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HomeMy WebLinkAboutVortex Companies LLC - Supplemental Agreement June 2023 06 28SUPPLEMENTAL AGREEMENT THIS SUPPLEMENTAL AGREEMENT ("Agreement") is made and entered into this day of �i.� 2023, by and between the CITY OF WINTER SPRINGS, a Florida Municipal Corporation ("City" or "Owner") and VORTEX COMPANIES, LLC, a limited liability company authorized to transact business in the State of Florida, with offices located at 5910 Hartford St., Tampa, Florida 33619 ("Vortex" or "Contractor"), (collectively, "the parties"). The City and Vortex agree as follows: The City of Winter Springs is a member of The Interlocal Purchasing System , a government cooperative purchasing program with its principal place of business located at 4845 U.S. Hwy 271 North, Pittsburg, Texas 75686. The parties agree that Vortex Companies, LLC, is an authorized TIPS vendor, with an active Vendor Agreement in place with TIPS. The Vendor Agreement between TIPS and Vortex is contained within three documents: the TIPS Vendor Agreement for RFP 201104 Part 1 (purchases of parts, supplies, and maintenance and repair services not considered construction work), attached hereto as Exhibit A and incorporated herein by this reference; the TIPS Vendor Agreement for RFP 201104 Part 2 (construction projects), attached hereto as Exhibit B and incorporated herein by this reference; and the TIPS Pricelist for RFP 201104 Pipe Bursting, attached hereto as Exhibit C and incorporated herein by this reference (collectively the "Vendor Agreements"). Pursuant to the City's Purchasing Policies and the City's TIPS membership, the City may utilize the existing Vendor Agreements between TIPS and Vortex to purchase equipment, supplies, and maintenance and repair services and contract for the construction services provided by Vortex under the same terms, conditions, and pricing already agreed upon between TIPS and Vortex in the TIPS Vendor Agreements and Pricelist. Pursuant to the TIPS Vendor Agreements between TIPS and Vortex, the City may enter into a Supplemental Agreement with Vortex to modify the terms and conditions of and add additional terms and conditions to the TIPS Vendor Agreements. Accordingly, notwithstanding the requirements that the TIPS Vendor Agreements contained in Exhibit A, Exhibit B, and Exhibit C, are fully binding on the parties, the parties have agreed to modify certain provisions of and add supplemental provisions to the TIPS Vendor Agreement as applied to this Supplemental Agreement between the City and Vortex, as follows. A. Terms. Notwithstanding anything in Exhibits A, B, or C, to the contrary, the following terms shall be substituted throughout the TIPS Vendor Agreements: "TIPS Member" shall refer to the City of Winter Springs and "Vendor" shall refer to Vortex Companies, LLC, B. Task Orders. The City and Vortex agree that the precise scope of services to be performed by and purchases to be furnished by Vortex under this Agreement shall be delineated on an as -needed basis through the issuance of Task Orders. Individual Task Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 1 of 31 Orders shall contain information regarding project specifics, such as the time of substantial completion for construction projects, an enumeration of the products to be ordered, and a description of the work to be performed. Prices set forth in individual Task Orders shall be consistent with the Exhibit C Pricelist. C. Term of Agreement. Notwithstanding anything in Exhibits A, B, or C, to the contrary, the term of this Agreement between Vortex and the City of Winter Springs shall take effect on the date of its execution by the City and Vortex ("effective date"). The term of this Agreement shall be for two (2) years from the effective date, with an option for renewal extension for an additional two (2) consecutive one (1) year terms. D. Indemnity. Vortex shall indemnify and hold harmless the City, its officers, employees, agents, engineers, 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 Vortex, and persons employed or utilized by Vortex in the performance of this Agreement. Vortex specifically assumes potential liability for actions brought by Vortex's own employees against the City and, solely for the purpose of this indemnification and defense, Vortex 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 Vortex to defend at its own expense or to provide for such defense, at the option of the City, 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 City or its officers, employees, and city attorneys which may covered by this indemnification. In all events the City 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. The indemnity provisions set forth in this Paragraph shall survive termination of this Agreement. E. Notice. Notices to City shall be delivered to: City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 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 Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 2 of 31 the business day immediately following delivery to such service, and if mailed, on the third business day after mailing. F. 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 Vortex's labor force); extraordinary breakdown of or damage to City's affiliates' generating plants, their equipment, or facilities; court injunction or order; federal and/or state law or regulation; or order by any regulatory agency; 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. G. Conflict of Interest. Vortex 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 City 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 City's Personnel Policies. Vortex hereby certifies that no officer, agent or employee of the City 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 Vortex to be conducted here, and that no such person shall have any such interest at any time during the term of this Agreement. Pursuant to Section 216.347, Florida Statutes, Vortex hereby agrees that monies received from the City pursuant to this Agreement will not be used for the purpose of lobbying the Legislature or any other State or Federal Agency. H. Additional Assurances. 