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Contract 00600. CONTRACT CONTRACT THIS IS A CONTRACT, by and between the City of Miami Beach,.a political subdivision of the State of Florida, hereinafter referred to as CITY, and TRANS. FLORIDA DEVELOPMENT CORP., here inafter.referred to as CONTRACTOR, W I Ti N E S S E T H, that . CONTRACTOR and . CITY, for the considerations . hereinafter named, agree as follows: ARTICLE 1 SCOPE OF WORK CONTRACTOR hereby agrees to furnish. all of the labor, materials, equipment services and incidentals necessary to perform all of the work described in the Contract Documents and related thereto for the Project. ARTICLE 2 CONTRACT TIME - 2.1 CONITRACTOR shall be instructed to'commence the Work by written instructions in the form of a Standing Order issued by the City's Procurement ,Director and a Notice to Proceed issued by the Contract Administrator. Two (2) . Notices to Proceed will be issued for this Contract. CONTRACTOR shall. commence scheduling activities, permit applications and other i preconstruction work within five (�5) calendar days after the Project -Initiation Date, which shall be the same. as the date of the first Notice to Proceed. The first Notice to Proceed and Purchase Order will not be issued until CONTRACTOR's submission to CITY of all required documents - (including . but limited to: Payment and Performance Bonds,..and Insurance Certificate) and after execution of the Contract by both parties. 2.1.1 The receipt of all necessary permits by CONTRACTOR and acceptance of the. full progress schedule in accordance with technical specifications section, . submittal schedule and schedule r of values is a condition precedent to the issuance of a second Notice to Proceed to mobilize the Project site and commence with physical construction of the work. The CONTRACTOR shall submit all necessary documents required by this provision within twenty -one (21). calendar days of the issuance.of the first Notice to Proceed. 2.2 Time is of the essence throughout this Contract. This project shall be substantially completed within four hundred and twenty (420) calendar days from the issuance of the second Notice to Proceed, and completed and ready for final payment in accordance with Article 5 within thirty (30) ' calendar days from the date certified by CONSULTANT as the date of Substantial Completion. BID NO. 02 -09/10 CITY OF MIAMI BEACH Page 67 of 142 DATE: 11/25/09 2.3 Upon failure of CONTRACTOR to substantially complete the Contract within the specified .period of time, plus approved time extensions, CONTRACTOR shall pay to CITY the sum of Two - Thousand Dollars ($2,000.00) for each calendar day after the time specified in Section 2.2 above, plus any approved time extensions, for Substantial Completion. After Substantial Completion "should CONTRACTOR fail to complete the remaining work within -the time specified in Section 2.2 above, plus approved time . extensions thereof, for completion and readiness for-final payment, CONTRACTOR shall pay to CITY the sum of One Thousand ($1'000.00) for each calendar day after the time specified in Section 2.2 above, plus any approved extensions, for completion and readiness for final. pay ent. These amounts are not penalties but are liquidated damages to CITY for its inability to obtain full beneficial occupancy and /or use of 'the Project. Liquidated damages are hereby fixed and agreed upon between the parties, recognizing the impossibility of precisely ascertaining the amount of damages' .. that will be sustained by CITY as a consequence of such delay, and both parties desiring to obviate any question of dispute concerning the amount of said damages and the cost and effect of the failure of CONTRACTOR to complete the Contract on time. The . above- stated liquidated .damages shall apply separately to each portion of the Project for which a time for completion .is given. 2.4 CITY is authorized to deduct liquidated damages from monies due to CONTRACTOR for the Work under this Contract or as much thereof as CITY may, in its sole discretion, deem just and reasonable. 2.5 CONTRACTOR shall be responsible for reimbursing CITY, in addition to liquidated damages, for all costs incurred by CONSULTANT in administering the construction of the Project beyond the corpletion date . specified above, plus approved time extensions. CONSULTANT construction administration costs shall be pursuant to the contract between CITY-and CONSULTANT, a copy of which is available-upon request of the Contract Administrator. All such costs shall be deducted from the monies due CONTRACTOR for performance of Work under this Contract by means of unilateral credit change orders issued by CITY as costs are incurred by CONSULTANT and agreed to by CITY. ARTICLE 3 THE CONTRACT SUM X ] Thin is a Unit. Price Contract 3.1 CITY shall .pay to CONTRACTOR the ,amounts determined for. the total number of each of the units of work completed at the unit price stated' in the schedule of prices bid. The number of units contained in this schedule is an estimate only,. and final payment shall be made for the actual number of units - incorporated in or made necessary by the Work covered by the Contract Documents. 