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HomeMy WebLinkAboutRuby Builders, Inc. Construction of Public Works Facility -2006 01 24 CITY OF WINTER SPRINGS, FLORIDA 1126 EAST STATE ROAD 434 WINTER SPRINGS, FLORIDA 32708-2799 Telephone (407) 327-1800 Utility I Public Works Deparbnent THIS AGREEMENT MADE THIS 24th DAY OF January, 2006 between the CITY OF WINTER SPRINGS of 1126 East State Road 434, Winter Springs, Florida 32708, Seminole County, State of Florida, herein referred to as OWNER and Ruby Builders, Incorporated, State of Florida, herein referred to as CONTRACTOR, a person duly licensed as a Contractor in the State of Florida, as follows: 1. DESCRIPTION OF WORK - CONTRACTOR shall perform the VIoOJ'k, in accordance with the Contract Documents for the construction of the City of Winter Springs Public Works Facility. 2. CONTRACT DOCUMENTS - The Contract Documents consist of this Agreement all Technical, General and Supplementary Conditions and Sections contained in the Project Manual; the Drawings as listed on the Bid Form and Index to Drawings; all Addenda issued prior to and all Change Orders issued after execution of this Agreement. These form the Contract and are incorporated into this Contract by this reference. 3. ORDER OF PRECEDENCE - In case of any inconsistency in any of the documents bearing on the Agreement between the OWNER and the CONTRACTOR, the inconsistency shall be resolved by giving precedence in the following order: a. Contractor's Bid (Proposal), Agreement, and Addenda b. Change Orders c. Special Conditions d. General Conditions e. Instructions to Bidders f. Drawings g. Advertisement Any inconsistency in the VIoOJ'k description shall be darified by the OWNER and performed by the CONTRACTOR. 4. AGREEMENT INTERPRETATION - At its discretion, during the course of the \Wrk, should any errors, ambiguities, or discrepancies be found in the Agreement or specifications, the OWNER at its sole discretion will interpret the intent of the Agreement and It'ItQrk descriptions and the CONTRACTOR hereby agrees to abide by the OWNER's interpretation and agrees to carry out the \Wrk in accordance with the decision of the OWNER. When the material, artide, or equipment is designated by a brand name and more than one brand name is listed, it will be understood that the \Wrk is based on one brand name only. The CONTRACTOR will be responsible for all coordination necessary to accommodate the material, artide, or equipment being provided without additional cost to the OWNER. A substitute material, artide, or equipment is allowed if it is reasonably equivalent to the brand name specified. The OWNER has full discretion to decide whether a substitute is reasonably equivalent. CONTRACTOR must notify the OWNER prior to use of the substitute for a specified brand name and allow the OWNER to make a determination before CONTRACTOR uses the substitute. . Page 2 City of Winter Springs Public Works Facility January 24, 2006 5. CONTRACT TIME - The CONTRACTOR shall begin 'M)rk within 10 days after the issuance of a \NI'"itten Notice to Proceed and shall complete the 'M)rk within 400 calendar days from the date of the Notice to Proceed. Extensions, if any, are authorized by OWNER, and may only be granted in \NI'"iting. 6. LIQUIDATED DAMAGES - OWNER and CONTRACTOR recognize that time is of the essence of this Agreement and that OWNER will suffer finandalloss if the Work is not substantially complete within the time specified in Paragraph 3 above, plus any extensions thereof allowed in accordance with the General Conditions. They also recognize the delays, expense, and difficulties involved in proving in a legal or arbitration preceding the actual loss suffered by OWNER if the Wak is not substantially complete on time. Accordingly, instead of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty) CONTRACTOR shall pay OWNER $500.00 for each day that expires after the time specified in Paragraph 5 for final completion until the 'M)rk is finally complete, and that OWNER has paid to CONTRACTOR the consideration of Ten ($10.00) Dollars as consideration for this provision. 7. CONTRACT PRICE. UNIT PRICE CONTRACT - The OWNER will pay the CONTRACTOR in current funds for the performance of the 'M)rk, subject to additions and deductions by Change Order, the Total Contract Price of Three Million, Six Hundred Fifty-seven Thousand, One Hundred Fifty-seven Dollars ($3,657,157.00) for building 2, 3 and 4 with site package. Payments will be made to the CONTRACTOR for actual quantities installed on the basis of the Schedule of Unit Prices included as a part of his Bid, which shall be as fully a part of the Contract as if attached or repeated herein. 8. TERMINATION: DEFAULT BY CONTRACTOR AND OWNER'S REMEDIES. The OWNER reserves the right to revoke and terminate this Agreement and rescind all rights and privileges associated with this Agreement without penalty, in the following circumstances, each of which shall represent a default and breach of this Agreement: a. CONTRACTOR defaults in the performance of any material covenant or condition of this Agreement and does not cure such other default within seven (7) calendar days after \NI'"itten notice from the OWNER specifying the default complained of, unless, however, the nature of the default is such that it cannot, in the exerdse of reasonable diligence, be remedied within seven (7) calendar days, in which case the CONTRACTOR shall have such time as is reasonably necessary to remedy the default, provided the CONTRACTOR promptly takes and diligently pursues such actions as are necessary therefore; or b. CONTRACTOR is adjudicated bankrupt or makes any assignment for the benefit of creditors or CONTRACTOR becomes insolvent or is unable or unwilling to pay its debts; or c. CONTRACTOR has acted negligently, as defined by general and applicable law, in performing the Work hereunder; a d. CONTRACTOR has committed any act of fraud upon the OWNER; or e. CONTRACTOR has made a material misrepresentation of fact to the OWNER while performing its obligations under this Agreement; or f. CONTRACTOR is experiencing a labor dispute, which