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; 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 City; and 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 City any pecuniary or other benefit with the intent to influence the employee or officer's official action or judgment. Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 3 of 31 I. Safety. Vortex shall be solely and absolutely responsible and assume all liability for the safety and supervision of its principals, employees, contractors, and agents while performing work provided hereunder. More specifically, the Vortex shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work. The Vortex shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury, or loss to: i. All employees on the project site and other persons who may be affected thereby. ii. All the Work and all materials or equipment to be incorporated t herein, whether in storage on or off the project site. iii. Other property at the project site or adjacent thereto. Vortex 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. Vortex 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. J. 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 City and Vortex is such that the Vortex is an independent contractor and not an agent of the City. The Vortex, its contractors, partners, agents, and their employees are independent contractors and not employees of the City. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor, between the City, on one hand, and the Vortex, its contractors, partners, employees, or agents, during or after the performance of the Work under this Agreement. K. Third -Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than City and Vortex. L. Prohibition Against Contingent Fees. Vortex warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Vortex, 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 Vortex, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 4 of 31 M. 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. N. E-Verify. Pursuant to section 448.095, Florida Statutes, beginning January 15 2021, any City contractors shall register with and use the U.S. Department of Homeland Security's E-Verify system, https://e-verify.uscis.gov/emp, 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: i. Contractor shall also require all subcontractors performing work under the Agreement to use the E-Verify system for any employees they may hire during the term of the Agreement. ii. 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. iii. 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. O. 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 Vortex 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 City or Vortex. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the Vortex is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the City's City Manager. Upon request by the City, the Vortex shall promptly supply copies of said public records to the City. 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 Vortex be open and freely exhibited to the City for the purpose of examination and/or audit. Failure by Vortex to grant Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 5 of 31 such access and comply with public records laws and/or requests shall be grounds for immediate unilateral cancellation of this Agreement by the City upon delivery of a written notice of cancellation. If Vortex fails to comply with this Section, and the City must enforce this Section, or the City suffers a third -party award of attorney's fees and/or damages for violating Chapter 119, Florida Statutes, due to Vortex's failure to comply with this Section, the City shall collect from Vortex prevailing party attorney's fees and costs, and any damages incurred by the City, for enforcing this Section against Vortex. And, if applicable, the City shall also be entitled to reimbursement of all attorneys' fees and damages which the City had to pay a third party because of the Vortex's failure to comply with this Section. The terms and conditions set forth in this Section shall survive the termination of this Agreement. Vortex acknowledges that the City is a Florida municipal corporation and subject to the Florida Public Records Law. Vortex agrees that to the extent any document produced by Vortex under this Agreement constitutes a Public Records Vortex shall comply with the Florida Public Records Law. IF VORTEX HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO VORTEX'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS, THE CITY CLERK, AT (407) 327-6560, City Clerk's Office,1126 East State Road 434, Winter Springs, Florida 32708, or City- Clerk-Department@winterspringsfl.org. P. Attorney Fees. Unless otherwise expressly provided in this Supplemental Agreement, 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 or trial, or on appeal. Q. Sovereign Immunity. The City 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 City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. Vortex agrees that City shall not be liable under this Agreement for punitive damages or interest for the period before judgment. Further, City 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 party for the purpose of allowing any claim which would Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 6 of 31 otherwise be barred under the doctrine of sovereign immunity or by operation of law. This paragraph shall survive termination of this Agreement. R. 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 validity and enforceability of the remaining parts of this Agreement shall otherwise be fully enforceable. S. 