3.2 Payment shall be made at the unit prices applicable to each.integral part of the Work. These prices shall be full compensation for all costs, including overhead and profit, associated with completion of'all the Work in full conformity with .the requirements as stated or shown, or both, in the Contract Documents. The cost BID NO. 02- 09/1.0 CITY OF MIAMI BEACH Page 68 of 142 DATE: 11/25/0 . of any item of work not covered by a definite Contract unit price shall be included in the Contract unit price or lump sum price to which the item is most applicable. [. l This is a Lump Sum Contract :* 3.1 CITY shall pay to CONTRACTOR for the performance of the Work described in the Contract Documents, the total price stated as awarded. 3.2 'Payment shall be at the lump sum price stated in the Contract. This price shall be full compensation for all costs, including overhead and profit, associated with completion of all the - work in full conformity with the requirements as stated or shown,,. or both, in .the Contract Documents. The cost of any item of work not, covered by a definite Contract lump sum should be included in1he lump sum price to which the item is most applicable. * Note : Some Projects include both, unit prices - and lump sums in which case both sections shall apply to the Work identified for each type of Contract. ARTICLE 4 PROGRESS PAYMENTS .4.1 CONTRACTOR may make Application for Payment for work completed during the Project at intervals of not more than once a month. CONTRACTOR's application shall show a complete breakdown of the Project components, the, quantities completed and the amount due, together with such supporting, evidence as ,may be required by. CONSULTANT. CONTRACTOR shall include, but .same shall be limited to, at Consultants discretion, with each Application for Payment, an updated progress schedule acceptable to CONSULTANT as required by the Contract Documents and a release of liens and. consent of surety relative to the work which is the subject of the Application. Each Application for Payment shall be submitted in triplicate to" CONSULTANT Jor approval: CITY shall) make payment to CONTRACTOR within thirty (30) days, after approval by CONSULTANT of CONTRACTOR's Application for Payment and. submission of :,an acceptable updated progress schedule. o 4.2 Ten percent (10 /o) of all monies earned by CONTRACTOR shall be retained by CITY until Final Completion and acceptance by'CITY in accordance with Article 5 hereof, except that after ninety percent (90 %) of the Work has been completed, the .Contract Administrator may reduce the retainage to five percent (5 %) of all, monies- previously earned and all monies earned thereafter. Any reduction in retainage shall be in the sole discretion of the Contract Administrator, shall, be recommended by, CONSULTANT and CONTRACTOR shall have no. entitlement reduction. Any interest earned on retainage shall accrue to.the benefit of to a L C!TY. All requests for retainage reduction shall be in writing in. a separate stand alone document. 4.3 CITY may withhold, in whole or in part, payment to ' such extent as may be ,. necessary to protect itself from loss on account of: 4:3.1 Defective, work not remedied. BID NO. 02- 09/10 CITY OF MIAMI BEACH Page 69 of .142 GATE: 11/25/0 4.3.2 Claims filed or reasonable evidence indicating probable filing of claims by other , parties against CONTRACTOR or. CITY because of CONTRACTOR's performance. 4.3.3 Failure of CONTRACTOR to make payments properly to Subcontractors or for material or labor. 4.3.4 Damage to another contractor not remedied. 4.3.5 Liquidated damages and costs incurred by CONSULTANT for extended construction administration. 4.3.6 Failure of CONTRACTOR to provide any and all documents required by the Contract Documents. When the above grounds are removed or resolved satisfactory to the Contract Administrator, payment shall be made in whole or in part. ARTICLE 5 ACCEPTANCE AND FINAL PAYMENT 5.1 -Upon receipt of written notice from CONTRACTOR that the Work is ready for final inspection and acceptance, CONSULTANT shall, within ten (10) calendar days, make an inspection thereof. If CONSULTANT and Contract Administrator find the Work acceptable, the requisite documents have'been submitted and the requirements of the Contract Documents fully satisfied; and all conditions of the permits and regulatory agencies have been met, a Final Certificate of Payment (Form 00926) shall be issued by CONSULTANT, over its signature, stating that the requirements of the Contract Documents have been performed and the Work is ready for acceptance under the terms and conditions thereof. 