HomeMy WebLinkAbout(#11) Asphalt RecyclingTHE AMERICAN INSTITUTE OF ARCHITECTS
Bond No.:FLC68910
AIA Document A312
Performance Bond
M
Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable.
CONTRACTOR (Name and Address):
Asphalt Recycling, Inc.
123 Windemere PI., PO Box 510875
Melbourne Beach, FL 32951
OWNER (Name and Address):
City of Sebastian
1225 Main Street
Sebastian, FL 32958
SURETY (Name and Principal Place of Business):
Merchants Bonding Company
2100 Fleur Drive
Des Moines, IA 50321
CONSTRUCTION CONTRACT
Date:
Amount: Three Hundred Thousand Dollars and 001100 ($300,000.00)
Description (Name and Location): Provide All Material and Labor to Recycle Roadways and Apply Prime
Coat
BOND
Date (Not earlier than Construction Contract Date): August 24, 2010
Amount: Three Hundred Thousand Dollars and 001100 ($300,000.00)
Modifications to this Bond:
CONTRACTOR AS PRINCIPAL
Company: (Corporatq Seal)
Asphalt Recycling, Iftc.
Signat re,
-Name an�Tifl-e:�'1'headore W. Bitomski, President
X None
See Page 3
SURETY fi'
Company: (Corpora e -
Merchants Bondin wCompany
Signature:
Name and Title: Peter A. Kessler,-AttorneyAn-Fact
And Licensed Florida Resident Agent
(FOR INFORMATION ONLY- Name, Address and Telephone)
AGENT or BROKER: Bonds Only, Inc. OWNER'S REPRESENTATIVE (Architect, Engineer or
1515 CR 210 W Suite 211 other party):
Jacksonville, FL 32259
(904)429-0555
AIA DOCUMENT A312 a PERFORMANCE BOND AND PAYMENT BOND * DECEMBER 1984 ED. • AIA e
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984
THIRD PRINTING a 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
Construction Contract. If the Owner, the Contractor
and the Surety agree, the Contractor shall be allowed a
reasonable 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
declared earlier than twenty days after the Contractor
and the Surety have received notice as provided in
Subparagraph 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
accordance with the terms of the contract with the
Owner.
4 When the Owner has satisfied the conditions of
Paragraph 3, the Surety shall promptly and at the Surety's
expense 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
Construction Contract itself, through its agents or
through independent 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 Construction
Contract, arrange for a contract to be prepared 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
excess 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 therefore 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 has terminated the Contractor's right to
complete the Construction Contract, and if the Surety
elects to act under Subparagraph 4.1, 4.2, or 4.3 above,
then the responsibilities of the Surety to the Owner shall
not be greater than those of the Contractor under the
Construction Contract, and the responsibilities of the
Owner to the Surety shall not be greater than those of the
Owner under the Construction Contract. To the limit of the
amount of this Bond, but subject to commitment by the
Owner of the Balance of the Contract Price to mitigation of
costs and damages on the Construction Contract, the
Surety is obligated without duplication 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 not 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
Construction 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,
including 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
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006
THIRD PRINTING • MARCH 1987
A312-1984 2
able to sureties as a defense in the jurisdiction of the suit tractor of any amounts received or to be received by
shall be applicable. The Owner in settlement of insurance or other claims
10 Notice to the Surety, the Owner or the Contractor shall for damages to which the Contractor is entitled,
be mailed or delivered to the address shown on the reduced by all valid and proper payments made to or
signature page. on behalf of the Contractor under the Construction
Contract.
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
conforming 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:
12.2 Construction Contract: The agreement betwen
the Owner and the Contractor identified on the
signature page, including all Contract Documents and
changes thereto.
12.3 Contractor Default: Failure of the Contractor,
which has neither been remedied nor waived, to
perform 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: (Corporate Seal)
Signature:
Name and Title:
Signature:
Name and Title:
AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006
THIRD PRINTING • MARCH 1987
A312-1984 3
THE AMERICAN INSTITUTE OF ARCHITECTS
THIS SOND HEREBY IS AMENDED SO THAT THE
PROV SONS AND IJMI lATIONS OF SEC7101V 255.05
` I CR S]r;?ION 713.23, FL0V.IDA STATUES, VVIN!11'.M �VE9
IS APPLICABLE, ARE iNCORPOIRATED HERE!H Bi(
REFERENCE.