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, https://e-verify.uscis.gov/emp, 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: i. Contractor shall also require all subcontractors performing work under the Agreement to use the E-Verify system for any employees they may hire during the term of the Agreement. ii. 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. iii. 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. T. Governing Law and Venue. This Agreement and any Task Orders issued hereunder are 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. Vortex's surety is bound by this provision. U. Order of Precedence. In case of any inconsistency in any of the documents bearing on the Agreement between the City and Vortex, the inconsistency shall be resolved by giving precedence in the following order. Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 7 of 31 i. Any Task Order issued pursuant to this Agreement. ii. This Agreement and any addenda hereto. iii. Exhibit C, the TIPS Pricing sheet. iv. Exhibits A and B, the original TIPS Vendor Agreement with Vortex. Any inconsistency in the work description shall be clarified by the City and performed by Vortex. V. Insurance. During the term of this Agreement, Vortex 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 Vortex to perform any Work hereunder shall fully comply with the insurance provisions contained in these Contract Documents. Vortex shall maintain comprehensive general liability insurance in the minimum amount of $2,000,000 as the combined single limit for each occurrence to protect Vortex from claims of property damages which may arise from any Work performed under this Agreement whether such Work are performed by Vortex or by anyone directly employed by or contracting with Vortex. ii. Vortex 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 the 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 Vortex or by anyone directly or indirectly employed by Vortex. Vortex 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 City pursuant to this Agreement. 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 City by Vortex upon the Effective Date of this Agreement which satisfied the insurance requirements of this Paragraph. Renewal certificates shall be sent to the City 30 days prior to any expiration date. There shall also be a 30-day advance written notification to the City in the event of cancellation Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 8 of 31 or modification of any stipulated insurance coverage. The City 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 speced 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, Vortex shall require Vortex's insurance carriers to waive all rights of subrogation against City 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. Contract Provisions Applicable to Construction Projects Only V 1. Site Conditions. Vortex acknowledges that it has studied, considered, and anticipated in its price schedule all costs of any nature related to: performance of the work under Florida weather conditions; applicable law, licensing, and permitting requirements; the Project site conditions, including but not limited to, subsurface site conditions; and 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. W. Contract Time. All provisions regarding Contract Time are essential to the performance of this Contract. For each Task Order, the Contract Time shall be established using the following provisions. i. The Work shall be substantially completed within �) calendar days after the date when the Contract Time begins to run. The Work shall be finally completed, ready for Final Payment within calendar days after the actual date of Substantial Completion. 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. Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 9 of 31 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. 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. In the event that the Work requires phased construction, then multiple points of Substantial Completion may be established in the Task Order. X. Invoices and Progress Payments. Invoices shall be submitted, referencing this Agreement and any Task Order to: City of Winter Springs Finance Department —Accounts Payable 1126 East State Road 434 Winter Springs, Florida 32708 In addition, the following shall govern with respect to Progress Payments: No payments shall be made where a Payment and Performance Bond is required herein until City receives a certified copy of the recorded Bond, if applicable. City shall make progress payments on account of the contract price to Vortex, on the basis of application for payments submitted to the City or City's Project Manager, by Vortex, as the work progresses, and in accordance with the contract documents. Progress payments may be withheld if: i. Progress payments may be withheld if: a. Work is found defective and not remedied; b. CONTRACTOR does not provide consent of surety with each payment application; c. Another contractor is damaged by an act for which CONTRACTOR is responsible; or Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 10 of 31 d. In the opinion of the OWNER that CONTRACTOR's work is not progressing satisfactorily. In each Task Order, the OWNER shall (_) designate or (_) 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. 218.74(1), 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 inaccurate 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. In each Task Order, OWNER shall identify the [INSERT INDIVIDUAL AGENT OR CITY DEPARTMENT] as the agent or office to which the CONTRACTOR must submit payment requests or invoices to OWNER. In each Task Order, the OWNER shall further identify , Attn: as the agent that must approve payment requests prior to their submission to OWNER, if applicable. Y. Final Payment; Change Orders. City shall withhold up to 5% of the contract price throughout the project in accordance with the Local Government Prompt Payment Act. The retainage amount withheld may be released with the Final Payment after the issuance of a Final Completion Certificate. Consent of surety is required for final payment. OWNER shall make final payment to Vortex 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 Vortex has delivered to City all close- out documentation. 