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HomeMy Public PortalAboutjaycee park.pdfAGREEMENT WITH THE CITY OF TYBEE ISLAND, GEORGIA FOR JAYCEE PARK & FIELD IMPROVEMENTS THIS AGREEMENT made this day of i r i,Ap2 , 2023, by and between the City of Tybee Island, Georgia, hereinafter called the "Owner" at P.O. Box 2749, Tybee Island, GA 31328. and Eastern Excavating Co., Inc., hereinafter called the "Contractor", of 24B Telfair Place, Savannah. Georgia 31415. WITNESSETH: WHEREAS, the City of Tybee Island, Georgia, has heretofore solicited proposals for all material. work and improvements and for the doing of all things included within the hereinafter specified Jaycee Park & Field Improvements more fully described in the ITB No.: 2023-775. WHEREAS. the City of Tybee Island, Georgia, did find that the Contractor was the lowest responsible, responsive and preferred offeror for the hereinafter specified Jaycee Park & Field Improvements (hereinafter "Project"). NOW, THEREFORE, for and in consideration of their mutual promises, covenants, undertakings. and agreements, the parties hereto do hereby agree as follows: ARTICLE I - WORK TO BE DONE BY CONTRACTOR Contractor agrees, at its own cost and expense, to do all the work and furnish all the labor, materials, equipment, and other property necessary to satisfactorily do. construct, install, and complete all work and improvements for the Jayee Park & Field Improvements Project for the City of Tybee Island, Georgia (Project), all in full accordance with, and in compliance with and as required by the hereinafter specified Contract Documents for said Contract, and to do, at its own cost and expense, all other things required of the Contractor by said Contract Documents for said work. ARTICLE 11- CONTRACT DOCUMENTS The Contract Documents herein named include all of the following component parts. all of which are as fully a part of this Contract as if herein set out verbatim, subject to all stated exclusions, or, if not attached, as if hereto attached: 1. Invitation to Bid ITB No. 2023-775 and any Addendum(s) thereto 2. Contractor's Proposal including all attachments and addendum thereto 3. General Conditions of the Contract 4. Technical Requirements 5. Contract Drawings / Bid Plans 6. All Bonds, Insurance Certificates and Insurance Policies mentioned or referred to in the foregoing documents 7. Any and all other documents or papers included or referred to in any of the foregoing documents including all Permits 8. Any and all Addenda to the foregoing, all of which are on file with the Owner 1 A ARTICLE III - CONTRACT AMOUNT The Contractor agrees to receive and accept the following unit prices and lump sum prices as full compensation for furnishing all materials and equipment and for doing all work contemplated and embraced in this agreement, and for all loss or damage arising out of the nature of the work aforesaid, or from the action of the elements, or from any unforeseen difficulties or obstructions which may arise to be encountered in the prosecution of the work until its acceptance by the Owner, and for all risks of every description connected with the work, and for well and faithfully completing the whole and entire work and Project, in the manner and according to and in compliance with the Contract Documents as directed by the City or its Engineer in accordance with these documents, and for any and all other things required by the Contract Documents. As a result of the solicitation process and the proposal of Contractor, the parties have agreed that the total amount payable under the contract for all work, equipment and materials is $565,122 for the base bid only (exclusive of the pavilion). ARTICLE 1V- STARTING AND COMPLETION The Contractor shall, and agrees to, commence work for the Project no later than January 5, 2024, and to substantially complete work within 150 days and complete fully all work required by the Contract Documents to the point of Final Acceptance by the Owner within 18 0 days of receipt of the Notice to Proceed. Grassing of the field must occur between April 1st through April 21, 2024. ARTICLE V- PAYMENT TO CONTRACTOR Owner agrees with said Contractor to employ, and does hereby employ. the said Contractor to provide the material and do all the work and do all other things herein above mentioned according to the terms and conditions hereinafter contained or referred to, for the prices aforesaid. and hereby contracts to pay Contractor at the time, in the manner and upon the conditions set forth or referred to in the Contract Documents; and the Owner and the Contractor for