HomeMy WebLinkAboutVarsity Courts Inc. - Performance Bond Form - Central Winds Pickleball - Bond No. 100296694 - 2023 12 06ID_ . I Vol
PERFORMANCE BOND FORM
Bond No. 100296694
BY THIS PERFORMANCE BOND, We _ Varsity Courts, Inc. , as Principal, whose address
is 1970-A Corporate Square, Longwood, FL 32750 and telephone number is (407)8304906 and
Merchants National Bonding, Inc., as Surety, whose address is 6700 Westown Parkway, West
Des Moines IA 50266 and telephone number is (800) 6784171 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 407-3274 800, in the initial sum of
$205,685900 (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 _2/28/2023_, for
the construction of the Central Winds Pickleball Complex — Piggy Back Rider Agreement for Asphalt
Play Courts ITB No. ITB 1903056_ 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 section 627.756, Florida Statutes, including costs and attorneys
fees on appeal that OWNER sustains resulting directly or indirectly from any breach or
default by Principal under the Contract, and
FORM CONSTRUCTION AGREEMENT
FORM APPROVED AUGUST 2023
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
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
FORM CONSTRUCTION AGREEMENT
FORM APPROVED AUGUST 2023
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 O 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 section 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) re -procurement 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.
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.
FORM CONSTRUCTION AGREEMENT
FORM APPROVED AUGUST 2023
7. METHOD OF NOTICE. Ail 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: Merchants National Bondin Inc.
Attention: Mark Kowalski
Street: 6700 Westown Parkway
City, State: West Des Moines IA
Zip: 50266
PRINCIPAL:
Name:
Attention:
Street:
City, State
Zip:
Varsity Courts. Inc.
Dennis Brubach
1970-A Corporate Square
Longwood, FL
32750
The City of Winter Springs
Attention: Shawn Boyle, City Manager
1126 E. State Road 434
Winter Springs, Florida 32708
(107) 327-5957
with a copy to:
Anthony A. Garganese, City Attorney
Brown, Garganese, Weiss & D'Agresta, P.A.
1 I I N. Orange Avenue, Suite 2000
Orlando, Florida 32802
(407)425-9566
FORM CONSTRUCTION AGREEMENT
FORM APPROVED AUGUST 2023
8. STATUE OF LIMITATIONS. Any statutory limitation, which may be contractually
superseded, 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 ail 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.
FORM CONSTRUCTION AGREEMENT
FORM APPROVED AUGUST 2023
Principal
�darsity Courts, Inc.
(Typed Firm Name)
(Seal)
Dennis Brubach _
(Printed Name)
Owner
(Title)
1970-A Corporate Square
Longwood, FL 32750
(Address)
12/6/2023
(Date of Execution)
Surety
Merchants National Bonding, Inc`
(Typed Firm Name)
(Seal)
(Signature)
Mark Kowalski
(Printed Name)
Attorney -In -Fact
(Title)
7446 Featherstone Blvd.
Sarasota, FL 34238
(Address)
12/6/2023
(Date of Execution)
FORM CONSTRUCTION AGREEMENT
FORM APPROVED AUGUST 2023