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. Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 11 of 31 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: a. By mutual acceptance of a lump sum. b. By unit prices named in the contract or subsequently agreed upon. c. 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 actual cost of labor and materials, substantiated by back-up documentation. 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 give 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 appropriate the City may accept defective or incomplete work, and an equitable deduction from the Contract Price will be made therefor by Change Order, Z. Waiver. By making payments, City does not waive claims including, but not limited to those relating to: i. Faulty work appearing after substantial completion has been granted; ii. Work that does not comply with the contract documents; iii. Outstanding claims of liens; iv. Failure of Vortex to comply with any guarantees required by the contract documents. AA. Omitted. BB. Interpretation. At its discretion, during the course of the work, should any errors, ambiguities, or discrepancies be found in the Contract Documents, the City at its sole discretion will interpret the intent of the Contract Documents and Vortex hereby agrees Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 12 of 31 to abide by the Citys interpretation and agrees to carry out the work in accordance with the decision of the City. CC. Brand Name Materials. Whenever Materials or Equipment are speced 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. Vortex will be responsible for all coordination necessary to accommodate the material, article, or equipment being provided without additional cost to the City. 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 Vortex 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 function as that specified. The City has full discretion to decide whether a substitute is reasonably equivalent. Vortex must notify the City in writing prior to use of the substitute for a specified brand name and allow the City to make a determination before Vortex uses the substitute. DD. Termination. The City reserves the right to revoke and terminate this Agreement and rescind all rights and privileges associated with this Agreement, without penalty, for convenience. Further, the City 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: i. Vortex 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 City 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 Vortex shall have such time as is reasonably necessary to remedy the default, provided the Vortex promptly takes and diligently and continuously pursues such actions as are necessary therefore; or ii. Vortex is adjudicated bankrupt or makes any assignment for the benefit of creditors or Vortex becomes insolvent, or is unable or unwilling to pay its debts; or iii. Vortex has acted negligently, as defined by general and applicable law, in performing the Work hereunder; or iv. Vortex has committed any act of fraud upon the City; or Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 13 of 31 v. Vortex has made a material misrepresentation of fact to the City while performing its obligations under this Agreement; or It Vortex 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 City may have under this Agreement. In the event of an uncured default by Vortex, the City shall have the right to exercise any other remedy the City may have by operation of law, without limitation, and without any further demand or notice. In the event of such termination, City 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, which may be a set-off to City's damages. EE. Designation of Project Manager or Architect or Landscape Architect: Duties and Authority. The duties and authority of the City are as follows: i. General Administration of Contract. The primary function of the City is to provide the general administration of the contract. In performance of these duties, the City Manager or their authorized representative is the City's Project Manager during the entire period of construction. The City may change the Project Manager during the term of this contract. ii. Inspections, Opinions, and Progress Reports. The City shall be kept familiar with the progress and quality of the work by Vortex and may make periodic visits to the work site. The City will not be responsible for the means of construction, or for the sequences, methods, and procedures used therein, or for the Vortex's failure to perform the work in accordance with the Contract Documents. iii. Access to Worksite for Inspections. The City 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 Vortex 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, Vortex shall give the Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 14 of 31 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, Vortex shall pay such cost, including compensation for professional services, and an appropriate deductive Change Order shall be issued. iv. Interpretation of Contract Documents: Decisions on Disputes. The City will be the initial interpreter of the contract document requirements, and make decisions on claims and disputes between Vortex and City. v. Rejection and Stoppage of Work. The City 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. vi. Payment Certificates. The City will determine the amounts owing to Vortex as the work progresses, based on Vortex's applications and City's inspections and observations, and will issue certificates for progress payments and final payments in accordance with the terms of the Contract Documents. vii. City Reviews and Status. 