themselves, their heirs, executors, administrators, successors and assigns, do hereby agree to the full performance of the covenants herein contained. ARTICLE VI -INVALIDITY AND SEVERABILITY The invalidity of any provision included in any of the Contract Documents shall not be deemed to impair or affect in any manner the validity and enforceability of the remainder of the Contract Documents, and in such event. all the other provisions of the Contract Documents shall continue in full force and effect as if such invalid provision had never been included therein. Owner and Contractor agree that, in such event, the Contract Documents shall be reformed to replace the stricken provision or part thereof with a valid and enforceable provision that achieves, to the maximum extent possible, the intention of the stricken provision. ARTICLE VII -CHOICE OF LAW AND FORUM SELECTION 'l'he Contract Documents shall be construed and controlled by and under the laws of the 2 A this o? day of State of Georgia without regard to conflicts of laws principles. Further, any dispute arising out of or concerning the Contract Documents, or any action or inaction performed thereunder, shall be adjudicated in either (a) the United States Court for the Southern District of Georgia, Savannah Division; or (b) the State or Superior Courts of Chatham County, Georgia, and the parties waive any defenses of personal and/or subject matter jurisdiction to the aforesaid venues. IN WITNESS WI IEREOF, the parties hereto have caused this Instrument to be executed in two original counterparts the day and year first above written. EASTERN EXCAVATING CO., INC. (Contractnr) By: -- -- -- v It's: V; e r ! p rc 3 :4 C -1V Sworn to and subscribed before me this ,D day of cc, , 2023. No Public My commission expires j jA,_ a0, a�oLS (NOTARIAL SEAL) Sworn to and subscribed before me 20* Amy J Cordasco NOTARY PUBLIC Chatham County, GEORGIA My Commission Expires 01/2012025 CITY OF TYBEE ISLAND, GEORGIA (Owner) By: It's: 1444tioly Janet R LeViner NOTARY PUBLIC Notary Public Chatham County, GEORGIA My commission expires: /0—/S -IN-25l My Commission Expres 10/15/2024 (NOTARIAL SEAL) IMPORTANT NOTE: If the Contractor is a corporation, the legal name of the corporation shall be set forth above together with a signature of the officer or officers authorized to sign Contracts on behalf of the corporation; if Contractor is a co -partnership, the true name of the firm shall be set forth above together with the signatures of all the partners: and if Contractor is an individual, his signature shall be placed above. If signature is by an agent other than an officer of a corporation or a member of a partnership, a power -of -attorney must be attached hereto. Signature of Contractor shall also be acknowledged before a Notary Public or other person authorized by law to execute such acknowledgment. 3 A CERTIFICATE TO BE EXECUTED IF CONTRACTOR IS A CORPORATION I, E r . c ` " c Ix, ' certify that I am the V; v e Pr e r; J t n k' ' Q . ^'l`^ rr of the Corporation named as Contractor hereinabove; that by Resolution of the Board of Directors at a 18 . %, meeting held on i^ ,, rtkA \ , 20 -)-7 , a Resolution was passed giving authority to E ,1 < 'u . ixt r to sin the foregoing Contract on behalf of the Contractor; that said officer was then v: c r P r f r: i. ^1/4-- of said corporation by authority of its governing body and is within the scope of its corporated powers and said power has not since been revoked. —.............„ Secretary Date: ] - c2a- 3 (Corporate Seal) County : C- T}aAk\ State: C9_E ©2G i Q 4 A NOTICE OF AWARD DATE: TO: EASTERN EXCAVATING CO., INC. PROJECT: CITY O F TYBEE ISLAND, GEORGIA, JAYCEE PARK & FIELD IMPROVEMENTS You are notified that your Bid dated November 6, 2023, for the above Contract has been considered. You are the apparent successful bidder and will be awarded a contract for City of Tybee Island, Georgia JAYCEE PARK & HELD IMPROVEMENTS Project upon fully conforming with the following requirements for award. Within seven (7) days of the date of this Notice of Award, you must deliver to the OWNER the enclosed contract documents, fully executed, signed and witnessed, and a Certificate of Insurance as follows: 2 originals - Contract 1 original - Performance Bond 1 original - Payment Bond 1 original - Certificate of Insurance certifying compliance with all insurance requirements specified in the Contract Documents Within ten (10) days after receipt of the above documents, OWNER will return to you one (1) fully executed original of the Contract. You may obtain two additional free copies of plans and specifications