HomeMy WebLinkAbout1233 Wharton Smith Performance BondCa
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THE AMERICAN INSTITUTE OF ARCHITECTS
Bond No.: 929481527
Executed in 2 Counterparts
AIA Document A312
Performance Bond
Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable.
CONTRACTOR (Name and Address):
Wharton- Smith, Inc.
750 Monroe Road, Sanford, FL 32771
(407) 321 -8410
OWNER (Name and Address):
City of Sanford
300 North Park Avenue, Sanford, FL 32771
(407) 688 -5000
SURETY (Name and Principal Place of Business):
Western Surety Company
P.O. Box 5077, Sioux Falls, SD 57117 -5077
(800) 331 -6053
CONSTRUCTION CONTRACT
Date: June 22nd, 2009
Amount: $15,930,416.00 Amendment No. 1; Sanford Public Safety Building
Description (Name and Location): 911 West 13th Street, Sanford, FL 32771
BOND
Date (Not earlier than Construction Contract Date)
Amount: $15,930,416.00
Modifications to this Bond:
July 15th, 2009
0 None
CONTRACTOR AS PRINCIPAL
Company: (Corporate Sea[)
Wharton- Smith, Inc.
Signature:
Name and Title: TimotKy S. Smith, Project Executive
(Any additional signatures appear on page 3)
❑ See Page 3
SURETY
Company: (corporate Seal)
Western Surety pany �
Signature:
Name and Tithe: Jennifer 6/McCaria
Attorney -In -Fa t & Florida Licensed Resident Agent
(FOR INFORMATION ONLY - -Name, Address and Telephone)
AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or
GUIGNARD COMPANY other a
1904 BOOTHE CIRCLE p
LONGWOOD, FL 32750
(407) 834 -0022
AIA DOCUMENT A312 PERFORMANCE BOND AND PAYMENT BOND - • DECEMBER 1984 ED. *AIA ® A312 -1984 1
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006
THIRD PRINTING - MARCH 1987
I The Contractor and the Surety, jointly and severally,
bind themselves, their heirs, executors, administrators,
successors and assigns to the Owner for the performance
of the Construction Contract, which is incorporated herein
by reference.
2 If the Contractor performs the Construction Contract,
the Surety and the Contractor shall have no obligation
under this Bond, except to participate in conferences as
provided in Subparagraph 3.1.
3 If there is no Owner Default, the Surety's obligation
under this Bond shall arise after:
3.1 The Owner has notified the Contractor and the
Surety at its address described in Paragraph 10 below
that the Owner is considering declaring a Contractor
Default and has requested and attempted to arrange a
conference with the Contractor and the Surety to be
held not later than fifteen days after receipt of such
notice to discuss methods of performing the Construc-
tion Contract. If the Owner, the Contractor and the
Surety agree, the Contractor shall be allowed a reason-
able time to perform the Construction Contract, but
such an agreement shall not waive the Owner's right, if
any, subsequently to declare a Contractor Default; and
3.2 The Owner has declared a Contractor Default and
formally terminated the Contractor's right to complete
the contract. Such Contractor Default shall not be de-
clared earlier than twenty days after the Contractor and
the Surety have received notice as provided in Sub-
paragraph 3.1; and
3.3 The Owner has agreed to pay the Balance of the
Contract Price to the Surety in accordance with the
terms of the Construction Contract or to a contractor
selected to perform the Construction Contract in accor-
dance with the terms of the contract with the Owner.
4 When the Owner has satisfied the conditions of Para-
graph 3, the Surety shall promptly and at the Surety's ex-
pense take one of the following actions:
4.1 Arrange for the Contractor, with consent of the
Owner, to perform and complete the Construction
Contract; or
4.2 Undertake to perform and complete the Construc-
tion Contract itself, through its agents or through inde-
pendent contractors; or
4.3 Obtain bids or negotiated proposals from
qualified contractors acceptable to the Owner for a
contract for performance and completion of the Con-
struction Contract, arrange for a contract to be pre-
pared for execution by the Owner and the contractor
selected with the Owner's concurrence, to be secured
with performance and payment bonds executed by a
qualified surety equivalent to the bonds issued on the
Construction Contract, and pay to the Owner the
amount of damages as described in Paragraph 6 in ex-
cess of the Balance of the Contract Price incurred by the
Owner resulting from the Contractor's default; or
4.4 Waive its right to perform and complete, arrange
for completion, or obtain a new contractor and with
reasonable promptness under the circumstances:
.1 After investigation, determine the amount for
which it may be liable to the Owner and,
as soon as practicable after the amount is deter-
mined, tender payment therefor to the
Owner; or
.2 Deny liability in whole or in part and notify
the Owner citing reasons therefor.