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 Vortex 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 Vortex 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 Vortex 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 Vortex 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 Vortex, for any of the foregoing purposes, be deemed the agent of the City. Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 15 of 31 City's Project Manager may hold periodic progress meetings on a monthly basis, or more frequently if required by the City's, during the term of work entered into under this Agreement. Vortex's Project Manager and all other appropriate personnel shall attend such meetings as designated by the City's Project Manager. FF. Vortex's duties and rights in connection with the project herein are as follows: i. Responsibility for Supervision and Construction. Vortex shall be solely responsible for all construction under this contract, including the techniques, sequences, procedures and means, for the coordination of all work. Vortex shall supervise and direct the work and give it all attention necessary for such proper supervision and direction. ii. Discipline and Employment. Vortex 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 perform the job for which he was employed. iii. Furnishing of Labor, Materials, etc. Vortex 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 in accordance with the Contract Documents. iv. Payment of Taxes: Procurement of Licenses and Permits. Vortex shall secure all licenses and permits necessary for proper completion of the work, paying the fees thereof, Vortex 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 Vortex to undertake the contract work. v. Guarantee. The Vortex hereby guarantees the Work to the full extent provided in the Plans, Specifications, General Conditions, Special Conditions and other Contract Documents. The Vortex shall remove, replace and/or repair at its own expense and at the convenience of the City 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 Vortex warrants to the City, 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 Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 16 of 31 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, Vortex will provide written guarantee for work and materials for one (1) calendar year after acceptance by City. The one (1) period is not a limitation upon manufacturer warranties or Vortex's payment and performance Bond(s). v. Project Site. Vortex 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,o and (vi) gather any other information necessary for a thorough understanding of the project. If the project involves modifications to any existing structure(s) or other man-made feature(s) on the project site, Vortex shall also review all as -built and record drawings, plans, and specifications of adjacent work which Vortex has been requests from 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 Vortex resulting from its failure to familiarize itself with the project site or pertinent documents shall be deemed waived. GG. Corporate Representatio►is. Vortex hereby represents and warrants to the City the following: i. Vortex 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 forth in this Agreement. ii. The undersigned signatory for Vortex 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 Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 17 of 31 performance hereof by Vortex has been duly authorized by the board of directors and/or president of Vortex. In support of said representation, Vortex agrees to provide a copy to the City of a corporate certificate of good standing provided by the State of Florida prior to the execution of this Agreement. iii. Vortex is duly licensed under all local, state and federal laws to provide the work contemplated by this Agreement. In support of said representation, Vortex agrees to provide a copy of all said licenses to the City prior to the execution of this Agreement. HH. Bond. Vortex shall supply a materials, performance and payment bonds) in accordance with Florida law and in substantially in conformance with the forms attached to the Agreement as Exhibit D 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. Vortex shall remain jointly and severally liable with any surety issuing a bond under the Contract. The premium for such bonds shall be included in the Contract Price. IN WITNESS WHEREOF, the parties have hereunto set their hands and seal on the date first above written. CITY O By: SPRINGS: Interim City Manager Date: ATTEST: CHRISTIAN GOWAN City Clerk Date: 1p,�,�?o�-� Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 18 of 31 CONTRACTOR: Vortex Services, LLC - Print name/title Date: 06/26/2023 Shawn Ready - Se'hior RVP [CONTINUED TO NEXT PAGE] STATE OF Florida COUNTY OF Hillsborough The foregoing instrument was acknowledged before me by means of (X )physical presence or () online notarization, this 26th day of June , 2Q 23 , by Shawn Ready , the Senior RVP of Vortex Services, LLC , who i ersonally know to me or who produced as identification an w o id take an oath. SheNa Hifson Comm.:HH 172267 Expires: Sept. 29,2025 Notary Public - State of Florida ry Public Signature) (Nota Sheila Hilson (Print Name) Notary Public, State of Florida Commission No.: HH172267 My Commission Expires: 09/29/2025 Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 19 of 31 Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 20 of 31 EXHIBIT B Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 21 of 31 EXHIBIT C Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 22 of 31 EXHIBIT D PERFORMANCE BOND FORM Bond No. BY THIS PERFORMANCE BOND, We , as Principal, is and telephone number is as Surety, whose address is whose address and and telephone number is are bound to the City of Winter Springs, a Florida municipal corporation, as OWNER, whose address is 1126 E. State Road 434, Winter Springs, Florida 32708 and telephone number is 407-327-1800, in the initial sum of $ (110% of Contract Price), 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 "Penal Sum"). WHEREAS, the Principal has executed a contract with the OWNER, dated ,for the construction of the project in the City of Winter Springs, Seminole County, Florida (the "Project"); and WHEREAS, 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 PERFORMANCE. 