Item O09
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 1/28/09 - KW
Division: County Attorney
Bulk Item: Yes
No~
Staff Contact Person: Bob Shillinger. #3470
AGENDA ITEM WORDING:
Approval to schedule an Attorney-Client Closed Session of the Board of County Commissioners in the
matter of Tropex Construction Service. Inc. vs. Monroe County. CA P 06-44 to be held at the regularly
scheduled meeting in Key Largo on February 18,2009.
ITEM BACKGROUND:
This suit was filed by the former general contractor for the Tavernier Fire Station which walked off the
job prior to the commencement of construction. The County has filed a counterclaim alleging breach of
contract and included the General Contractor's surety as an additional defendant. In addition to the
case between the County and Tropex, Tropex is in litigation with its surety. A copy of that complaint is
included as part of the agenda back-up information. As part of an effort to settle both cases, a
mediation session has been scheduled for January 19, 2009. If that mediation session produces a
proposed settlement agreement and the Board desires to discuss that proposal in a closed session, a
closed session would need to be scheduled for a future date to be determined by the Board.
Legal staff desires direction from the Board. Per F. S. 286.011(8), the subject matter of the meeting
shall be confined to settlement negotiations or strategy sessions related to litigation expenditures.
Present at the meeting will be the Commissioners, County Administrator Roman Gastesi, County
Attorney Suzanne Hutton, Chief Assistant County Attorney Bob Shillinger; special litigation counsel Ira
Libanoff, Esq. and a certified Court Reporter.
PREVIOUS RELEVANT BOCC ACTION:
12/19/07 BOCC approval to hold Closed Session on 1/16/08
1/16/08 BOCC held Closed Session
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
Approval.
TOTAL COST: Est. $200 INDIRECT COST:
BUDGETED: Yes -2L. No
COST TO COUNTY: Est. $200
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No X
AMOUNTPERMONTH_ Year
APPROVED BY: County Arty --X- OMBIPurchasing _ Risk Management _
DOCUMENTATION:
Included X
Not Required _
DISPOSITION:
AGENDA ITEM #
'>tI~--
Case 1 :08-cv-20484-JAL Document 1
,
Entered on FLSD Docket 02/22/200~ILEl0.:bve 1J6T45D.c.
ELEcTRONIC
February 22, 2008
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
CLARENcE MADDOX
CLERK U.S. OIST. CT.
S. D. OF FLA.' MIAMI
CASE NO.:
DEVELOPERS SURETY AND INDEMNITY
COMPANY, an Iowa corporation,
08-CV -20484-Lenard- Torres
Plaintiff,
vs.
TROPEX CONSTRUCTION SERVICES, INC.,
a Florida corporation, ANGEL M. P AREJA,
and JORGE IGLESIAS
Defendants.
/
COMPLAINT FOR INDEMNIFICATION
AND SEEKING INJUNCTIVE RELIEF
Plaintiff, DEVELOPERS SURETY AND INDEMNITY COMPANY ("DEVELOPERS"),
by and through its undersigned counsel, hereby sues the Defendants, TROPEX CONSTRUCTION
SERVICES, INC. ("TROPEX"), ANGEL M. PAREJA and JORGE IGLESIAS (collectively with
TROPEX, the "INDEMNITORS"), and states as follows:
JURISDICTION AND VENUE
1. Plaintiff, DEVELOPERS, is a corporation organized and existing under the laws of
the State of Iowa, and as such, is a citizen of the State of Iowa. DEVELOPERS maintains its
principal place of business in the State of California.
2. TROPEX is a corporation organized and existing under the laws of the State of
Florida, and as such, is a citizen of the State of Florida. TROPEX maintains its principal place of
business in the State of Florida.
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3. Defendant P AREJA, upon information and belief, is a citizen of the State of Florida
with his primary residence in Florida.
4. Defendant IGLESIAS, upon information and belief, is a citizen ofthe State of Florida
with her primary residence in the State of Florida.
5. This is an action seeking the recovery of damages in excess of $75,000, excluding
costs, interest and attorney's fees.
6. Jurisdiction is predicated upon diversity of citizenship, 28 U.S.C. S 1332, because the
plaintiff and defendants are citizens of different states and the amount in controversy is in excess of
$75,000.
7. Venue is appropriate in the Southern District of Florida based upon the residence of
the defendants and because the cause of action accrued in the Southern District of Florida.
GENERAL ALLEGATIONS
8. As a condition precedent to DEVELOPERS's issuing surety bonds on behalf of
TROPEX, the INDEMNITORS, on or about September 27,2004, executed an Indemnity Agreement
(the "Agreement") in favor of DEVELOPERS. A true and correct copy of the Agreement dated
September 27,2004 is attached hereto and made a part hereof as Exhibit "A".
9. Pursuant to the First Article ofthe Agreement, INDEMNITORS jointly and severally
pledged to indemnify DEVELOPERS for any loss and/or expenses incurred in connection with the
issuance of the Bonds:
. . . indemnify and hold harmless [DEVELOPERS] from and
against any and aI/liability, loss claims, costs, damages, attorneys'
fees and expenses of whatsoever kind or nature, together with
interest thereon at the maximum rate allowed by law, which
[DEVELOPERS] may sustain or incur by reason of or in consequence
of the execution and delivery by [DEVELOPERS] of any" Bond on
behalf of [TROPEX], whether or not [DEVELOPERS] shall have
paid any amount on account thereof. . . .
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10. Moreover, pursuant to the Third Article of the Agreement, the INDEMNITORS
further agreed to post collateral with DEVELOPERS sufficient to cover any actual and/or potential
losses under any of the Bonds:
If [DEVELOPERS] shall establish a reserve account to cover any
liability, claim asserted, suit or judgment under any Bond, the
Indemnitor shall, immediately upon demand and whether or not
[DEVELOPERS] shall have made any payment therefor, deposit
with [DEVELOPERS] a sum of money equal to such reserve
account and any increase thereof as collateral security on such
Bond, and such sum and other money and property which shall have
been or shall thereafter be pledged as collateral security on any such
Bond shall be available, at the discretion of [DEVELOPERS], as
collateral security on all Bonds coming within the scope of this
Agreement or for any other indebtedness ofIndemnitor or [TROPEX]
to [DEVELOPERS]. If Indemnitor shall fail, neglect or refuse to
deposit with [DEVELOPERS] the collateral demanded by
[DEVELOPERS], [DEVELOPERS] may seek a mandatory injunction
to compel the deposit of such collateral together with any other
remedy at law or in equity that [DEVELOPERS] may have. . . .
II. DEVELOPERS Issues Bonds for TROPEX and Incurs Losses
A. Bond # 532296P
i. All-Dade Driveway Maintenance Company
11. On or about September 16, 2004, TROPEX and The District Board of Trustees of
Miami-Dade Community College entered into a Lump Sum Construction Agreement (the "MDCC
Prime Contract") for the furnishing of labor, materials and services for renovations and
improvements to various campuses of the Miami-Dade Community College (the "MDCC Project").
12. On or about October 12,2004, DEVELOPERS, as surety, and on behalf ofTROPEX,
as principal, issued a Payment Bond (the "MDCC Bond") on the MDCC Project. A true and correct
copy of the MDCC Bond is attached hereto and made a part hereof as Exhibit "B".
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13. On or about February 22,2005, TROPE X and All-Dade Driveway Maintenance
Company ("All- Dade") entered into a written subcontract contract for concrete curbing and sidewalk
replacement on various campuses for the MDCC Project.
14. Prior to completion of the MDCC Project, issues arose between TROPEX and All-
Dade concerning the alleged lack of payment by TROPEX for labor and/or materials furnished by
All-Dade to the MDCC Project.
15. On or about June 10, 2005, All-Dade asserted a formal demand for payment under
theMDCC Bondupon DEVELOPERS in the amount of$14,665.00. On or about July 22,2005, All-
Dade asserted an additional formal demand for payment under the MDCC Bond upon
DEVELOPERS in the amount of$19,545.00.
16. On or about September 26, 2005, All-Dade initiated litigation against DEVELOPERS
under the MDCC Bond for nonpayment of materials in the action styled All-Dade Driveway
Maintenance, Inc. vs. Tropex Construction Services, Inc. and Developers Surety and Indemnity
Company in the Circuit Court of the 11 th Judicial Circuit, in and for Miami-Dade County, Florida
(Case No. 05-14983).
17. On December 19,2005, DEVELOPERS issued a check in the amount of$37,000.00
in return for the dismissal ofthe lawsuit by All-Dade and the settlement of all claims by All-Dade
asserted against TROPEX and DEVELOPERS under the MDCC Bond.
18. Prior to the issuance of the settlement check from DEVELOPERS, TROPEX
consented to and/or had notice of and did not object to DEVELOPERS' settlement payment to
claimant for full and complete settlement of all claims.
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ii. Vila and Son Landscapinl:
19. On or about January 5,2005, TROPEX and Vila and Son Landscaping ("Vila and
Son") entered into a subcontract for materials and irrigation labor on various campuses for the
MDCC Project.
20, Prior to completion ofthe MDCC Project, issues arose between TROPEX and Vila
and Son concerning the alleged lack of payment by TROPEX for materials and labor furnished by
Vila and Son to the MDCC Project.
21. As a result of such issues, on or about July 21, 2005, Vila and Son asserted a formal
demand for payment under the MDCC Bond upon DEVELOPERS in the amount of $55,450.00.
22. On or about October 18,2005, DEVELOPERS issued two checks in the amounts of
$13,200.00 and $42,250.00 in full and complete settlement of all claims asserted by Vila and Son
against TROPEX and DEVELOPERS under the MDCC Bond.
23. Prior to the issuance of the settlement check from DEVELOPERS, TROPEX
consented to and/or had notice of and did not object to DEVELOPERS' settlement payment to
claimant for full and complete settlement of all claims.
B. Bond # 532439P
24. TROPEX and The Miami-Dade County-General Services Administration
Construction Management and Renovation Services Division entered into a written contract (the
"Miami-Dade Prime Contract") for the project known as R.A.A.M. Remodel Warehouse, Project
No. W30177 (the "Miami-Dade Project").