5 If the Surety does not proceed as provided in Paragraph
4 with reasonable promptness, the Surety shall be deemed
to be in default on this Bond fifteen days after receipt of an
additional written notice from the Owner to the
Surety demanding that the Surety perform its
obligations under this Bond, and the Owner shall be
entitled to enforce any remedy available to the Owner. If
the Surety proceeds as provided in Subparagraph 4.4,
and the Owner refuses the payment tendered or the
Surety has denied liability, in whole or in part, without
further notice the Owner shall be entitled to enforce any
remedy available to the Owner.
6 After the Owner �ias terminated the ContrSplo s
rI ht to om lete the onstructlon Contract, an I tke
g Lret e to act under $tjl�para r ph 4.1, 4.2, or
.3 agove, then the responsi illtles o� tie Surety t9 the
wrier shall not be reater than those of the
ontractor finder the Construction �ontract .
t o responsibillities of the Owner to t o Surety
llanf be reater than tthose pf , the Owner uncle 1 < qe
6 ts
, s set o e
ce of the Co tract Price to mltfgatlo o hosts and
daamages oq the on'truction Contras, t�e Surety is
obllg ted without upllcation for:
6.1 The responsibilities of the Contractor for
correction of defective work and completion of the
Construction Contract;
6.2 Additional legal, design professional and
delay costs resulting from the Contractor's Default,
and resulting from the actions or failure to act of the
Surety under Paragraph 4; and
6.3 Liquidated damages, or if no liquidated
damages are specified in the Construction Contract,
actual damages caused by delayed performance or
non - performance of the Contractor.
7 The Surety shall not be liable to the Owner or others for
obligations of the Contractor that are unrelated to the Con-
struction Contract, and the Balance of the Contract
Price shall not be reduced or set off on account of any
such unrelated obligations. No right of action shall
accrue on this Bond to any person or entity other than
the Owner or its heirs, executors, administrators or
successors.
8 The Surety hereby waives notice of any change, includ-
ing changes of time, to the Construction Contract or
to related subcontracts, purchase orders and other
obligations.
9 Any proceeding, legal or equitable, under this
Bond may be instituted in any court of competent
jurisdiction in the location in which the work or part of the
work is located and shall be instituted within two years
after Contractor Default or within two years after the
Contractor ceased working or within two years after the
Surety refuses or fails to perform its obligations under
this Bond, whichever occurs first. If the provisions of
this Paragraph are void or prohibited by law, the
minimum period of limitation avail-
AIA DOCUMENT A312 PERFORMANCE BOND AND PAYMENT BOND • • DECEMBER 1984 ED. • AIA ® A312 -1984 2
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006
THIRD PRINTING • MARCH 1987
able to sureties as a defense in the jurisdiction of the suit
shall be applicable.
10 Notice to the Surety, the Owner or the Contractor shall
be mailed or delivered to the address shown on the sig-
nature page.
11 When this Bond has been furnished to comply with a
statutory or other legal requirement in the location where
the construction was to be performed, any provision in this
Bond conflicting with said statutory or legal requirement
shall be deemed deleted herefrom and provisions con-
forming to such statutory or other legal requirement shall
be deemed incorporated herein. The intent is that this
Bond shall be construed as a statutory bond and not as a
common law bond.