5.2 Before issuance of the Final Certificate for Payment, CONTRACTOR shall deliver to CONSULTANT a complete release of all liens. arising out of this Contract, receipts in full in lieu thereof; an affidavit certifying that all suppliers and subcontractors have been paid in full and that all other indebtedness connected with the Work has been paid, and 'a consent of the surety to final payment; the final corrected as drawings; and the final bill of materials, if required, and invoice. 5.3: If, after the Work has been substantially, completed, full completion thereof is materially delayed through no fault of CONTRACTOR, and CONSULTANT so certifies, CITY shall, upon certificate of CONSULTANT, and without terminating - the Contract.. make payment of the balance due for that portion of the Work fully completed and accepted. Such payment shall be made under the terms and. conditions governing final payment, except that it shall not constitute a waiver of claims. 5.4 Final payment shall be made only after the City Manager or his designee has reviewed a written evaluation of the performance of CONTRACTOR prepared by the Contract Administrator, and approved the final payment. The acceptance of BID NO. 02- 09/10 CITY OF MIAMI BEACH Page 70 of 142 DATE: 11/25/0 1 final payment shall constitute a waiver of all claims by CONTRACTOR, except those previously made in strict accordance with the provisions of the General Conditions and identified by CONTRACTOR as unsettled at .the time of the application for final payment. ARTICLE 6 MISCELLANEOUS 6.1 This Contract is part of, and incorporated in, the Contract Documents as defined herein. Accordingly, all of the documents incorporated by the Contract Documents shall govern this Project. 6.2 Where there is a conflict between any provision set forth within the Contract Documents and a more stringent state or federal provision which is applicable to this Project, the more stringent state or federal provision shall prevail. 6.3 Public Entity Crimes In accordance with the Public Crimes Act Section 287.133, Florida Statutes, a person o.r affiliate who is a contractor, consultant or other provider, who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to the CITY, may not submit a bid on a contract.with the CITY for the construction or repair of a public building or public work, may not submit bids on leases of real property to the CITY, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with the CITY, and may not transact any business with the CITY in excess of the threshold amount provided in Section 287.017, Florida. Statutes, for category two purchases for a period of 36 months from the date of being placed on the convicted vendor list. Violation of this section by Contractor shall result in cancellation of the CITY purchase and may result in Contractor debarment. 6.4 Independent Contractor CONTRACTOR is an independent contractor under this Contract. Services provided by CONTRACTOR pursuant to this Contract shall be subject to the supervision of CONTRACTOR. In providing such., services, neither CONTRACTOR nor its agents shall act as officers, employees, or agents of the CITY This Contract shall not constitute or make the parties a partnership or joint venture. .6.5 Third Party Beneficiaries Neither CONTRACTOR nor CITY intends to directly or substantially benefit a third I party by this Contract. - Therefore, the parties agree that there are no third party beneficiaries to this Contract and that no third party shall be entitled to assert a claim against either of them based upon this Contract. The parties expressly acknowledge that it is not their intent to create any rights .or obligations in any. third person or entity under this Contract. BID NO. 02- 09/10 CITY OF MIAMI BEACH Page 71 of 142 DATE: 11/25i 6.6 Notices i Whenever either party desires to give notice to the other such notice must be in writing, sent by certified United States Mail, postage prepaid, return receipt requested, or by hand - delivery with a request for a written receipt of acknowledgment of delivery, addressed to the party for whom it is intended at the place last specified. The place for giving notice shall. remain the same as set forth herein until changed in writing in the manner provided in this section.. For the present, the parties designate the following: For CITY Gus Lopez, Procurement Director Procurement Division 1700 Convention Center Drive, 3r Floor Miami Beach, Florida 33139 With. copies to: City Attorney City of Miami Beach . 