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HomeMy WebLinkAboutCloud 9 Services, Inc.- 2011 11 17 ,14 ` 4T ER CITY OF WINTER SPRINGS, FLORIDA 2 U V 1126 EAST STATE ROAD 434 • Incorporated • WINTER SPRINGS, FLORIDA 32708 -2799 1959 Telephone (407) 327 -1800 �LORIO Utility / Public Works Department THIS AGREEMENT MADE THIS 1 1 DAY OF No V�ln46r , 2011 between the CITY OF WINTER SPRINGS, a Florida municipal corporation (herein referred to as OWNER) and Cloud 9 Services, Inc., a corporation authorized and duly licensed to do business in the State of Florida (herein referred to as CONTRACTOR), as follows: 1. DESCRIPTION OF WORK - CONTRACTOR shall perform the work, in accordance with the Contract Documents for the construction of the Tuscawilla Unit 17 Pond Improvements. 2. CONTRACT DOCUMENTS - The Contract Documents consist of this Agreement; all Technical, General and Supplementary Conditions; 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. Drawings Any inconsistency in the work description shall be clarified by the OWNER and performed by the CONTRACTOR. 4. AGREEMENT INTERPRETATION - At its discretion, during the course of the work, should any errors, ambiguities, or discrepancies be found in the Agreement or specifications, the OWNER at its sole discretion will interpret the intent of the Agreement and work descriptions and the CONTRACTOR hereby agrees to abide by the OWNER's interpretation and agrees to carry out the work in accordance with the decision of the OWNER. When the material, article, or equipment is designated by a brand name and more than one brand name is listed, it will be understood that the work is based on one brand name only. The CONTRACTOR will be responsible for all coordination necessary to accommodate the material, article, or equipment being provided without additional cost to the OWNER. A substitute material, article, 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. 5. CONTRACT TIME - The CONTRACTOR shall begin work within 10 days after the issuance of a written Notice to Proceed and shall complete the work (Final Completion) within 60 calendar days from the date of the Notice to Proceed. Extensions, if any, are authorized by OWNER, and may only be granted in writing. Page 2 Tuscawilla Unit 17 Pond Improvements 6. LIQUIDATED DAMAGES - OWNER and CONTRACTOR recognize that time is of the essence of this Agreement and that OWNER will suffer financial loss if the Work is not substantially complete within the time specified in Paragraph 5 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 Work is not substantially complete on time. Accordingly, instead of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty) CONTRACTOR shall pay OWNER $300.00 for each day that expires after the time specified in Paragraph 5 for final completion until the work is finally complete, and that OWNER has paid to CONTRACTOR the consideration of Ten ($10.00) Dollars as consideration for this provision. 7. CONTRACT PRICE, UNIT PRICE CONTRACT - The OWNER will pay the CONTRACTOR in current funds for the performance of the work, subject to additions and deductions by Change Order, the Total Contract Price of $57,710.00. Payments will be made to the CONTRACTOR for actual quantities installed on the basis of the Schedule of Unit Prices included as a part of the Bid, which shall be as fully a part of the Contract as if attached or repeated herein. 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 written notice from the OWNER specifying the default complained of, unless, however, the nature of the default is such that it cannot, in the exercise of reasonable diligence, be remedied within seven (7) calendar days, in which case the CONTRACTOR shall have such time as is reasonably necessary to remedy the default, provided the CONTRACTOR promptly takes and diligently pursues such actions as are necessary therefore; or b. CONTRACTOR is adjudicated bankrupt or makes any assignment for the benefit of creditors or CONTRACTOR becomes insolvent, or is unable or unwilling to pay its debts; or c. CONTRACTOR has acted negligently, as defined by general and applicable law, in performing the Work hereunder; or d. CONTRACTOR has committed any act of fraud upon the OWNER; or e. CONTRACTOR has made a material misrepresentation of fact to the OWNER while performing its obligations under this Agreement; or f. CONTRACTOR is experiencing a labor dispute, which threatens to have a substantial, adverse impact upon performance of this Agreement without prejudice to any other right, or remedy OWNER may have under this Agreement. Notwithstanding the aforementioned, in the event