threatens to have a substantial, adverse impact upon performance of this Agreement without prejudice to any other right, or remedy OWNER may have under this Agreement. Notwithstanding the aforementioned, in the event of a default by CONTRACTOR, the OWNER shall have the right to exerdse any other remedy the OWNER may have by operation of law, without limitation, and without any further demand or notice. In the event of such termination, OWNER shall be liable only fa the payment of all unpaid charges, determined in accordance with the provisions of this Agreement, for Work properly perfamed prior to the effective date of termination . Page 3 City of Winter Springs Public Works Facility January 24, 2006 9. FORCE MAJEURE - Any delay or failure of either party in the performance of its required obligations hereunder shall be excused if and to the extent caused by acts of God; fire; flood; windstorm; explosion; riot; war; sabotage; strikes (except involving CONTRACTOR's labor force); extraordinary breakdown of or damage to OWNER's affiliates' generating plants, their equipment, or facilities; court injunction or order; federal and/or state law or regulation; order by any regulatory agency; or cause or causes beyond the reasonable control of the party affected; provided that prompt notice of such delay is given by such party to the other and each of the parties hereunto shall be diligent in attempting to remove such cause or causes. If any circumstance of Force Majeure remains in effect for sixty days, either party may terminate this Agreement. 10. SEVERABILITY - In the event any portion or part thereof of this Agreement is deemed invalid, against public policy, void, or otherwise unenforceable by a court of law, the parties, at the sole discretion and option of the OWNER, shall negotiate an equitable adjustment in the affected provision of this Agreement. The validity and enforceability of the remaining parts of this Agreement shall otherwise be fully enforceable 11. PROGRESS PAYMENTS - OWNER shall make progress payments on account of the contract price to CONTRACTOR, on the basis of application for payments submitted to the OWNER or their authorized representative, by CONTRACTOR as the vvork progresses, and in accordance with the Contract Documents. Progress payments may be withheld if: a. Work is found defective and not remedied; b. Contractor does not make prompt and proper payments to subcontractors; c. Contractor does not make prompts and proper payments for labor, materials, or equipment furnished him; d. Another Contractor is damaged by an act for which Contractor is responsible; e. Claims or liens are filed on the job; or f. In the opinion of the City of Winter Springs, Contractor's vvork is not progressing satisfactorily. 12. FINAL PAYMENT - OWNER shall withhold up to 10% of the Contract Price throughout the project. The OWNER shall release 50% of the amount withheld upon issuance of the Substantial Completion Certificate. The remaining 50% of the amount withheld shall be released with the Final Payment after the issuance of the Final Completion Certificate. OWNER shall make final payment to CONTRACTOR within thirty (30) days after the vvork is fully and properly completed, if the contract has been fully and timely performed, but subject to the condition that final payment shall not be due until CONTRACTOR has delivered to OWNER a complete release of liens arising out the contract, or receipt releases of lien fully covering all labor, materials and equipment for which a lien could be filed, or in the alternative a bond satisfactory to OWNER indemnifying him against such daims. By making payments OWNER does not waive daims induding but not limited to those relating to: a. Faulty vvork appearing after substantial completion has been granted; b. Work that does not comply with the Contract Documents: c. Outstanding daims of liens; or d. Failure of Contractor to comply with any special guarantees required by the Contract Documents. . Page 4 City of Winter Springs Public Works Facility January 24, 2006 13. DESIGNATION OF PROJECT MANAGER OR ARCHITECT OR LANDSCAPE ARCHITECT: DUTIES AND AUTHORITY - The duties and authority of the OWNER are as follovvs: a. General Administration of Contract. The primary function of the OWNER is to provide the general administration of the contract. In performance of these duties, Gregory A. Bishop or his authorized representative is the OWNER's Project Manager during the entire period of construction. The OWNER (CITY) may change the Project Manager during the term of this contract. b. InsDeCtions. ODinions. and Proaress Reoorts. The OWNER shall be kept familiar with the progress and quality of the IlltUrk by CONTRACTOR and may make periodic visits to the IlltUrk site. The OWNER will not be responsible for the means of construction, or for the sequences, methods, and procedures used therein, or for the CONTRACTOR's failure to perform the IlltUrk in accordance with the Contract Documents. c. Access to Worksite for Insoections. The OWNER shall be given free access to the IlltUrksite at all times during IlltUrk 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 IlltUrk progress, and any such inspections shall not waive Owner's daim regarding defective IlltUrk by Contractor. d. Intemretation of Contract Documents: Decisions on DisDutes. The OWNER will be the initial interpreter of the contract document requirements, and make decisions on daims and disputes between Contractor and Owner. e. Reiection and StoDDaae of Work. The OWNER shall have authority to reject IlltUrk which in its opinion does not conform to the Contract Documents, and in this connection may stop the IlltUrk or a portion thereof, when necessary. f. Payment Certificates. The OWNER will determine the amounts owing to CONTRACTOR as the IlltUrk progresses, based on CONTRACTOR's applications and OWNER's inspections and observations, and will issue certificates for progress payments and final payments in accordance with the terms of the Contract Documents. 