1700 Convention Center Drive Miami Beach, Florida 33139 For Contractor Mr. Aquilino Melo, President Trans Florida Development Corp. 13.960 S.W. 144' Avenue Road Miami, Florida 33186 6.7 Assignment and Performance Neither this Contract nor any interest herein shall be assigned, transferred, or encumbered by .either party. In addition, CONTRACTOR shall not subcontract any portion of the work 'required by this Contract except as authorized by Section 27 of the General Conditions. CONTRACTOR represents that all..persons delivering the services required by this Contract have the knowledge and skills, either by training, experience, education, or a combination thereof, to adequately and competently perform the duties obligations, and services set forth in the Scope of Work and to. provide and perform such services to CITY's - satisfaction for the agreed compensation. CONTRACTOR shall perform its duties, obligations, and services under this Contract in a skillful and respectable manner. The quality of CONTRACTOR's performance and - all interim and final product(s) provided to or on behalf of CITY shall be comparable to the best local and national standards. BID NO. 02 -09/10 CITY OF MIAMI BEACH Page 72 of 142 DATE: 11/25/U 6.8 Materiality and Waiver of Breach CITY and CONTRACTOR agree that each requirement, duty, and obligation set forth in these Contract Documents- is substantial and important to the formation of this Contract and, therefore, is a material term hereof. CITY 's failure .to enforce' any provision of this Contract shall not-be deemed a waiver of such provision or modification of this Contract. A waiver of any breach of a provision of this Contract shall not be deemed a waiver of any subsequent . breach and shall not be .construed to be a modification of the terms of this 'Contract. 6.9 Severance In the event a portion of this Contract is found by a court of competent jurisdiction to be invalid, the remaining provisions. shall continue to be effective unless CITY or .CONTRACTOR elects to terminate this Contract. An election to terminate this Contract based upon this provision shall be made within seven (7) days after the finding by the court becomes .final. 6.10 Applicable Law and Venue This Contract shall be enforceable in Miami -Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement.of any or all of the terms or conditions herein exclusive venue'for the enforcement of.same'shall lie in Miami -Dade County, Florida. By entering into this' Contract, CONTRACTOR and -CITY hereby expressly waive any rights either party may have to a trial by jury: of any civil litigation related to, or arising out of the Project. CONTRACTOR shall specifically bind all subcontractors to the provisions of this Contract. 6.11' Amendments No modification, amendment, or alteration, in the terms or conditions contained herein shall be effective unless .contained in a written document prepared with the same or similar formality as this Contract and executed by the Board and CONTRACTOR. 6.12 Priori Agreements This document incorporates and includes all prior negotiations, correspondence., conversations, agreements, and understandings applicable to the matters contained herein and the parties agree that there, are no 'commitments, agreements or understandings concerning the subject_ matter of this Contract that are not contained in this document. Accordingly, the parties agree that no deviation from ' the terms hereof shall be predicated upon any prior representations or agreements, whether'oral or written-. It is further agreed that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless set forth in writing in accordance with Section , 6.11 above. BID NO. 02- 09/10. CITY OF MIAMI BEACH Page 73 of 142 DATE: 11/25/ IN WITNESS WHEREOF, the parties have set their hands and seals the day and year first above written. EST: THE CITY OF MIA I BEA H City Clerk Mayor CONTRACTOR MUST EXECUTE THIS CONTRACT AS INDICATED BELOW. USE CORPORATION OR NONCORPORATION FORMAT, AS APPLICABLE. [If incorporated sign below.] CONTRACTOR ATT ST' (Name of Corporation) B y : �- a g J>f (Corporate 'Sea[) (P t game and Title) �r ° day of �.J , 20 `� 4 y �e [If not incorporated sign below.] CONTRACTOR WITNESSES: Name of Firm) By: (Si nature) (Print Name d Title) day of , 20 CITY REQUIRES FOUR (4) FULLY - EXECUTED CONTRACTS, FOR DISTRIBUTION. APPROVED AS TO FORM & GUAGE &F OR UTION City orney at BID NO. 02 -09/10 CITY OF MIAMI BEACH age 74 of 142 DATE: 11/25/09 00708. FORM CERTIFICATE OF INSURANCE A form Certificate of Insurance will be attached here. BID NO. 02 -09/10 CITY OF MIAMI BEACH PAGE 76 of 140 DATE: 11/25/09 DATE (MM/DD/YYYY) ACORD OP ID ML CERTIFICATE OF LIABILITY INSURANCE `../� 0 7/11/11 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the cert if icate holder Is an ADDITIONAL INSURED the po Icy Ies must endorsed. , su sect to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER NAME: ONE - FFMC BROWN & BROWN OF FLORIDA INC AIC N o, Ext : A/C, No) ivrAIL 14900 NW 79th Court Suite #200 ADDRESS: Miami Lakes FL 33016 -5869 CUSTOMERID #: TRANSI7 Phone:305- 364 -7800 Fax:305- 822 -5687 INSURER(S) AFFORDING COVERAGE