upon request. You will be notified of the time and place for a preconstruction conference; your proposed work schedule must be delivered to the OWNER at that time. Failure to deliver the aforementioned contract documents and insurance certificate within the time specified will entitle OWNER to consider your bid abandoned, to annul this Notice of Award, and to declare your Bid Security forfeited. City of Tybee Island. Georgia (OWNER) By: (A orized Signature) (Typed Name) 1 NOTICE TO PROCEED TO: EASTERN EXCAVATING CO., INC. DATE: PROJECT: JAYCEE PARK & FIELD IMPROVEMENTS PROJECT You are hereby notified to commence work at Jay Cee Park in Tybee Island, Georgia in accordance with the Contract dated December 1, 2023, and you are to fully and satisfactorily complete the work to the point of Final Acceptance within 120 days after the Notice to Proceed. The City of Tybee Island. Georgia (OWNER) By (SIGNATURE) (TITLE) ACCEPTANCE OF NOTICE Receipt of the above NOTICE TO PROCEED is hereby acknowledged this clay of , 2023. EAS i'ERN EXCAVATING CO., INC. (CONTRACTOR) (TITLE) 1 WAIVER AND RELEASE OF LIEN FROM: x c ^� �' ^ \�. -1 c TO: City of Tybee Island, Georgia (Owner of Project) PROJECT: CITY OF TYBEE ISLAND, GEORGIA, JAYCEE PARK & FIELD IMPROVEMENTS KNOW ALL MEN BY THESE PRESENTS: 1. The undersigned, having been employed by The City of Tybee Island, Georgia, to furnish labor and/or materials for the referenced Project, does hereby waive and release any and all lien and claim or right to lien and claim against the City of Tybee Island, Georgia, on the referenced Project on account of labor or materials, or both furnished for the referenced Project. 2. The undersigned further certifies that to the best of its knowledge and belief, there are no unsatisfied or outstanding claims of any character arising out of the furnishing of labor and/or materials for the referenced Project. 3. The undersigned further agree that, after execution of this document, it will defend at its expense, and save the City of Tybee Island, Georgia. harmless from any and all claims or liens arising out of the undersigned's furnishing of labor and/or materials for the referenced Project. 4. The undersigned has executed this document in order to induce the City of Tybee Island, Georgia, to make final payment to and in no way acts as a release of any claim the undersigned may have against parties other than the City of Tybee Island, Georgia, arising out of the furnishing of labor and/or materials for the referenced Project. IN WITNESS WHEREOF, the undersigned has signed and sealed this instrument this O day of ,[_) e_4 0,1 �� , 2023. STA 1'L, OF c4 c_`DQ.Co IA COUNTY OF C, l,0 Personally appeared before me the undersigned Notary Public in and for said County and State fa. le_ -1—u[.-K , who is known to me and who, after being duly sworn, deposes and says that the facts stated in the above affidavit are true. Amy J Cordasco NOTARY PUBLIC Chatham County, GEORGIA My Commission Expires 01/20/2025 I TARY Pt BT,TC AFFIDAVIT Contractor Affidavit Under OCGA 36-91-21(e) Personally appeared before the undersigned officer duly authorized to administer oaths, } c \ f r who, being duly sworn. states as follows: i'he undersigned hereby execute under oath this affidavit verifying compliance with the provisions of O.C.G.A. § 36-91-21(e) and attest that he has not directly or indirectly made any effort by himself or otherwise to prevent or attempt to prevent competition in the bidding or proposals by any means whatsoever. The undersigned further attests that he has not attempted to prevent or endeavored to prevent anyone from making a bid or proposal by any means whatever nor caused or induced anyone to withdraw a bid or proposal for the work. The undersigned further attests that he is the sole agent or officer who have acted for or represented the corporation in bidding for or procuring the contract. This oath is made in order to be filed with the officer whose duty it is to make payment under the contract. THIS ?)day of 6 ie 2023. t Title Sworn to and subscribed before me, this r.9 day of c_ , 2023. Notary Publ Amy J Cordasco NOTARY PUBLIC Chatham County, GEORGIA My Commission Expires 01/20/2025 4883.9584-8341.1 1 Client#: 1992693 595EASTEEXC ACORDT. CERTIFICATE OF LIABILITY INSURANCE DATE (MMIDDIYYYY) 11/06/2023 THIS CERTIFICATE I5 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 have ADDITIONAL INSURED provisions or 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 any rights to the certificate holder in lieu of such endorsement(s). PRODUCER McGriff Insurance Services LLC 7391 Hodgson