of a default by CONTRACTOR, the OWNER shall have the right to exercise any other remedy the OWNER may have by operation of law, without limitation, and without any further demand or notice. In the event of such termination, OWNER shall be liable only for the payment of all unpaid charges, determined in accordance with the provisions of this Agreement, for Work properly performed prior to the effective date of termination 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 Page 3 Tuscawilla Unit 17 Pond Improvements 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 OWNER's Project Manager, by CONTRACTOR as the work progresses, and in accordance with the Contract Documents. Progress payments may be withheld if: a. Work is found defective and not remedied; b. Contractor does not make prompt and proper payments to subcontractors; c. Contractor does not make prompts and proper payments for labor, materials, or equipment furnished him; d. Another Contractor is damaged by an act for which Contractor is responsible; e. Claims or liens are filed on the job; or f. In the opinion of the City of Winter Springs, Contractor's work is not progressing satisfactorily. 12. FINAL PAYMENT - OWNER shall withhold up to 10% of the Contract Price until 50% completion. After 50% completion, OWNER shall reduce to 5% the amount of retainage withheld from each subsequent progress payment made to the Contractor. For purposes of this section, the term "50- percent completion" shall be the point at which the OWNER has expended 50% of the total cost of the construction services purchased as identified in the Agreement together with all costs associated with existing change orders and other additions or modifications to the Agreement. After 50% completion, the Contractor may present to the OWNER a payment request for up to one -half of the retainage held by the OWNER. OWNER shall promptly make payment to the Contractor, unless OWNER has grounds for withholding the payment of retainage. OWNER shall make final payment to CONTRACTOR within thirty (30) days after the work is fully and properly completed, if the contract has been fully and timely performed, but subject to the condition that final payment shall not be due until CONTRACTOR has delivered to OWNER a complete release of liens arising out the contract, or receipt releases of lien fully 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 claims. By making payments OWNER does not waive claims including but not limited to those relating to: a. Faulty work appearing after substantial completion has been granted; b. Work that does not comply with the Contract Documents: c. Outstanding claims of liens; or Page 4 Tuscawilla Unit 17 Pond Improvements d. Failure of Contractor to comply with any special guarantees required by the Contract Documents. 13. DESIGNATION OF PROJECT MANAGER OR ARCHITECT OR LANDSCAPE ARCHITECT: DUTIES AND AUTHORITY - The duties and authority of the OWNER are as follows: a. General Administration of Contract. The primary function of the OWNER is to provide the general administration of the contract. In performance of these duties, Brian Fields, P.E. or his authorized representative is the OWNER's Project Manager during the entire period of construction. The OWNER (CITY) may change the Project Manager during the term of this contract. b. Inspections, Opinions, and Progress Reports. The OWNER shall be kept familiar with the progress and quality of the work by CONTRACTOR and may make periodic visits to the work site. The OWNER will not be responsible for the means of construction, or for the sequences, methods, and procedures used therein, or for the CONTRACTOR's failure to perform the work in accordance with the Contract Documents. c. Access to Worksite for Inspections. The OWNER 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. d. Interpretation of Contract Documents: Decisions on Disputes. The OWNER will be the initial interpreter of the contract document requirements, and make decisions on claims and disputes between Contractor and Owner. e. Resection and Stoppage of Work. The OWNER shall have authority to reject work which in its opinion does not conform to the Contract Documents, and in this connection may stop the work or a portion thereof, when necessary. f. Payment Certificates. The OWNER will determine the amounts owing to CONTRACTOR as the work progresses, based on CONTRACTOR's applications and OWNER's inspections and observations, and will issue certificates for progress payments and final payments in accordance with the terms of the Contract Documents. 