14. PROGRESS MEETING - OWNER'S Project Manager may hold periodic progress meetings on a monthly basis, or more frequently if required by the OWNER, during the term of IlltUrk entered into under this Agreement. CONTRACTOR's Project Manager and all other appropriate personnel shall attend such meetings as designated by the OWNER'S Project Manager. 15. RESPONSIBILITIES OF CONTRACTOR - CONTRACTOR's duties and rights in connection with the project herein are as follovvs: a. Resoonsibilitv for Suoervision and Construction. CONTRACTOR shall be solely responsible for all construction under this contract, induding the techniques, sequences, procedures and means, for the coordination of allllltUrk. CONTRACTOR shall supervise and direct the IlltUrk, and give it all attention necessary for such proper supervision and direction. b. DisciDline and EmDlovment CONTRACTOR shall maintain at all times strict discipline among his employees, and he agrees not to employ for IlltUrk on the project any person unfit or without sufficient skill to perform the job for which he was employed. c. Fumishina of Labor. Materials. etc. CONTRACTOR shall provide and pay for all labor, materials and equipment, induding tools, construction equipment and machinery, utilities, induding water, transportation, and all other facilities and IlltUrk necessary for the proper completion of IlltUrk on the project in accordance with the Contract Documents. . Page 5 City of Winter Springs Public Works Facility January 24, 2006 d. Payment of Taxes: Procurement of Licenses and Penn its. CONTRACTOR shall secure all licenses and permits necessary for proper completion of the work, paying the fees thereof. CONTRACTOR warrants that it (and subcontractors or tradesmen, if authorized in the Contract Documents) hold or will secure all trade or professional licenses required by law for CONTRACTOR to undertake the contract work. e. CONTRACTOR will provide Vvfitten guarantee for work and materials for one (1) calendar year after acceptance by OWNER. 16. ASSIGNMENT - CONTRACTOR shall not assign or subcontract this Agreement, or any rights or any monies due or to become due hereunder without the prior, Vvfitten consent of the OWNER. a. If upon receiving Vvfitten approval from OWNER, any part of this Agreement is subcontracted by CONTRACTOR, CONTRACTOR shall be fully responsible to OWNER for all acts and/or omissions performed by the subcontractor as if no subcontract had been made. b. If OWNER determines that any subcontractor is not performing in accordance with this Agreement, OWNER shall so notify CONTRACTOR who shall take immediate steps to remedy the situation. c. If CONTRACTOR, prior to the commencement of any Work subcontracts any part of this Agreement by the subcontractor, CONTRACTOR shall require the subcontractor to provide OWNER and its affiliates with insurance coverage as set forth by the OWNER. 17. THIRD PARTY RIGHTS - Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than OWNER and CONTRACTOR. 18. PROHIBITION AGAINST CONTINGENT FEES - CONTRACTOR warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the CONTRACTOR, to solicit or secure this Agreement, and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the CONTRACTOR, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. 19. NO JOINT VENTURE - Nothing herein shall be deemed to create a joint venture or principal-agent relationship betlNeen 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. 20. INDEMNIFICATION - For all Work performed pursuant to this Agreement, the CONTRACTOR agrees to the fullest extent permitted by law, to indemnify and hold harmless the OWNER and its commissioners, employees, officers, and OWNER attorneys (individually and in their official capacity) from and against all daims, losses, damages, personal injuries (induding but not limited to death), or liability (induding reasonable attorney's fees through any and all administrative, trial and appellate proceedings), directly or indirectly arising from: a. Any default under this Agreement by CONTRACTOR; b. Any negligent act, omission or operation of work related to all Work performed under this Agreement by CONTRACTOR, and its employees, principals, agents, independent contractors, and consultants. c. the acts, errors, omissions, intentional or otherwise, arising out of or resulting from CONTRACTOR's and its employees, partners, contractors, and agents on the performance of the Work being performed under this Agreement; . Page 6 City of Winter Springs Public Works Facility January 24, 2006 d. CONTRACTOR's, and its employees, partners, contractors, and agents failure to comply with the provisions of any federal, state, or local lavvs, ordinance, or regulations applicable to CONTRACTOR's and its employees, partners, contractors, and agents performance under this Agreement; e. Any fraud and misrepresentation conducted by CONTRACTOR and its employees, partners, contractors, and agents on the OWNER under this Agreement. The indemnification provided above shall obligate the CONTRACTOR to defend at its own expense or to provide for such defense, at the option of the OWNER, as the case may be, of any and all daims of liability and all suits and actions of ~ery name and description that may be brought against the OWNER or its commissioners, employees, officers, and City Attorney which may result from any negligent act, omission or operation of \M)rk related to the Work under this Agreement whether the Work be performed by the CONTRACTOR, or anyone direcUy or indirecUy employed by them. In all ~ents the OWNER and its commissioners, employees, officers, and City Attorney shall be permitted to choose legal counsel of its sole choice, the fees for which shall be reasonable and subject to and induded with this indemnification provided herein. 21. SAFETY - CONTRACTOR shall be solely and absolutely responsible and assume all liability for the safety and supervision of its prindpals, employees, contractors, and agents while performing \M)rk provided hereunder. 