25. On or about November 30, 2004, DEVELOPERS, as surety, and on behalf of
TROPEX, as principal, issued a Payment Bond (the "Miami-Dade Bond") on the Miami-Dade
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Project. A true and correct copy of the Miami-Dade Bond is attached hereto and made a part hereof
as Exhibit "e".
26. Pursuant to the Miami-Dade Prime Contract, TROPEX and Banner Supply Company
("Banner Supply") entered into a written subcontract for labor and the furnishment of building
materials to the Miami-Dade Project.
27. Prior to completion of the Miami-Dade Project, issues arose between TROPEX and
Banner Supply concerning the alleged lack of payment by TROPEX for labor and materials
furnished by Banner to the Miami-Dade Project.
28. On or about July 21, 2005, Banner Supply asserted a formal demand for payment
under the Miami-Dade Bond upon DEVELOPERS in the amount of $1 0,943.05.
29. On or about September 28, 2005, Banner Supply initiated litigation against
DEVELOPERS under the Miami-Dade Bond for nonpayment oflabor and materials in the action
styled Banner Supply Company vs. Tropex Construction Services, Inc. and Developers Surety and
Indemnity Company in the Circuit Court of the 11 th Judicial Circuit, in and for Miami-Dade County,
Florida (Case No. 05-15581).
30. On October 31,2005, DEVELOPERS issued a check in the amount of$12,500.00
in return for the dismissal of the lawsuit by Banner Supply and the settlement of all the claims
asserted against TROPEX and DEVELOPERS under the Miami-Dade Bond.
31. Prior to the issuance of the settlement check from DEVELOPERS, TROPE X
consented to and/or had notice of and did not object to DEVELOPERS' settlement payment to
claimant for full and complete settlement of all claims.
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C. Bond # 532438P
32. On or about October 20, 2004, TROPEX and the Monroe County Board of County
Commissioners ("Monroe County") entered into a written contract (the "Monroe Prime Contract")
for the renovation of Tavemier Fire Station No. 22 (the "Monroe Project").
33. On or about November 30, 2004, DEVELOPERS, as surety, and on behalf of
TROPEX, as principal, issued a Performance Bond (the "Monroe Bond") on the Monroe Project.
A true and correct copy of the Monroe Bond is attached hereto and made a part hereof as Exhibit
"D" .
34. Monroe County asserted a claim against DEVELOPERS under the Monroe Bond
allegedly resulting from TROPEX never having commenced work on the Monroe Project in which
Monroe County asserts entitlement from DEVELOPERS to substantial financial damages in the form
of increased construction costs of at least $449,028.00, delays and other increased costs.
35. On or about January 24,2006, TROPEX initiated litigation against Monroe County
seeking declaratory relief and asserting breach of contract in the action styled Monroe County Board
oj County Commissioners v. Tropex Construction Service, Inc. and Developers Surety and Indemnity
Company pending in the Circuit Court ofthe Sixteenth Judicial Circuit, in and for Monroe County,
Florida (Case No. 06 CA 44 P). On January 16, 2007, Monroe County filed a Counterclaim against
TROPEX and DEVELOPERS for breach of contract in said action.
36. As of January 31,2008, DEVELOPERS has incurred $80,559.88 in loss adjustment
expenses as a result of issuing the Monroe Bond. Such expenses continue to accrue.
III. DEVELOPERS' Total Losses and Collateral Demands.
37. As a result of the various claims against the Bonds, DEVELOPERS has, to date,
incurred direct losses in the amount of$1 04,950.00 and loss adjustment expenses (including but not
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limited to expenses associated with experts, consultants and attorneys) in the amount of $80,559.88,
resulting in total losses and expenses in the amount of $185,509.88, all expended in furtherance of
DEVELOPERS' investigation and defense ofthe claims and/or litigations. Additional losses and/or
expenses continue to accrue.
38. In addition to the foregoing direct losses and expenses, DEVELOPERS has been
required and continues to expend funds in its pro~ecution and defense of the claims of Monroe
County.
39. Finally, DEVELOPERS may be exposed to substantial additional financial liability
should Monroe County prevail in the pending litigation. In connection with the claim and
subsequent litigation, DEVELOPERS has posted loss reserves in the amount of$408,000.00 to cover
its potential liability, and expense reserves in the amount of$1 00,000.00 to cover its potential costs
in addressing Monroe County's claim, for total established reserves of $508,000.00.
40. As a result ofthe claims against the Monroe Bond, on or about December 7,2005,
DEVELOPERS made demand upon INDEMNITORS under the Agreement for the posting of
collateral to cover DEVELOPERS' actual and potential losses and expenses. A true and correct
copy of DEVELOPERS' demand dated December 7, 2005 is attached hereto and made a part hereof
as Exhibit "E". The INDEMNITORS have not provided any collateral to DEVELOPERS.
41. DEVELOPERS has retained the services of the undersigned counsel to represent its
interests in this matter, and is required to pay a reasonable fee for such services. Such fees are
recoverable pursuant to Article 1 of the Agreement.
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COUNT I - BREACH OF
CONTRACT: DAMAGES / DEMAND FOR
INDEMNIFICA TION (AGAINST INDEMNITORS)
42. DEVELOPERS re-alleges and re-avers the allegations of paragraphs 1 through 41
hereof, as if fully set forth herein.
43. This is an action for damages seeking relief at law under the Agreement.
44. There exists a valid and fully enforceable contract between DEVELOPERS and
INDEMNITORS, the terms of which are memorialized in the Agreement.
45. DEVELOPERS has fully performed all of its obligations under the Agreement.
46. As a result of the various claims against the Bonds, DEVELOPERS has, to date,
incurred direct losses in the amount of $104,950.00 and loss adjustment expenses (including but not
limited to expenses associated with experts, consultants and attorneys) in the amount of $80,559.88
resulting in total losses and expenses in the amount of $185,509.88, all expended in furtherance of
DEVELOPERS' investigation and defense of the claims and/or litigations.
47. The INDEMNITORS have failed and/or refused to fully perform their obligations
under the Agreement, including but not limited to their obligation to indemnify DEVELOPERS.
48. As a proximate result ofthe INDEMNITORS' breach of their obligations under the
Agreement, DEVELOPERS has and will continue to incur substantial financial damages, including
but not limited to the expenditure of funds already paid, and funds to be paid: (i) in defense of the
pending litigation and/or (ii) in satisfaction of any liability which may ultimately be determined in
favor of Monroe County against DEVELOPERS under the Monroe Bond.
WHEREFORE, Plaintiff DEVELOPERS respectfully requests that this Honorable Court
enter a Final Judgment in its favor and against the INDEMNITORS, awarding DEVELOPERS its
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general, special and consequential damages which have been and/or will be incurred as a result of
the INDEMNITORS' breach of the Agreement, awarding DEVELOPERS its attorneys' fees and
costs incurred in prosecution of the instant action pursuant to the terms of the Agreement, and
awarding DEVELOPERS such other and further relief as this Court deems necessary, just and
proper.
COUNT II - COMMON LAW
INDEMNIFICATION (AGAINST TROPEX)
49. DEVELOPERS re-alleges and re-avers the allegations of paragraphs 1 through 41
hereof, as if fully set forth herein.
50. This is an action for damages seeking relief at common law and in equity.
51. There exists a special relationship between DEVELOPERS, as surety, and TROPEX,
as principal, arising out of the parties' business dealings related to the various projects and Bonds,
such that it is appropriate for common law indemnification to exist.
52. DEVELOPERS has fully and completely performed any and all obligations arising
out of the parties' business dealings related to the various project and the Bonds, and is wholly
without fault for any losses, expenses and/or liabilities which have and/or may ultimately arise.
53. As of January 31, 2008, DEVELOPERS has incurred losses and loss adjustment
expenses In the amount of $185,509.88 as a result of the special relationship between
DEVELOPERS and TROPEX. Additional indebtedness arising out of the special relationship will
continue to accrue, including but not limited to the expenditure of funds paid: (i) in defense of the
pending litigation; and/or (ii) in satisfaction of any liability which may ultimately be determined in
favor of Monroe County against DEVELOPERS under the Monroe Bond.
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54. Any and all losses and expenses incurred to date as a result of the special relationship
between DEVELOPERS and TROPEX, as well as any liability which may be imposed upon
DEVELOPERS as a result ofthe claims of Monroe County under the Monroe Bond, arise only out
of the vicarious, constructive, derivative or technical liability imposed upon DEVELOPERS as a
result of the fault and/or wrongdoing ofTROPEX.
55. At common law, TROPEX is responsible to DEVELOPERS for any and all losses
and expenses incurred or to be incurred.
WHEREFORE, Plaintiff DEVELOPERS respectfully requests that this Honorable Court
enter a Final Judgment in its favor and against TROPEX, awarding DEVELOPERS its general,
special and consequential damages which have been and/or will be incurred as a result of
DEVELOPERS' payment of losses and expenses for which TROPEX should be liable under the
legal theory of common law indemnity, awarding DEVELOPERS its reasonable attorneys' fees and
costs incurred in prosecution of the instant action, and awarding DEVELOPERS such other and
further relief as this Court deems necessary, just and proper.
COUNT III - BREACH OF CONTRACT:
SPECIFIC PERFORMANCE / DEMAND FOR
POSTING OF COLLA TERAL(AGAINST INDEMNITORS)
56. DEVELOPERS re-alleges and re-avers the allegations of paragraphs] through 4]
hereof, as if fully set forth herein.
57. This is an action for specific performance seeking equitable relief under the
Agreement.
58. There exists a valid and fully enforceable contract between DEVELOPERS and
INDEMNITORS, the terms of which are memorialized in the Agreement.
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59. DEVELOPERS has fully performed all of its obligations under the Agreement.
60. As a result of Monroe County's claim and prior to the initiation of litigation, on or
about December 7, 2005, DEVELOPERS made demand upon the INDEMNITORS under the
Agreement to post with DEVELOPERS a sum of money equal to the established reserves to cover
DEVELOPERS' potential losses and expenses in connection with the claims against the Bonds. See
Exhibit "E".
61. INDEMNITORS have failed and/or refused to fully perform their obligations under
the Agreement, including but not limited to their obligation to post satisfactory collateral upon
demand by DEVELOPERS.