NAIC# INSURED INSURER A: Travelers Indemnity Of America 25666 Trans Florida Development Corp INSURER B: Charter Oak Fire Insurance Co. 13960 Sw 144Th Avenue Road Miami FL 33186 INSURER C: Travelers Property Casualty Co INSURER D: Bridgefield Employers Ins. Co. INSURER E: INSURER F: COVERAGES CERT NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. POLICY FFF POLICY EXP INSIR LTR TYPE OF INSURANCE INSR WV POLICY NUMBER (MM/DD/YYYY) (MM/DD/YYYY) LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1, 000 , 000 A X COMMERCIAL GENERAL LIABILITY DTCO1229R5 1 05/22/11 05/22/12 PREMISES (Eaoccurrence) $ 300,000 CLAIMS -MADE [�] OCCUR MED EXP(Anyone person) $ 5,000 X PERSONAL & ADV INJURY $1,000,000 GENERAL AGGREGATE s2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER. IJ /! PRODUCTS - COMP /0P AGG $2,000,000 POLICY X PRO- LOC (' $ JECT AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 B X ANY AUTO DT8101229R53ACOF11 05/22/11 05/22/12 BODILY INJURY (Per person) $ ALL OWNED AUTOS BODILY INJURY (Per accident) $ SCHEDULED AUTOS X PROPERTY DAMAGE X HIRED AUTOS (Per accident) $ X NON -OWNED AUTOS $ C UMBRELLALIAB X OCCUR DTCUP1229R53ATIL11 05/22/11 05/22/12 EACH OCCURRENCE $ 4 , 000 EXCESS LIAR CLAIMS -MADE AGGREGATE $ 4 , 000 , 000 DEDUCTIBLE $ X RETENTION $ 10 , 000 $ D WORKERS COMPENSATION 083045058 05/2271 05/22/12 X AND EMPLOYERS' LIABILITY TORY LIMITS ER YIN ANY PROPRIETOR /PARTNER /EXECUTIVE E.L. EACH ACCIDENT $ 500 000 OFFICER /MEMBER EXCLUDED? /A (Mandatory In NH) E.L. DISEASE -EA EMPLOYEE $ 500 OOO If yes, describe under DESCRI PTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $500 OOO DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) City of Miami Beach is insluded as additional insured with respects to the General Liability & Automobile Liabilit when required by written contract. Re: City of Miami Beach Right of Way Infrastructure Improvement Program Neighborhood 8B,Bayshore:Lower North Bay Road. Invitation Bid: #02 -09 CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Miami Beach AUTHORIZED REPRESENTATIVE 1700 Convention Center Dr Miami Beach FL 33139 © 1988 -2009 ACORP CORPORATION. All rights reserved. ACORD 25 (2009109) The ACORD name and logo are registered marks of ACORD Bond no. SU1104442 007.10. FORM OF PERFORMANCE BOND BY THIS BOND W e Trans Florida Development Corp. as Principal, hereinafter called CONTRACTOR, and Arch Insurance Company as Surety, are bound to the City of Miami Beach, Florida, as Obligee, hereinafter called CITY, in the amount of Four Million Four Hundred Sixty Thouffnd 4,460,745.21 Savan Hirndrad Forty Five and 21111710 O arS ($ } for the payment whereof CONTRACTOR and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally. WHEREAS, CONTRACTOR has by written agreement entered iqto a Contract, Bid /Contract No.. 2-09/1D , awarded the C day of U 20 �� , with CITY which Contract Documents are by reference incorporated herein and made a part hereof, and specifically include provision for liquidated damages, and other damages identified, and for the purposes of this Bond are hereafter referred to as the "Contract "; THE CONDITION OF THIS BOND is that if CONTRACTOR: 1. p e rf or mm s th onf between COPRACTOR and CITY for construction of Ri% of—way e ln ras ructure mporvemen rogram, Neighborhood No. BB Bayshore, Lower North Bay Road the Contract being made a part of this Bond by reference, at the times and in the manner prescribed in the Contract; and 2. Pays CITY all losses, liquidated damages, expenses, costs and attorney's fees including appellate proceedings, that CITY sustains as a result of default by CONTRACTOR under the Contract; and BID NO. 02 -09110 CITY OF MIAMI BEACH PAGE 77 of 140 DATE: 11/25109 FORM OF PERFORMANCE BOND (Continued) 3. Performs the guarantee of all work and materials furnished under the Contract for the time specified in the Contract; then THIS BOND IS VOID, OTHERWISE IT REMAINS IN FULL FORCE AND EFFECT. Whenever CONTRACTOR shall be, and declared by CITY to be, in default under the Contract, CITY having performed CITY obligations thereunder, the Surety may promptly remedy the default, or shall promptly: 3.1. Complete the Project in accordance with the terms and conditions of the Contract Documents; or 3.2. Obtain a bid. or bids - for completing the Project in accordance with the terms and conditions of the Contract Documents, and upon determination by Surety of the lowest responsible Bidder, or, if CITY elects, upon determination by CITY and Surety jointly of - the lowest responsible Bidder, arrange for a contract between such Bidder and CITY, and make available as work progresses (even though there should be a default or a succession of defaults under the Contract or Contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the Contract Price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term "balance of the Contract