22. CORPORATE REPRESENTATIONS BY CONTRACTOR - CONTRACTOR hereby represents and warrants to the OWNER the following: a. CONTRACTOR is duly registered and licensed to do business in the State of Florida and is in good standing under the lavvs of Florida, and is duly qualified and authorized to carry on the functions and operations set forth in this Agreement. b. The undersigned signatory for CONTRACTOR has the power, authority, and the legal right to enter into and perform the obligations set forth in this Agreement and all applicable exhibits thereto, and the execution, delivery, and performance hereof by CONTRACTOR has been duly authorized by the board of directors and/or president of CONTRACTOR. In support of said representation, CONTRACTOR agrees to provide a copy to the OWNER of a corporate certificate of good standing provided by the State of Florida prior to the execution of this Agreement. c. CONTRACTOR is duly licensed under all local, state and federal lavvs to provide the IM>rk stated in paragraph 1.0 herein. In support of said representation, CONTRACTOR agrees to provide a copy of all said licenses to the OWNER prior to the execution of this Agreement. 23. BOND - CONTRACTOR shall supply a materials, performance and payment bond(s) in accordance with Rorida law and to the satisfaction of OWNER, in an amount specified in the Contract Documents. 24. INSURANCE - During the term of this Agreement, CONTRACTOR shall be responsible for providing the types of insurance and limits of liability as set forth below. a. The CONTRACTOR shall maintain comprehensive general liability insurance in the minimum amount of $2,000,000 as the combined single limit for each occurrence to protect the CONTRACTOR from daims of property damages which may arise from any Work performed under this Agreement whether such Work are performed by the CONTRACTOR or by anyone direcUy employed by or contracting with the CONTRACTOR. b. The CONTRACTOR shall maintain comprehensive automobile liability insurance in the minimum amount of $2,000,000 combined single limit bodily injury and minimum $2,000,000 property damage as the combined single limit for each occurrence to protect the CONTRACTOR from daims for damages for bodily injury, induding vvrongful death, as well as from daims from . Page 7 City of Winter Springs Public Works Facility January 24, 2006 property damage, which may arise from the ownership, use, or maintenance of owned and non- owned automobiles, induding rented automobiles whether such operations be by the CONTRACTOR or by anyone direc~y or indirdy employed by the CONTRACTOR. c. The CONTRACTOR shall maintain, during the life of this Agreement, adequate Workers' Compensation Insurance in at least such amounts as are required by law and Employer's Liability Insurance in the minimum amount of $2,000,000 for all of its employees performing Work for the OWNER pursuant to this Agreement. Special Requirements. Current, valid insurance polides meeting the requirements herein identified shall be maintained during the term of this Agreement. A copy of a current Certificate of Insurance shall be provided to the OWNER by CONTRACTOR upon the Effective Date of this Contract which satisfied the insurance requirements of this paragraph 24. Renewal certificates shall be sent to the OWNER 30 days prior to any expiration date. There shall also be a 3o-day advance witten notifICation to the OWNER in the event of cancellation or modification of any stipulated insurance coverage. The OWNER shall be an additional named insured on all stipulated insurance policies as its interest may appear, from time to time. Independent Associates and Consultants. All independent contractors or agents employed by CONTRACTOR to perform any Work hereunder shall fully comply INith the insurance provisions contained in these paragraphs for sections 21 and 24. 25. MEDIATIONNENUE - The parties agree that should any dispute arise between them regarding the terms or performance of this Agreement, both parties INiIl partidpate in mediation. The parties agree to equally share the cost of the mediator. Should the parties fail to resolve their differences through mediation, then any cause of action filed hereunder shall be filed in the Circuit or County Court for Seminole County, Florida. 26. GOVERNING LAW & VENUE. This Agreement is made and shall be interpreted, construed, governed, and enforced in accordance INith the laws of the State of Rorida. Venue for any state action or litigation shall be Seminole County, Florida. Venue for any federal action or litigation shall be Orlando, Florida. 27. ATTORNEY'S FEES. Should either party bring an action to enforce any of the terms of this Agreement, the prevailing party shall be enti~ed, to the extent permitted by law, to recover from the non-prevailing party the costs and expenses of such action induding, but not limited to, reasonable attorney's fees, whether at se~ement, trial or on appeal. 28. NOTICES - Any notice or approval under this Contract shall be sent, postage prepaid, to the applicable party at the address shown on the first page of this Contract. 29. WORK IS A PRIVATE UNDERTAKING. With regard to any and all Work performed hereunder, it is specifically understood and agreed to by and between the parties hereto that the contractual relationship between the OWNER and CONTRACTOR is such that the CONTRACTOR is an independent contractor and not an agent of the OWNER. The CONTRACTOR, its contractors, partners, agents, and their employees are independent contractors and not employees of the OWNER. Nothing in this Agreement shall be interpreted to establish any relationship other than that of an independent contractor, between the OWNER, on one hand, and the CONTRACTOR, its contractors, partners, employees, or agents, during or after the performance of the Work under this Agreement. 