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2013-60
CONTRACTOR AGREEMENT FOR FIBER OPTIC NETWORK DESIGN, BUILD AND CONSTRUCTION SERVICES THIS AGREEMENT, made and entered into this /674day of V2013, A.D., by and between the City of Clermont 685 West Montrose Street, Clermont, Florida (hereinafter referred to as "OWNER"), and DANELLA CONSTRUCTION CORPORATION OF FLORIDA, INC. 581 Washburn Road, Melbourne, FL 32934 (hereinafter referred to as "CONTRACTOR"). WITNESSETH: That the parties hereto, for the consideration hereinafter set forth, mutually agree as follows: ARTICLE I - SCOPE OF WORK The CONTRACTOR shall furnish all labor, materials, equipment, machinery, tools, apparatus and transportation and perform all of the work described in the bid documents and specifications entitled: RFB 13-019, Fiber Optic Network Design Build Construction; as prepared by Owner and its agents shall do everything required by this Contract and the other Contract Documents contained in the specifications, which are a part of these Documents. ARTICLE II -THE CONTRACT SUM The OWNER shall pay to the CONTRACTOR, for the faithful performance of the Contract as set forth in the contract documents in lawful tender of the United States, the total contract sum of FIVE HUNDRED AND EIGHT THOUSAND, THREE HUNDRED FIFTY-ONE DOLLARS ($508,351.00). ARTICLE III - COMMENCEMENT AND COMPLETION OF WORK 1. The CONTRACTOR shall commence work within 10 calendar days after receipt of (i) Notice to proceed, and (ii) receipt of all permits required to perform the work, and the CONTRACTOR will substantially complete the same within ONE HUNDRED AND EIGHTY calendar days from date of issuance of the Notice to proceed, unless the period for completion is extended otherwise by the amendment or change order to the Contract. Substantial Completion as provided herein shall be the day the project or designated portion thereof is certified and accepted by the OWNER as sufficiently complete, in accordance with the Contract Documents. 2. The CONTRACTOR shall prosecute the work with faithfulness and diligence. 1 3. The CONTRACTOR further declares he has examined the sites of the work and that from personal knowledge and experience or that he has made sufficient investigations to fully satisfy himself that such sites are correct and suitable for the work and he assumes full responsibility therefore. The provisions of this Contract shall control any inconsistent provisions contained in the specifications. All Drawings and Specifications have been read and carefully considered by the CONTRACTOR, who understands the same and agrees to their sufficiency for the work to be done. It is expressly agreed that under no circumstances, conditions or situations shall this Contract be more strongly construed against the OWNER than against the CONTRACTOR and his Surety. Any ambiguity or uncertainty in the Plans, Drawings or Specifications shall be interpreted and construed by the OWNER'S Project Manager and his decision shall be final and binding upon all parties. It is distinctly understood and agreed that the passing, approval and/or acceptance of any part of the work or material by the OWNER or by any agent or representative as in compliance with the terms of this Contract and/or of the Drawings, Plans and Specifications covering said work shall not operate as a waiver by the OWNER of strict compliance with the terms of this Contract and/or the Drawings and Specifications covering said work; and the OWNER may require the CONTRACTOR and/or his Surety to repair, replace, restore and/or make to comply strictly and in all things with this Contract and the Drawings and Specifications any and all of said work and/or materials which within a period of one year from and after the date of the passing, approval, and or acceptance of any such work or material, are found to be defective or to fail and in any way to comply with this Contract or with the Drawings and Specifications. This provision shall not apply to materials or equipment normally expected to deteriorate or wear out and become subject to normal repair and replacement before their condition is discovered. The CONTRACTOR shall not be required to do normal maintenance work under the guarantee provisions. Failure on the part of the CONTRACTOR and/or his Surety, immediately after Notice to either, to repair or replace any such defective materials and workmanship shall entitle the OWNER, if it sees fit, to replace or repair the same and recover the reasonable cost of such replacement and/or repair from the CONTRACTOR and/or his Surety, who shall in any event be jointly and severally liable to the OWNER for all damages, loss and expense caused to the OWNER by reason of the CONTRACTOR'S breach of this Contract and/or his failure to comply strictly and in all things with this Contract and/or his failure to comply strictly and in all things with this Contract and with the Drawings and Specifications. 