62. INDEMNITORS' failure to deposit the demanded collateral with DEVELOPERS in
accordance with the Agreement has and continues to cause irreparable harm for which
DEVELOPERS has no adequate remedy at law.
63. DEVELOPERS is fearful and apprehensive that the INDEMNITORS are or will
become financially unable to pay any amounts that may be found owing to Monroe County for which
DEVELOPERS may be liable, or that the INDEMNITORS, based upon their refusal to exonerate
DEVELOPERS in accordance with its demands, will sell, transfer, dispose of, lien, secure or
otherwise divert or conceal their assets.
64. DEVELOPERS is also fearful and apprehensive that the INDEMNITORS will be
financially unable to pay the expenses incurred by DEVELOPERS, including attorneys' fees.
65. DEVELOPERS is entitled to equitable relief for specific performance of
INDEMNITORS' obligation to post satisfactory collateral.
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66. Pursuant to the First Article oftheAgreement, DEVELOPERS is entitled to recover
from INDEMNITORS its attorneys' fees incurred in prosecution of the instant action.
WHEREFORE, Plaintiff DEVELOPERS respectfully requests that this Honorable Court
enter a Final Judgment in its favor and against the INDEMNITORS, awarding DEVELOPERS its
general, special and consequential damages which have been and/or will be incurred (including
DEVELOPERS' attorneys' fees and costs under the Agreement), and ordering Defendants
INDEMNITORS to immediately post collateral with DEVELOPERS (or deposit with the Clerk of
this Court, for the benefit and protection of DEVELOPERS) in an amount to be determined by this
Court to cover DEVELOPERS' anticipated losses and expenses in connection with the Monroe
Bond. In addition, until such time as the INDEMNITORS protect DEVELOPERS against the
potential losses as requested herein, DEVELOPERS respectfully requests injunctive relief as
follows:
(a) Requiring the INDEMNITORS to refrain from selling, transferring or disposing of
their assets including, but not limited to, sums held in offshore accounts;
(b) Granting to DEVELOPERS an equitable lien upon all assets and property of the
INDEMNITORS including, but not limited to, realty, personalty and mixed, owned
by the INDEMNITORS, and property in which the INDEMNITORS have any
interest, to remain in effect until the INDEMNITORS place funds with
DEVELOPERS as required by the Agreement securing DEVELOPERS against any
loss it has sustained or will sustain by virtue of it having executed the Monroe Bond.
DEVELOPERS also prays for recovery of its costs, interest and attorneys fees, and such other and
further relief as this Court deems necessary, just and proper.
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COUNT IV-CONTRACTUAL
EXONERA TION (AGAINST INDEMNITORS)
67. DEVELOPERS re-alleges and re-avers the allegations of paragraphs 1 through 41
hereof, as if fully set forth herein.
68. This is an action for contractual exoneration.
69. On or about January 16,2007, Monroe County filed a Counterclaim for breach of
contract claiming $449,028.00 against TROPEX and DEVELOPERS in the action styled Monroe
County Board of County Commissioners v. Tropex Construction Service, Inc. and Developers Surety
and Indemnity Company pending in the Circuit Court of the Sixteenth Judicial Circuit, in and for
Monroe County, Florida (Case No. 06 CA 44 P).
70. As of January 31,2008, the INDEMNITORS are indebted to DEVELOPERS under
the Agreement in the amount of $80,509.88 which has been incurred in connection with
DEVELOPERS' issuance of the Monroe Bond.
71. Additional indebtedness under the Agreement due and owmg from the
INDEMNITORS to DEVELOPERS will continue to accrue as DEVELOPERS investigates and
defends itself against the pending claim and litigation by Monroe County as well as any liability that
may be imposed upon DEVELOPERS as a result of Monroe County's Counterclaim.
72. The claim of Monroe County arises from TROPEX's failure to perform actions under
its contract with Monroe County which are the primary responsibility of TROPEX and for which
DEVELOPERS is only derivatively liable under its Monroe Bond.
73. Pursuant to the terms of the Third Article of the Agreement, the INDEMNITORS
agreed to immediately provide DEVELOPERS with sufficient funds to cover any liability, claim
asserted, suit or judgment under any bond issued by DEVELOPERS on behalf ofTROPEX.
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74. By virtue of the right of exoneration set forth in the Agreement, DEVELOPERS is
entitled to the INDEMNITORS' assets to protect DEVELOPERS from any liability, claims, suits
or judgments which may result in connection with DEVELOPERS' issuance of the Monroe Bond.
75. INDEMNITORS have failed to satisfY their obligations under the Agreement by
refusing to exonerate or otherwise place funds with DEVELOPERS sufficient to cover the actual
losses and claims of Monroe County against the Monroe Bond and DEVELOPERS's defense in the
litigation.
76. DEVELOPERS is fearful and apprehensive that the INDEMNITORS are or will
become financially unable to pay any amounts that may be found owing to Monroe County against
the Monroe Bond for which DEVELOPERS may be liable, or that the INDEMNITORS, based upon
theirrefusal to exonerate DEVELOPERS in accordance with its demands, will sell, transfer, dispose
of, lien, secure or otherwise divert or conceal their assets.
77. DEVELOPERS is also fearful and apprehensive that the INDEMNITORS will be
financially unable to pay the expenses incurred by DEVELOPERS, including attorneys' fees.
78. DEVELOPERS will suffer irreparable damage and loss because of its inability to
recover from the INDEMNITORS' the amount deemed necessary by DEVELOPERS to protect itself
from any and all losses and/or expenses which may be incurred in connection with DEVELOPERS'
issuance of the Monroe Bond.
79. DEVELOPERS has no adequate remedy at law, and the relief sought herein
constitutes the only means by which DEVELOPERS can secure adequate relief and by which
furtherance of justice may be served.
80. Pursuant to the First Article of the Agreement, DEVELOPERS is entitled to recover
from INDEMNITORS its attorneys' fees incurred in prosecution of the instant action.
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WHEREFORE, Plaintiff DEVELOPERS respectfully requests that this Honorable Court
enter a Final Judgment in its favor and against the INDEMNITORS, awarding DEVELOPERS its
general, special and consequential damages which have been and/or will be incurred (including
DEVELOPERS' attorneys' fees and costs under the Agreement), and ordering Defendants
INDEMNITORS to immediately post collateral with DEVELOPERS (or deposit with the Clerk of
this Court, for the benefit and protection of DEVELOPERS) in an amount to be determined by this
Court to cover DEVELOPERS' anticipated losses and expenses in connection with the Monroe
Bond. In addition, until such time as the INDEMNITORS protect DEVELOPERS against the
potential losses as requested herein, DEVELOPERS respectfully requests injunctive relief as
follows:
(a) Requiring the INDEMNITORS to refrain from selling, transferring or disposing of
their assets including, but not limited to, sums held in offshore accounts;
(b) Granting to DEVELOPERS an equitable lien upon all assets and property of the
INDEMNITORS including, but not limited to, realty, personalty and mixed, owned
by the INDEMNITORS, and property in which the INDEMNITORS have any
interest, to remain in effect until the INDEMNITORS place funds with
DEVELOPERS as required by the Agreement securing DEVELOPERS against any
loss it has sustained or will sustain by virtue of it having executed the Monroe Bond.
DEVELOPERS also prays for recovery of its costs, interest and attorneys fees, and such other and
further relief as this Court deems necessary, just and proper.
COUNT V - COMMON LAW
EXONERA TION (AGAINST TROPEX)
81. DEVELOPERS re-alleges and re-avers the allegations of paragraphs 1 through 41
hereof, as if fully set forth herein.
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82. This is an action for exoneration at common law and in equity.
83. There exists a special relationship between DEVELOPERS, as surety, and TROPEX,
as principal, arising out of the parties' business dealings related to the Monroe Project and Monroe
Bond, such that it is appropriate for common law exoneration to exist.
84. DEVELOPERS has fully and completely performed any and all obligations arising
out ofthe parties' business dealings related to the Monroe Project and Monroe Bond, and is wholly
without fault for any losses, expenses and/or liabilities which have and/or may ultimately arise
therefrom.
85. On or about January 16, 2007, Monroe County filed a Counterclaim for breach of
contract claiming $449,028.00 against TROPEX and DEVELOPERS in the action styled Monroe
County Board of County Commissioners v. Tropex Construction Service, Inc. and Developers Surety
and Indemnity Company pending in the Circuit Court of the Sixteenth Judicial Circuit, in and for
Monroe County, Florida (Case No. 06 CA 44 P).
86. As of January 31, 2008, DEVELOPERS has incurred losses and loss adjustment
expenses under the Monroe Bond in the amount of $80,509.88 as a result of the special relationship
between DEVELOPERS and TROPEX. Additional indebtedness arising out of the special
relationship will continue to accrue, including but not limited to the expenditure of funds paid: (i)
in defense of the pending litigation and/or (ii) in satisfaction of any liability which may ultimately
be determined in favor of Monroe County against DEVELOPERS.
87. DEVELOPERS has fully and completely performed any and all obligations arising
out of the parties' business dealings related to the Monroe Project and Monroe Bond, and is wholly
without fault for any losses, expenses and/or liabilities which have and/or may ultimately arise
therefrom.
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88. The claim of Monroe County arises from TROPEX' s failure to perform actions under
its contract with Monroe County which are the primary responsibility of TROPEX and for which
DEVELOPERS is only derivatively liable under its Monroe Bond.
89. At common law, TROPEX is responsible to DEVELOPERS for any and all losses
and expenses incurred or to be incurred, and TROPEX is further obligated to immediately provide
DEVELOPERS with sufficient funds as needed to satisfy DEVELOPERS' existing and potential
obligations under the Bond the penal sum of which equals $449,028.00.
90. By virtue of the right of exoneration set forth at common law and in equity,
DEVELOPERS is entitled to TROPEX's assets to protect DEVELOPERS from any and all losses
and/or expenses which may be incurred in connection with DEVELOPERS' issuance ofthe Monroe
Bond.
91. TROPEX has failed to satisfy its obligations at common law and in equity by refusing
to exonerate or otherwise place funds with DEVELOPERS sufficient to cover the actual losses and
claims of Monroe County against the Monroe Bond. Unless the assets of TROPEX are
collateralized, DEVELOPERS will not be adequately secured for its obligation on the Monroe Bond.