Price," as used in this paragraph, shall mean the total amount payable by CITY to CONTRACTOR under the Contract and any amendments thereto, less the amount properly paid by CITY to CONTRACTOR. No right of action shall accrue on this bond to or for the use of any person or corporation other than CITY named herein. The Surety hereby waives notice of and agrees that any changes in or under the Contract Documents and compliance or noncompliance with any formalities connected with the Contract or the changes does not affect Surety's obligati n under this Bond. Signed and sealed thi day of � 1 y , 2Q BID NO. 02 -09110 CITY OF MIAMI BEACH PAGE 78 of 140 DATE: 11125/09 FORM OF PERFORMANCE BOND (Continued) WIT ES: Trans Florida Development Corp. (Name of Corporation) T'Sec etary By: gQAr i1na ure) (CORPORATE SEAL) (Pri t Name and Title IN THE PRESENCE OF: INSURANC OMPANY: Arch Ins a e Company By: T Z— Agent and Attorney-in-Fact Charles J. Nielson C % " Address: 300 Plaza Three (Street) — Jersey City, NJ 07311 (City /State /Zip Code) Telephone No.: 201 -743 -4000 BID N0. 02 -09110 CITY OF MIAMI BEACH PAGE 79 of 140 DATE: 11 /25/09 Bond no. SU1104442 00720. FORM OF PAYMENT BOND BY THIS BOND, We Trans Florida Development Corp. a s Principal, hereinafter. called CONTRACTOR, , and Arch insurance Company as Surety, are bound to the City of Miami Beach, Florida, as Obligee, hereinafter called CITY, in the amount of Four Million Four Hundred Sixty Thousand 4,460,745.21 Seven Hundred Forty Five and 21 / 100 - - -- Dollars ($ ) for the payment whereof CONTRACTOR and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally. WHEREAS, CONTRACTOR has by written agreement entered irk a Contract, BIdJ 2 c t, No.: 2 - 09/10 awarded the ��� Y da of ✓I/ , 20 , with CITY which Contract Documents are by reference incorporated herein and made a part hereof, and specifically include provision for liquidated damages, and other damages identified, and for the purposes of this Bond are hereafter referred to as the "Contract'; THE CONDITION OF THIS BOND is that if CONTRACTOR: 1. Pays CITY all losses, liquidated damages, expenses, costs and attorney's fees including appellate proceedings, that CITY sustains because of default by CONTRACTOR under the Contract; and 2. Promptly makes payments to all claimants as defined by Florida Statute 255.05(1) for all labor, materials and supplies used directly or indirectly by CONTRACTOR in the performance of the Contract; THEN CONTRACTOR'S OBLIGATION SHALL BE VOID; OTHERWISE, IT SHALL REMAIN IN FULL FORCE AND EFFECT SUBJECT, HOWEVER, TO THE FOLLOWING CONDITIONS: 2.1. A claimant, except a laborer, who is not in privity with CONTRACTOR and who has not received payment for its labor, materials, or supplies shall, within forty -five (45) days after beginning to furnish labor, materials, or supplies for the prosecution of the work, furnish to CONTRACTOR a notice that he intends to look to the bond for protection. BID NO. 02 -09/10 CITY OF MIAMI BEACH PAGE 80 of 140 DATE: 11/25/09 FORM OF PAYMENT BOND (Continued) 2.2. A claimant who is not in privity with CONTRACTOR and who has not received payment for its labor, materials, or supplies shall, within ninety (90) days after performance of the labor or after complete delivery of the materials or supplies, deliver to CONTRACTOR and to the Surety, written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. 2.3. No action for the labor, materials, or supplies may be instituted against CONTRACTOR or the Surety unless the notices stated under the preceding conditions (2.1) and (2.2) have been given. 2.4. Any action under this Bond must be instituted in accordance with the Notice and Time Limitations provisions prescribed in Section 255.05(2), Florida Statutes. The Surety hereby waives notice of and agrees that any changes in or under the Contract Documents and compliance or noncompliance with any formalities connected with the Contract or the changes does not affect the Surety's obligation under this Bond. / V Signed and sealed this day of 20 P CONTRACTOR T: Trans Florida Development Corp. (Name of Corporation) By: (secretary) na re) oe (Corporate Seal) (Print Wme and Title) .day of LJ �'ti�.