4. If required, As-built drawings and warranties acceptable to OWNER must be submitted to the OWNER before final payment will be made to the CONTRACTOR. 2 ARTICLE IV- LIQUIDATED DAMAGES 1. It is mutually agreed that time is of the essence in regard to this Contract. Therefore, notwithstanding any other provision contained in the Contract Documents, should the CONTRACTOR fail to complete the work within the specified time as set by the Notice to Proceed, or any authorized extension thereof, CONTRACTOR shall pay to OWNER the sum of FIVE HUNDRED DOLLARS ($500.00) per calendar day as fixed, agreed and liquidated damages for each calendar day elapsing beyond the specified time date; which sum shall represent the damages sustained by the OWNER, and shall be considered not as a penalty, but in liquidation of damages sustained. Contractor shall pay the liquidated damages amount contained herein to Owner within fifteen (15) days of receipt of Owner's written demand for such payment. 2. For the purposes of this Article, the day of final acceptance of the work shall be considered a day of delay, and the scheduled day of completion of the work shall be considered a day schedule for protection. ARTICLE V - PARTIAL AND FINAL PAYMENTS In accordance with the provisions fully set forth in the General Conditions, and subject to additions and deductions as provided, the OWNER shall pay the CONTRACTOR as follows: 1. CONTRACTOR shall submit a progress payment request by the third (3rd) day of each calendar month for work performed during the preceding calendar month. Upon OWNER's certification and approval accepting the progress payment request, the OWNER shall make a partial payment to the CONTRACTOR, within thirty (30) calendar days, for work performed during the preceding calendar month under the Contract. To insure proper performance of the Contract, the OWNER shall retain ten percent (10%) of the amount of each estimate until final completion and acceptance of all work covered by the Contract. 2. Upon submission by the CONTRACTOR of evidence satisfactory to the OWNER that all payrolls, material bills and other costs incurred by the CONTRACTOR in connection with the construction of the work have been paid in full, and also, after all guarantees that may be required in the Specifications have been furnished and are found acceptable by the OWNER, final payment, including any retainage amount, on account of this Contract shall be made within thirty(30) calendar days after completion of all work by the CONTRACTOR covered by this Agreement and acceptance of such work by the OWNER. ARTICLE VI -ADDITIONAL BONDS It is further mutually agreed between the parties hereto that if, at any time after the execution of this Agreement and the Surety Bonds hereto attached for its faithful performance and payment of labor and materials, the OWNER shall deem the Surety or 3 Sureties upon such bonds to be unsatisfactory, or if, for any reason, such bonds cease to be adequate to cover the performance and payments of the work, the CONTRACTOR shall, at his expense, and within seven (7) days after receipt of Notice from the OWNER to do so, furnish additional bonds, in such form and amounts, and with such Sureties as shall be satisfactory to the OWNER. In such event, no further payment to the CONTRACTOR shall be deemed due under this Agreement until such new or additional security for the faithful performance and for payment of labor and materials of the work shall be furnished in manner and form satisfactory to the OWNER. ARTICLE VII— DISPUTE RESOLUTION -MEDIATION 1. Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to voluntary arbitration or the institution of legal or equitable proceedings by either party. 2. The Owner and Contractor shall endeavor to resolve claims, disputes and other matters in question between them by mediation. 3. The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. ARTICLE VIII—INSURANCE AND INDEMNIFICATION RIDER 1. Worker's Compensation Insurance - The Contractor shall take out and maintain during the life of this Agreement Worker's Compensation Insurance for all his employees connected with the work of this Project and, in case any work is sublet, the Contractor shall require the subcontractor similarly to provide Worker's Compensation Insurance for all of the latter's employees unless such employees are covered by the protection afforded by the Contractor. Such insurance shall comply with the Florida Worker's Compensation Law. In case any class of employees engaged in hazardous work under this contract at the site of the Project is not protected under the Worker's Compensation statute, the Contractor shall provide adequate insurance, satisfactory to the Owner, for the protection of employees not otherwise protected. 