92. DEVELOPERS is fearful and apprehensive that TROPEX is or will become
financially unable to pay any amounts that may be found owing to Monroe County under the Monroe
Bond for which DEVELOPERS maybe liable, or that TROPEX, based upon its refusal to exonerate
DEVELOPERS in accordance with its demands, will sell, transfer, dispose of, lien, secure or
otherwise divert or conceal its assets.
93. DEVELOPERS is also fearful and apprehensive that TROPEX will be financially
unable to pay the expenses incurred by DEVELOPERS, including attorneys' fees.
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94. DEVELOPERS will suffer irreparable damage and loss because of its inability to
recover from TROPEX funds sufficient to protect DEVELOPERS from any and all losses and/or
expenses which may be incurred in connection with DEVELOPERS' issuance ofthe Monroe Bond.
95. DEVELOPERS has no adequate remedy at law, and the relief sought herein
constitutes the only means by which DEVELOPERS can secure adequate relief and by which
furtherance of justice may be served.
WHEREFORE, Plaintiff DEVELOPERS respectfully requests that this Honorable Court
enter a Final Judgment in its favor and against TROPEX, requiring TROPEX to exonerate
DEVELOPERS at common law and in equity as follows:(a) provide collateral to DEVELOPERS
sufficient to exonerate DEVELOPERS for its potential loss and expenses to be incurred; (b) pay and
reimburse DEVELOPERS for its attorneys' fees and costs incurred in prosecution of the instant
action. In addition, until such time as TROPEX exonerates DEVELOPERS as requested herein,
DEVELOPERS respectfully requests that this court enter injunctive relief, as follows:
(a) Requiring the INDEMNITORS to refrain from selling, transferring or disposing of
their assets including, but not limited to, sums held in offshore accounts;
(b) Granting to DEVELOPERS an equitable lien upon all assets and property of the
INDEMNITORS including, but not limited to, realty, personalty and mixed, owned
by the INDEMNITORS, and property in which the INDEMNITORS have any
interest, to remain in effect until the INDEMNITORS place funds with
DEVELOPERS as required by the Agreement securing DEVELOPERS against any
loss it has sustained or will sustain by virtue of it having executed the Monroe Bond.
DEVELOPERS also prays for recovery of costs, interest and attorneys fees, and such other relief as
this Court deems just and proper.
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COUNT VI - QUIA TIMET
(AGAINST INDEMNITORS)
96. DEVELOPERS re-alleges and re-avers the allegations of paragraphs 1 through 41
hereof, as if fully set forth herein.
97. This is an action for quia timet seeking injunctive and equitable relief.
98. Monroe County has asserted a claim and initiated a Counterclaim against
DEVELOPERS to satisfy its obligations under the Monroe Bond claiming substantial financial
damages in the form of increased construction costs of at least $449,028.00, delays and other
increased costs.
99. As a result of Monroe County's claim and prior to the initiation oflitigation, on or
about December 7, 2005, DEVELOPERS made demand upon the INDEMNITORS under the
Agreement to post with DEVELOPERS a sum of money equal to the established reserves to cover
DEVELOPERS' potential losses and expenses in connection with the claims against the Bonds. See
Exhibit "E".
1 00. The potential liability of DEVELOPERS is in the amount of $449,028.00 as
determined by damages claimed by Monroe County and the penal sum of the Monroe Bond.
101. By virtue of thc rights under the Agreement and the common law and equitable
doctrine of quia timet, DEVELOPERS is entitled to have the INDEMNITORS post funds or other
security with DEVELOPERS that is sufficient to cover the actual and/or anticipated losses and claim
of Monroe County under the Monroe Bond
102. INDEMNITORS have failed to satisfy their obligations under the Agreement by
refusing to exonerate or otherwise place funds with DEVELOPERS sufficient to cover the actual
losses and claims of Monroe County against the Monroe Bond and DEVELOPERS's defense in the
litigation.
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103. DEVELOPERS is fearful and apprehensive that the INDEMNITORS are or will
become financially unable to pay any amounts that may be found owing to Monroe County for which
DEVELOPERS may be liable, or that the INDEMNITORS, based upon their refusal to exonerate
DEVELOPERS in accordance with its demands, will sell, transfer, dispose of, lien, secure or
otherwise divert or conceal their assets.
104. DEVELOPERS is also fearful and apprehensive that the INDEMNITORS will be
financially unable to pay the expenses incurred by DEVELOPERS, including attorneys' fees.
105. In the absence of the equitable relief sought herein, DEVELOPERS will suffer
irreparable damage and loss because it will be forced to advance further funds in connection with
the claim on the Monroe Bond without being adequately secured by the INDEMNITORS for its
obligations under the Monroe Bond.
106. By virtue of the rights under the Agreement and the common law and equitable
doctrine of quia timet, DEVELOPERS is entitled to have the INDEMNITORS post funds or other
security with DEVELOPERS that is sufficient to cover the actual and/or anticipated losses and claim
of Monroe County under the Monroe Bond.
107. Unless the relief in the nature herein requested or its equivalent is granted,
DEVELOPERS' equitable right of quia timet will be forever lost, depriving DEVELOPERS of
adequate security for its obligations under the Monroe Bond. Further, unless the equitable relief
requested below is granted, INDEMNITORS are likely to sell, transfer, dispose, lien, secure, or
otherwise, divert their assets from being used to discharge INDEMNITORS' obligations to exonerate
DEVELOPERS.
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108. The threatened injury to DEVELOPERS outweighs the potential damage to the
INDEMNITORS if the relief requested herein is granted, and such relief would not be adverse to the
public interest.
WHEREFORE, Plaintiff DEVELOPERS respectfully requests that this Honorable Court
enter a Final Judgment in its favor and against the INDEMNITORS, awarding DEVELOPERS its
general, special and consequential damages which have been and/or will be incurred (including
DEVELOPERS' attorneys' fees and costs under the Agreement), and ordering Defendants
INDEMNITORS to immediately post collateral with DEVELOPERS (or deposit with the Clerk of
this Court, for the benefit and protection of DEVELOPERS) in an amount to be determined by this
Court to cover DEVELOPERS' anticipated losses and expenses in connection with the Monroe
Bond. In addition, until such time as the INDEMNITORS protect DEVELOPERS against the
potential losses as requested herein, DEVELOPERS respectfully requests injunctive relief as
follows:
(a) Requiring the INDEMNITORS to refrain from selling, transferring or disposing of
their assets including, but not limited to, sums held in offshore accounts;
(b) Granting to DEVELOPERS an equitable lien upon all assets and property of the
INDEMNITORS including, but not limited to, realty, personalty and mixed, owned
by the INDEMNITORS, and property in which the INDEMNITORS have any
interest, to remain in effect until the INDEMNITORS place funds with
DEVELOPERS as required by the Agreement securing DEVELOPERS against any
loss it has sustained or will sustain by virtue of it having executed the Monroe Bond.
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DEVELOPERS also prays for recovery of its costs, interest and attorneys fees, and such other and
further relief as this Court deems necessary, just and proper.
DATED this 19th day of February 2008.
ETCHEVERRY HARRISON LLP
Attorneys for DEVELOPERS
150 S. Pine Island Road, Suite 105
Fort Lauderdale, Florida 33324
Telephone: (954) 370-1681
Facsimile: (954) 370-1682
By:
Edward Etche erry, Fla. Bar No 56517
Guy Harrison, Fla. Bar No.: 3 8806
L:\Clients' 128-Dev Surety] 021 - Tropex - Tavemier - Taha\Pleadings\M iami-Dade County\Complaint for Indemnity (200nwpd
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Pag~14 ,*~S0
~
~
GlA # 33458-01
Execution ,Date: September 27.2004
Surety: Developers Surety and Indemnity Company aod/or Indemnity Company of California , ~ evidenced by one or mote duly
el;ecutecl Botlds, or their lUlsigns, or any other persons or entities which My of them may procure to act as surety or as eo-surety on any
Bond, or any otlier person or entity who executes a Bond at the request of auy of them.
INDEMNITY AGREEMENT
Surety's Ad~s:
] 7780 Fitch
Irvine, CA 92614
Indemnft()r: The parties enumerated below who have executed thi~ Agreament or who have actopted or asB~lmed this Agreement or
the obligl1tions of ll(J Indemnitor hereunder, either expressly Or by operation of law. One or mort of the Indemnitors TllllY also be a
Principal as defined below
Principal: Tropex Con$truction ServIces. Inc.
C1r anyone of them. or any CQmbination of them, their successors or assigns. whether alone or in joint venture or partnership wi th others.
TIle te.m ~Ptincipal" shall also include, without limitation, one or mOl'e Indemnitors, if a Bond is Cl!:ect.Jted by Surety on behal.l" of such
IndelJJ.nitors, and eny other person, firm or entity whose names shall have been furnished to Surety by any of the Indemnitors, and
accepted by Surety as a Principal pursuant to the terms of this Agreement.
Obligation: Any agreement executed, undertaking made, statutory or other duty assumed or liability incurTed by Principal, the
performance or dischB.tBe of which is gUlU1l7lteed by Surety pursuant to lil Bond.
Guarantor: Any guarantor of the obligations under this Agreement.
Boncl: Any contl'act of suretyship, and any authorized e:nensions, renewals. rnodificatiOI18 or substitutions thereof, undertaken by Surety
for Principal, whether befot'e or after the date of this Agteemcnt (-exclUding, however, any bond(s) Which is/are specifically within the
scope of another indemnity &.green;lent).
This Indcmrtity Agreement C" Agreement") is made 8.$ of the Execution Date aet mrth above by Principal and Indemnitor for the purpose
of indemnifying SLIrety in connection with the Bond(s) described above.