Memorial Drive Savannah, GA 31406 912 544-5050 INSURED Eastern Excavating Co., Inc. ; EEC Properties, LLC PO Box 2385 Savannah, GA 31402-2385 COVERAGES CERTIFICATE NUMBER: CONTACT Georgia Certificate Team (A1 PHCON£,No, Ext): 912 544-5050 E-MAIL certificates a riff.com ADDRESS: 9 �me g FAX (AIC, No): INSURER(S) AFFORDING COVERAGE NAIC # INSURER A: Selective Way Insurance Company 26301 INSURER B : Bridgefield Insurance Company 10335 INSURER C: Continental Insurance Company 35289 INSURER D : Westchester Surplus Lines Insurance INSURER E : INSURER F : 10172 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. POLICY PERIOD TO WHICH THIS ALL THE TERMS, INSR TYPE OF INSURANCE ADDLSUBR INSR WVD POLICY NUMBER (MMIDD1YYEYYY) LIMITS A X COMMERCIAL GENERAL o- I XI _ LIABILITY OCCUR X X S2485073 07/01/2023 ,(MMIDDYIYYxYY)_ 07/01/2024 EACH OCCURRENCE $1 000,000 CLAIMS -MADE p PREMISiESO aEga xuE ante) $500,000 APPLIES MED EXP (Any one person) $15 000 PERSONAL&ADV INJURY $1,000,000 GEN'L AGGREGATE LIMIT PER: GENERAL AGGREGATE $2,000,000 POLICY X JE OTHER: L _I LOC PRODUCTS - COMPIOP AGG s2,000,00. 0 S A AUTOMOBILE LIABILITY ANY AUTO OWNED AUTOS ONLY HIRED AUTOS ONLY Drive Oth Car -OWNED ONLY X X S2485073 _ 07/01/2023 07/01/2024 COMazxBINEDidenc)SINGLE UMIT IEa 000 $1�000r X — BODILY INJURY (Per person) 5 SCHEDULED AUTOS BODILY INJURY (Per accident) $ X X 'NON AUTOS PROPERTY DAMAGE (Par accident) $ X $ A X UMBRELLALIAB EXCESS LIAB X OCCUR CLAIMS -MADE X X S2485073 07/01/2023 07/01/2024 EACH OCCURRENCE $1,000,000 AGGREGATE $1,000,000 OED f RETENTION$ $_ B C A D WORKERS ANY OFFICER/MEMBER (Mandatory 1 yes, DESCRIPTION Excess Leased/Rented Pollution COMPENSATION EMPLOYERS' LIABILITY PROPRIETOR/PARTNER/EXECUTIVE EXCLUDED? In NH) describe under OF OPERATIONS YIN NIA. X 19641264 07/01/2023 07/01/2024 X ;MUTE STATUTE E.L. EACH ACCIDENT 5 1 ,000, 000 'Y E.L. DISEASE - EA EMPLOYEE 51,000,000 be'nw E.L. DISEASE - POLICY LIMIT S1,000,000 Liability CL 7039774576 S2485073 G73599507001 07/01/2023 07/01/2023 07/01/2023 _ 07/01/2024 $5,000,000 07/01/2021 any 1 $200,000/ $4M 07/01/2024 $2,000,000 occ/au Max DESCRIPTION OF OPERATIONS ! LOCATIONS 1 VEHICLES (ACORD 101, Additional Remarks Schedule, may he attached if more space is required) **See Forms Attached*" Selective CG7300 0622 GL ElitePac Endorsement.pdf SEL CG7988 0622 GL Extended ElitePac End.pdf SEL CA7809 0423 Commercial Auto ElitePac Ext.PDF SEL CXL456 0320 Umbrella WOS Blanket Basis.pdf (See Attached Descriptions) CERTIFICATE HOLDER CANCELLATION City of Tybee Island 403 Butler Avenue Tybee Island, GA 31328 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2016103) 1 of 2 #S33209714/M32414834 © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD TALLM 0061 13.13-1 DOCUMENT 00 61 13.13 PERFORMANCE BOND FORM KNOW ALL MEN BY THESE PRESENTS, Eastern Excavating Co., Inc (Name & Address of Contractor) hereinafter called "Principal" and Berkley Insurance Company (Nome & Address of Surety) of 475 Steamboat Road, Greenwich, CT -06830 Bond No.: 0249593 State of Georgia, hereinafter called the `Surety" are held and firmly bound unto CITY OF TYBEE ISLAND, hereinafter called the "Owner" in the penal surn of: Five Hundred Sixty Five Thousand One Hundred Twenty Two and 00/100 Dollars ($ 565,122.00 (Contract Sum) lawful money of the United States of America, to be paid to OWNER, for the payment whereof well and truly to be made we do bind ourselves, our respective executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the alogve boundekPrincipakhas entered into a certain contract with the Owner dated the "1-Z day of h) e r *J •, 20 -13 for the construction of: JAYCEE PARK & FIELD IMPROVEMENTS which said contract is incorporated hereby by reference and made a part hereof and is hereinafter referred to as the Construction Contract. NOW THEREFORE, THE CONDITION OF THIS OBLIGATION is such, if the Principal shall promptly and faithfully perform and comply with the terms and conditions of said contract; and shall indemnity and save harmless the Owner against and from all costs, expenses, damages, injury or loss to which said Owner may be subjected by reason of any wrongdoing, including patent infringement, misconduct, want of care or skill, default, or failure of performance on the part of said Principal, its agents, subcontractors or employees, in the execution or performance of said Construction Contract, then this obligation shall be null and void; otherwise it shall remain in full force and effect. 1. 