,
guaranty period and the warranty provisions,in the time and manner prescribed in the
Agttement, and
E. Pay OWNER all losses,damages,delay damages(liquidated or actual),expenses, costs
and attorneys'fees under sections 621.428 or 627.756,Florida Statutes,including costs
April 1021 Performarice'Borid Form
Book 9988 Page 98
Instrument#2021093656
Bond No. 1001571
Water Tratvient Plant No..2 Electrical Improvements 00610-2
,and,atterney's fees on appeal That OWNER sustains resulting directly or indirectly from
any breach of default by Principal under the Contact And,
claimsF.. Satisfy all and demands under the Contract,and fully indemnify and hold
harmless ihe,OWNER frohy all costs and damages Which it mqy,S40
failure-.to do so; er by, rieasoii&
2. OWNER'S AFFIDAVIT OF CONTRACTOR BREACH OR DEFAULT. If the
OWNER. shall. provide -V Surety the written. affio4yif of theOWNER stating t
mg that the
Principal is in breach or-default of the Contract and that such breach or default remains
uncured.by the Principat their upon delivery of such affidavit to,the Surety in the method for
providing h6tic'o-s 44. act .forth in Paragraph 7 bold*,. Suroty. rmig-t -promptly notify the
OWNER'mi -writing.which action it will take as permitted in Paragraph 3..
3. SURETY'S OBLIGATION UPON DELIVERY OF OWNER'S AFFIDAVIT OF
CONTRACTOR'S BREACH OR DEFAULT. Upon th& delivery of the OWNER's
affidavit of breach or default by the Principal'as provided in Paragraph 2 above, the Surety
may promptly remedy the breach or default or musi,within ien(10)days,proceed to take one
of-th.e.following courses of action:
A. Prbeeed itself.- Corriplet.6 performance of the Contract including c6riectidn of defective
and.nonconforming W"' ork.throu.
gh its own CONTRACTORS or employees, approved as
being acceptable, to,'the OWNER, in the OWNER's solo dj4qr4ion, pr ovided, however,
.that 'OWNER's discretion in approving the Surety's CONTRACTOR will not be
unreasonably withheld as to any CONTRACTOR who would have qualified to offer a
proposal on the Contract and isnot affiliated m any WAY With the Principal. During this
performance b the Surety, the OWNER will pay the, Sure from As own
performance V I Surety funds only
those gums as would have been due and pay h
Able to the Principal ppder the-Contract as
and When they would have.been-due and payable to the Principal in the absence of the
breach or default not to exceed the amount of the remaining Contract balance less any
'sums due the OWNER under the Contract. During this performatice by Surety, any
payment bond required under the Contract must remain in full force and effect;or
B. Tender a completing CONTRACTOR acceptable to OWNER. Tender a
CONTRACTOR,together with a contact.for fuffillment and completion of the Contract
executed by the completing CONTRACTOR, to the OWNER for the OWNER's
execution. OWNER's discretion to approve
Surety's completing CONTRACTOP,will
not be unreasonably withheld as to any CONTRACTOR who would have qualified to
offer a proposal on-the contract and is not affiliated with the Principal. OWNER's
discretion to approve CONTRACTOR as the completing CONTRACTOR and to approve
the tendered contract shalf$e in OWNER's sole and absolute discretion. Upon execution
by the OWNER of the contract for fulfillment and completion of the Contract,
the
completing CONTRACTOR.must furnish to the OWNER a performance bond -and a
separate payment bond., each in the form of those bonds previously furnished to the
April 2021 Performance Bond Forrh
Book 9988 Page 99
Instrument#2021093656
Bond No. 1001571
Water TreitmentTlant-No.2 Electrical hnpr2yements '00610-3
OWNER for ft.'Project by the
Principal. Each such bond must be in.the Venal Sum of.