NOW, nIERBFORE, Prlneipal and each separate Indemnitor, ,jointly and severaUy. agree as follows:
1. INDEMND'ICATl'ON. In consideration of the execution and delivery by SUrety of a Bond or any Bon& Oil behalf of Principal,
Principal and Indemnitor shall pay all pref1'liuttls charged by Surety in Connection with any Bond (including extensions, renewals or
modifications) issued by Suret;y on behalf of Principal and shall indemnify 8Il.d hold barmless Surety from and against any and aIlliabiIity,
loss, claims, d~ds, COllts, damages, attorneys' feellllnd expenses of whatever kind o.r nature, together with interest tbereon at the
maximum rate allowed by law, wlUch Surety may sustain or incur by reason of or in COn3equence of the execution and dltlivery by Surety
of any Sond on behalf of PriIlCipa1, whether or not SUT.'ety shall have paid any amOUnt on AecoU.nt thereof, including, without limitation,
the following:
1.1 Tb pay to Surety an initial premium upon the execution of each Bond. computed in accordance With the rates then charged
at the time such Bond III elCeeu~. To 41/;10 pay nil renewals, eKtemtiQ:lts and ptcrniUI1,1 acljustmen~ billed by Surety until811tiSfactory
evidence of cl.iscbll.rge of release shall be furnished to Surety. For PreG:!.iUltI computed on the basi! of contract price, regardless of
.mount of such bond, to pay Surety an additional premium lilr be entitled to rceeJve from Slimy, Il8 the Cl!e may be, computad on
the dlffurence In COTltraet price occurring in the progress Or at completion of the project or (J[)Ctation for which the Bond is iSSUed.
10-1000 (SbmdartflNA1lona61101
1
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1.2 . Liability incurred or am~u~t8 paid in satisfaction or settlElment of any or all claims, demands, damages, CORtS, losses, suits.
proceedings or judgments relating eo .Principal's nonperf01111ance of an Ohligation or any other matter covered by a Bond.
--
1.3 Liability incurred or expenses paid in connection witlJ claims, suits Ot judgments relating to an Obligation or a Bond,
including, without limitation, attDmeyll' ~ and all legal eX~$es, and all fees alld costs for investigation, accounting, or engineering
services relAted to the adjustment of claims alld losses.
1.4 Liability incurred or expenses paid in procuring or attempting to procure a relea~e of liability under or exoneration of a
Bond.
1.5 Liability incurred or expenses paid in recovering or attempting to recover los~ or expenses paid Or incurred in connection
with this Agreement, an Obligation or a Bond.
1.6 Liability incurred or demands, claims, damages or expenses caused by the failure of Principal or Indemnitor to perfonn
or comply with any or all of the covenants and conditions of this Agreement, including, without limitation, the costs and expenses
of Surety in connection with the enforcement of any of Principal's Or Iwemnitor's covenants and conditions contAined herein or in
connection with the exercise of any remedy of Surety hereunder,
J.7 TIle obligations of Ptincipal and Indemnitor hereunder aha II also include, at Surety's election. Exercisable b}' Surety by
the delivery of written notice to Principnl and/or IndemnitOl~ the obligation to defend at PritJ.ciplll's andJor Indemnitor's sole cost
and expense. and with counsel acceptable to Surety, IlJ'IY suit, action or other proceeding initiated with m~pect to an Obligation or
a Bond.
2.EXERCJSE OF RIGHTS BY SURETY. In oonnection with the exe.tcbe of any of Surety'5rights under this Agreement
2.1 Surety 9ha.ll have the right iti its sole and absolute discretion to determine wbether any claims under a Bond shall be paid,
compromised, defendl':d, prosecuted or appealed.
2..2 Surety shall have the right to inCUt BUell expenses in hnnd.1ing a claim as it !lhall deem necessary, inclUding bm not limited
to, expenses for iJJvestigatlve, aecounting, engineering and legal serv.ices.
2.3 Surety shall have the foregoing rights. irrespective of the fact that Principal and/or Indemnitor may have 81l8umed, or offered
to assume, the defense of Surety Upon any such claim.
2.4 In any claim or suit hereunder, an itemized statement of claims or 10$seo paid or liabilities incurred and expenses paid Or
incurred, declat'ed under penalty of pCljury to be true .Q1\d COlTect by an offit:el: of Surety, or tbe vouchers or other evidence of
disbursement by Surety, shall be prima facie evidence of the fact and extent of liability hereun~ of Principal and Indemnitor.
2.5 Surety sbaJl have the right to reimbursement of ita exponses and attorneys' fees inct'lO'ed. hereunder, i1Tellpeetive of whether
any Bond loss payment has been made by Surety. In any suit on this Agreement, Surety may recover its further expenses and
reasonable.a.ttorneys' fee.~ incurred in such suit.
3. RESER.VE ACCOUNT. If S~ty sball establiSh a reserve account to COVer any liability, claim asserted, suit or judgment under
any Bond., the Indemnitor shall. immediately upon demand and whether or not Surety sball have made any paYment therefor, deposit
with SIIrety a RUin 01 mcney equal to suell reserve account and any incrca.se thereof IS collateralllec:urlty on such Bond, and such sum
and other Itloney and property which shall have been or shall thereafter be pledgfld as coUtteraI security On IIJJY sucb Bond shall be
available, at the discretion of Surety, all colIate~l 8CCurlty on all Bonds corning within the tlCope fYf this Agreement Or for any other
indebtedness ot'Indemnitor or PrIncipal to Surety. If Indemnitor shall fail, neglect or refuse 'ID depo8it with Surety the collateral demanded
by Surety, Snooty may seek a mandatory injunction to compel the deposit of such collateral together with any other remedy at law or
in equity that Surety may have. SUrety shall have the right to retain lIocb collatct'aJ until Surety has ~ived evidence satisfactory to
Surety of Surety'. OOmpJete WllcJuqe. and e.xontradon from any claim Of potentifl1 claim unde{ IllI Bonds and until Surety ba.~ been fully
reimbursed for 8IJy and all liability inC\lrred or for claims, demands, damagC$, costs. loss, expense and attome}'ll' fee.".
4. FVNDS IN TROST FOR SURtTY. Principal and. Indemnitor and their respective suCCCSsOt'S. M$jgnS. executors and adminillttators
agree IX) hold all money and all other proceeds of the Obligation, however 1ec::Qived, in trul'lt for tbe benefit of Surety and to U"e BUell
money and other proceeds far the purposes of performing the Obligation IIIld fO{ dischatging the obJigatioos unt1et the Bond, f1J1d for
no other purpolle until the liability of the SUlety undco.r' the Bond 18 completely exonernted.
10-1000 tstandlll'dlNatIonlll) 1/Of
2
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5.OEFAULT. Principal and IndemnitOr shall be in defauJt hereundor upon the occumnce of .any oftbe fOllowing:
5.1 Any default in the performance of an Obligation by Principal or any declaration by any obligee of an Obligation (hat
Principal is in default thereunder.
5.2 The breach of this Agreement by Principal or Indemnitor.
5.3 In the event that tne Obligation, or any portioo thereof, r:elates to developtnent of real property or con!i1nlction of improvements
Upon .real property: (i) the failure of Principal to pay for labor Ilnd materials ordered fOr or used in connection wid! sucb dev~loprnent
or constTUCtion of improvements; (ll) the diversion or non-use by Principal of Joan funds, equity fund~ or materials intended by dle
lender. equity contributor or supplier of such funds Or nUlterjals to be used aod wbich are needed to pafonn or discharge a specific
Obligation; or (Hi) the voluntary or involuntary cessation or SUSpension of work required to be perfcnmed by Principal in connection
. with the Obligation.
5.4 lrulolvency, 8S$ignment for the benefit of creditors, or VOluntary or involuntary filing of any inSOlvency or b31lkruptcy
proceedings by Or again.'lt Principal, Indemnitor or any Guarantor.
5.5 IfPril'lcipal, Indemnitor Or any Guarantor is an individual, the death, adjudioation of mental incompetence, felooy conviction,
or dis!lppettrarJce of Principal, Indemnitor Or any Gnarantor.
5.6 The failure of Principal, Indemnitor or any Guarantor to promptly furnish 1lc:etU'ate, complete and Up-t(Hlate financial
NfEments upon request of Surety or the furnishing of a financial statement by Principal, Indemnitor or IJllY Guatantor which contains
any material misstatement or misrepresentation.
5.7 Any material adverse change in the financial condition of Principal, Incletunitor or any Guarantor.
5.8 The filing of any suit or the commencement of any action or pro~eding by a creditor or obligee of an Obligation against
Principal, Indemnitor Or allY Guarantor in which Surety hag been joined as a patty or involves circUlJl8tances which:nre the basis
of any claim made a.gainst Surety or any Bond.
5.9 Any suspension, revocation or other material adverse change in the status of any Ilceose ofPrineipaI with any applicable
licensing board or agency to perform: Or discharge tbe Obligation.
6. REMEDIES UPON DEFAULT. In thc event of any default 119 de.~r.ibed .in Section S Ilbove, Surety in iU sole and absolute
disetetion is her.eby authorized by Principal aad Indemnitor:
6.1 To consent to any change in or alteration of the Obligation or in any and all plans and $pecificadons relating thereto.
6.2 To make or IX) guarantee advances or loans in Connection With the Oblination without any Obligation or responsibility Q8
to Ihe application thereof, it being eXpIetlsly uncfemood Alld agreed that the amOl.ll)t of all such advances or loans shall be conclusively
presumed to be a loss hereunder for which Principal and/or Indemnitor is liable iuespccti'Ye of the prospeCts for repayment thcr~of
0.1' the security therefor.
6.3 In the event the Obligation., or any portion thereof, relates to development or COTlstruction of improvements upon real
propeny: (f) to take posscseiotl of the work to be. pert'ormcd pursuant to III or. any portion of tile Obligatton, and, at the expense of
PdneipalliU1d Indemnitor, to complete the performance required by the Obligation or 110 cause the $lID1e to be completed or to consent
to the completion th=of', IIU.d to take MY otber action wh.ic:h Surety may deem Ippropdate in counection therewith; (ii) to take
POSge$sion ofPrlnclpaJ's and/of Indemnitor! equipment, materials, supplie8, boob and recon:ls lit the site of lhe work or elsewhere,
and to utilize the same for completion of the Obligation Or for any pUrpose which Surety deems appropriate or necess8Jy; and (iii)
to have disbutsed to Sl.ll'ety, in the name and stead. of and as irreVocable attotney-in.fa.ct of' Principal BIldIor .Iodemnitor as provided
In Sectiau 12 below, any constn1ction 1011I1 proceeds aUocated towmds the paymeJ'lt of the costs of such developIt1ent or consttuction.