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. Z:\27209\27209.0032\Documents\Construction\Specifications\00 61 13.13 -Performance Bond.docx 0061 13.13-2 3. If there is no Owner Default, the Surety's obligations 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, 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. 11 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, it 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 o Contractor selected to perform the Construction Contract In occordance 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 in 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: 4,4.1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, tender payment therefor to the Owner; or 4.4.2 Deny liability in whole or In part and notify the Owner citing reasons therefor. Z:\27209\27209.0032\Documents\Construction\Specifications\00 61 13.13- Performance 8ond.docx 0061 13.13-3 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 ovailable 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. 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 no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non --performance of fhe Contractor. 7. The Surety shall not be liable to the Owner or others for obligations of the Contractor unrelated to the 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 changes, 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 fhe 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 available to sureties as a defense in the jurisdiction of the suit shall be applicable, 10. Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. Z:\27209\27209.0032\Documents\Construclion\Specifications\00 61 13.13 - Performance Band.docx 0061 13.13--4 1 1. 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 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 ihe Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. 12,2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including at 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 ihe 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. Z:\27209\27204.0032\Documents\Construction\ Specifications\00 61 13,13 - Performance lond.docx 0061 13.13-5 IN WITNESS WHEREOF, this instrument 's executed in six counterparts, each one of which shall be deemed an original, on this the day of €Ct +htc`Ne 20/13 CONTRACTOR AS PRINCIPAL: Eastern Excavating Co., Inc Principal (Principal) Secretary (SEAL) Witness as o rincipal Address SA it / 4 Cn,4 1 / VAS — SURETY: Surety (Company) (Surety) Secretary (SEAL) q� Witness os to Surety Audria R. Ward 6001 Chatham Center Drive, Unit 253 Address Savannah, GA 31405 By (Signature & Title) 24 B Telfair Place Address Savannah, GA 31415 Berkley Insurance Company tVtEehe_te___ e an -Fact Y �otarilyn Ann Biome Z:\27209\27209.0032\Documents\Conslructlon\Specificalfons\00 61 13.13 - Performance Bond.docx 0061 13.13-6 Notes: 1, Date of Bond must not be prior to date of Contract. If Contractor is a Partnership, all partners should execute bond. 2, Bond must be countersigned by a Georgia resident agent. 3. Surety companies executing bonds must appear on the Treasury Department's most current list (Circular 570 as amended) and be authorized to transact business in the state where the project is located, T:\27209\27249.0032\Documents\ConsIruciion\Specificafions\C0 61 13,13 - Performance Bond.docx 0061 13.16-1 DOCUMENT 00 61 13.16 PAYMENT BOND FORM Bond No.: 0249593 KNOW ALL MEN BY THESE PRESENTS, Eastern Excavating Co., Inc (Name & Address of Contractor) hereinafter called "Principal" and Berkley Insurance Company (Name & Address of Surety) of 475 Steamboat Road, Greenwich, CT -06830 State of Georgia, hereinafter called the "Surety" are held and firmly bound unto CITY OF TYBEE ISLAND, hereinafter called the "Owner" in the pend sum of: Five Hundred Sixty Five Thousand One Hundred Twenty Two and 00/100 Dollars ($ 565,122.00 (Contract Sum) ) lawful money of the United States of America, to be paid to OWNER, for the payment whereof well and truly to be made we do bind ourselves, our respective executors, (administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the b ve boundenf.Principal has entered into a certain contract with the Owner dated the day of ! EIC.-0"1 ,` , 20")_3 for the construction of: JAYCEE PARK & FIELD IMPROVEMENTS which said contract is incorporated hereby by reference and made a part hereof and is hereinafter referred to as the Construction Contract. NOW THEREFORE, THE CONDITION OF THIS OBLIGATION Is such, if the Principal shall promptly make payment to all claimants as hereinafter defined, for all labor and materials supplied in the prosecution of the work provided for in said Construction Contract, then this obligation shall be void: otherwise it shall remain in full force and effect, subject, however, to the following conditions: 1. 