the Rill cost- to 0 N
qqip�leio the Contract: The OWNER Will pay the completing
CONTRACTOR-from its own funds only those sumsas would have been due and
payabletb the.Principal under".t'h6'Cdfit:fttd is and-When t.hey 4buld have been due and
payable to the P.rincipafin the Asencd of the breach or defaWtnOt to.exceed ffeamotmt
-of the remaining C,06tr4Ac bOwico less'any sums due.the OWNER:under the COntra& To
11ie-extept:that'the OWNER'is obligated pay-the completing qOWMCT-Q
gated -tR sums
Which would not have been due and payable to CONTRACTOR under the Contract(any
-gur&,i-'n'excess,of'th-6'lheii f6knaining Contact balance less A�y,sums &6 the OWNER
Surety the Contraot),'thSurety must.pay the OWNER the full amount-of th6se 9-ams. at
#ie ftotlip -Q011TRACTOR tenders an invoice Yo the OWNER so that the
OWNTER, can utilize those sums in -making timely payment to the completing
CONTRACTOR;or
Tender the 00 'PeW $dxh. Tender to the 6vvrNtR, the full Pdfiaf Sum of the
performance bond. The OWNER willrefund to the Surety without interest any unused
portion not spent by the OWNER procuring and paying a-completing CONTRACTOR or
completing the Contract itself;:plus the cost allowed under Section 4,after completion of
the contract for fulfillment and completion of the Contract and ,the ex0ir4on of any
:applicable warranties;or
D. Other Acts. Take any Other acts mutually agreed upon in writing by the OWNER and
the Surety.
E SHALL L AE NO DEFENSE TO SURETY'S OBLIGATION TO UNDERTAKE
ONE OF THE PRECEDING COURSES OF ACTION THAT THE PRINCIPAL
CONTENDS THAT IT IS NOT IN BREACH OR DEFAULT OF THE
CONTRACT,OR THAT THE NOTICE-OF BREACH OR DEFAULT'WAS
DEFECTIVE,OR THAT THE PRINCIPAL HAS RAISED ANY OTHER CLAIM
OF DEFENSE OR OFFSET,PROVIDED ONLY THAT THE SURETY HAS
RkOEME'D THE AFFIDAVIT OF THE OWNER A5 SPECIFIED,IN
PARAGRAPH 2.
4. SURETY'S ADDITIONAL OBLIGATIONS. In addition to those duties set forth herein
above,the Surety must promptly pay the OWNER(i)all losses,costs and expenses resulting
from the Principal's breach(es) or default(s), including, without limitation, fees (including
attorney's.fees pursuant to sections 627.428-or 627.156, Florida Statutes and related costs),
expenses and,posts forarchiteds,ENGINEERs,consultants,testing,surveying and attorneys,
plus(ii)liquidated or actual damages,.whichever may be provided for in the Contract,for lost
use of the Project, plus (iii) reprocurement costs and fees and expenses, plus (iv) costs
incurred at the direction, request, or as a result of the acts or omissions of the Surety,
provided that in no event shall Surety's liability exceed the Penal Sum ofthis Bond.
April IM! Peiformance B64d Form
Book 9988 Page 100
Instrument#2021093656
Bond No. 1001571
Water Treatment-PlantNo.2 Electrical 1myrovements 0061-0-4
5. g1URE A.OV)NOTIC-E.. The Surety waives notice of any'�4odiftcaiions to the
. . .,rV - .
'Contract, including changes 'in the Contract Time, the Contract Sum, the amount of
liquidated damages,:or the work to be performed under the.Contract.
6. NO TM" PAPTY, BENEFICIARIES: The Surety provides.this performance.bond for
the, sdl arid. exclusive,iveb . .d. QW Ekl, heirs, adin kors.
g �nof7g of the, OWNER ar� N iiii$ir
entity has-any rights' against executors,successors and assigns. No other party,person or en ginst th e
Surety.
7. METHOD OPNOTICE: All notices to'the Surety,the Pr.ihqxFW df'thd QVINE.9 must be
given'by Certified:Mail, gefprp Receipt Requested, to the,address set-fourth for-each party
below:.
$MTY.:
Name: FCCI Insurance Company
Attention: 1Benjamin R.—French
Street: 3 i
City,State: faaa
r"s o Atay,W
Zip. 342;TU- 424
PRINCIPAL:
game: Cain Enterprises, LLC dba Engineerinq_Solutions International
Attention: Fred Lane
Street: 3780 NE 40th Place
City,State: Ocala FL
Zip: 34479
OWNER:
Tba:6ity-of Winter.Springs
Attentionw ShaWh Boyle;City Madager
1126 E. State Road 434
Wi0qr,.8pAngs,Florida 32708
(407}317-5957
with a copy tot
Anthony A. Gargaftese,City Attorney
Brown,Ga.rganese,Weiss&D'Agresta,P.A.