� , 20 c BID NO. 02 -09/10 CITY OF MIAMI BEACH PAGE 81 of 140 DAZE: 11/25/09 FORM OF PAYMENT BOND (Continued) IN THE PRESENCE OF: INSURANCE COMPANY: Arch Insur a ompany xi By: Agen an torney -in -Fact ^ Charles J. Nielson Address: 300 Plaza Three (Street) Jersey Cit N 07311 (City /State /Zip Code) Telephone No.: 201 -743 -4000 BID NO. 02 -09/10 CITY OF MIAMI BEACH PAGE 82 of 140 DATE: 11125/09 00721. CERTIFICATE AS TO CORPORATE PRINCIPAL certify that I am the Secretary of the corporation named as Principal in the foregoing Performance and Pa ent Bond (Performance Bond and Payment Bond); that 1110 ,e A rLV , who signed the Bond(s) on behalf of the Principal, was then l�� /P �f said corporation; that I know his /her signature; and his /her signature thereto is genuine and that said Bond(s) was (were) duly signed, sealed and attested to alf of s c ration by authority of its governing body. —� (SEAL) A 55r Secretary (on behalf of) - 7e - ,41us 1 (of 7 Corporation STATE OF FLORIDA ) SS COUNTY OF MIAMI -DADE ) Before me, a Notary Public duly commissioned, qualified and acting personally, appeared Charles J. Nielson to me well known, who being by me first duly sworn upon oath says that he /she has been authorized to execute the foregoing Performance and Payment Bond (Performance Bond and Payment Bond) on behalf of CONTRACTOR named therein in favor of CITY. //1 (' -_.,Subscribed and Swo to before thi day of U I� . My commission expires: January 4, 2013 \`�� \N11V4lollBijj" otary ublic e of Florida ... Lti ? A,io/V by i Bonded • Surety of America :z� o .• ;oe Bonde k �.y'. pi O L q • % ary� � BID NO. 02 -09/10 CITY OF MIAMI BEACH PAGE 83 of 140 DATE: 11123/09 POKIER OF ATTORNEY Know All Men By These Presents: That the Arch Insurance i Company, a corporation organized and:existing. the laws of the State of Missouri, having its principal office in Kansas City, Missouri (hereinafter referred to as the "Company ") does hereby appoint - Mary C. Aceves, Warren M. Alter, Charles D. Nielson, Charles J. Nielson, David R. Hoover and Gicelle Pajon of Miami Lakes, FL (EACH) its true and lawful Attorney -in -Fact, td' make, execute, seal, and deliver from. the date of issuance of this power for and on its behalf as surety, and as its act!and deed:" Any and all bonds and undertakings EXCEPTION: NO AUTHORITY is granted to make; execute, seal and deliver. bonds or undertakings that guarantee the payment or.collection of any promissory note, check, draft or letter of credit.. This authority does not permit the sane obligation to be split into Wd or: more. bonds fri order: to: brkng each: such bond s within. *, the dollar limit of authority'as set forth herein: The Company may revoke this appointmentat:any time The execu of such bonds and undertakings in purs of these presents shall be as binding upon the said Company as fully and amply td. all. intents'and. purposes, as if the same ha been duly_executed and acknowledged by its regularly elected office rs at its principal office in Kansas City, 1Vilssouri_ This Power of Attorney is executed by authority of resolutions adopted `by unanimous. consent of the Board of Directors of the =ny. onMarc h 3 2003 .true. and accurate. co les of which are hereinafter set forth and arehereb certified to b the gned Secretary as. being in full force ar«d effect: ' "VOT,ED t the Ian of -the: Board the President or.art'. Vice.President' or tfie� a ..- ntees deli Ha Y. r pPo >Tha , 9 ted n wnt�ng and filed varith the Secretary, or the Secretary s6� il have the power and:autliarrtjr to.appo nt agents- and:'attorneys-in�fact, and to authorize them to execute on behalf of the* Company, and - attach the.'seal.'of the- Company thereto, bonds and undertakings, reco nizances contracts. of -indemni and. othet . writings, obli ato fn. the. nature.. thereof .rand. : such officers of the Company may appoint agents for accept i ice of process:" This Power. of Attorney is.. signed, sealed. and certified by- facsimile under and by authority of - the following resolution adopted by the unanimous consent of the Board of Directors of the Company on March 3, 2003: VOTED ':';That the signature. of the Chairman - of the. Board, the:.President, or any Vice':President, or their appointees ' designated in writin and- filed with-. the Secreta g g ry, and 'the signature of: the v Secretary,: =.the - "seat of the'.Company; and certifications by the Secretary, may be affixed by facsimile . any power of attorney or bond executed p ursuant to the res adopted by the Board. of Directors -.on: March 3,' 2003; arid` any °such power so executed; se 'aled`arid `certified-' with respect to any bond or undertaking to which it is attached, shall continue *to be, valid and binding upon the Company. OOMLOO13 00 03 03 Page 'I of 2 Printed in U.S.A. In Testimony.Whereof, the Company has caused this` instrument to be signed and its corporate seal to be affixed by their authorized officers, this 8th day of January , 20 Q-L — . Arch Insurance Company Attested and Certified ti Vance CORPORATE t .F•i 1971 ' Martin J. Ni sen, Secretary dward : M.. ,Titus; • ce President, STATE OF NEW YORK SS COUNTY :OF NEW YORK. SS I Peter J. Gaifeo, a Notary Public, do hereby certify that Edward M. Titus and Martin J.' Nilsen personally known to me to be t'e °:same ersoris whose nsmesars: respectively ..as:Vice:,Pres>dent and'Secretary the..Arch: Insurance ompany, a 4. h p Corporation organized :and existing under the laws of the. State of Missouri, subscribed to ;the. foregoing. instrument; ap peared before me this day in person and severally acknowledged that they being thereunto duly auth orized signed, PP sealed with the corporate seal and delivered the said instrument as the ari voluntary act of said corporation and. . their own free and voluntary acts for the uses and purposes-therein set forth. PE'CER.,J. CALL M ESQ." Notary Public,' State of New'YOrk P.eter..L.:Ca! ,. Notary.Pu lic .. No. 02CA0108336 `` My Commissi n expi : s . 