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. 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 Z:\27209\27209.0032\Documents\Construction\Spocitications\00 61 13.16 - Payment sond.docx 0061 13.16-2 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 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, fo the Owner, stating a claim is being made under this Bond and, with substantial accuracy, the amount of claim. 4,2 Claimants who do not have a direct contract with the Contractor: 4.2.1 Have furnished written notice to the Contractor and sent a copy, ar notice thereof, fo 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 performed, and 4.2.2 Have either received a rejection in whole or in part from the Contractor, or not received within 30 days of furnishing the above notice, any communication from the Contractor by which the Contractor has indicated the claim will be paid directly or Indirectly; and 4.2.3 Not having been paid within 30 days, have sent a written notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to the Contractor. 5. Compliance shall be considered sufficient if a notice required by paragraph 4 is given by the Owner to the Contractor or to the Surety. 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 staling the amounts undisputed and basis for challenging any amounts disputed. 6.2 Pay or arrange for payment of any undisputed amounts. Z:\27209\27209.0032\Documents\Construction\Specifications\00 61 13.16 -Payment Bond.docx 006113.16--3 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 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 fo the Owner, Claimants or others for obligations of the Contractor 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 obligotions 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. 1 1. 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 dote (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 lass 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 imitation available to Sureties as a defense in the jurisdiction of the suit shall be applicable. 12. Notice to the Surely, Owner or Contractor shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by the Surety, Owner, or Contractor, however accomplished, shall be sufficient compliance as of the date received at fhe address shown on the signature page. 13. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was fo be performed, any provision In the 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 this Bond shall be construed as a statutory bond and not as a common law bond. 14. Upon request of any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be made. 15. DEFINITIONS: Z:\27209\27209.0032\Documents\Construction\Specifications\00 61 13,16 - Payment Bond.docx 0461 13.16-4 15,1 Claimant: An individual or entity having a direct contract with the Contractor or with a Subcontractor of the Contractor to furnish labor, material, 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, ail, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's Subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. 15.2 Construction Contract: The agreement between the Owner and the Contractor identified on the 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. Z:\27209\27209.0032\Documents\Construction\ Specificalions\00 61 13.16 - Payment 9ond.docx 006113,16-5 iN WITNESS WHEREOF, this instrument1 execut in six counterparts, eacl,one of which shall be deemed an original, on this the 22 day of r t r , 20-24 CONTRACTOR AS PRINCIPAL: Eastern Excavating Co., Inc Principal (Principal) Secretary (SEAL) Witness as Princi pal .„9 Address AVA/VcJA4N, GA 3///.S SURETY: Surety (Company) (Surety) Secretary (SEP,{LI Witness as to Surety Audria R. Ward 6001 Chatham Center Drive, Unit 253 Address Savannah, GA 31405 By: (Signa ure & Title) 24 B Telfair Place Address Savannah, GA 31415 Berkley Insurance Company 1.6"& t Marilyn Ann 1 me Z:\27209\27'.309.0032\Documents\Construction\Specifications\OC? 61 13.16- Payment Bond.docx 0061 13.16-6 Notes: Date of Bond must not be prior to date of Contract. If Contractor is a Partnership, all partners should execute bond. 2. Bond must be countersigned by a Georgia resident agent. 