If the subject work is being perfonned on real property owned by Principal or Iudcrnnttor, then Surety shall a180 have the right to
take p08se!1I1on of Pid real property. Surety's ri,-bts hereunder: may be ellC1'C.ised citber in person or by agent, with or without
bringing any action or proceeding, or by a I.'eCciver appointed by 9 COurt.
6.4 In the C\1ent the Obligation, or any portion thereof. relates to the perfQJ1l1at1ce of a subdivision improvement &&r=ment
between Principal and I public entity under which one or mlm' Bonds have been executed and deJivored 18 itnprovement security,
to revert to acreage the real property which is the subject of the subdivision improvement agreement.
1D-1000 (Stsnde~lNatlonItO 1101
3
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-.
6.5 . To fil6 suit to enforcc the provisions of tbis Agreement.
'.
6.6 To apply, as a matter of right and without notice to either Principal or Indemnitor, to any court haVing jurisdiction to
appoint a receiver or receivC'J'S of the ~ubject wurk and/or real property, lt8 appliCllble, and Principal and Ind.eltU1iror hereby irrevocably
consent to such appointment and waive notice of any application therefor.
6.7 Th.e remedie.(j ~peclfied above shaU be in addition to any other remedies conferred upon Surety by this Agreement, by law
or otherwise. Surety shall have the right to enforce one or more remedies confer.red upon Surety, succe.~8ively or conCUrrently, and
the exercise of anyone remedy ~haIl not p.reclude the exercise of any otber.
7. ASSIGNMENT. To Ilecure the obligations of Prinoipal and Indemnitor hereunder and any other indebtedness and liabilities of
Principal or Indemnitor to Surety, Pdncipal aud Indemnitor hereby assign. transfer, pledge and convey to Surety, effective immediately
upon and only in the event that there shall be an event. of default hereunder, all rights in and to the Obligation and the documents. contracts
Or entitlemcnt~ creating the Obligation, including, but witbout limitation. all right, title and interest in and to:
7.1 Any and all contraeQI or subcontracUllet in connection therewith and any contractors' or subcotllTactors' surety bonds.
7.2 Any and all machinery, plant, equipment tools and materials which shall be upon the site or sites of the work or project
which is the subject of the Obligation or elsewhere for the purposes of the Obligation, including all material ordered in connection
with petfot'lllaJJce of any ObHgs.tion.
7.3 Any and all sums due or which may become due upon partial or full pe.rfor.mancc of the Obligation and all sums due or
to become due on all other cont.Tact!l, covenantll and agreements whether bonded or utlbonded, in Which the Prindpal or Indemnitor
hilS any interest, together with /lny notcs, Ilccount~receivable or chose in action :related thereto.
7.4 Those rigbts alld interests in any insurance pOlicies applicable to any obligation arising bereunder_
7.5 Any and all undisburSed Joan funds, deposits or interest reserve aCcounts to whicb the Principal Or .IndellUlitor may be
entitled, and any IItId aU collltteral for any undertakings given by Principal, Indemnitor or auy Guarantor in connection Mth any
Obligation.
8. WAIVERS. The Principal and Indemnitor hereby waive and agree not to assert:
8. I Any defense that this Agreement was executed subsequent to th~ date of any Bond, it being expressly understood and
agreed that tbe Inde.mnitor hereby admits and Covenants that the aond was ex.ecuted by Surety pursuant to the request of the
Indemnitor and in reliance on the promise of the Indemnitouo ex;ecute and to potfonn thi~ Agreement.
8.2. Any rigflt to claim tlla( any ptoperty, including homesteads, is exctttpt from. levy, execution, sale or other legal PI"OCe6S
under the laws af any state, territory or Possession in any action broUSht by Surety under the Agmentent
B.3 Any right to require Surety to proceed against Principal or Indemnitor or any other pet'80n linn or entity; Cl1' to Proceed
against or exJ1aust any security held by Surety at any time, or tQ pursue any othet remedy in Surety's power. Without, in any way
lim.lting the gencraIity of the foregoing, if prope.ny of Indemnitor Is hypothecated with property of Principal or of any' other party,
Indemnitor heJ:1lby waives any righ~ to have the property of Principal or of such other party fit$t applied towa~ the dillCharae of
the obligations hereunder.
8,4 The defense of the Stat\lte of Lhnitations in any action hereunder or for the collection of any claim or the pM'onnance of
any obligation indemnified hereby.
8.5 Any defenlle b~ upon an ~ect.ion of remedie$ by Surety, againSt eidler of tbem Of both (Including. without funltation,
election by Surety to cxemsc i~ right under the power of sa.te Bet forth in It(Iy deed of trust given as secarity for the ~ormance
of the obligations hereunder). whicl1 electiOl) may d~tl'Oy or otherwise impair SlJbrogation rieht$ of Principal or Indemnitor or the
rigltt of Jiv.Uo~ 10 proceed qairw Principal or to realize upon any security (whether such destruction or impelnnent of subrogation
results frotn the opeortion of C1ti~deficiency statutes ot' otherwise).
8.6 Any defense ba,ed Upon auy !.egal diSabiUty or other defen:Je of Princtpal, any other Iodemnitor or other persoll, or by
reuon of the cessation or limitation of the liability of PrinolpaJ from aAy O&U$e other than fill] ~ymen.t of all Sums payable under
this Agreement.
10-1000 CSt8ndaldlNetlona9 1/01
4.
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8.7 Any defe.tse baled Upon -,"y lack of 'Uthority of the offi",,,, dJmcto", """"" or ""'Is octing '" j>mp<>!1i.. to '''' on
behAlf of Pri.cipaI '" '"y prin,ipaJ of Princlpol or '1lY defecU. theto"...;on .fPrincipal or any prine;pol of Principal.
8.8 Any defense based Upon Surety's failure to disclose to Indemnitor any inf01l1'l.ation concerning Principal's financial condition
Or any other circumstances bearing on Principal's ability to pay IlIlliums payable under this Agreement
8.9 An, clef_ boned upon 'lIlY ',",uti"" rule of l,w which proYideg tbat the obl.....o"' of. .urety ".lBt be .either ]"'"
in l!mOtJnt nor in <lny other respect~ more burdensome than that of a principal.
8.10 Aoy defenae based upon Surety's election, in any proceeding inlltituted under-the Federal B!ltlkruptcy Code, of the application
of Section 111 1 (b)(2) of the Federal Bankruptcy Code of any 5U~8or statute.
8. I 1 Any right of subrogation, any right to enforce any remedy, Which Surety may have against Principal, and any right to
pmticipate in, Or ~nefi.t from,. any security for the obligations hereunder held by SUfety.
9. AUTHORrzATIQN TO SURETY. PrincipeJ and Indemnitor hereby authorize and e"pres~Jy empower Surety, in the sole and
absolute discretion of Surety, to do the following:
9.t From "me to rime to""'" '" to 'o....tto.., ch"",e;n, '" lD ;..ue ,.y ..botitote for o,",.own! of, 'n, Boo' to ,oy
Obligation refcn-ed to in any Bond, and this Agreement shall apply to such 5ubstiUlto or cltanged Bond, Obligation Or renewals
thereof. Any such changes, 8ub~t:iUltions or renewal" may be made Without giving notice to Indemnitor or obtaining 1ndemnitor's
consent and without affecting the liability of Indemnitor hereunder.
9.2 If any Bond is given in any action 0.1:' proceeding in any court, to recognize any attorney of record in such action or Proceeding
for any party thcl'eto at the date of execution ofthe Bond as the authorized representative of SUch party until Surety shall have been
fully discharged from liability under the Bond.
9.3 To take such steps as Suroty may deem neceSSary or proper to Obtain release from liability under any Bend.
9.4 To "'tot Ii'rlneipol'. and 1odemlrllOl". pl"" of bD&.", to the place of perf"""an", of..y Db"","o" dori.O ~.tomuy
business hOllnl or, in case of emergency, at any time for the purpose of inspecting, reviewing an<! making COPies of the books, records,
accounts, job record&, contracts and other documents deemed by Surely to be material to performance of any Obligation ot' to
performance of any dutY of .Principal or Indemnitor bereunder.
,0. NonCE. Sutoty ap.. to make a reasonable _to S;" Prlnoipol '"" _I"", notice of arty _ hoo""atltm of wi';';'
Surety baa lmowlq. """""'\log .. affioodng the righls or IfllblJities _ "y Bond or any rig!us arulllablJlti", hereunder. S.oh hotl"
.holl be S;Vetl " lbe laot BlI..... ~.cwn to Sutoty fo, Prillcipo1. -er, 1he fol',,, to give "'cIo nod"" .hall m no way "Heve PJineipal
and Indemnitors, or any of them. of any liability, duty or Obligation he.reunder.
11. LJ..IBIUTy 11I'f~ The HlIhltity ofPtincipol "'d -.,_.... -not be _ by lbe fnn... of any party
to .].., '1lY SOD' l>llr by '"y clohno1h" other ....mnity or -" "" to have boon 0_ n", by the reJ...e.f "'y Indemn;ty or
tox!emmtor, nor by the "'- "_on or aubottl.inatio" of arty 00_ "'" ttUly have beeo ~ 11 arty _ man;.. thh
A.greement is not bound for any reason. aU otber signatories hereto shalt be bound far the full amount of liability hereunder.