12 DEFINITIONS
12.1 Balance of the Contract Price: The total amount
payable by the Owner to the Contractor under the
Construction Contract after all proper adjustments
have been made, including allowance to the Con-
MODIFICATIONS TO THIS BOND ARE AS FOLLOWS:
tractor of any amounts received or to be received by
the Owner in settlement of insurance or other claims
for damages to which the Contractor is entitled, re
duced by all valid and proper payments made to or on
behalf of the Contractor under the Construction Con-
tract.
12.2 Construction Contract: The agreement between
the Owner and the Contractor identified on the Sig
nature page, including all Contract Documents and
changes thereto.
12.3 Contractor Default: Failure of the Contractor,
which has neither been remedied nor waived, to per-
form or otherwise to comply with the terms of
the Construction Contract.
12.4 Owner Default: Failure of the Owner, which has
neither been remedied nor waived, to pay the
Contractor as required by the Construction Contract
or to perform and complete or comply with the other
terms thereof.
(Space is provided below for additional signatures of added parties, other than those appearing on the cover page.)
CONTRACTOR AS PRINCIPAL SURETY
Company: (Corporate Seal) Company: rporate Seal)
Signature:
Name and Title: /
Address:
and Title:
Aber6OCUMENT A312 PERFORMANCE BOND AND PAYMENT BOND • • DECEMBER 1984 ED.. ALA ® A312-
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006
THIRD PRINTING • MARCH 1987
THE AMERICAN INSTITUTE OF ARCHITECTS
Bond No.: 929481527
Executed in 2 Counterparts
AIA Document A312
Payment Bond
Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable.
CONTRACTOR (Name and Address):
Wharton- Smith, Inc.
750 Monroe Road, Sanford, FL 32771
(407) 321 -8410
OWNER (Name and Address):
City of Sanford
300 North Park Avenue, Sanford, FL 32771
(407) 688 -5000
SURETY (Name and Principal Place of Business):
Western Surety Company
P.O. Box 5077, Sioux Falls, SD 57117 -5077
(800) 331 -6053
CONSTRUCTION CONTRACT
Date: June 22nd, 2009
Amount: $15,930,416.00
Description (Name and Location): Amendment No. 1; Sanford Public Safety Building
911 West 13th Street, Sanford, FL 32771
BOND
Date (Not earlier than Construction Contract Date)
Amount: $15,930,416.00
Modifications to this Bond:
July 15th, 2009
❑ None
CONTRACTOR AS PRINCIPAL
Company: (Corporate Seal)
Wharton- Smith, Inc.
Signature:
Name and Title: Timothy S. Smith, Project Executive
(Any additional signatures appear on page 6)
0 See Page 6
SURETY
Company: (Corporate Seal)
Western Sur Compan
Signature
Name and it e: Jenni ei . McCarta
Attorney -In -Fact & F1661da Licensed Resident Agent
(FOR INFORMATION ONLY -Name, Address and Telephone)
AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or
GUIGNARD COMPANY other party):
1904 BOOTHE CIRCLE
LONGWOOD, FL 32750
(407) 834 -0022
AIA DOCUMENT A312 PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA ® A312 -1984 4
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006
THIRD PRINTING • MARCH 1987
I The Contractor and the Surety, jointly and severally,
bind themselves, their heirs, executors, administrators,
successors and assigns to the Owner to pay for labor,
materials and equipment furnished for use in the perfor-
mance of the Construction Contract, which is incorpo-
rated herein by reference.
2 With respect to the Owner, this obligation shall be
null and void if the Contractor:
2.1 Promptly makes payment, directly or indirectly
for all sums due Claimants, and
2.2 Defends, indemnifies and holds harmless the
Owner from claims, demands, liens or suits by any
person or entity whose claim, demand, lien or suit is
for the payment for labor, materials or equipment fur-
nished for use in the performance of the Construction
Contract, provided the Owner has promptly notified
the Contractor and the Surety (at the address
described in Paragraph 12) of any claims, demands,
liens or suits and tendered defense of such claims,
demands, liens or suits to the Contractor and the
Surety, and provided there is no Owner Default.
3 With respect to Claimants, this obligation shall be
null and void if the Contractor promptly makes pay-
ment, directly or indirectly, for all sums due.
