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1233 Wharton Smith Performance BondCa M 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