U. POWER OF A'lTOIlNEy. Ptineipol and lo"""'ltor ..... hotoby -_Iy ""_. COIl8titutes, _ and doai_
Slll'ety, or lbedesJanoe of Surety. .. 1m .-".lD-fact With !he risJtt and power. hut not !he oh!;.."o.. to _ '"~ of tho _
aWg1ICt!, ...- '"" set over to Sorely by p,;",ipaJ oe '-'VAder thla ~ .hd to D1lOke, """"'~ IIld clcliver '"y '""
all addItiOha/ -. -..... wl__. """'_ "']lBpot'a (Inclutl!ng, but 'ollimiwt ... ....e "I""" to the cllslrur!etoCllt
0/ loan - oelhe "'- .f prooeotI;"es Mmd to in SOOlion 6....1he ,""""Hon of ~ """"" "' in s..uo"
7 above '"" tho -- of e_ oe other ~ payable to PrincipoJ oe "'Y IndemoItor--.. paymemO/ObligatiOll
_..) -ad ........,. and proper by SweIy in_ to P" fun ""'" to tile "- .... _g 0/'" ...~ or aSh'
COIIIal.ec1 herd. Foe "'" fUll_on _ded to be glYClI to Sun.ty uotlor oJJ...... pro_ of uu. "",,,"""'l "l._.,
1Jodemaod and ....... .... rile foregoing _ of......." is 'oapIod _ 1h. Imcreat of Sumy ill _ring tho lodeomiblOo of
PrinclpoJ anti_tor """"'-II:t: 10_ her<by - '"" a1llntu .u "" '"" lotiotlS w1tloh aboIl be tolo!n and done by S""""
Or its desianee as Ilooh attorney in fact
13. 'lEIlMI>!ATION OF Il'UJEMNrroa LIA.B.lLrrY. beept wl1h _to '"y bond(.) whkh is/en, IpCCiflt:oJ1y wilhln rho "'Ope
ofanotherlndeonalty -. thla~ I.. oontlnllingobligadOD of1ntlenroitor0Dletl0 -tIiW! u to_B_ by WJito:n
1totIoe to S","", .. ~ provided, BIId - _.. by arty'.-.hoJJ 10 .0 _ _ thuobHgatioo or liability of...,.
1O-10c0 (StsndllfdlNetlonal) 1101
5
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Pag~~ dF450
""'or fn1Iemnjro, .,ho h" not gh'en ,,'" .0';''' n", 'hwl it stf", the obl;.,won or bablbly of Pri.oipal, whicll ohalI _.... Wttil S""""
is exonerated from liability lander any Bond and Surety has reco\lered all amounts owing from Principal hereunder" The liability of
Indettmitor"hereunder as to future Bonds shall not terminate by re&Sot] of the failure of the Surety to disclose faccslmown about the
Pri.ncipal, even t!tough 8ucb facts materially increase th.e risk beyond that which the Indemnitor migb.t intend to asBume. The Indemnitor
hereby waives notice of any SUch facts, whether or nO! the Surety may have reason to believe that 8lloh facts are unknown to the Indemnitor
or whether the Surety may have had a reasonable opportunity to communicate, such facts to the Indemnitor. In order to ferminate liability
as to any future Bond, the Indemnito( shall;
J 3, 1 Give to Surety written notice of such termination by certified mail, return receipt requested, addressed to Surety at the
Surety's Address; and .
13.2 State in such Itf;ltice the effective date, which date shall be not less that 30 days fOllOwing receiPt of such notiee by the
Surety, of the termination of the liability of sucb Indemnitor for any future Bond.
J 3.3 FollOwing the effective date of Such termination, sucb Indemnitor shall continue to be liable hereunder for: (i) any Bond
executed or Iluth.orized prior to such effective date of termination. and any renew-aliS, substitutiQns. extensiol1s and modificlition$
thereof; (ii) any Bond executed PUf8uant to a bid or proposal Bond exeouted or auttJo~ed prior to such offective date of termination,
and any renewals, substitutions, elttensions and modifications thereof; and (Ui) any maintenance or guarantee Bond executed
incidental to any other Bond executed prior to such date (If terminntion. and any renewal!), 8ubstitl.ttions and e:x:tenlliOnB thereof
14. GENERAL PROVISIONS.
J 4.1 The obligations of Principal and Indemnitor hereunder I1re joint and several. Surety may bring separate suit.e; hereunder
against any or all crf the undersigned as cl'lutles of netion may accrue hereunder. Indltn1nitor hereby expressly waives the benefit of
IlJ1Y stat~tte QI' rule of law whiCh gives hldenmitor the right to require. Surety to fir$t proceed against Principal or which t}l;onCtlltes
Indemnitor from any liability if Surety fails to ~t proceed against Principal.
14.2 Principal and Indemnitor Ilhall, upon request of Surety, procure the discharge and exoneration of Surety under any Bond
and from and agairu;t any and aU liability by reason thereof.
14,3 Principal and Indemnitor hereby wamun that each Indemnitor is specifically lWd beneficially interested in obtaining each
Bond. AdditiOTlaUy, Indemnitor acknowledge.... that Indemnitor's undertaking given hereunder i$ given in consideration of the execution
or illsuance of any Boud coming within the scope of this Agre(:ment, and that Surety would not e'lecute or issue any such Bond were
it not for the ex.ecuti01.l and delivery of this Agreement by Indemnitor.
14.4 Indemnitor hereby waives notice of any default, the making of a claim agaitlst Surety or the loaning of funds to PrincipaJ
by Surety.
14.5 Plincipa.( and Indem.nitor hereby agree to give Su.t:ety prompt notice of allY facts which might ,give rise to any olaims or
luits agllinst Su~ upon any Bonet
14.6 Surety shaU have the right, in its full and absolute di5Ct'etion, to decline the eJCec\\tion of any Bond. including a final Bond
when it has furnished 11 bid Bond.
14.7 Surety may consent to any changes or alteration:r.tn any Obllgatiol\. without affecting the liability hereunder of Principal
or lay 1:ndemnitor.
14.8 Surety s~211 have ev!ly right, defense or remedy which a pet'Sollal surtty without COrtlpensation would have, inclUding the
light of exoneration.
14.9 Un.til Surety sball have been furnished with conclll~ve evidence of the discharge and exonennion of SUrety Without loss
from the Bond, and until Surety shall have beeu otherwise fully indctnnificd as hereunder provided, Surety shall have the right, of
free ac:ocss 10 the boob, l'eCOl'dl;. cmclit repOrts and aoOOuntlil of PdnctpallUld Indemnitor for the purpose of ~ and copying
them. Principal aacf lmlentnitor each heteby authorize third parties, inclUding but not limited to. depositorks of fund., of Principal
and Indemnitor, to furnish to Surety any infonna.tion :tequestol;! by Surety in connection with any transaction. Safety may fumilJh
any infotmatiOD which it now Or hereaftet' may acquire COncerning Principal and Indemnitor to lII1Y other pcdon&, fizms or entities
for the Pur'pOfJe of l'roCUring CO-Sut'etyshlp (It' reinsurance or of advising lllJch pemlns, firms or eutities 18 Surety may deem appropriate.
10-1000 CStandarcllNetianl!l9 1101
6
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Pag~'El o~~50
I 4. ~ 0 If thee"ecution of this Agreement by P.dncipaJ or Indemnitor is found 110 be defective or invalid for any reason, such defect
or invalidity shall not affect the vaU<lity of this Agreement with re.qpect to Ally other party. The invalidity of any provision of this
Agreement by reason of the laws of any state or by any r~on shall not affect the validity of any other provi~ion of this Agreement.
14. t I Surety may. at its option, file or record tbis Agreement Or any other document e~ecuted by Principal or Indemnitor
indiVidually or jointly, in Connection with the appUcation, issuance or e~ecution of any .Bond coming within the SCOpe of this
Agreement, inclUding, without limitation, any notice of the prior intere1!t in assignment of the same under tile provisions of the
Unifo,rm COlUmercial COde or any other statute, ordinance or regulation of any jurisdiction or agency. The filing or recording of
any Such docurn.ent shaIl be solely at thE: option of SW'ety. The failure of such filing shall not reIeaseor discharge any of the obligation.~
of Principal or Indemnitor under ibi;: Agreement. Principal and Indemnitor shall eJl;ecute and deliver !lUch additional documont~ as
Surety may deem necessary Or desirable to accomplish any Such filing or recording,
14.12 This Agreement may not be changed or modified emIly, but only by an imtrl:lment in writing, signed by Principal, Indemnitor
and consented to by Surety.
14./3 Surety ms}' maintain repeated !ICtions to enforce the terms of thi~ Agreement a:s cause;: of actiol) aCcrue or a.~ breaches of
the same Occur without any former action operating !IS a bar to any subsequent action.
14.14 Wherever used in this Agreement, the plural shall include the s.i.ngular, the singulnr shall include the plurnl, and the neuter
ahan include both genders a.~ the circum.~tance8 requil'e,
14.15 It is understood and affinned that Bonds are a credit relationShip, and Principal and Indemnitor authorizes and empowers
SW'ety, or any of Surety's authorized agents, to gather such credit infontultion lU1 Surety considers necessary md appropriate for
purpose..~ of evaluating whether suob credit should bc ganted or continued.
J 4.16 Indemnitor bas established adequlI,te mealIS of obtaining from 801ltceS other than Surety. on s. continuing basis, financial
and ather infcmnation pertaining to Principal's financial condition and the status of Principal's performance of the Obliglltions with
respect to eaeh Bond covered hereby, and Indellmitcr agrees to keep adequately informed fr.om such mtatls of any facts, events or
circumstances which might in ally way affeot Indemnitor's riSks hereunder and Surety has ttllWe no representations with respect to
such matters.
14.17 By exercising Or failing to exercise any of its rights, optiOll8 or electionA bereunder, Surety shall not be deemed to have
waived any br.ellCb or default on the part of either Principal or Indemnitor or to have released eitht Principal. or Indemnitor from
any of their: obliga~ons het'eunder. unJe..'IS mch waiver or releose is in writing and is signed by SlJfety. In 8ddition, the waiver b~
Surety of lUly breo.oh or default hereunder !haJ.1 not be deemed to constitute a waiver of any sU(:Ceeding or pree~sting breach or
default.
14.18 The obligations of Princ;pat and Indemnitor hereunder shall be in addition to and shall not limit Of in any way affect the
obltgations of PtincipallUldlot Indemnitor \1J1d.er any other existing or futuro indemnities or guarantees tmless said other indemnities
or gtUlrS.ntees are e~reeldy modified or revoked in writing.
J 4.19 This Agreement may be e,;ecuted in any number of countE;rpIIt8, el\(lh of whieh shall be deemed an original heregf and
all af which, takeI) together, sl1aO constitute but one and tIie same instr.ument.