2. Contractor's Public Liability and Property Damage Insurance - The Contactor shall take out and maintain during the life of this Agreement Comprehensive General Liability and Comprehensive Automobile Liability Insurance as shall protect it from claims for damage for personal injury, including accidental death, as well as claims for property damages which may arise from operating under this Agreement whether such operations are by itself or by anyone directly or indirectly employed by it, and the amount of such insurance shall be minimum limits as follows: (a) Contractor's Comprehensive General, $1,000,000 Each ($2,000,000 aggregate) 4 Liability Coverages, Bodily Injury Occurrence, & Property Damage Combined Single Limit (b) Automobile Liability Coverages, $1,000,000 Each Bodily Injury&Property Damage Occurrence, Combined Single Limit (c) Excess Liability, Umbrella Form $2,000,000 Each Occurrence, Combined Single Limit Insurance clause for both BODILY INJURY AND PROPERTY DAMAGE shall be amended to provide coverage on an occurrence basis. 3. Subcontractor's Public Liability and Property Damage Insurance - The Contractor shall require each of his subcontractors to procure and maintain during the life of this subcontract, insurance of the type specified above or insure the activities of his subcontractors in his policy, as specified above. 4. Owner's and Contractor's Protective Liability Insurance - The Owner shall procure and furnish an Owner's and Contractor's Protective Liability Insurance Policy with the following minimum limits: (a) Bodily Injury Liability& $1,000,000 each($2,000,000 aggregate) Property Damage Liability Occurrence Combined Single Limit 5. "XCU" (Explosion, Collapse, Underground Damage) - The Contractor's Liability Policy shall provide "XCU" coverage for those classifications in which they are excluded. 6. Broad Form Property Damage Coverage, Products & Completed Operations Coverages - The Contractor's Liability Policy shall include Broad Form Property Damage Coverage, Products and Completed Operations Coverages. 7. Contractual Liability Work Contracts - The Contractor's Liability Policy shall include Contractual Liability Coverage designed to protect the Contractor for contractual liabilities assumed by the Contractor in the performance of this Agreement. 8. Indemnification Rider (a) To cover to the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner and its agents and employees from and against all claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (1) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property(other than the Work itself) , and (2) is caused in whole or in part by any negligent act or omission of the Contractor, any subcontractor, anyone directly or 5 indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or otherwise reduce any other right to obligation of indemnity which would otherwise exist as to any party or person described in this Article. (b) In any and all claims against the Owner or any of its agents or employees by any employee of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligations under this Paragraph shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any subcontractor under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. (c) The Contractor hereby acknowledges receipt of ten dollars and other good and valuable consideration from the Owner for the indemnification provided herein. ARTICLE IX-NOTICES All notices shall be in writing and sent by United States mail, certified or registered, with return receipt requested and postage prepaid, or by nationally recognized overnight courier service to the address of the party set forth below. Any such notice shall be deemed given when received by the party to whom it is intended. CONTRACTOR: Danella Construction Corporation of FL, Inc. 581 Washburn Road Melbourne, FL 32934 Attn.: Joseph Hemple, President OWNER: City of Clermont Attn: Darren Gray, City Manager 685 W. Montrose Street Clermont, FL 34711 ARTICLE X—MISCELLANEOUS 1. Attorneys' Fees. In the event a suit or action is instituted to enforce or interpret any provision of this agreement, the prevailing party shall be entitled to recover 6 such sum as the Court may adjudge reasonable as attorneys' fees at trial or on any appeal, in addition to all other sums provided by law. 2. Waiver. The waiver by city of breach of any provision of this agreement shall not be construed or operate as a waiver of any subsequent breach of such provision or of such provision itself and shall in no way affect the enforcement of any other provisions of this agreement. 3. Severability. If any provision of this agreement or the application thereof to any person or circumstance is to any extent invalid or unenforceable, such provision, or part thereof, shall be deleted or modified in such a manner as to make the agreement valid and enforceable under applicable law, the remainder of this agreement and the application of such a provision to other persons or circumstances shall be unaffected, and this agreement shall be valid and enforceable to the fullest extent permitted by applicable law. 4. Amendment. Except for as otherwise provided herein, this agreement may not be modified or amended except by an agreement in writing signed by both parties. 