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HomeMy WebLinkAboutCain Enterprises LLC (dba Engineering Solutions International) Executed Bond Agreements #0839157 (Performance & Labor and Marerials) 2024 01 22CITY OF WINTER SPRINGS ELECTRICAL IMPROVEMENTS WTP NO 3 CONSTRUCTION AGREEMENT EXHIBIT A PERFORMANCE BOND FORM Bond No. 0839157 Cain Enterprises LLC dba Engineering BY THIS PERFORMANCE BOND, We Solutions International , as Principal, whose address is 3780 NE 40th Place, Ocala, FL 34479 and telephone number is 352-390-6555 and Harco National Insurance Company , as Surety, whose address is 4200 Six Forks Road, Suite 1400 Raleigh, NC 27609 and telephone number is 919-833-1600 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 $ Three Hundred Sixty One Thousand, Six Hundred Eighty Three 110% of Contract Price), or such greater amount as the Dollars and 71/1D0 ($361,883.71) ( ) 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 January22, 2024 , for Electrical Improvements WiP No. 3 per the Construction the construction of the Agreement _ 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 attorney's fees on appeal that OWNER sustains resulting directly or indirectly from any breach or default by Principal under the Contract, and Page 1 23 Electrical Improvements WTP No 3 Construction Agreement City of Winter Springs and Cain Enterprises, LLC dba Engineering Solutions International CITY OF WINTER SPRINGS ELECTRICAL IMPROVEMENTS WTP NO 3 CONSTRUCTION AGREEMENT 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 Page 1 24 Electrical Improvements `,NTP No 3 Construction Agreement City of Winter Springs and Cain Enterprises, LLC dba Engineering Solutions International CITY OF WINTER SPRINGS ELECTRICAL IMPROVEMENTS WTP NO 3 CONSTRUCTION AGREEMENT 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 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. Page 1 25 Electrical Improvements WTP No 3 Construction Agreement City of Winter Springs and Cain Enterprises, LLC dba Engineering Solutions International CITY OF WINTER SPRINGS ELECTRICAL IMPROVEMENTS WTP NO 3 CONSTRUCTION AGREEMENT 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: Harco National Insurance Company Attention: Stephanie L. Klearman Street: 4200 Six Forks Road, Suite 1400 City, State: Raleigh, NC Zip: 27609 PRINCIPAL: Name: Cain Enterprises LLC dba Engineering Solutions International Attention: Ray McCloskey Street: 3780 NE 40th Place City, State: Ocala, FL _ Zip: 34479 OWNER: The City of Winter Springs Attention: Philip Hursh, Interim 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. I I I N. Orange Avenue, Suite 2000 Orlando, Florida 32802 (407) 425-9566 Page 126 Electrical Improvements WTP No 3 Construction Agreement City of Winter Springs and Cain Enterprises, LLC dba Engineering Solutions International CITY OF WINTER SPRINGS ELECTRICAL IMPROVEMENTS WTP NO 3 CONSTRUCTION AGREEMENT S. 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 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. Page 127 Electrical Improvements WTP No 3 Construction Agreement City of Winter Springs and Cain Enterprises, LLC dba Engineering Solutions International CITY OF WINTER SPRINGS ELECTRICAL IMPROVEMENTS WTP NO 3 CONSTRUCTION AGREEMENT Principal Surety Cain Enterprises LLC dba Engineering Solutions International (Typed Firm Name) (Seal) By: (Signature) (Print *d Name) (Title) L.'