30. DOCUMENTS - Public Records: It is hereby specifically agreed that any record, document, computerized information and program, audio or video tape, photograph, or other witing of the CONTRACTOR and its independent contractors and associates related, dirdy or indirdy, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the OWNER or the CONTRACTOR. Said record, document, computerized information and program, audio or video tape, photograph, or other witing of the CONTRACTOR is subject to the provisions of Chapter . Page 8 City of Winter Springs Public Works Facility January 24, 2006 119, Rorida Statutes, and may not be destroyed without the SpecifIC \I\Il"itten approval of the OWNER's City Manager. Upon request by the OWNER, the CONTRACTOR shall promptly supply copies of said public records to the OWNER. All books, cards, register'$,feceipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the nonnal oorking hours of the CONTRACTOR be open and freely exhibited to the OWNER for the purpose of examination and/or audit. The CONTRACTOR acknOYJedges that the OWNER is a Florida municipal corporation and subject to the Florida Public Records Law. CONTRACTOR agrees that to the extent any document produced by CONTRACTOR under this Agreement constitutes a Public Record; CONTRACTOR shall comply with the Florida Public Records Law. 31. SOVEREIGN IMMUNITY - Nothing contained in this Agreement shall be construed as a waiver of the OWNER's right to sovereign immunity under Section 768.28, Rorida Statutes, or other limitations imposed on the OWNER's potential liability under state or federal law. 32. HEADINGS - Paragraph headings are for the convenience of the parties only and are not to be construed as part of this Agreement. 33. INTEGRATION: MODIRCATION - The drafting, execution, and delivery of this Agreement by the Parties has been induced by no representations, statements, warranties, or agreements other than those expressed herein. This Agreement embodies the entire understanding of the parties, and there are no further or other agreements or understandings, witten or oral, in effect between the parties relating to the subject matter hereof unless expressly referred to herein. Modifications of this Agreement shall only be made in \I\Il"iting signed by both parties. 34. WAIVER AND ELECTION OF REMEDIES - Waiver by either party of any terms, or provision of this Agreement shall not be considered a waiver ci that term, condition, or provision in the future. No waiver, consent. or modification of any of the provisions of this Agreement shall be binding unless in \I\Il"iting and signed by a duly authorized representative of each party hereto. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be considered an original agreement; but such counterparts shall together constitute but one and the same instrument. 35. DRAFTING - OWNER and CONTRACTOR each represent that they have both shared equally in drafting this Agreement and no party shall be favored or disfavored regarding the interpretation of this Agreement in the event of a dispute between the parties. 36. NOTICE - Any notices required to be given by the terms of this Agreement shall be delivered by hand or mailed. postage prepaid to: For CONTRACTOR: A. Jeffrey Suberman Ruby Builders, Inc. 3939 Silver Star Road Orlando, FL 32808 For OWNER: City ci Winter Springs Capitol Projects Coordinator, Public Works Department 1126 East State Road 434 Winter Springs, FL 32708 Either party may change the notice address by providing the other party \I\Il"itten notice ci the change. . Page 9 City of Winter Spril\,'lS Public Works Facility January 24, 2006 Signed, Sealed and Delivered in the presence of: ONTRACTOR: Awardee. Ruby Builders, Inc. A. Jeffrey Suberman Name ~;J~ Constance P. Hobbs President Title 3939 Silver Star Road Business Address Orlando, FL 32808 City, State Zip Date 1/26/06 OWNER: CITY OF WINTER SPRINGS Ifoc-..d W'~ -=> By: Rol)alct'\llT. Mclemore CitY Manager 1126 East State Road 434 Winter Springs, FL. 32708 407-327-1800 CITY OF WINTER SPRINGS, FLORIDA 1126 EAST STATE ROAD 434 WINTER SPRINGS, FLORIDA 32708-2799 Telephone (407) 327-1800 Utility I Public Works Deparbnent NOTICE OF AWARD Jeff SUbennan, President Ruby Builders, Inc 3939 Silver Star Road Orlando, Florida 32808 PROJECT DESCRIPTION: City of Winter Springs Public Works Facility The OWNER has considered the BID submitted by Ruby Builders, Inc for the above-described WORK in response to the Advertisement for Bids dated October 30, 2005, and Instructions to Bidders. You are hereby notified that your BID in the amount of $ 3.657.157.00 for BID items contained in the Bid Schedule as amended January 11, 2006 has been accepted. You are required by the Instructions to Bidders to execute the Agreement and furnish the required CONTRACTOR's Performance Bond, Payment Bond, and certificates of insurance within ten (10) calendar days from the date of this Notice to you. If you fail to execute said Agreement and to furnish said Bonds within ten (10) calendar days from the date of this Notice, said OWNER will be entitled to consider all your rights arising out of the OWNER's acceptance of your BID as abandoned and your BID BOND shall be forfeited. The OWNER will be entitled to such other rights as may be granted by law. You are required to return an acknowledged copy of this NOTICE OF AWARD to the OWNER. Dated this 24th day of January, 2006. OWNER: 7 //" By /~r~/~j~~ ~~~~........~ Title City Manaaer Receipt and acceptance of the a the~dayof .~ va By ACCEPTANCE OF NOTICE ~ /Ju. IhC-, e NOTICE OF AWARD is hereby acknowledged by tlby 0/, I c.u IS, this ,2006. Title Public Work F.S. Chapter 255.05 (1)(a) Cover Page THIS BOND IS GIVEN TO COMPLY WITH SECTION 255.05 OR SECTION 713.23 FLORIDA STATUTES, AND ANY ACTION INSTITUTED BY A CLAIMANT UNDER THIS BOND FOR PAYMENT MUST BE IN ACCORDANCE WITH THE NOTICE AND TIME LIMITATION PROVISIONS IN SECTION 255.05(2) OR SECTION 713.23 FLORIDA STATUTES. Executed in 5 Counterparts BOND NO: FS 2692205 CONTRACTOR NAME: Ruby Builders, Inc. CONTRACTOR ADDRESS: 3939 Silver Star Road Orlando, FL 32808 (407) 293-8217 CONTRACTOR PHONE NO: Great American Insurance Company SURETY COMPANY: 580 Walnut Street Cincinnati, Ohio 45202 (513) 369-5000 City of Winter Springs, Florida OWNER NAME: OWNER ADDRESS: 1126 East State Road 434 Winter Springs, Florida 32708 OWNER PHONE NO.: (513) 723-2740 OBLIGEE NAME: (If contracting entity is different from the owner, the contracting public entity) (407) 327-1800 OBLIGEE ADDRESS: OBLIGEE PHONE NO.: BOND AMOUNT: $4,022,872.70/ $4,022,872.70 CONTRACT NO.: (If applicable) DECRIPTION