111 N.Orange Avenue,Suite 2000
Orlando,,Florida 32802
(407)425=9566
April,202.1 Perform ajice Bond Form
Book 9988 Page 101
Instrument#2021093656
Bond No. 1001571
Water Treatmerit Plant No..2 ElectricaUm provements A0610-:5
S. -STATUE OF LIMITATIONS. Any statutory limitafion, which may "be contractually
slqpqcp�ded,jo."the contrary notwithstanding,-any action hereon may be,institute s d o long as
the applicable statute.-of limitations governing the Contract(including any warranty period)
has not-ruti orexpired bf.v� three years fdllo*ihg Final.Completion
dn of the.Coidract
(including 9AY-Waitanty period)and= epthzipe of the Work performed under the Contract
bythe OWNER,whj
�chey@r is longer.
9. RECITALS. The recitals contained in this Performance Bond are incorporated by reference
hereib and aro expressly thadd apart of this Perforinafice Bond.
10.GOVERNING LAW, This, perforri;ianoe bond shall be governed;by, and cQngirue.-d in
accordance with the laws of the State of Tlorida without regard to its conflict of'laws
provisions.
11,VEAM, In the event any legal action shill"be filed apbri,this pe"r"formance bond,venue shall
lie exclusively in the Circuit Court for Seminole County,Florida.
12.MSC-ELLANEOUS.
E. The Surety agrees that this performance bond shall.aiYord the OWNER w4th.alI o f
.
'the proteciibris and rights afforded under Florida Statutes and under common law.
F. This perfoiMand6 bond is.issued in addition to any other bond bt.waftwiy required
under the Contract including,but not limited to,any tabor and materials payrdent
bond,And maintenance bond..9ach bond issued under the Cqntr4pt shall be construed
as-separate and distinct from each other.
G. In the evert-that the guittylWls to fulfill its obligations under this performance
bond,theh the Surety-shall also indemnify and hold the OWNER haftless from any
and all loss,.damage,cost-and expense,including reasonable attorneys'fees and
costs for all trial and appellate proceedings,resulting n.directl -or indirectly from the
directly.or
Surety's failure to-fulfill As-obligations hereunder. This sub.section shall survive the
termination or casicellafion of this performance bond.,
H. This performance bond shall remain in full force and effect until such time all the
work,labor and materials under the Contract have been performed or provided to the
OWNER's complete satisfaction,through the expiration of all wariarrty periods.
April 202-I Perl'briiiance Bond Fong
Book 9988 Page 102
Instrument#21621093656
Bond No. 1001571
Water Treatme6fl`]ani;Yo,.2 Electrical Improvements 00610-6
principsa Surety
Cain Enterprises,LLC dba Engineering Solutions Intemational FCCI Insurance Company
(Typed Firm Name) (Typed:Firm.Name) t""`''
(Sean' (Seal) Y r
(Signature) _(Signature).
7 C*e'j Paul A. Locascio
(Printed Name) .Ante Name)
Ect Attorney-in-Fact& FL Resident Agent
(Title) (Title)
3780 NE 40th Place 6300 University Parkway
Ocala, FL 34479 Sarasota, FL 34240-8424
(Address) (Address)
7/8/2021 7/8/2021
(bate of Execution) (Date of Execution)
SND OF SECTION
April 2021 Performance Bond Form
Book 9988 Page 103
Bond No. 1001571 Instrument#2a21093656
IWURINC9
FCC LRO.Up -
GENERAL POWER-OF ATTORNEY
know all men by these presenfs; That the FCC-I Insurance-Company, a,Corpor6tibqcrgpnjzed.anq1 existing under
Via laws of the State.of FIorjdq.(the"Corpor@tion')does make,:constituteandpoll p ri
A�
L Dblo Waldorq;PAMelal L Jaffffan'Bonjairnin'H French;Paul A Loi%10i6%.'Re-6ekahG WA,K Wa
ynd Walker
Each, its true and.lawful Attorney-ln=Fact-to make,execute.,seal and deliver,for and on its behalf as surety,and
as its-act and deed in all bonds and'undertakings provided-that no bond or undertaking or-coritract of suretyship executed
under this authority shill-exceed the sum of(not to exceed$9'0,000,000.00): $10,00000.00
This_Pqw.qr of'Morney is.:mad6and executed'by authority of a Resolution adopted by the Board of Directors.,irs. That
resolution also authorized any further action by the officers 4'th'e 'Company necessary to effect such transaction.
The signatures below and,the seal of the Corporation may be affixed by facsirdle,, and any such facsimile
signatures or facsimile.seal shall be binding upon the Cbrpor6liion when so affixed and in the future with regard to any
bond,undertaking or contract of surety to which it is attached.