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 work entered into under this Agreement. CONTRACTOR's Project Manager and all other appropriate personnel shall attend such meetings as designated by the OWNER'S Project Manager. 15. RESPONSIBILITIES OF CONTRACTOR - CONTRACTOR's duties and rights in connection with the project herein are as follows: a. Responsibility for Supervision and Construction. CONTRACTOR shall be solely responsible for all construction under this contract, including the techniques, sequences, procedures and means, for the coordination of all work. CONTRACTOR shall supervise and direct the work, and give it all attention necessary for such proper supervision and direction. b. Discipline and Employment. CONTRACTOR shall maintain at all times strict discipline among his employees, and he agrees not to employ for work on the project any person unfit or without sufficient skill to perform the job for which he was employed. Page 5 Tuscawilla Unit 17 Pond Improvements c. Furnishing of Labor, Materials, etc. CONTRACTOR shall provide and pay for all labor, materials and equipment, including tools, construction equipment and machinery, utilities, including water, transportation, and all other facilities and work necessary for the proper completion of work on the project in accordance with the Contract Documents. d. Payment of Taxes: Procurement of Licenses and Permits. CONTRACTOR shall secure all licenses and permits necessary for proper completion of the work, paying the fees thereof. CONTRACTOR warrants that it (and subcontractors or tradesmen, if authorized in the Contract Documents) hold or will secure all trade or professional licenses required by law for CONTRACTOR to undertake the contract work. e. CONTRACTOR will provide written 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, written consent of the OWNER. a. If upon receiving written approval from OWNER, any part of this Agreement is subcontracted by CONTRACTOR, CONTRACTOR shall be fully responsible to OWNER for all acts and /or omissions performed by the subcontractor as if no subcontract had been made. b. If OWNER determines that any subcontractor is not 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 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. 20. INDEMNIFICATION — CONTRACTOR shall indemnify and hold harmless the City, its officers, employees, and city attorneys (individually and in their official capacity, from liability, losses, damages, and costs, including, but not limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness or intentional wrongful misconduct of CONTRACTOR and persons employed or utilized by CONTRACTOR in the performance of this Agreement. The indemnification provided above shall obligate the CONTRACTOR to defend at its own expense or to provide for such defense, at the option of the OWNER, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the OWNER or its officers, employees, and city attorneys which may covered by this indemnification. In all events the OWNER and its officers, employees, 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. Page 6 Tuscawilla Unit 17 Pond Improvements 21. SAFETY - CONTRACTOR shall be solely and absolutely responsible and assume all liability for the safety and supervision of its principals, employees, contractors, and agents while performing work 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 laws 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 laws to provide the work stated in paragraph 1.0 herein. In support of said representation, CONTRACTOR agrees to provide a copy of all said licenses to the OWNER prior to the execution of this Agreement. 23. BOND - CONTRACTOR shall supply a materials, performance and payment bond(s) in accordance with Florida 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 claims of property damages which may arise from any Work performed under this Agreement whether such Work are performed by the CONTRACTOR or by anyone directly employed by or contracting with the CONTRACTOR. b. The CONTRACTOR shall maintain comprehensive automobile liability insurance in the minimum amount of $1,000,000 combined single limit bodily injury and minimum $1,000,000 property damage as 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 the CONTRACTOR or by anyone directly or indirectly employed by the CONTRACTOR. c. The CONTRACTOR shall maintain, during the life of this Agreement, adequate Workers' Compensation Insurance in at least such amounts as are required by law and Employer's Liability Insurance in the minimum amount of $2,000,000 for all of its employees performing Work for the OWNER pursuant to this Agreement. Special Requirements. Current, valid insurance policies meeting the requirements herein identified shall be maintained during the term of this Agreement. A copy of a current Certificate of Insurance shall be provided to the OWNER by CONTRACTOR upon the Effective Date of this 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 30-day advance written 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. Page 7 Tuscawilla Unit 17 Pond Improvements Independent Associates and Consultants. All independent contractors or agents employed by CONTRACTOR to perform any Work hereunder shall fully comply with the insurance provisions contained in paragraph 24. 