5 -03 -2008 av:11f(ed. in New York County, CERTIFICATION .. 'COTmissi.on.:.Expires May 3,::2008. : man do hereb certi that' fihe attached Power of Attorney` dated. L Martih Nilsen, Secretar)i of the Arch Insurance Co p y, Y. that .._...fY..__. . on behalf of the persons) as listed above is a true and correct copy- - an d . th same been in full fo. :'and effect e date. thereof an , is .i_n ,full farce and, effect. on.. the date of . this.. certificate; and. I do further. certify that the said . since..th . . Edward: M.. Titus;..who °executed the Power of Attorney as .Vice President, was on the. date. of execution of the attached r .. Power of.Attorney. the ;duly elected V : President.of the;Arch., Insurance Company.:: ,. IN TESTIMQNY•WHEREOF �' I'have hereunto subscribed my name. an... _affixed the corpora seal of the Arch insurance Company on this _ day of , 20 � s����• frGy'� . re Martin J. ilsen Sec to This" Power:of Alto ney limits:ahe acts.:of those:: named wherein °_to :the bonds: and : specifically named :thereiri and:they. hate: no:authority to bind; the Company _except iii the manner and to,the:.extenf herein, stated PLEASE SENQ ALL.CL,AI(IfI RELATING.T:,Q THIS BC}ND TQ THE FQLLOVIt[NG ADDRESS: _._ Arch Surety 3 Parkway; Suite '1500 Phitadelphia, PA 19102 Onc a co t C COrroRA7E Sews j v 19:1 OOMLOO13 00 03 03 Printed In U.S.A. Page 2 of 2 ■ O 7 Y .mow R. V F, t 1TTO RN Know All Men By These Presents: That.the Arch Insurance Company, a corporation organized and under the laws of tlie of Missouri, having its principal office in Kansas City, Missouri (hereinafter referred to=as the "Cc ") does hereby appoint - Mary C. Aceves, Warren M. Alter, Charles D. Nielson, CharlesJ. Nieison, David R. Hoover and Gicelle Pajon of Miami Lakes, FL (EACH) its true and lawful iey(s) =in -Fact, ' 'o make,._ execute, seal, and deliver from. the date of issuance of this pdwer for and on its behalf as surety, and as. its act�and deed: Any and all bonds and undertakings EXCEPTION: NO AUTHORITY is granted to make, execute, seal and deliver. bonds or undertakings that guarantee the payment or.collection of any promissory note, check, draft or letter of credit.. :.. f t This authority does. not permit the sanhe`obl'igatlon to be: spllt`into .two or more bonds in orde ..to bring each: such bond within` he' dollar limit ofi authority`as set forth The Company may revoke this ap`pointment anytime - The execution of such bonds and undertakings in pursuance- of these presents shall be as binding upon the said Company as fully and amply to. all intents'and ;purposes; as if the..same.had `been : dulw'bxecuted and acknowledged by its - regularly elected officers at its:principalaffce.in.Kansas City, Missouri This Power of Attorney is executed by authority of resol utions:!' opted by unanimous.' consent of the Board of'Directors of - " the Company ..on_ 3; .2003,. true and accurate.copids. of which.are hereinafter set forth and are. hereby certified to: by the undersigned: Secretary as -being in fullforce and effect:.: "VOTED, That.the- Chairman of,the: Board, the President, or any Vice Presiden#; or their appotntees.designated in wnfing:. and flied with the Secretary, or the Secretary shall s have the power'and` to •appo.'rnt agents - and'attorneys in- fact,: and to authorize them to execute on behalf of th Company, and attach the.'seal• -ot the' Company thereto;' bond`s and undertakings, recognizances contracts. of% indemnity :and. other. writings, abligafory n nature: thereof;; and .:any: such officers of the Company may appoint - agents for acceptance of process. ". „ This Power of Attorney is., signed, sealed. and - certified by- facsimile under and by authority of - the following resolution adopted by the unanimous consent.of the Boardof Directors of the Company on March 2003: VOTED, ; That the signature of the Chairman of the. Board;> th °e..President;: or: any. Vice , President; or aheir appointees.. designated in writing and filed with the Secretary and `tf�e signature ;of: theSecretary seal of the .company; arid: certifications by the Secretary, may be affixed by facsimile -,on any power of attorney or bond executed pursuant to the resolution adopted by the Board. of sucli? poore Directors .on'March .3, °`2003; and` any''r so. executed; sealed °arid certified with respect to any bond or undertaking to which it is attached, .shall continue - to be. valid and. binding upon the Company. OOMLOO13 00 03 03 . _;. gage 1 of 2 Printed In U.S.A.