In-witfiest;Whdteof,,th&FCC-I Insufance-Company has caused these presents-to b&signed by Its ddy authbrized
-officers and.its corporate Sdail'16 be h6r_e'unt6_6fflx6d,'this 23rd diyof. July '2020.
4T -
Attest- OV4�7 -
Christina D.Welch,President �qf SEAL 1
Christopher Shouicair,
N-
FCCI Insuritipe Qprfipany r;VP,PFG,Trfoa&uret,$Wetar-
M4 - J- V
J FOCI lbsurancerCompany
State ofFlorida
County of Sa-risota
Before me this day.personally appeared Christina D.Welch,who is personally known to me and who executed
the foregoing dociument for the purposes expressed therein.
-----------
My commission expires: 2/27/2023 t;--;;; Notary Public
.State of Florida
County of Sarasota
Before me this Opy personally appeared Christina D. Wejlch, who is-peesonaUy knoWh to me and whO executed
the foregoing document f6f this pdrobses expressed th6rein.
My commission expires: 2/27/2023
Notary'Pu,blic
NOV
CERTIFICATE
1,the undersigned Secretary of FCC!Insurance Cornpi3ny, a Florida Corporation,.DO HEREBY CERTIFY that the
foregoing Power of Attorney remains in full force and has not been revoked; and furthermore that the February 27,2020
.Resolution of the Board of Directors, referenced in said Power of Attorney,is now in force.
8th 2021
Dated this day of JU1Y
.10
Christopher Shqugalr,EVP,CFO,Tfe6surer,Secretary
r
Z
FOCI Insurance Company
1-t0NA,35U-N"., 712020
Book 9988 Page 104
Instrument#2021093656
Water Treatment'Plan(No..2 Elecirical Improvements O0620=1
SECTION 00620.
LABOR AND MATERIALS PAYMENT BOND
Bond No., 1001571
.BY THIS LABOR AND MATERIALS PAYMENT BOND, 'We
Cain Enterprises,LLC dba Engineering Solutions International as Principal, whgsel address is
3780 NE 40th Place,Ocala,FL 34479 (352)390555
_ and telephone�numbei.-is and
FCCI Insurance Company as Surety,' whose address is
6300 University Parkway,Sarasota,FL 34240-8424 and telephone number is
800-226-3224x2726 are bound to the City of Winter Springs.,. a Florida municipal
coiPoi-afrot;i, as OWNER, whose address is 1126 E: -S`tate.Road 434, Winter Springs,
Honda 32788 and teleAhorip .number is 407;327.,1'800; in flip. 'initial sum of $257,692.11
Two Hundred Fifty-Seven Thousand Six Hundred Ninety-Tyro and 11/100 Dollers(110% of .Contract -Pri4); or such greater
amount as the Contract may be adjusted from time to time in accordance with the
Contract between the Principal and OWNER)(the"Penial Suni").
WFIEREAS, the Principal has executed a contraci with the OWNER; dated
7/7/2021 ; for'the construction of the Water Treatment Plant'No. 2 Flecirical
Improvements project in the City of Winter Springs,. Seminole ,County,. Florida (the-
.Project'�;sail
W,,HEREAS, the .OWNER has required the Principal to furnish a labor and materials
payment bond in accordance with law and as a condition of executing,the Contract with
Principal;and
WHEREAS, this bond. 'is being entered into to satisfy the requirements of Section
255.05(1), Florida Statutes and the Contract referenced above, as the same may be
amended; and additionally, to provide common law- rights more expansive 'than as
required by"statute.
.NOW THEREFORE, .the. Surety and the Principal, both joint and severally, and for
themselves, their heirs, administrators, executors, successors and assigns agree as
follows:
1. CONTRACT INCORPORATED;SURETY AND PRINCIPAL BOUND FOR
FULL PERFORMANCE. Tlie Contract is incorporated by reference and made a part of
this bond. The Surety and the Principal are bound to pfomptlymake.payments to all
claimants;as defined in Section 25 5.05(l),Florida Statutes,supplying Principal with
labor,materials,-supplies,ourental equipment used directly or indirectly by Principal in
the prosecution of the work provided under the Contract. Any such payments§ball not
involve the OWNER iri any.expense.