25. MEDIATIONNENUE - The parties agree that should any dispute arise between them regarding the terms or performance of this Agreement, both parties will participate in mediation. The parties agree to equally share the cost of the mediator. Should the parties fail to resolve their differences through mediation, then any cause of action filed hereunder shall be filed in the Circuit or County Court for Seminole County, Florida. 26. GOVERNING LAW & VENUE - This Agreement is made and shall be interpreted, construed, governed, and enforced in accordance with the laws of the State of Florida. Venue for any state action or litigation shall be Seminole County, Florida. Venue for any federal action or litigation shall be Orlando, Florida. 27. ATTORNEY'S FEES - Should either party bring an action to enforce any of the terms of this Agreement, the prevailing party shall be entitled, to the extent permitted by law, to recover from the non - prevailing party the costs and expenses of such action including, but not limited to, reasonable attorney's fees, whether at settlement, 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 writing of the CONTRACTOR and its independent contractors and associates related, directly or indirectly, to this Agreement, may be deemed to be a Public Record whether in the possession or control of the OWNER or the CONTRACTOR. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of the CONTRACTOR is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the OWNER's City Manager. Upon request by the OWNER, the CONTRACTOR shall promptly supply copies of said public records to the OWNER. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall at any and all reasonable times during the normal working hours of the CONTRACTOR be open and freely exhibited to the OWNER for the purpose of examination and /or audit. The CONTRACTOR acknowledges that the OWNER is a Florida municipal corporation and subject to the Florida Public Records Law. CONTRACTOR agrees that to the extent any document produced by CONTRACTOR under this Agreement constitutes a Public Record; CONTRACTOR shall comply with the Florida Public Records Law. Page 8 Tuscawilla Unit 17 Pond Improvements 31. SOVEREIGN IMMUNITY - Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the CITY'S right to sovereign immunity under Section 768.28, or other limitations imposed on the CITY'S potential liability under state or federal law. As such, the CITY shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, the CITY shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), 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 the sum of two hundred thousand dollars ($200,000.00). 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; MODIFICATION - The drafting, execution, and delivery of this Agreement by the Parties has been induced by no representations, statements, warranties, or agreements other than those expressed herein. This Agreement embodies the entire understanding of the parties, and there are no further or other agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof unless expressly referred to herein. Modifications of this Agreement shall only be made in writing signed by both parties. 34. WAIVER AND ELECTION OF REMEDIES - Waiver by either party of any terms, or provision of this Agreement shall not be considered a waiver of that term, condition, or provision in the future. No waiver, consent, or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each party hereto. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be considered an original agreement; but such counterparts shall together constitute but one and the same instrument. 