5. Entire Agreement. This agreement including the documents incorporated by reference contains the entire understanding of the parties hereto and supersedes all prior and contemporaneous agreements between the parties with respect to the performance of services by contractor. 6. Assignment. This agreement is personal to the parties hereto and may not be assigned by contractor, in whole or in part, without the prior written consent of city. 7. Venue. The parties agree that the sole and exclusive venue for any cause of action arising out of this agreement shall be Lake County, Florida. 8. Applicable Law. This agreement and any amendments hereto are executed and delivered in the State of Florida and shall be governed, interpreted, construed and enforced in accordance with the laws of the State of Florida. 9. Records. Contractor expressly understands and acknowledges that any and all documents related to the services provided herein, may be considered records that are subject to examination and production in accordance with Florida's Public Records Law. Contractor expressly agrees that it will comply with all requirements related to said law and that it will hold city harmless for any such disclosure related to Florida's Public Records Law. 7 ARTICLE XI - CONTRACT DOCUMENTS The Contract Documents, as listed below are herein made fully a part of this Contract as if herein repeated. Document Precedence: 1. Contract Agreement 2. Technical Plan and Specifications 3. All documents contained in RFB 13-019, Fiber Optic Network Design Build Construction and CONTRACTOR's August 13, 2013 response thereto, including any all addenda or amendments thereto. 4. Payment and Performance Bonds IN WITN/SS WHEREOF,tthe� parties hereto have executed this Agreement on this /OT day of`��/r m L `2013. City of Cle 411111111ffr Ali,,,�A Ham S. Turville,Jr., Mayor Attest: Tracy Ackroyd, City Cler 4 Danella Construction Corporation of FL, Inc. II By: ....�,.._...I ,∎ Jo:ep Hy ple, ` - 'den A• t: Corpora g cretary (Name Printed or Typed 8 EXHIBIT A SECTION — C PRICE SCHEDULE Final Completion Lump Sum Price (as per construction documents) (Words) Five Hundred eight thousand three hundred fifty one dollars and zero cents (Figures) $ 508,351 00 Contractor's Days to Final Completion: 180 Calendar Days. Not to exceed: One-Hundred Eighty (180) Calendar Days from Notice To Proceed. By signing below, the respondent agrees to all terms, conditions, and specifications as stated in this solicitation, and is acting in an authorized capacity to execute this response.The respondent also certifies that it can and will provide and make available,at a minimum,the items set forth in this solicitation Respondent Information and Signature Company Name(print) Danella Construction Corporation of Flonda, Inc Street Address* 581 Washburn Road Melbourne,FL.32934 Mailing Address Of different)* Telephone: 321-259-6124 Fax: 321-242-0106 Email dhowick @danella.corn Payment Terms. 0 % days,net 30 FEIN 59 - ,; .3991/ , % Professional License No.: CUC1224940 Signature . _ 01 Date 8-13-2013 Pnnt Name: Daniel J. Howick Title Business Development Manager Does the respondent accept payment using the City's MASTERCARD? ❑ Yes ® No END OF SECTION —C RFB No. 13-019 Page 16 of 52 CHANGE ORDER FORM Purchase Order Number N/A Bid Number RFB 13-019 Change Order Number 1 Change Order Date 9/11/2013 Project Name Fiber-Optic Network Design/Const Department Information Technology Job Location City of Clermont VENDOR INFORMATION: Company Name Danella Construction Corporation of Florida, Inc Address 581 Washburn Road City, St, Zip Melbourne, FL 32934 Contact Name Dan Howick Telephone 321-259-6124 DESCRIPTION OF CHANGE: Alteration,deviation,addition,or deletion caused by conditions encountered dunng construction not covered by the specifications and drawings of the project(attach additional pages if necessary) 1) Change backbone path to go down Chestnut instead of Seminole 2) Remove lateral to 8th Street trail head ITEM AMOUNT A ORIGINAL CONTRACT VALUE $ 508,351 B AMOUNT OF THIS CHANGE ORDER Council approval required if over 10%of contract $ -13,417 price,not to exceed$25,000 C PERCENT OF CONTRACT VALUE THIS CHANGE ORDER (B/A) % -2 64 D AMOUNT OF PREVIOUS CHANGE ORDERS $ E TOTAL AMOUNT OF ALL CHANGE ORDERS (B+D) $ -13,417 F PERCENT OF CONTRACT OF ALL CHANGE ORDERS (E/A) 10%Maximum % -2 64 G NEW CONTRACT VALUE (A+E) $ 494,934 This C . qe rder i •t valid without the following signatures: . _ �Lrr/' ,-23-/3 CO RACTO- Date P CT HITECT/ENGINEER Date e4/4 3 cr-1 i- i3 DEPARTMENT DIRECTOR Date PURCHASING ANAGER/CI MANAGER Date Change Orders over 10%, not to exceed$25,000 of the onginal contract, require the following signatures CITY OF CLERMONT ATTEST Harold Turville, Mayor Date Tracy Ackroyd, City Clerk Date Rev 3-19-13 Client#:480 TOTALRISK MM/DDM YYY) DD/Y ACORDrw, CERTIFICATE OF LIABILITY INSURANCE DATE 9/17/2013( M/ , -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 certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed.If