4 The Surety shall have no obligation to Claimants
under this Bond until:
4.1 Claimants who are employed by or have a direct
contract with the Contractor have given notice to the
Surety (at the address described in Paragraph 12) and
sent a copy, or notice thereof, to the Owner, stating
that a claim is being made under this Bond and, with
substantial accuracy, the amount of the claim.
4.2 Claimants who do not have a direct contract
with the Contractor:
Have furnished written notice to the Con-
tractor and sent a copy, or notice thereof, to
the Owner, within 90 days after having last
performed labor or last furnished materials or
equipment included in the claim stating, with
substantial accuracy, the amount of the claim
and the name of the party to whom the
materials were furnished or supplied or for
whom the labor was done or performed; and
2 Have either received a rejection in whole or
in part from the Contractor, or not received
within 30 days of furnishing the above no-
tice any communication from the Contractor
by which the Contractor has indicated the
claim will be paid directly or indirectly; and
3 Not having been paid within the above 30
days, have sent a written notice to the Surety
(at the address described in Paragraph 12) and
sent a copy, or notice thereof, to the Owner,
stating that a claim is being made under this
Bond and enclosing a copy of the previous
written notice furnished to the Contractor.
5 If a notice required by Paragraph 4 is given by the
Owner to the Contractor or to the Surety, that is suffi-
cient compliance.
6 When the Claimant has satisfied the conditions
of Paragraph 4, the Surety shall promptly and at
the Surety's expense take the following actions:
6.1 Send an answer to the Claimant, with a copy
to the Owner, within 45 days after receipt of
the claim, stating the amounts that are undisputed
and the basis for challenging any amounts that
are disputed.
6.2 Pay or arrange for payment of any
undisputed amounts.
7 The Surety's total obligation shall not exceed the
amount of this Bond, and the amount of this Bond shall be
credited for any payments made in good faith by the Surety.
8 Amounts owed by the Owner to the Contractor
under the Construction Contract shall be used for the
performance of the Construction Contract and to satisfy
claims, if any, under any Construction Performance
Bond. By the Contractor furnishing and the Owner
accepting this Bond, they agree that all funds earned by
the Contractor in the performance of the Construction
Contract are dedicated to satisfy obligations of the
Contractor and the Surety under this Bond, subject to
the Owner's priority to use the funds for the completion of
the work.
9 The Surety shall not be liable to the Owner, Claimants
or others for obligations of the Contractor that are unrelat-
ed to the Construction Contract. The Owner shall not be
liable for payment of any costs or expenses of any Claim-
ant under this Bond, and shall have under this Bond no obli-
gations to make payments to, give notices on behalf of, or
otherwise have obligations to Claimants under this Bond.
10 The Surety hereby waives notice of any change,
including changes of time, to the Construction Contract
or to related subcontracts, purchase orders and other
obligations.
11 No suit or action shall be commenced by a Claimant
under this Bond other than in a court of competent juris-
diction in the location in which the work or part of the
work is located or after the expiration of one year from the
date (1) on which the Claimant gave the notice required by
Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last
labor or service was performed by anyone or the last mate-
rials or equipment were furnished by anyone under the Con-
struction Contract, whichever of (1) or (2) first occurs. If the
provisions of this Paragraph are void or prohibited by
law, the minimum period of limitation available to sureties
as a defense in the jurisdiction of the suit shall be
applicable.
12 Notice to the Surety, the Owner or the Contractor
shall be mailed or delivered to the address shown on
the signature page. Actual receipt of notice by Surety,
the Owner or the Contractor, however accomplished,
shall be sufficient compliance as of the date received
at the address shown on the signature page.
13 When this Bond has been furnished to comply with
a statutory or other legal requirement in the location
where the construction was to be performed, any provision
in this Bond conflicting with said statutory or legal
requirement shall be deemed deleted herefrom and
provisions conforming to such statutory or other legal
requirement shall be deemed incorporated herein. The
intent is that this
AIA DOCUMENT A312 PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA ® A312 -1984 5
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006
THIRD PRINTING • MARCH 1987
Bond shall be construed as a statutory bond and not as a
common law bond.