OF WORK: City of Winter Springs Public Works Facility PROJECT LOCATION: Old Sanford/Oviedo Road, Winter Springs, Florida 32708 LEGAL DESCRIPTION: (If applicable) FRONT PAGE All other bond page(s) are deemed subsequent to this page regardless of any page number(s) that may be printed thereon. The attached cover page forms and becomes part of this bond. Public Works Facility Winter Sprin~Florida July 22, 2005 sri #04001 SECTION 00605-PERFORMANCE BOND Bond NO.FS 2692205 Executed in 5 Counterparts KNOW ALL MEN BY THESE PRESENTS: that Ruby_.Builders, Inc. (Name of CONTRACTOR) 3939 Silver Star Road, Orlando, FL 32808 (Address of CONTRACTOR) a Corporation (Corporation, Partnership or Individual) hereinafter called PRINCIPAL, and Great American I~sura~ce Company (Name of Surety) 580 Walnut Street, Cincinnati, Ohio 45202 (Address of Surety) hereinafter called SURETY, arc held and firmly bound unto the City of Winter Springs, hereinafter called OWNER, in the full and just Sum of Dollars, ($ :--4,022,87_2.70--- ) in lawf1.11 money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, Sllccessors, and assigns, jointly and severally, firmly by these presents. The sum shall not be less than one hundred ten percent (110%) of the Contract Price. THE CONDITION OF THIS OBUGA TION is such that whereas, the PRINCIPAL entered into a certain Agreement with the OWNER, dated the 24th day of January , 2006 , a copy of which is hereto attached and made a part hereoffor the construction of Winter Springs Public Works Facility. This bond is being entered into to satisfy the requirements of Sectioll 255.05( 1), Florida Statutes and the Agreement referenced above, as the same may be amended. The SURETY shall be bound by any and all al.tcrnative dispute, resolution awards and settlements to the same extent as PRlNCIP AL is bound. NOW, THEREFORE, the eondition of this obligation is such that if Principal: PERFORMANCE BOND 00605 - 1 Public Works Faciiity Winter Spril).9..s, Fiorida July 22, 20Q5 sri #04001 I. Promptly and faiththliy performs its duties, all the covenant.". terms, conditions, and agreements of said Agreement inc1nding, but not limited to the i.llstlfunce provisions, guaranty period and the WalT3nty provisions, in the time and manner prescribed in the Agreement, and 2. Pays OWNER alllosscs, damages, delay damages (liquidated or actual), expenses, costs and attorneys' fees, including costs and attorney's fces on appeal that OWNER sustains resul1ing directly or indirectly from any breach or default by PRINCIPAL under the Agreement, and 3. Satisfies all claims and demands incurred under the Agreement, and fully indemnifies and holds harmless the OWNER fi'om all eosts and damages which it may suffer by reason or failure to do so, then this bond is void; otherwise it shall remain in full force and effect. 4. This Bonds shall remain in effect for at least until one year after the date when tinal payment becomes due, except as provided otherwise by Laws or Regulations or by the Contract Documents. The coverage of this Performance Bond is co-equal with each and every obligation of the PRINCIP AL wIder the above referenced Agreement and the Contract Documents of which the Agreement is a part. rn the event tbat the PRINCIP AL shall fail to perform any of the tenns, covenants and conditions of the Agreement and the Contract Documents of which the Agreement is a part during the period in which this Perfonnance Bond is in effect, the SURETY shall remaillliable to the OWNER for all such loss or damage. hI 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. The SURETY stipulates and agrees that its obligation is to perform the PRINCIPAL's work under the Agreement under the Bond. The following shall not be considered performance under the Bond: (1) SURETY's financing of the PRINCIPAL to kecp PRINCIP AL from defaulting under the Contract Documents, (ii) SURETY's offers to OWNER to buy back the Bond, and (iii) SURETY's election to do nothing under the Bond shall be construed as a material breach of the Bond and bad faith by the SURETY. The SURETY agrees that its obligation under the bond is to: (i) take over perfonnance of the PRINCIPAL's Work and be the completing contractor even ifperfoD11ance of the PRINCIPAL's Work exceeds the PRINCIPAL's Contract Price or (ii) re-bid and re-Iet tbe PRINCIPAL's Work to a completing contractor with SURETY remaining liable for PERFORMANCE BOND 00605 - 2 Public Works Facility Juty 22, 2005 Winter Sprinas. Florida .sri #04D01 the completing contractor's performance oflhe PRINCIPAL'~ Work and furnishing adequate funds to complete the Work. The SURETY acknowledges that its cost of complet.ion upon default by the PRINCIP AL may exceed the Contract Price. In any event, the PRINCIPAL's Contract Time is of the essence and applicable delay damages are not waived by OWNER. . The SURETY, for value received, hereby stipulates and agrees that its obligations hereunder shall be direct and immediate and not conditional or contingent upon OWNER's pursuit of its remedies against PRINCIPAL, shall remain in full force and effect notwithstanding (i) amendments or modifications to the Agreement entered into by OWNER and PRINCIPAL without the SURETY's knowledge or consent (ii) waivers of compliance with or any default under the Agreement granted by OWNER to PRINCIPAL without the SURETY's knowledge or consent, or (iii) the discharge of PRINCIPAL from its obligations under the Agreement as a result of any proceeding initiated under the Bankruptcy Code of 1978, as the same may be amended, or any similar state or federal law, or any limitation of the liability or PRINCIPAL or its estate as a result of any such proceeding. Any changes in or under the Agreement and Contract Documents and compliance or noncompliance with any formalities connected with the Agreement or the changes therein shall not affect SURETY's obligations lmder this Bond and SURETY hereby waives notice of any such changes. Further, PRINCIPAL and SURETY acknowledge that the Sum of this Bond shall increase or decrease in accordance with Change Orders (unilateral and bilateral) or other modifications to the Agreement and Contract Documents. The Labor and Materials Payment Bond and the Performance Bond and the covered amounts of each are separate and distinct from each other. This Bond is intended to comply with the requirements of Section 255.05(1), Flmida Statutes, as amended, and additionally, to provide common law rights more expansive than as required by statutc. The SURETY agrees that this Bond shall be constmed as a common law bond. PERFORMANCE BOND 00605 - 3 Public Works Facility July 22,2005 Winter SpringsJlorida _ __ sri #04001 IN WITNESS WHEREOF, this instrument is executed t.his the 27th day of~~n.