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: A. 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 Agreement, and B. Pay OWNER all losses, damages, delay damages (liquidated or actual), expenses, costs and attorneys' fees under sections 627.428 or 627.756, Florida Statutes, including costs and attorney's fees on appeal that OWNER sustains resulting directly or indirectly from Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 23 of 31 any breach or default by Principal under the Contract, and C. Satisfy all claims and demands incurred under the Contract, and fully indemnify and hold harmless the OWNER from all costs and damages which it may suffer by reason or failure to do so. 2. OWNER'S AFFIDAVIT OF CONTRACTOR BREACH OR DEFAULT. If the OWNER shall provide to Surety the written affidavit of the OWNER stating that the Principal is in breach or default of the Contract, and that such breach or default remains uncured by the Principal, then upon delivery of such affidavit to the Surety in the method for providing notices as set forth in Paragraph 7 below, Surety must promptly notify the OWNER in 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 the 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 must, within ten (10) days, proceed to take one of the following courses of action: A. Proceed Itself. Complete performance of the Contract including correction of defective and nonconforming Work through its own CONTRACTORS or employees, approved as being acceptable to the OWNER, in the OWNER's sole discretion, provided, 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 is not affiliated in any way with the Principal. During this performance by the Surety, the OWNER will pay the Surety from its own funds only those sums as would have been due and payable to the Principal under 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 performance 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 fulfillment 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 CONTRACTOR 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 shall be 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 OWNER for the Project Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 24 of 31 by the Principal. Each such bond must be in the Penal Sum of the full cost to complete the Contract. The OWNER will pay the completing CONTRACTOR from its own funds only those sums as would have been due and payable to the Principal under 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. To the extent that the OWNER is obligated to pay the completing CONTRACTOR sums which would not have been due and payable to CONTRACTOR under the Contract (any sums in excess of the then remaining Contract balance less any sums due the OWNER under the Contract), the Surety must pay the OWNER the full amount of those sums at the time the completing CONTRACTOR tenders an invoice to the OWNER so that the OWNER can utilize those sums in making timely payment to the completing CONTRACTOR; or C. Tender the Full Penal Sum. Tender to the OWNER the full Penal Sum of the performance bond. The OWNER will refund 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 expiration of any applicable warranties; or D. Other Acts. Take any other acts mutually agreed upon in writing by the OWNER and the Surety. E. IT SHALL BE 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 RECEIVED THE AFFIDAVIT OF THE OWNER AS 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 627.756, Florida Statutes and related costs), expenses and costs for architects, 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 of this Bond. Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 25 of 31 5. SURETY'S WAIVER OF NOTICE. The Surety waives notice of any Modifications to the 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 THIRD PARTY BENEFICIARIES. The Surety provides this performance bond for the sole and exclusive benefit of the OWNER and OWNER's heirs, administrators, executors, successors and assigns. No other party, person or entity has any rights against the Surety. 7. METHOD OF NOTICE. All notices to the Surety, the Principal or the OWNER must be given by Certified Mail, Return Receipt Requested, to the address set fourth for each party below: SURETY: Name: Attention: Street: City, State: Zip: PRINCIPAL: Name: Attention: Street: City, State. Zip: OWNER: The City of Winter Springs Attention: Shawn Boyle, City Manager 1126 E. State Road 434 Winter Springs, Florida 32708 (407) 327-5957 with a copy to: Anthony A. Garganese, City Attorney Brown, Garganese, Weiss & D'Agresta, P.A. 111 N. Orange Avenue, Suite 2000 Orlando, Florida 32802 (407) 425-9566 Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 26 of 31 8. STATUE OF LIMITATIONS. Any statutory limitation, which may be contractually superceded, to the contrary notwithstanding, any action hereon may be instituted so long as the applicable statute of limitations governing the Contract (including any warranty period) has not run or expired or within three (3) years following Final Completion of the Contract (including any warranty period) and acceptance of the Work performed under the Contract by the OWNER, whichever is longer. 9. RECITALS. The recitals contained in this Performance Bond are incorporated by reference herein and are expressly made a part of this Performance Bond. 10. GOVERNING LAW. This performance bond shall be governed by, and construed in accordance with the laws of the State of Florida without regard to its conflict of laws provisions. 