3. Surety companies executing bonds must appear on the Treasury Department's most current list (Circular 570 as amended) and be authorized to transact business in the state where the project is located. Z:\27209\27209.0032\Documents\Construction\Specifications\00 61 13.16 - Payment Bond.docx No. BI -10243b • J - POWER OF ATTORNEY BERKLEY INSURANCE COMPANY WILMINGTON, DELAWARE NOTICE: The warning found elsewhere in this Power of Attorney affects the validity thereof. Please review carefully. - KNOW ALL MEN BY THESE PRESENTS, that BERKLEY INSURANCE COMPANY (the "Company"), a corporation duly organized and existing under the laws of the State of Delaware, having its principal office in Greenwich, CT, has made, constituted • and appointed, and does by these presents snake, constitute and appoint: Marilyn Ann Biome orAudria R. Ward ofAcrisure, LLC dba Nielson, Blow & Associates of Savannah, GA' its true and lawful Attorney -in -Fact, to sign its name as surety only as delineated below and to execute, seal, acknowledge and deliver any and all bonds and undertakings, with the exception of Financial Guaranty Insurance, providing that no single obligation shall exceed Fifty Million and 00/100 U.S. Dollars (U.S.$50,000,000.00), to the same extent as if such bonds had been duly executed and acknowledged by the regularly elected officers of the Company at its principal office in their own proper persons. This Power of Attorney shall be construed and enforced in accordance with, and governed by, the laws of the State of Delaware, without giving effect to the principles of conflicts of laws thereof. This Power of Attorney is granted pursuant to the following resolutions which were duly and validly adopted at a meeting of the Board of Directors of the Company held on January 25, 2010: • ▪ RESOLVED, that, with respect to the Surety business written by Berkley Surety, the Chairman of the Board, Chief Executive Officer, President or any Vice President of the Company, in conjunction with the Secretary or any Assistant Secretary are hereby authorized to execute powers of attorney authorizing and qualifying the attorney -in -fact named therein _ 3 to execute bonds, undertakings, recognizances, or other suretyship obligations on behalf of the Company, and to affix the corporate seal of the Company to powers of attorney executed pursuant hereto; and said officers may remove any such attorney -in -fact and revoke any power of attorney previously granted; and further RESOLVED, that such power of attorney limits the acts of those named therein to the bonds, undertakings, recognizances, or other suretyship obligations specifically named therein, and they have no authority to bind the Company except in the manner and to the extent therein stated; and further RESOLVED, that such power of attorney revokes all previous powers issued on behalf of the attorney -in -fact named; and further • RESOLVED, that the signature of any authorized officer and the seal of the Company may be affixed by facsimile to any L - power of attorney or certification thereof authorizing the execution and delivery of any bond, undertaking, recognizance, or other suretyship obligation of the Company; and such signature and seal when so used shall have the same force and effect as a. • though manually affixed. The Company may continue to use for the purposes herein stated the facsimile signature of any person or persons who shall have been such officer or officers of the Company, notwithstanding the fact that they may have ,, - ceased to be such at the time when such instruments shall be issued. IN WITNESS WHEREOF, the Company has caused these presents to, be signed and attested by its appropriate officers and its corporate seal hereunto affixed thisa)O`i`day of Itaril ';;34:3.3 . Attest: (Seal) By Ir. edertnan Executive Vice President & Secretary Berkl Insurance Company By aier Se i'T a resident WARNING: THIS POWER INVALID IF NOT PRINTED ON BLUE "BERKLEY" SECURITY PAPER. STATE OF CONNECTICUT ) ) ss: COUNTY OF FAIRFIELD ) Sworn to before me, a Notary Public in the State of Connecticut, this tjT day of and Jeffrey M. Hailer who are sworn to me to be the Executive Vice President respectively, of Berkley Insurance Company. UANloW1,11 cEN CONNECT ICUT WV COMMISSION EXPIAEB APRIL:IO, 2024 otary Public, State of Connecticut , azsa3 , by Ira S. Lederman ecretary, and t, Senior Vice President, CERTIFICATE I, the undersigned, Assistant Secretary of BERKLEY INSURANCE COMPANY, DO HEREBY CERTIFY that the foregoing is a true, correct and complete copy of the original Power of Attorney; that said Power of Attorney has not been revoked or rescinded and that the authority of the Attorney -in -Fact set forth therein, who executed the bond or undertaking to which this Power of Attorney is attached, is in full force and effect as of this date. A Given, under my band and seal of the Company, this '2:2- day of , —1 / (Seal) Vincent P. Forte