~~E~, 2006 ATTEST: ~~~ (Principal) Secretary Lee Suberman Typed Name A .1p.rrrAY !=:nhArmrln. Prpsident Typed Name and Title (CORPORATE SEAL) 3939 Silver Star Road Address Orlando, FL 32808 City, State, Zip ~icua ~~ (Witness to Principal) Constance P. Hobbs (407) 293-8217 (407) 293-6481 Typed Name No. Telephone No. Facsimile PERFORMANCE BOND 00605 . 4 ?l!blic Works Facility Winter SprinQs, Florida ATTEST: July 22, 2005 sri #04001 By (Surety) Secretary Surety Great American Insurance ~~~E~~.L (513) 36p-5000 (513) 723-2740 Typed Name Telephone No. Facsimile No. (CORPORA TE SEAL) d~:~..~ ~ ~~ By ~ -rU~ Witness as to Surety Attorney-in-Fact and Florida Resident Agent Patricia L. Slaughter Typed Name Leslie M. Donahue Typed Name Florida Surety Bonds, Inc. ~-R~ O/.u;t.J1 Witness as to Surety 620 N Wymore Road Suite 200 Address Lisa Roseland Typed Name Maitland, FL 32751 City, State, Zip (407) 786-7770 Telephone No. (407) 786-7766 Facsimile No. NOTE: Date of the Bond must not be prior to date of Agreement. If CONTRACTOR is a joint venture, all venturers shall execute the Bond. If CONTRACTOR is partnership, all partners shall execute the Bond. IMPORTANT: Surety companies executing Bonds must appear on the Treasury Department's most CUlTent list (Circular 570 as amended) and be authorized to transact business in the State of Florida, unless otherwise specifically approved in writing by OWNER. ATTACH a certified Power-of-Attorney appointing individual Attomey-in-Fact for execution ofPerfom1ance Bond on behalf of Surety. END OF SECTION PERFORMANCE BOND 00605 - 5 The attached cover page forms and becomes part of this bond. Public Works Facility .winter ..Q.Qd!l9.2,ELorida Ju:y 22, 2005 sri #040C1 SECTION 00610 - LABOR ANDMATERlALS PAYMENT BOND FS 2692205 Executed in 5 Counterparts KNOW ALL MEN BY THESE PRESENTS: thaI Ruby Builders, Inc. (Name ofCONTRl\CTOR) 3939_~iIY~.r_S.!a!Ro_~d!.gr.~f.1E~ FL 32808 __________...._.__________ (Address of CONTRACTOR) a Corporation (Corporation, Partnership or Individual) hereinafter after called Principal, and Great American Insurance Company (Name of Surety) 580 Walnut Street, Cincinnati, Ohio 45202 (Address of Surety) hereinailcr called Surety, are held andfinnly bound unto the City of Winter Springs.. hereinafter called OWNER, in the full and just Sum of Four Million, Twenty-Two Thousand, Eight Hundred Seventy-Two and 70/100--- DOLLARS, ($:~.~02~!~!2.!0~, in l;~fu-rmo~cy-ofif;e.U;~it~d -Slatcs:-forth~-paymci1tof~~hiclisum well and truly to be made, we bind ourselves, successors, and assigns, jointly and severally, !innly by these presents. The sum shall not be less than one hundred ten percent (110%) of the Contract Price. THE CONOlTION OF THIS OBLIGATlON is such that whereas, the Principal entered into a certain Agreement with the OWNER, dated the 24th day of January, 2006 , and made apart hereof the construction of the Winter Springs Public Works Facility. The Surety shall be bound by any and all alternative dispute resolution awards and settlements to the same extent as CONTRACTOR is bound. NOW, THEREFORE, the condition of this obligation is such that if Principal shall promptly make payments to all claimants as defined in Section 255.05(1), Florida Statutes, supplying Principal with labor, Materials, or supplies, used directly or indirectly by Principal in the proseclItion of the Work provided for in the Agreement, then this obligation shall be void; otherwise, it shall remain in full force and effect subject, however, to the following conditions: This Bond is fumished for the PUll10se of complying with the reguiremcnts of Section 255.05, Florida Statutes, as the same may be amended. Therefore, a claimant, except a laborer, \\lho is not in privity with the CONTRACTOR and who has not receivcd payment for his labor, Materials or supplies shall, within forty-five (45) days after beginning to fumish labor, Materials or supplies for the prosecution of the Work, furnish the CONTRACTOR with a notice that he intcnds to look to the Bond for protection. A claimant who is not in privity with the CONTRACTOR and who has not received payment for his labor, Materials or supplies shall w'ithin ninety (90) days after perfonnance of the labor or completion of delivery of the Materials or supplies, or, with respect to rental equipment, within 90 days after the date that the rental equipment was Jast on the job site available for use, deliver to dle CONTRACTOR and to the Surety written notice of the perfonnancc of the labor or delivery of LABOR AND MATERIALS PAYMENT BOND 00610 - 1 Public Works Facility July 22,2005 Winter Sorinos, Florida _ _____________ sri #04001 the Materials or supplies and of the nonpayment. No action for the labor, Materials or supplies may be instituted against the CONTRACTOR or the Surety on the bond after one (l) year from the perfonnance of the labor or completion of the delivery of the Materials or supplies. The Surely, for value received, hereby stipulates and agrees tbat its obligations hereunder shall remain in full force and effect notwithstanding (i) amendments or modifications to the Agreement entered into by OWNER and Principal \'rithout the Surety's knowledge or consent, (ii) waivers of compliance with or any default under the Agreement granted by OWNER to Principal without the Surety's knowledge or consent, or (Hi) the discharge of Principal from .its obligations under the Agreement as a result of any proceeding initiated under The Bankruptcy Code of 1978, as the same may be amcnded, or any similar state or fcdcrallaw, or any limitation of the liability or Principal or its estate as a result of any sllch proceeding. Any changes in or under the Agreement or Contract Documents and compliance or noncompliance with any formalities connected with the Agreement or the changes therein shall not affect Surety's obligations under Ihis Bond and Surety hereby waives notice of any such changes. Further, Principal and Surely acknowledge that the Sum of this Bond shalt increase or decrease in accordance with the Change Orders (unilateral and bilateral) or other modifications to the Agreement or Contract Documents. The Performance Bond and tbe Payment Bond and the covered amounts of each are separate and distinct from each other_ IN WITNESS WHEREOF, this instrument is executed this the 27th day of January. 