Bond No.: FLC68910
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):
Asphalt Recycling, Inc.
123 Windemere PI., PO Box 510875
Melbourne Beach, FL 32951
OWNER (Name and Address):
City of Sebastian
1225 Main Street
Sebastian, FL 32958
SURETY (Name and Principal Place of Business):
Merchants Bonding Company
2100 Fleur Drive
Des Moines, IA 50321
CONSTRUCTION CONTRACT
Date:
Amount: Three Hundred Thousand Dollars and 001100 ($3009000.00)
Description (Name and Location): Provide All Material and Labor to Recycle Roadways and Apply
Prime Coat
BOND
Date (Not earlier than Construction Contract Date): August 24, 2010
Amount: Three Hundred Thousand Dollars and 001100 ($3009000:00)
Modifications to this Bond:
CONT.FTACTOR-AS- PRINCIPAL
Company: (Corporate Seal)
Asphart Re tirnc.
Signature•:
Name and Title:`- h04dore W. Bitomski, President
None
X See Page 6
SURETY
Company: (Corp9-rate, al).
Merchants Bonding Company;
Signature: -
Name and Title: Peter A. Kes$isr, Attorney-in-Facf
And Licensed Florida Resideri-Agent _
(FOR INFORMATION ONLY - Name, Address and Telephone) - - _
AGENT or BROKER: Bonds Only, Inc. OWNER'S REPRESENTATIVE (Architect, Engineer
1515 CR 210 West, Suite 211 or other party):
Jacksonville, FL 32259
904-429-0555
AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006
THIRD PRINTING • MARCH 1987
A312-1984
4
1 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
performance of the Construction Contract, which is
incorporated 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 furnished
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 payment,
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:
.1 Have furnished written notice to the Contractor
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
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 sufficient
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 unrelated to
the Construction Contract. The Owner shall not be liable for
payment of any costs or expenses of any Claimant under
this Bond, and shall have under this Bond no obligations 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
jurisdiction 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
materials or equipment were furnished by anyone under the
Construction 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.
.2 Have either received a rejection in whole or in 12 Notice to the Surety, the Owner or the Contractor shall
part from the Contractor, or not received within be mailed or delivered to the address shown on the
30 days of furnishing the above notice any signature page. Actual receipt of notice by Surety, the
communication from the Contractor by which Owner or the Contractor, however accomplished, shall be
the Contractor has indicated the claim will be sufficient compliance as of the date received at the address
paid directly or indirectly; and shown on the signature page.
.3 Not having been paid within the above 30 13 When this Bond has been furnished to comply with a
days, have sent a written notice to the Surety statutory or other legal requirement in the location where the
(at the address described in Paragraph 12) construction was to be performed, any provision in this Bond
and sent a copy, or notice thereof, to the conflicting with said statutory or legal requirements shall be
Owner, stating that a claim is being made deemed deleted herefrom and provisions conforming to
under this Bond and enclosing a copy of the 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
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984
THIRD PRINTING a MARCH 1987
Bond shall be construed as a statutory bond and not as a in the Construction Contract, architectural and
common law bond. engineering services required for performance of the
work of the Contractor and the Contractor's
14 Upon request by any person or entity appearing to be a subcontractors, and all other items for which a
potential beneficiary of this Bond, the Contractor shall mechanic's lien may be asserted in the jurisdiction
promptly furnish a copy of this Bond or shall permit a copy where the labor, materials or equipment were
to be made. furnished.
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 equipment
for use in the performance of the Contract. The intent
of this Bond shall be to include without limitation in the
terms "labor, materials or equipment" that part of
water, gas, power, light, heat, oil, gasoline, telephone
service or rental equipment used
MODIFICATIONS TO THIS BOND ARE AS FOLLOWS:
15.2 Construction Contract: The agreement between
the Owner and the Contractor identified on the
signature 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
Contractor as required by the Construction Contract or
to perform and complete or comply with the other
terms thereof.
THIS BOND HEREBY IS AMENDED SO THAT THE
PRO%"SIONS AND UIVIFTATIONS OF SECTION 255.05 '
OR SECTION 713.23, FLORIDA STATUTES, WH1yC; ;E'��,Q
IS APPLICABLE, ARE INCORPORATED HEREIN BY
REFERENCE.