SUBROGATION IS WAIVED,subject 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 CONTACT NAME P.Bowers The Simkiss Agency,Inc. PHONE 610 727-5300 FAX 610-727-5414 P.O. Box 1787 E-MAIL o,Eat) (A/C,No) 2 Paoli Office Park ADDRESS INSURER(S)AFFORDING COVERAGE NAIL# Paoli, PA 19301 INSURERA Amer Contr Ins CoRisk Retentio 12300 INSURED DANELLA COMPANIES, INC. INSURER B ACIG Insurance Company 19984 2290 BUTLER PIKE INSURER C PLYMOUTH MEETNG, PA 19462 INSURER D INSURER E INSURER F COVERAGES CERTIFICATE 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 CONTRACT OR 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 IN TYPE OF INSURANCE INSR WVD POLICY NUMBER POLICY EFF POLICY EXP LIMITS (MM/DD/Y1fYY) (MM/DD/YYW) A GENERAL LIABILITY GL13000005 06/01/2013 06/01/2014 EACH OCCURRENCE $5,000,000 X COMMERCIAL GENERAL LIABILITY GL13X00005 06/01/2013 06/01/2014 RA MISES?a occur ante) $100,000 CLAIMS-MADE X OCCUR MED EXP(Any one person) $5,000 PERSONAL&ADV INJURY $5,000,000 GENERAL AGGREGATE $5,000,000 GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS-COMP/OP AGG $5,000,000 7 POLICY X PRO LOC $ JECT A AUTOMOBILE LIABILITY AL13000001 06/01/2013 06/01/2014 COMBIN S (Ea accdED ent) INGLE LIMIT $5,000,000 X ANY AUTO BODILY INJURY(Per person) $ ALL OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS AUTOS NON-OWNED PROPERTY DAMAGE $ HIRED AUTOS _ AUTOS (Per accident) UMBRELLA LIAB _ OCCUR EACH OCCURRENCE $ _ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED RETENTION$ $ B WORKERS COMPENSATION WCA000000713 06/01/2013 06/01/2014 X WC STATU- OTH- AND EMPLOYERS'LIABILITY TORY LIMITS ER Y/N ANY PROPRIETOR/PARTNER/EXECUTIVE WCA000004313(NJ) E L EACH ACCIDENT $1,000,000 OFFICER/MEMBER EXCLUDED? N N/A (Mandatory In NH) WCA000008413(DC, E L DISEASE-EA EMPLOYEE $1,000,000 It yes,describe under DESCRIPTION OF OPERATIONS below NY, MA, RI,WI) E L DISEASE-POLICY LIMIT $1,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(Attach ACORD 101,Additional Remarks Schedule,If more space Is required) Re: RFB 13-019 - With respect to the acts and negligence of Danella Companies,Inc.,et al and Danella Corporation of FL, Inc.,City of Clermont and Magellan Advisors, LLC, 1000 South Pointe Dr.,Suite 703, Miami Beach, FL 33139 are included as additional insured with respect to the above General Liability policy,as required by written contract. - CERTIFICATE HOLDER CANCELLATION City of Clermont SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 635 W Montrose Street ACCORDANCE WITH THE POLICY PROVISIONS Clermont, FL 34711 AUTHORIZED REPRESENTATIVE ©1988-2010 ACORD CORPORATION All rights reserved ACORD 25(2010/05) 1 of 1 The ACORD name and logo are registered marks of ACORD #S84965/M77590 AD - _ r ' SECTION - K BONDS PERFORMANCE BOND BOND #019044634 THIS BOND IS ISSUED SIMULTANEOUSLY WITH LABOR AND MATERIAL PAYMENT BOND IN FAVOR OF THE°OWN ER CONDITIONED ON THE FULL AND FAITHFUL PERFORMANCE OF THE CONTRACT KNOW ALL MEN BY THESE PRESENTS: Danella Construction Corporation of Florida, Inc. - 581 Washburn Road, Melbourne, FL 32934 (Full name and address or legal title of CONTRACTOR) as Principal, hereinafter called CONTRACTOR, and Liberty Mutual Insurance Company 512 Township Line Road, Blue Bell, Pa 19422 (Full name and address or legal title of Surety) as Surety, hereinafter called Surety, are held and firmly bound unto the City of Clermont, as Obligee, hereinafter called OWNER, in the amount of Five Hundred Eight Thousand Three Hundred Fifty One----00/100 (Dollar Amount in Words) ($ 508,351 00 (Dollar Amount in Numbers) (Sum equal to 100 percent of Contract amount) for the payment whereof CONTRACTOR and Surety bind themselves, ,their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, CONTRACTOR has by written Agreement dated , entered into a Contract with OWNER for Fiber optic Network Design in accordance with Drawings and Specifications prepared by for the OWNER, which contract is by reference-Made a part hereof, and is hereinafter referred to as the Contract NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if CONTRACTOR shall promptly and faithfully perform said Contract, then this obligation shall be null and void, otherwise it shall remain in full force and effect The Surety hereby waives notice of any,alteration or extension of time made by the OWNER Whenever CONTRACTOR shall be, and declared by OWNER to be in default under the Contract, the OWNER having performed OWNER'S obligations thereunder, the Surety may RFB No 13-019 Page 34 of 52 SECTION — K BONDS promptly remedy the default, in accordance with Section 255 05, Florida Statutes, or shall promptly, 1 ) Complete the Contract in accordance with its terms and conditions or within sixty (60) calendar days 2 ) Obtain a bid or bids for completing the Contract in accordance with its terms and conditions, and upon determination by Surety of the lowest responsible bidder, or if the OWNER elects, upon determination by the OWNER and the Surety jointly of the lowest responsible