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: s I ckt N a e ir , c\otL Sevu .ce5 l./Vc-. t c r5 VI sf O (t , EL -s O For OWNER: City of Winter Springs City Engineer, Public Works Department 1126 East State Road 434 Winter Springs, FL 32708 Either party may change the notice address by providing the other party written notice of the change. • Page 9 Tuscawilla Unit 17 Pond Improvements Signed, Sealed and Delivered in the presence of: CONTRACTOR: C (v I A p 4 9 S r i � � `� � {� t c (c. Few g ( Name )C-7 Title 2: I 10. c-- tik Business Address 61{ t 175 °`1 City, State Zip Date OWNER: 1 CITY OF WINT R SPR/S i qAt 1/ By: -vin L. Sm h t I . City Manag- 1126 East State Road 434 Winter Springs, FL. 32763 407 - 327 -1800 40 - reA , CITY OF WINTER SPRINGS O � 'P PUBLIC WORKS DEPARTMENT � - 1126 STATE ROAD 434 U WINTER SPRINGS, FL 32708 • Incorporated • 1959 407- 327 -7597 . k0R10 FAX:407- 327 -6695 MEMORANDUM TO: City Clerk's Office FROM: Brian Fields, City Engineer' DATE: November 9, 2011 SUBJECT: Tuscawilla Unit 17 Pond Improvements Please find attached two copies of the Agreement for the Tuscawilla Unit 17 Pond Improvements, which was authorized by the City Commission at the October 24, 2011 City Commission meeting under Consent Item #205. Please request the City Manager sign both Agreements with two witness signatures in the spaces provided. Please also date all Agreements. Please keep one original Agreement for your files and return one to me for the contractor. LABOR AND MATERIALS PAYMENT BOND Bond No. LAX710178 BY THIS LABOR AND MATERIALS PAYMENT BOND, We Cloud 9 Services, Inc., as Principal, whose address is 1201 W. Jackson St., Orlando, FL 32805 and telephone number is 407 - 481 -2750 and American Safety Casualty Insurance Company, as Surety, whose address is 444 Ocean Blvd 18th Floor, Long Beach, CA 90802 and telephone number is 800 - 388 -3647 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 -5957, in the initial sum of $ fifty seven thousand seven hundred ten dollars and 00/100 ($57,710.00) (100% 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 November 2011, Contract No. (the "Contract ") for the construction of the Tuscawilla Unit 17 Pond Improvements 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. 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. 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 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 1 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. 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 Toss, 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. 2 Principal Surety Cloud 9 Services, Inc. American Safety Casualty Insurance Company (Typed Firm Name) (Typed Firm Name) (Seat) ( `eat) By: / } .: (Signature) (Si. ature) Xi Lu Jessica P. Reno (Printed Name) (Printed Name) President Attorney -in -Fact (Title) (Title) 1201 W. Jackson Street 444 Ocean Blvd 18th Floor Orlando, FL 32805 Long Beach, CA 90802 (Address) (Address) November 4, 2011 (Date of Execution) (Date of Execution) END OF DOCUMENT 3 • • I AS1 tlfirfRF.R AMERKANSW ,,,1I6URNICE POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS that American Safety Casualty Insurance Company has made, constituted and appointed, and by these presents does make, constitute and appoints Jessica P. Reno its true and lawful attorney -in -fact, for rt and its name, place, and stead to execute on behalf of the said Company, as surety, bonds, undertaking and contracts of suretyship to be given to ALL OBLIGEES provided that no bond or undertaking, or contract of suretyship executed under this authority shall exceed in amount the sum of Fifty Seven Thousand Seven Hundred Ten Dollars ($57,710.00) This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of the Company of the 6 day of August, 2009. RESOLVED, that the President in conjunction with the Secretary or any Assistant Secretary may appoint attorneys -in -fact or agents with authority as defined or limited in the instrument evidencing the appointment in each case, for and on behalf of the Company, to execute and deliver and affix the seal of the Company to bands, undertakings. recognizances, and suretyship obligations of all kinds; and said officers may remove any such attorney -in- fact or agent and revoke any power of attorney previously granted to such persons. RESOLVED FURTHER, that any bond, undertaking, recognizance, or suretyship obligation shall be valid and binding upon the company when: (i) when signed by the President or any Vice - President and attested and sealed (if a seal is required) by any Secretary or Assistant Secretary or (ii) when signed by the President or any Vice- President or Secretary or Assistant Secretary, and counter - signed and sealed (if a seal is required) by a duly authorized attorney -in -fact or agent or (iii) when duly executed and sealed (if a seal is required) by one or more attorney -in -fact or agents pursuant to and within the limas of the authority evidenced by the