14 Upon request by any person or entity appearing to be a
potential beneficiary of this Bond, the Contractor shall
promptly furnish a copy of this Bond or shall permit a copy
to be made.
15 DEFINITIONS
15.1 Claimant: An individual or entity having a direct
contract with the Contractor or with a subcontractor of
the Contractor to furnish labor, materials or equip-
ment for use in the performance of the Contract. The
intent of this Bond shall be to include without limita-
tion in the terms "labor, materials or equipment" that
part of water, gas, power, light, heat, oil, gasoline,
telephone service or rental equipment used in the
MODIFICATIONS TO THIS BOND ARE AS FOLLOWS:
Construction Contract, architectural and engineering
services required for performance of the work of the
Contractor and the Contractor's subcontractors, and
all other items for which a mechanic's lien may
be asserted in the jurisdiction where the labor,
materials or equipment were furnished.
15.2 Construction Contract: The agreement between
the Owner and the Contractor identified on the sig
nature page, including all Contract Documents and
changes thereto.
15.3 Owner Default: Failure of the Owner, which has
neither been remedied nor waived, to pay the Con-
tractor as required by the Construction Contract or to
perform and complete or comply with the other terms
thereof.
This bond is given to comply with Section 255.05 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), Florida Statutes.
Paragraph 6 of this Bond is deleted in its entirety and replaced with the following provision:
"Within a reasonable time (1) after the Claimant has satisfied the conditions of Paragraph 4
and (2) after the Surety has reviewed all supporting documentation it requested to substantiate
the amount of the claim, the Surety shall pay or arrange for payment of any undisputed
amounts. Failure of the Surety to satisfy the above requirements shall not be deemed a
forfeiture or waiver of the Surety's or the Contractor's defenses under this Bond or their right
to dispute such claim. However, in such event the Claimant may bring suit against the Surety
as provided under this Bond."
ace is provided below for additional signatures of added parties, other than those appearing on the cover page.)
CONTRACT PRINCIPAL SURETY
Company. (Corporate Sea[) Company: (Corporate Seal)
Signature:
Name an
Address:
Name &
Address:
AIA DOCUMENT A312 PERFORMANCE BOND AND PAYMENT BOND • • DECEMBER 1984 ED. •AIA ® A312 -1984
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006
THIRD PRINTING • MARCH 1987
Western Surety Company
POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -IN-FACT
Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation
having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby
make, constitute and appoint
J W Guignard, Bryce R Guignard, M Gary Francis, April L Lively, Paul J Ciambriello,
Jennifer L McCarta, Margie L Morris, Individually
of Longwood, FL, its true and lawful Attomey(s) -in -Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf
bonds, undertakings and other obligatory instruments of similar nature
- In Unlimited Amounts -
and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said
Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed.
This Power of Attorney is made and executed pursuant to and by authority of the By -Law printed on the reverse hereof, duly adopted, as indicated, by
the shareholders of the corporation.
In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Senior Vice President and its corporate seal to
be hereto affixed on this 13th day of April, 2009.
ET } WESTERN SURETY COMPANY
�
�~�O 1� ; a
s SE A%"!
�tN DPK�
Paul l.Bruflat, Senior Vice President
State of South Dakota 1
J T ss
County of Minnehaha
On this 13th day of April, 2009, before me personally came Paul T. Bruflat, to me known, who, being by me duly sworn, did depose and say: that he
resides in the City of Sioux Falls, State of South Dakota; that he is the Senior Vice President of WESTERN SURETY COMPANY described in and which
executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so
affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and
acknowledges same to be the act and deed of said corporation.
My commission expires }444444444444444444444444 }
'+ D. KRELL +
November 30, 2012 r �'gEAL NOTARY PUBLIC SEAL r
i`�SOUTH DAKOTAf
}44444444444444444444444 } AJ-4 k
D. Krell, Nolky Public
CERTIFICATE
I, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in
force, and further certify that the By -Law of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed
MY name and affixed the seal of the said corporation this 15th day of July 2009
'"AErY� WESTERN SURETY COMPANY
h�w��pPOgq t�+1
Ct .
L. Nelson, Assistant Secretary
Form F4280 -09 -06