�' C—� LIC1'1� (Address) ++� l , (Date ot Execuhon) Harco National Insurance Company, (Typed Firm Name) (Seal) By: (Signature) Stephanie L. Klearman (Printed Name) Attorney -In -Fact (Title) Three CityPlace Drive, Suite 900 St. Louis, MO 63141 (Address) January 24, 2024 (Date of Execution) Page 1 28 Electrical Improvements WTP No 3 Construction Agreement City of Winter Springs and Cain Enterprises, LLC dba Engineering Solutions International CITY OF WINTER SPRINGS ELECTRICAL IMPROVEMENTS WTP NO 3 CONSTRUCTION AGREEMENT EXHIBIT A LABOR AND MATERIALS PAYMENT BOND Bond No. 0839157 BY THIS LABOR AND MATERIALS PAYMENT BOND, We Cain Enterprises LLC dba Engineering Solutions — International as Principal, whose address is 3780 NE 40th Place, Ocala, FL 34479 and telephone number is 352-390-6555 and Harco National Insurance Company, as Surety, whose address is 4200 Six Forks Road, Suite 1400 Raleigh, NC 27609 and telephone number is 919-933-1600 are bound to the City of Winter Springs, a Florida municipal corporation, as OWNER, whose address is 1126 E. State Road 434, Winter Sprin s, Florida 32708 and telephone number is 407-327-1800, in the initial Sum of $ Three Three�Do Dollars aOnd 11100ne a($361� 683.711)�d (11.0% 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 January 22, 2024 , for the construction of the Electrical Improvements WTP No. 3 per the Construction Agreement 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: 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 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. Page 129 Electrical Improvements WTP No 3 Construction Agreement City of Winter Springs and Cain Enterprises, LLC dba Engineering Solutions International CITY OF WINTER SPRINGS ELECTRICAL IMPROVEMENTS WTP NO 3 CONSTRUCTION AGREEMENT 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 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 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 bond 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 separate and distinct from each other. Page 130 Electrical Improvements WTP No 3 Construction Agreement City of Winter Springs and Cain Enterprises, LLC dba Engineering Solutions International CITY OF WINTER SPRINGS ELECTRICAL IMPROVEMENTS WTP NO 3 CONSTRUCTION AGREEMENT 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 Cain Enterprises LLC dba Engineering Solutions International (Typed Firm Name) (Seal) By: (Sid ature) 0Z� :, Y` \i - � (Printed ame) C;YW \ ma- Nam.-V- (Title) 10— (Address) i 1,;� ut12Ll (Date of Execution) Surety Harco National Insurance Company _ (Typed Firm Name) (Seal) By: i <wjrY141-n ignature hanie L. Klearman (Printed Name) Attorney -In -Fact (Title) Three CityPlace Drive, Suite 900 St. Louis, MO 63141 (Address) _January 24, 2024 (Date of Execution) Page 131 Electrical Improvements WTP No 3 Construction Agreement City of Winter Springs and Cain Enterprises, LLC dba Engineering Solutions International POWER OF ATTORNEY Bond # 0 E3 9 / S HARCO NATIONAL INSURANCE COMPANY INTERNATIONAL FIDELITY INSURANCE COMPANY Member companies of IAT Insurance Group, Headquartered: 4200 Six Forks Rd, Suite 1400, Raleigh, NC 27609 KNOW ALL MEN BY THESE PRESENTS: That HARCO NATIONAL INSURANCE COMPANY, a corporation organized and existing under the laws of the State of Illinois, and INTERNATIONAL FIDELITY INSURANCE COMPANY, a corporation organized and existing under the laws of the State of New Jersey, and having their principal offices located respectively in the cities of Rolling Meadows, Illinois and Newark, New Jersey, do hereby constitute and appoint LAUREN BLAIR, KAYLAA WOODWARD, TAMARA BOWSER, KEVIN E MCDANIEL, JANE M DEW, DEANNA M MAURER, ANNE M. GLIEDT, STEPHANIE L. KLEARMAN St. Louis, MO their true and lawful attorney(s)-in-fact to execute, seal and deliver for and on its behalf as surety, any and all bonds and undertakings, contracts of indemnity and other writings obligatory in the nature thereof, which are or may be allowed, required or permitted by law, statute, rule, regulation, contract or otherwise, and the execution of such instrument(s) in pursuance of these presents, shall be as binding upon the said HARCO NATIONAL INSURANCE COMPANY and INTERNATIONAL FIDELITY INSURANCE COMPANY, as fully and amply, to all intents and purposes, as if the same had been duly executed