(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: (Corporate Seal)
Signature:
Name and Title:
Address:
Signature:
Name and Title:
Address:
AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA
THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 6
THIRD PRINTING • MARCH 1987
Merchants Bonding Company
(Mutual)
POWER OF ATTORNEY
Know All Persons By These Presents, that the MERCHANTS BONDING COMPANY (MUTUAL), a corporation duly organized under
the laws of the State of Iowa, and having its principal office in the City of Des Moines, County of Polk, State of Iowa, hath made,
constituted and appointed, and does by these presents make, constitute and appoint
Peter A. Kessler
of Jacksonville and State of Florida its true and lawful Attomey-in-Fact, with full power
and authority hereby conferred in its name, place and stead, to sign, execute, acknowledge and deliver In its behalf as surety any
and all bonds, undertakings, recognizances or other written obligations in the nature thereof, subject to the limitation that any such
instrument shall not exceed the amount of.
FIVE MILLION ($5,000,000.00) DOLLARS
and to bind the MERCHANTS BONDING COMPANY (MUTUAL) thereby as fully and to the same extent as if such bond or
undertaking was signed by the duly authorized officers of the MERCHANTS BONDING COMPANY (MUTUAL), and all the acts of
said Attomey4n-Fact, pursuant to the authority herein given, are hereby ratified and confirmed.
This Power-of-Attomey is made and executed pursuant to and by authority of the following Amended Substituted and Restated By -
Laws adopted by the Board of Directors of the MERCHANTS BONDING COMPANY (MUTUAL) on November 16, 2002.
ARTICLE II, SECTION 8 - The Chairman of the Board or President or any Vice President or Secretary shall have power and
authority to appoint Attomeys-in-Fact, and to authorize them to execute on behalf of the Company, and attach the Seal of the
Company thereto, bonds and undertakings, recognizances, contracts of indemnity and other writings obligatory in the nature
thereof.
ARTICLE ll, SECTION 9 - 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 effect as though manually fixed.
In Witness Whereof, MERCHANTS BONDING COMPANY (MUTUAL) has caused these presents to be signed by its President and
its corporate seal to be hereto affixed, this 12th day of August , 2008 .
STATE OF IOWA
COUNTY OF POLK ss.
MERCHANTS BONDING COMPANY (MUTUAL)
.y /,W,7 77",ee
President
On this 12th day of August , 2008 , before me appeared Larry Taylor, to me personally known, who being by me duly swum did say that
he is President of the MERCHANTS BONDING COMPANY (MUTUAL), the corporation described in the foregoing instrument, and that the
Seal affixed to the said instrument is the Corporate Seal of the said Corporation and that the said instrument was signed and sealed in behalf
of said Corporation by authority of its Board of Directors.
In Testimony Whereof, I have hereunto set my hand and affixed my Official Seal at the City of Des Moines, Iowa, the day and year first
above written.
CINDY SMYTH .
Commission Number 173504
ow My Commission Expires
March 16, 2005 Notary Public, Polk County, Iowa
STATE OF IOWA
COUNTY OF POLK ss.
I, William Warner, Jr., Secretary of the MERCHANTS BONDING COMPANY (MUTUAL), do hereby certify that the above and foregoing
is a true and correct copy of the POWER-OF-ATTORNEY executed by said MERCHANTS BONDING COMPANY (MUTUAL), which is
still in full force and effect and has not been amended or revoked.
In Witness Whereof, I have hereunto set my hand and affixed the seal of the Company on this _
24th day of August 2010 •. • 6 • •. •
.y;2
• s� ��/
a'• 1933 :3` Secretary ...
.y. •c
.J .
POA 0001 (1/06) ••b��ti.... •`1 •�
Performance and Payment Bond No.: FLC68910
As to Contractor/ Principal: Asphalt Recycling, Inc.
Name: Theodore W. Bitomski
Principal Business Address:
123 Windemere PI., PO Box 510875
Melbourne Beach, FL 32951
As to the Surety: Merchants Bonding Company
Principal Business Address:
2100 Fleur Drive
Des Moines, IA 50321
As to the Owner of the Property/ Contracting Public Entity:
City of Sebastian
Principal Business Address:
1225 Main Street
Sebastian, FL 32958
Description of project including address and description of improvements:
Provide All Material and Labor to Recycle Roadways and Apply Prime Coat