2006 ~~ ATTEST: (Principal) Secretary Lee Suberman Typed Name A. Jeffrey Suberman, President Typed Name and Title (CORPORATE SEAL) &rud:-~ IJ I~ Witness to Principal Address 3939 Silver Star Road Orlando, FL 32808 City, State, Zip Chest r Dlugokinski Typed Name A TrEST: LABOR AND MATERIALS PAYMENT BOND 00610 - 2 Public Works Facility Win~erSprings. Florida JUlY 22, 20Q5 sri #-04001 By (Surety) S(~eretary Great American Insurance Company Surety Typed Name (513) 369-5000 Telephone No. (513) 723-2740 Facsimile No. (CORPORATE SEAL) alUA~~~~ '/. ~~~ Witness as to Surety By~)(j~ Attorney-in-Fact & FL Resident Agent Patricia L. Slaughter Typed Name ~~d~A Itness as to Surety Leslie M. Donahue Typed Name Florida SQretyBonds, Inc. 620 N Wymore Rd. Address Lisa Roseland Typed Name Maitland, FL 32751 City, State, Zip (407) 786-7770 Telephone No. (407) ~~6-776~" Facsimile No. NOTE: Date of the Bond must nol be prior to date of Agreement. If CONTRACTOR is a joint venture, all venturers shall execute the Bond. If CONTRACTOR is Partnership, all partners shaD execute Bond. IMPORTANT: Surety companies executing Bonds must appear on the Treasury Department's most current list (Circular 570 as amended) and be authorized to transact business in the Stale of FI01ida, unless otherwise specifically approved in writing by OWNER. A TT ACH a certified copy of Power-of-Attorney appointing individual Attomey-in-Fact for execution of Payment Bond on behalf of Surety. END OF SECTION LABOR AND MATERIALS PAYMENT BOND 00610 - 3 '-' '-I 'ttII//II GREAT AMERICAN INSURANCE COMPANY@ Administrative Office: 580 WALNUT STREET. CINCINNATI, OHIO 45202 . 513-369-5000 . FAX 513-723-2740 The number of persons authorized by this power of attorney is not more than Eight No.O 18133 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That the GREAT AMERICAN INSURANCE COMPANY, a corporation organized and existing under and by virtue of the laws of the State of Ohio, does hereby nominate, constitute and appoint the person or persons named below its true and lawful attorney- in-fact, for it and in its name, place and stead to execute in behalf of the said Company, as surety, any and all bonds, undertakings and contracts of suretyship, or other written obligations in the nature thereof: provided that the liability of the said Company on any such bond, undertaking or contract of suretyship executed under this authority shall not exceed the limit stated below. Jeffrey W. Reich Susan L. Reich Name Teresa L. Durham Leslie M. Donahue Address All of Altamonte Springs, Florida Limit of Power All Unlimited Kim E. Niv J. Gregory Mackenzie Patricia L. Slaughter Donald P. Bramlage This Power of Attorney revokes all previous powers issued in behalf of the attorney(s)-in-fact named above. IN WITNESS WHEREOF the GREAT AMERICAN INSURANCE COMPANY has caused these presents to be signed and attested by its appropriate officers and its corporate seal hereunto affixed this 7th day of July , 2005 Attest GREAT AMERICAN INSURANCE COMPANY STATE OF OHIO, COUNTY OF HAMILTON _ ss: DAVID C. KITCHIN (513-412-4602) On this 7th day of July, 2005 ,before me personally appeared DAVID C. KITCHIN, to me known, being duly sworn, deposes and says that he resides in Cincinnati, Ohio, that he is the Divisional Senior Vice President of the Bond Division of Great American Insurance Company, the Company described in and which executed the above instrument: that he knows the seal of the said Company: that the seal affixed to the said instrument is such corporate seal: that it was so affixed by authority of his office under the By-Laws of said Company, and that he signed his name thereto by like authority. This Power of Attorney is granted by authority of the following resolutions adopted by the Board of Directors of Great American Insurance Company by unanimous written consent dated March I, 1993. RESOLVED: That the Division President, the several Division Vice Presidents and Assistant Vice Presidents, or anyone of them. be and hereby is authorized, from time to time. to appoint one or more Attorneys-in-Fact to execute on beha(f of the Company. as surety. any and all bonds. undertakings and contracts of suretyship. or other written obligations in the nature therel~f; to prescribe their respective duties and the respective limits l!ftheir authority; and to revoke any such appointment at any time. RESOLVED FURTHER: That the Company seal and the signature l~f any l~f the aforesaid officers and any Secretary or Assistant Secretary of the Company may be affixed byfacsimile to any power of attorney or certificate of either given for the execution l!f any bond. undertaking. contract or suretyship. or other written obligation in the nature therel){. such signature and seal when so used being hereby adopted by the Company as the original signature ()fsuch officer and the original seal of the Company. to be valid and binding upon the Company with the same force and effect as though manually affixed. CERTIFlCATION I. RONALD C. HAYES, Assistant Secretary of Great American Insurance Company, do hereby certify that the foregoing Power of Attorney and the Resolutions of the Board of Directors of March I. 1993 have not been revoked and are now in full force and effect. Signed and sealed this 27th day of January, 2006. S1029U (4-04)