bidder, arrange for a contract between such bidder and OWNER, 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 OWNER to CONTRACTOR under the Contract and any amendments thereto, less the amount properly paid by OWNER to CONTRACTOR 3 ) Upon termination of the Contract by the OWNER due to the CONTRACTOR'S failure to perform under the conditions herein set forth in the Contract, the OWNER may without prejudice to any right or remedy and after giving the CONTRACTOR and his Surety if any, seven (7) days written notice, terminate the employment of the CONTRACTOR, and take possession of the site and all of the materials, equipment, tools, construction equipment, and machinery thereon owned by the CONTRACTOR and may finish the work by whatever method he may deem expedient. In such case the CONTRACTOR shall not be entitled to receive any further payment until the work is finished. 4.) A claimant, except a laborer, who is not in privity with the Principal and who has not received payment for his labor, materials or supplies shall, within 45 days after beginning to furnish labor, materials or supplies for the prosecution of the work, furnish the Principal with a notice that he intends to look to the bond for protection, and 5 ) A claimant who is not in privity with the Principal and who has not received payment for his labor, materials, or supplies shall, within 90 days after performance of the labor or after complete delivery of materials or supplies, deliver to the Principal and to the Surety written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment 6 ) Other than a suit by OWNER, no action shall be instituted against the Principal or the Surety on the bond after one (1) year from the performance of the labor or completion of delivery of the materials or supplies. No right of action shall accrue on this bond to or for the use of any person or corporation other than the OWNER named herein or the heirs, executors, administrators or successors of the OWNER RFB No 13-019 Page 35 of 52 SECTION — K BONDS THE FOREGOING PERFORMANCE BOND WAS SIGNED AND SEALED THIS 17th DAY OF September 201 3 DANELLA CONSTRUCTION CORPORATION OF FLORIDA, INC (Pnncipal) (Seal) (Witness) By (Manual Signature) (Title) LIBERTY MUTUAL INSURANCE COMPANY (Surety) (Seal) 1� --ss) Theresa Bassett i anua ignature Daniel P Dunigan, Attorney in Fact (Title) N/A (Resident Agent as Attorney-in-Fact) n/a (Witness) 3 Valley Square, Ste 350 (Address) 512 'Township Line Road Bluc Bell, PA 19423 (215) 283-6476 (Telephone Number) Power of Attorney attached hereon RFB No 13-019 Page 36 of 52 SECTION — K BONDS BOND #019044634 LABOR AND MATERIAL PAYMENT BOND THIS BOND IS ISSUED SIMULTANEOUSLY WITH THE PERFORMANCE BOND IN FAVOR OF THE OWNER CONDITIONED ON THE FULL AND FAITHFUL PERFORMANCE OF THE CONTRACT KNOW ALL MEN BY THESE PRESENTS: That Danella Construction Corporation of Florida, Inc - 581 Washburn Road, Melbourne, FL 32934 (Full name and address or legal title of CONTRACTOR) as Principal, hereinafter called CONTRACTOR, and Liberty Mutual Insurance Company 512 Township Line Road, Blue Bell, Pa. 19422 (Full name and address or legal title of Surety) as Surety, hereinafter called Surety, are held and firmly bound unto the City of Clermont as Obligee, hereinafter called OWNER, in the amount of Five Hundred Eight Thousand Three Hundred Fifty One---00/100 (Dollar Amount in Words) ($ 508,351 00 ) (Dollar Amount in Numbers) (Sum equal to 100 percent of Contract amount) for the payment whereof CONTRACTOR and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, Principal has by written Agreement dated , entered into a Contract with OWNER for the construction of Fiber Optic Cable Design, in accordance with Drawings and Specifications prepared by for the OWNER, which contract is hereinafter referred to as the Contract NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Principal shall promptly make payment to all claimants as hereinafter defined, for all labor and materials used or reasonably required for use in the performance of the Contract, then this obligation shall be void, otherwise it shall remain in full force and effect, subject, however to the following conditions in accordance with Section 255 05, Florida Statutes 1 ) A claimant is defined as one having a direct contract with the Principal or with a subcontractor of the Principal for labor, material, or both, used or reasonably required for use in the performance of the Contract, labor and material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the Contract RFB No 13-019 Page 37 of 52 SECTION — K BONDS 2.) The above-named Principal and Surety hereby jointly and severally agree with the OWNER that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety (90) days after the date on which he last of such claimant's work or labor was done or performed, or materials were furnished by such claimant, may sue on this bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon. The OWNER shall not be liable for the payment