11. VENUE. In the event any legal action shall be filed upon this performance bond, venue shall lie exclusively in the Circuit Court for Seminole County, Florida. 12. MISCELLANEOUS. A. The Surety agrees that this performance bond shall afford the OWNER with all of the protections and rights afforded under Florida Statutes and under common law. B. This performance bond is issued in addition to any other bond or warranty required under the Contract including, but not limited to, any labor and materials payment bond and maintenance bond. Each bond issued under the Contract shall be construed as separate and distinct from each other. C. In the event that the Surety fails to fulfill its obligations under this performance bond, then the Surety shall also indemnify and hold the OWNER harmless from any and all loss, damage, cost and expense, including reasonable attorneys' fees and costs for all trial and appellate proceedings, resulting directly or indirectly from the Surety's failure to fulfill its obligations hereunder. This subsection shall survive the termination or cancellation of this performance bond. D. 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 warranty periods. Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 27 of 31 Principal Surety (Typed Firm Name) (Typed Firm Name) (Seal) (Seal) By: By: (Signature) (Signature) (Printed Name) (Printed Name) (Title) (Title) (Address) (Address) (Date of Execution) (Date of Execution) Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 28 of 31 LABOR AND MATERIALS PAYMENT BOND Bond No. BY THIS LABOR AND , as MATERIALS PAYMENT Principal, whose _ and telephone number is _ as Surety, whose address is and telephone number is are bound to the City of Winter Springs, a Florida municipal corporation, as OWNER, whose address is 1126 E. State Road 434, Winter Springs, Florida 32708 and telephone number is 407-327-1800, in the initial sum of $ (110% of Contract Price), 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 "Penal Sum"). BOND, We address is and WHEREAS, the Principal has executed a contract with the OWNER, dated for the construction of the project in the City of Winter Springs, Seminole County, Florida (the "Project"); and WHEREAS, 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. The Contract is incorporated by reference and made a part of this bond. TM Surety and the Principal are bound to promptly make payments to all claimants, as defined in Section 255.05(1), Florida Statutes, supplying Principal with labor, materials, supplies, or rental equipment used directly or indirectly by Principal in the prosecution of the work provided under the Contract. Any such payments shall not involve the OWNER in any expense. 2. CLAIMS. Claims made under this bond shall be made pursuant to provisions of Section 255.05, Florida Statutes, and applicable law. Therefore, a claimant, except a laborer, who Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 29 of 31 is not in privity with the Principal shall, before commencing or not later than 45 days after commencing to furnish labor, services, or materials for 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 for his or her labor, services, or materials shall deliver to the Principal and to the surety written notice of the performance of the labor or delivery of materials or supplies and of the nonpayment. The notice of nonpayment may be served at 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 by the claimant or, with respect to the rental equipment, not later than 90 days after the date that the rental equipment was last on the job site available for use. Any notice of nonpayment served by a claimant who is not in privity with Principal which includes sums for retainage must specify the portion of the amount claimed for retainage. 3. SURETY'S WAIVER OF NOTICE. The Surety waives notice of any modifications to the Contract, including changes in the Contract Time, the Contract Sum, or the labor, work, or materials required to be performed under the Contract. 4. BENEFICIARIES. The Surety provides this performance bond for 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 recitals contained in 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 shall be governed by, and construed in accordance with the laws of the 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. MISCELLANEOUS. A. The Surety agrees that this labor and materials payment bond shall afford the Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 30 of 31 OWNER and all claimants under the Contract with all of the protections and rights afforded under Florida Statutes and under common law. B. This labor and materials payment on is issued in addition to any other bond or warranty required under the Contract including, but not limited to, any performance bond and maintenance bond. Each bond issued under the Contract shall be construed as i separate and dstinct from each other. C. In the event that the Surety fails to fulfill its obligations under this labor and materials payment bond, then the Surety shall also indemnify and hold the OWNER harmless from any and all loss, damage, cost and expense, including reasonable attorneys' fees and costs for all trial and appellate proceedings, resulting directly or indirectly from the Surety's failure to fulfill its obligations hereunder. This subsection shall survive the 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 the legal deadline for filing a claim hereunder has duly expired. Principal (Typed Firm Name) (Seal) By: (Signature) (Printed Name) (Title) (Address) (Date of Execution) Surety (Typed Firm Name) (Seal) By: (Signature) (Printed Name) (Title) (Address) (Date of Execution) Supplemental Agreement City of Winter Springs and Vortex Companies, LLC Page 31 of 31