power of attorney issued by the Company to such person or persons. RESOLVED FURTHER, that the signature of any authorized officer and the seal of the Company may be affixed by facsimile to any power of attorney or certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or other suretyship obligations of the Company; and such signature and seal when so used shall have the same Force and effects as though manually affixed. IN WITNESS WHEREOF, American Safety Casualty Insurance Company has caused Its official seal to be hereunto affixed, and these presents to be signed by its President and attested by its Secretary this 6"' day of August, 2009 �. t' c ` ✓ vim+ t S- 5'":'-.1.:,,A.;; - Ambit) Jain "' ,� - A Joseph D_ Soli Jr STATE OF GEORGIA ) `° ., h `: . 4; ti COUNTY OF COBB ) On this 6 day of August, 2009, before me personally came Jos D. Scollo, Jr., to me known, who, being by me duly swom, did depose and say that he is the President of American Safety Casualty Insurance Company, the corporation described in and which executed the above instrument; that he knows the seal of the said corporation; that the seal affixed to the said instrument is such corporate seal; that is was so affixed by order of the Board of Directors of said corporation and that he signed his name thereto by like order ) .. 1 r ► it L JAMI BAILEY r , I A Notary Public, Hall Co., GA Ja , i =ails My Commission Expires Aug. 13, 2012 y = o ta ry Public I, the undersigned, Secretary of American Safety Casualty Insurance Company, an Oklahoma corporation, DO HEREBY CERTIFY, that the foregoing and attached Power of Attorney remains in full force and has not been revoked; and furthermore that the Resolution of the Board of Directors, set forth in the said Power of Attorney, is now in force. Signed and sealed in the City of Atlanta, in the State of Georgia Dated this 4 day of 1, . 7 � a e i .. * i t 3 Ambuj Jain r ORIGINALS OF THIS POWER OF ATTORNEY ARE PRINTED WITH RED NUMERICAL NUMBERS DUPLICATES SHALL HAVE THE SAME FORCE AND EFFECT AS AN ORIGINAL ONLY WHEN ISSUED IN CONJUCTION WITH THE ORIGINAL S PERFORMANCE :OlND Bond No. LAX710178 BY THIS PERFORMANCE BOND, We Cloud 9 Services, Inc., as Principal, whose address is 1201 W. Jackson St., Orlando, FL 32805 and telephone number is 407- 481 -2750 and American Safety Casualty Insurance Company, as Surety, whose address is 444 Ocean Blvd 18th Floor, Long Beach, CA 90802 and telephone number is 800- 388 -3647 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 $ fifty seven thousand seven hundred ten dollars and 00/100 ($57,710.00) (100% of Contract Price), or such greater amount as the Contract may he 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 Novernberll, 2011, Contract No. (the "Contract ") for the construction of the Tuscawilla Unit 17 Pond Improvements 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 'o 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, 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 C Sa+igfy all claims and demands incurred tinder the Contort, and indemnify and hold harmless the Owner from all costs and damages which it may suffer by reason or failure to do so. 1 . 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 forty -five (45) 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 the 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 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 the 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 2 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 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. 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: American Safety Casualty Insurance Company Attention: Keith Sandrock Street: 444 Ocean Blvd. 18 Floor City, State: Long Beach, CA _ Zip: 90802 PRINCIPAL: Name: Cloud 9 Services, Inc. Attention: Xi Lu Street: 1201 W. Jackson Street City, State: Orlando, FL Zip: 32805 3 OWNER: The City of Winter Springs Attention: Kevin L. Smith 1126 E. State Road 434 Winter Springs, Florida 32708 (407) 327 -1800 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 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 4 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. Principal Surety Cloud 9 Services, Inc. _ American Safety Casualty Insurance Company (Typed Firm Name) (Typed Firm Name) (Seal) (.eal) n (Signature) (Signature) Xi Lu Jessica P. Reno (Printed Name) (Printed Name) President Attorney -in -Fact _ (Title) (Title) 1201 W. Jackson Street 444 Ocean Blvd 18th Floor Orlando, FL 32805 Long Beach, CA 90802 (Address) (Address) 11 lit / November 4, 2011 (Date of Execution) (Date of Execution) END OF DOCUMENT 5