of any costs or expenses of any such suit 3 ) Other than the OWNER, no suit or action shall be commenced hereunder by any claimant a ) Unless claimant, other than one having a direct contract with the Principal shall have given written notice to any two of the following The Principal, the OWNER, or the Surety above named, within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, or for whom the work or labor was done or performed Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal, OWNER or Surety, at any place where an office is regularly maintained for the transaction of business, or served in any manner in which legal process may be served in the state in which the aforesaid project is located, save that such service need not be made by a public officer b ) After the expiration of one (1) year following the date on which Principal ceased work on said Contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law. c ) Other than in a state court of competent jurisdiction in and for the county or other political subdivision of the state in which the project, or any part thereof, is situated, or in the United States District Court for the district in which the Project, or any part thereof, is situated, and not elsewhere d ) A claimant, except a laborer, who is not in privity with the Principal and who has not received payment for his labor, materials or supplies shall, within 45 days after beginning to furnish labor, materials or supplies for the prosecution of the work, furnish the Principal with a notice that he intends to look to the bond for protection, and e.) A claimant who is not in privity with the Principal and who has not received payment for his labor, materials or supplies shall, within 90 days after performance of the labor or after complete delivery of materials or supplies, RFB No 13-019 Page 38 of 52 SECTION - K BONDS deliver to the Principal and to the Surety written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. f) No action shall be instituted against the Principal or the Surety on the bond after one (1) year from the performance of the labor or completion of delivery of the materials or supplies The amount of this bond shall be reduced by and to the extent of a payment or payments made In good faith hereunder, inclusive of the payment by Surety of mechanics' liens which may be filed or record against said improvement whether or not claim for the amount of such lien be presented under and against this bond THE FOREGOING LABOR AND MATERIAL PAYMENT BOND WAS SIGNED AND SEALED THIS 17th DAY OF September 2012= 3 Danella Construction Corporation of Florida, Inc. (Pnncipal) (Seal) (Witness) l I le By: �, v __. 0 1 al S•natur- e Liberty Mutual Insurance Company / (Surety) (Seal) 04,W. 1■7147 Theresa Bassett, Witness (Manua Signatur• f'/ Daniel P Dunigan, Attorney in Fact (Title) no longer required (Resident Agent as Attorney-in-Fact) 3 Valley Square, Ste 350 n/a $ ,1 (Witness) 512 Township Line Road ` • , - Blue Bell, PA 19422 - (Address) - `. c- C Power of Attorney attached hereon r;'. `.,,, . RFB No 13-019 Page 39 of 52 THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. 5375658 This Power of Attorney limits the acts of those named herein,and they have no authority to bind the Company except in the manner and to the extent herein stated Certificate No ' American Fire and Casualty Company Liberty Mutual Insurance Company The Ohio Casualty Insurance Company Peerless Insurance Company West American Insurance Company POWER OF ATTORNEY KNOWN ALL PERSONS BY THESE PRESENTS. That Amencan Fire&Casualty Company and The Ohio Casualty Insurance Company are corporations duly organized under the laws of the State of Ohio,that Liberty Mutual Insurance Company is a corporation duly organized under the laws of the State of Massachusetts,that Peerless Insurance Company is a corporation duly organized under the laws of the State of New Hampshire,and West Amencan Insurance Company is a corporation duly organized under the laws of the State of Indiana(herein collectively called the"Companies"),pursuant to and by authonty herein set forth,does hereby name,constitute and appoint, WILLWM F SIMKISS,RICHARD J DECKER,JAMES L HAHN, DANIEL P DUNIGAN,JOSEPH W KOLOK,JR.,BRIAN C BLOCK, .. . all of the city of PAOLI ,state of PENNSYLVANIA each individually if there be more than one named,its true and lawful attorney-in-fact to make,execute,seal,acknowledge and deliver,for and on its behalf as surety and as its act and deed,any and all undertakings,bonds,recognizances and other surety obligations,in pursuance of these presents and shall be as binding upon the Companies as if they have been duly signed by the president and attested by the secretary of the Companies in their own proper persons IN WITNESS WHEREOF,this Power of Attorney has been subscnbed by an authonzed officer or official of the Companies and the corporate seals of the Companies have been affixed thereto this 10th day of May , 2012 c,No FiR ,tv lost/ u eF $. a ER,e re Casualt Compaw 4 , �0 4* The Ohio CasInsurane Comp0 caxgmirt Liberty Mutual urance Company c 1 1901 •• Peerless Insm b +' z\SEAL,n, 6 cc,� 4, West AmencNe 0 1iENE,k 'ONCE CC Cti 4a JC1 c By: rca I- STATE OF WASHINGTON ss Gregory W Davenport,Assistant Secretary -0 c COUNTY OF KING — 0 o 0 On this fah day of May , 2012 ,before me personally appeared Gregory W Davenport,who acknowledged himself to be the Assistant Secretary of American Fire and >,N 0? Casualty Company,Liberty Mutual Insurance Company,The Ohio Casualty Company,Peerless Insurance Company and West Amencan Insurance Company,and that he,as such,being d III .