April 1021 Litbor and Materials Payment Bond
Book 9988 Page 105
Instrument#2621093656
Water Treatment,PI ant-If—o.,2 Electrical Im proveni '00620 ents -2
2. -CLAIMS.. C1.4ims made under this bond shall be made pursuant t9--provisions of.Section
]Florida Statutes,,aad,applicable law. Therefore,a claimant,.except a laborer,Who
,$-not ikprivity-
With ttie.Principal sha:jl,,bpf6rt porrimopc'M "or not later thap.45 days
after boniiiiencing t6 fiftnish Mot,services,dir materials.�fdr the_prosecution of the work;
furnish the Principal with written-notice that he or she intends to look to-.the_bond for
protection. A claimant who is not in privity with the Principal and,who,has not received
payment forhis7 gr'her labqrj services,or materials shall deliver to the Princip4l and to the
surety. written-notice of the perf6rinance of the labor or-delivery of-materials or supplies
and ofthe ridop4phent, 11te-notice of nonpayment may be served.4t any time during the
progress of the Work or thereafter but not before 45 days after the first furnishing of
labor,services,or materials,-and not later than 90 days after the final.furnishing of the
labor, services, or materials bythe claimant or,with respect to the rental equipment,not
latpr than 90 days after the date that the rental equipment-was last on'the job site available
for use. Any-jiqtice of nonpayment served by a claimant who is not inprivity with
Ph"am.pal which includes.-sums for retainage must specify 4116 portion of the amount
61'a"imie"d for retainage.
.3. SURETY'S WAIVER OF NOTICE. The Surety waives notice of any modifications to
the Contract,including changes in the Contract 11ifid,the Contract Sdm,or the labor,
work,or materials required to be performed under the ContfacL
4. BENEFICIARIES. The Surety provides this pmformarice bond fQr-.the sole,and
exclusive benefit of the OWNER and OWNER's heirs,administrators,executors,
successors and assigns,as well as for the benefit of any claimants who'have actually
provided labor,material,rental equipment,or services-under the Contract.
5. RECITALS. The recitab pohtained.iii this labor and materials payment bond are
incorporated by reference herein and are expressly made a part of this bond.
6. GOVERNING LAW. This labor and materials payment bond shill he governed by,.and
construed in accordance with the laws ofthe State of Florida without regard to its conflict
of laws provisions.
7. VENUE. In the event any legal action shall be filed upon this labor and materials
payment bond,venue shall lie exclusively in the Circuit Court:for Seminole County,
Florida_
8. NUSCELLANEOUS.
April 2021 Labor andlaiefials Payment Bond
Book 9988 Page 106
Instrument#2021093656
Water Treatme6tPlani Tfl.2'Eleqtri6lIrnj!rovements "00620-3
A. The Surety-agrees'that this labor and materials paynfOnfbond shall b00,rd the
OWNkkAndall claimants under the ContractContractwith 411 bfthe protedti6ds and rights
afforded under-Fioiida:SthWtes and under doninich law.
B. This labor add lilitOii_24 payment bond is issued.inadditiod to.&iyqthet bond or
.warranty,required under the Contract including,but not limited to, any performance
bond and maintenance bond.Each bond issued under the Contrad shall be construed
as-separate -other.
and distinct each
C. In the event Oat-ihp Sqpty.fails;to fulfill its obligations un*this labor and
materials payment bond-,then the-Surety 5h.all also indemnify and hold the OWNER
fiatmless.froth afty.and all loss expense,inclu
damage,cost.and&xp
altbrney9".keds and-'Oo§b for all trial and appellate pr66eodingsJesillting directly or
indirectiy.trom the Surety's failure to fulfill its obligations hereunder. This
subsection shall survive�dje termination or cancellation of this labor.and materials
-payment bond.,
D. This labor and materials payment bond shall remain-in full force and effect until such
Time that t4p'legil do#41frke for filing a claim herounder'has duly-expired.
Sure r
Principal
Cain EnterprWes,LLC dba Engineering Solutions InWmaUcrial FC811nsurance Company..
(Typed Arm Name)
(Typed Firm Name)
11,�0L4
_
(Seal)
(S6d) Z
BY: f3y.
(SiglAWK0 (SignpiurgL
40e ewrw Paul A. ocascio
(Printed Name) (Printed Name)
Attorney-in-Fact& FL Resident Agent
—
(Title) (ritfe)
3780 NE 40th Place 6300 University Parkway
Ocala, FL 34479 Sarasota, FL 3424-0-8424
(Address) (Address)
7/8/2021 7/8/2021
-
(Date Execution)
-7 - (Date of Execution)
END OF SECTION
April 1021 'Labor and Materials Paymerit-13ond