and acknowledged by their regularly elected officers at their principal offices. This Power of Attorney is executed, and may be revoked, pursuant to and by authority of the By -Laws of HARCO NATIONAL INSURANCE COMPANY and INTERNATIONAL FIDELITY INSURANCE COMPANY and is granted under and by authority of the following resolution adopted by the Board of Directors of INTERNATIONAL FIDELITY INSURANCE COMPANY at a meeting duly held on the 13th day of December, 2018 and by the Board of Directors of HARCO NATIONAL INSURANCE COMPANY at a meeting held on the 13th day of December, 2018. "RESOLVED, that (1) the Chief Executive Officer, President, Executive Vice President, Senior Vice President, Vice President, or Secretary of the Corporation shall have the power to appoint, and to revoke the appointments of, Attorneys -in -Fact or agents with power and authority as defined or limited in their respective powers of attorney, and to execute on behalf of the Corporation and affix the Corporation's seal thereto, bonds, undertakings, recognizances, contracts of indemnity and other written obligations in the nature thereof or related thereto; and (2) any such Officers of the Corporation may appoint and revoke the appointments of joint -control custodians, agents for acceptance of process, and Attorneys -in -fact with authority to execute waivers and consents on behalf of the Corporation; and (3) the signature of any such Officer of the Corporation and the Corporation's seal may be affixed by facsimile to any power of attorney or certification given for the execution of any bond, undertaking, recognizance, contract of indemnity or other written obligation in the nature thereof or related thereto, such signature and seals when so used whether heretofore or hereafter, being hereby adopted by the Corporation as the original signature of such officer and the original seal of the Corporation, to be valid and binding upon the Corporation with the same force and effect as though manually affixed." IN WITNESS WHEREOF, HARCO NATIONAL INSURANCE COMPANY and INTERNATIONAL FIDELITY INSURANCE COMPANY have each executed and attested these presents on this 31st day of December, 2023 '!G STATE OF NEW JERSEY STATE OF ILLINOIS County of Essex f County of Cook SEAL 1904 _ �Q t4�sa aR JE Kenneth Chapman Executive Vice President, Harco National Insurance Company W and International Fidelity Insurance Company On this 31st day of December, 2023 , before me came the individual who executed the preceding instrument, to me personally known, and, being by me duly sworn, said he is the therein described and authorized officer of HARCO NATIONAL INSURANCE COMPANY and INTERNATIONAL FIDELITY INSURANCE COMPANY; that the seals affixed to said instrument are the Corporate Seals of said Companies; that the said Corporate Seals and his signature were duly affixed by order of the Boards of Directors of said Companies. �%,otI1,"'1, IN TESTIMONY WHEREOF, I have hereunto set my hand affixed my Official Seal, at the City of Newark, .�%kV�.. A. New Jersey the day and year first above written. ;�ll',iEaSf:��, Shirelle A.Outley a Notary Public of New Jersey '",4 My Commission Expires April 4, 2023 CERTIFICATION I, the undersigned officer of HARCO NATIONAL INSURANCE COMPANY and INTERNATIONAL FIDELITY INSURANCE COMPANY do hereby certify that I have compared the foregoing copy of the Power of Attorney and affidavit, and the copy of the Sections of the By -Laws of said Companies as set forth in said Power of Attorney, with the originals on file in the home office of said companies, sind that the same are correct transcripts thereof, and of the whole of the said originals, and that the said Power of Attorney has not been revoked a;,d is now in (full force and effect. IN TESTIMONY WHEREOF, I have hereunto set my hand on this day,�Ql 1! 02 A01019 Irene Martins, Assistant Secretary