- > authonzed so to do,execute the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authonzed officer Q Z as IN WITNESS WHEREOF,I have hereunto subscnbed my name and affixed my notanal seal at Seattle,Washington,on the day and year first above wntten Q M ,.e,,,0 Rho},•,,`', w OVI 0 RI V - 4OTAFV By' a.„0 a. PU JC s KD Riley,No Public c o d � r_vtAsrejfl,` d co c E This Power of Attorney is made and executed pursuant to and by authority of the following By-laws and Authonzations of Amencan Fire and Casualty Company,The Ohio Casualty Insurance t o o4-' Company,Liberty Mutual Insurance Company,West Amencan Insurance Company and Peerless Insurance Company,which resolutions are now in full force and effect reading as follows ++tii ea Li). ARTICLE IV-OFFICERS-Section 12 Power of Attorney Any officer or other official of the Corporation authorized for that purpose in wnting by the Chairman or the President,and subject d p e to such limitation as the Chairman or the President may prescnbe,shall appoint such attorneys-in-fact,as may be necessary to act in behalf of the Corporation to make,execute,seal, :a E 6 acknowledge and deliver as surety any and all undertakings,bonds,recognizances and other surety obligations Such attorneys-in-fad,subject to the limitations set forth in their respective w C v powers of attorney,shall have full power to bind the Corporation by their signature and execution of any such instruments and to attach thereto the seal of the Corporation When so >13 'l '”. executed,such instruments shall be as binding as if signed by the President and attested to by the Secretary Any power or authonty granted to any representative or attorney-in-fact under as e .E v the provisions of this article may be revoked at any time by the Board,the Chairman,the President or by the officer or officers granting such power or authonty r N To c E 00 ,,6., ` ARTICLE XIII-Execution of Contracts-SECTION 5 Surety Bonds and Undertakings Any officer of the Company authonzed for that purpose in wnting by the chairman or the president, .-M Zc and subject to such limitations as the chairman or the president may prescnbe,shall appoint such attorneys-in-fad,as may be necessary to act in behalf of the Company to make,execute, c o seal,acknowledge and deliver as surety any and all undertakings,bonds,recognizances and other surety obligations Such attorneys-in-fact subject to the limitations set forth in their u respective powers of attorney,shall have full power to bind the Company by their signature and execution of any such instruments and to attach thereto the seal of the Company When so I--0 executed such instruments shall be as binding as if signed by the president and attested by the secretary Certificate of Designation-The President of the Company,acting pursuant to the Bylaws of the Company,authonzes Gregory W Davenport,Assistant Secretary to appoint such attorney-in-fact as may be necessary to act on behalf of the Company to make,execute,seal,acknowledge and deliver as surety any and all undertakings,bonds,recognizances and other surety obligations Authorization-By unanimous consent of the Company's Board of Directors,the Company consents that facsimile or mechanically reproduced signature of ariy assistant secretary of the Company,wherever appeanng upon a certified copy of any power of attorney issued by the Company in connection with surety bonds,shall be valid and biding upomthe Company with the same force and effect as though manually affixed _ C I,David M Carey,the undersigned,Assistant Secretary,of Amencan Fire and Casualty Company,The Ohio Casualty Insurance Company,Libeity-Mufual Insurance Compariyi West American Insurance Company and Peerless Insurance Company do hereby certify that the original power of attorney of which the foregoing is a full;lrue and correct'cop?of the Power¢f Attorney executed by said Companies,is in full force and effect and has not been revoked �/ _ °y z , IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed the seals of said Companies this/! " day of 5ei'►1b 20�1`y-. -- - =t, -- �¢\OM No, JP„;tY IN3(,,,,9 e°,` 4u PF ,b ,gURAycFP _sl AMERtc.,q_ `a,r,`{'k ...•, ` f 0 +. Plc°P.PQPAIE4 A.p c. ® .® ®.. ® � 7442 � 't�V 6 � � By: %VIZ:4, p�G SL;AL. ��SEAL a ey r -,A SaAi.Ra David M Carey,Assistant Secretary �(ty cC�P 4�OHIO w sc s 4tENE>V` �4°4NGE C4 � POA-AFCC,LMIC,OCIC,PIC&WAIC LMS_12873_041012