J 4.20 Any iudeb=cfness of Principal n()w or h~ held by InclemnlfIJr is hereby sttbordinated to the indebtedness of Principal
lO Surety, and such indebtedne$s of Principal to Indemnitor shall. if Surety so tequest,c;, be collected, enforce(f and t'eCCive<f by
Indemnitor as trustee for Surety and be paid over to &Irety on account of the indebtedness of Principal to Surety, but without reducing
or limiting in any manner !be liability of Indenu1itor under the provisions of this agreement.
IN wrI'N:ESS \VHB.REoF, Principal Alld each Indemnitor, intending to be legaUy bound hereby, have eJtccuted this Aareement dfeetive
19 of the Execution Datt fil'llt above written.
ID-1000 (StMdartflNaUorlQn 11D1
7
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Case 1 :08-cv-20484-JAL Document 1
, "
PlUNCIPAL:-
Tropex' COf:lstnJetian Servili:l!!S, Inc.
~~
By: .::f. .
JOI!J<! "'''''''''. Pro' "' ~
Attest
Angel M.
CLAIMS
Entered on FLSD Docket 02/22/2008. PagEf~ df34s0
'--
lNDEMNITOR:
Br.Cv< ~~.
Jorjjle Igjes!as, . Iolally
($EhiL{-
-~
AU SlGNATtJR.ES MUsT BE ACKNOWLEDGED;BY A NOTARY'PUBLIC
10-1000 (Standan:l/NationaQ 1101
31 of 45
8
12/07/2005 08:32 9495538143 1
Case 1 :08-cv-20484-JAL Document
J , i
Entered ~~I~EsD D~cket 02/22/2008 PaG~~ df~50
;
. st A 1E OF Florida
COUNTY OF ~iami-Oade
} 55
bJ: (Print Noten1's Neme)-r-. ~ ~ _
' CJorerne, 'L ~ ~
On September 27. .2004
PBRSONALL Y APPEARED J~ge Iglesias, a9 Pre9ident of Tropex Constn.lction Services. Inc.;
Jorge 1~IElSfl:ls; Angel M. PareJa, as InrJlvldtJafs
personally known to me (or proved to rue on the basis of satisfactory
ev.idellce) to be the per,9on(s) whose name(s) i!l!are subscribed to the
within instrument ilnd acknowledged to me that he/she/they f:xecuted
the same in hiiV'her/fJ1eir autlmi7-ed capEJCity(ies), and that by hislhor/their
signature(s) <m the instrument the person(~). or the entity upon behalf
of which the person(s) acted, executed the instrument.
~-&1!1J;~~'". J~l. Orozco
i~J ~~~ ComtnllSlGll #l)JJ.14S8S9
~i~;j Expires: AB210, 2008
....>>..i\.'r.', B~
""/~.I'" A!/sntic Botdhtg Co., IDe.
Signature
,[,hiof area [or Official Notdrial Seal
OPTl-ONAL
Though the daia bel0W is not reql.1fred by law, it may prove valuab1e to persons relying on tl1e document and could
prevent fraudulent reattachment of this tonn.
CAPACITY CLAiMeD BY SIGNeR
DESCRPnQN OF An-ACHED DOCUMENT
o lNOIVIOUAL
o CORPORATE OFFICER
T1lU!f'l
TITLE OF 1YPE OF DOCUMENT
o PARTNER(S)
o LIMfTED
o GENERAL
o ATtORNEY.IN~FACT
o TRUSTEE(S)
o GUARDIAN/CONSERVATOR
o OTHeR:
NUMBER OF PAGeS
DATE OF DOCUMENT
Sf~ IS REPAesEIfTffllQ:
N~ OF PI!AI!IQN(S) OR EN'lTTY{lS6J
10.1232 (Aev. 5101)
SfGNg S) OTHER THAN NAMED ABOve
ALL--PURPOSE ACKNOWLEDGEMENT
32 of 45
1:",~le'a~lI.f~I}..~@4~~JAL Document 1 Entered on FLSD Docket 02/22/2008 Page 3~.qL45
" SIP-l3-a!IBS 11146 ,JLITIS ItNIE1'I:NI IIJ c...ol .......... I .-.. -
.:. I '
.
JIOCVJIIINT_l
PAYMllft AND PuuroJlM.AIlIct laND
fta9tl~ IJJ..~ THIll PIIIENTl 'FHA T or.-- ro--l_ SlM!II. 1Ba., .. PriMipal and
~.................. ........lnI aflit... Dr IeR wiIh.....atnao lit rho C~ af
P1uhttoD .. ........ to do bulla.- Ia dIt State of Fladda. . Santy (1IkI PrbIQpIl _ nUl Buret)'
bcnladlr IlCIUICt1V1ly ilciDI"'" 10 . OhUp). .. MIa lid ftmaly be_lata nw DIIuicr Boml ofT,... or
M.~1..DIde CoUep. PIarIda (Ibr: 1I0wa1r"). III .... .. or PlWl ~ TlIInIIInd DIll. JM NDlIIIO DoUm
teCM 1IIIft.1D\ 1IwI&l1llllM1 or Iht UIIW.... or AawicI. far .......1 Dlwhlah 10 IbI 0wnIr, the Prtacdpat and
Santy IIIpICtivtly blnd......'_, .......... pIftOIIIlNPI11 ....l~ ~ Ind.aipl, jainlty IIId 1IYIfI11y.
WHIR!A8 .. prtnipll MIl till CMlrhM IDW _ . Lump bID CcIaIIruadaD~" dMId tho
l6III _ of ~- 2Gk wblm ~ ~ rellrlDc:t 1be COftncf DocumealIS Mf b1h Ihe,.in (liu:
q ApIesnearI). far die caa&tI'Idan _iii PriaclpIl afia fallowiDa prgjatt Df'1he OwMr (IhI"ProjllCl:"):
.:
"811III"-
~_...._. a..artd n......etJ.. 11If'V1Ml1ar 1M V.riaIu MbC
I.ApI DaaipIIon ofPftputrI :mr=:~~DIUI
stnat Add...: ItAn LW. ,.......
....L PI. 1:4'"
..... No.1
Coal......... .... N..bIn
Owaer. Pluta, N......r:
la..,.. ...... "..1IIrI
COIItnet N.lIlblr!
PrDJIII DaaiptlDat
..!If ~ MId .... c..- Danai. .... ... l pIII......,.1.ty rerw.ce. _ iItdIJly oapiIIHIId 'cmII
....... m bandIllDd _ deftalt IlIaD... de .........fIIftIi Jft till AptiImIIatllddll aIbIr CaNrIr:t DacLIMmI.
NOW. 'tlIBREFOR!, ....l:IIdIdoMat..1npiq aWi&IIlOD(the .CaId~ fI._1f1lle Prlnaipll;
I. ,..... III ~..~I .... .. ~ . tha ... ad ill tbI ~ prtICitbId m tbe
~ lac..... "1inkIciaa." nu... to ..~ tbt -..lnd........l ud
2. PI1IIIIpIJ,__ ........ID~,. ....ldmlaaZS5.G5(1). FIDdda........ln&
die PdaotpI& 1Mor, .......... 1IIIPu. _ dkllldyllll iIIdbIcIly by Ibc PrIIcipII or .1U~1'I,
...........- fit' ____ fIf IIIe PrJnldpa1Ia ltl. plDIIM1aI of lilt Wart IN'O'idI' 1br ill the
.......at; IIId
3. ......1..1Dd hDkII........ 0WDIf _""qaiftllIUliQUItiIa, .. .-..,., .....
..... ~"'q:rva"~ DeaI,......... ,........ ........aII1I ad...~_....'t~ ....Iillt-Mtlrto.
.....,., ................. (whtIIIIr IlI1t j. iaIdtuIId ar ...... if'1II11i1lt1tL __., die rriaJ ar
__IMI).........,. II' dllrpraCiuionllhll,. till Owner IUIIIIu III.... ofa deWr b" the
PrtllDlpaIlIIder ..~ lid
-4. hIfarmt ... WIII'DtiII II'" Wide fin... ...... ~ far the .elJ*Ulld 111 the
~
.. dill oblipda _" be vaMl; adIttwlR it IbaII ""ID &IU 10M.
.."...".,....... ..................... .............. ........ ..........., .............. ..... ........................ .... ....... ....
IIDC ....,C__... ........
........,... ,..,. f
..
EXHIBIT "B"
33 of 45
III _~.~
.
....1 ii~as~d :018.;.C,y-20484-JAL
. ,2.Ii!l ... .66 t"M
SEP-13-211!1S 11 & 4'1
4' I
34 of 45
Document 1 Entered on FLSD Docket 02/22/2008
.LITIES P'A'RlE1'tiN1 lJ ~I u-o....
Page 34 of 45
I ....... _
.
Ia .. .....Ihc" ~..... .... to......, .,....c.dttta....0WIet _U'" ill riPl" .. WJ1ne lUIlice
at mch dIfHIllG dte a.ew.- ...........Imb Ill......,.. hIru( wtdI:b ......11 NqldRtbllI:n\!Yto
-1R"JIBIIIIb' thDR abI__ etlhO PflMIpIt UIIdcr tile All..... wWcb rwll&o to .. ~ of'Usk 81f1d
wldIh 11M 1I01..1IIIIiIfiId. tribe...,.. lilt procIId wItIl Ita aWiId- undIr I1I1IIaad. IncIUlliq. wllboUt
Ilnlltllton.I.,...,... or......... 1M OWner, wlthiD t1IMD(U) uleldardaJI af1bI rwceipc otthl 0wDct.
utica, DllAY _If...., Npe8.kd by IhtOwIIIr-.-=-et.. PrinoApaJ'. _fAltofitl~, me 0...
IbaU be',lIdded 1D td:In:e -rl'ltllldilllfll&a.. at It, It IIVt or ill ..-, ..lilt S~ ,.1M S1B'ItY ..... dtlt,
in IddltialllD ita,.,... or~ ab'."""llCiIlfII Sa llat CoDdltioal, It ahIIJ bl obllpbld 1D pili IU caaalUld
....... (IDDbailnc. ........ 1iadIIdoIl, IDDnIII!'l' ,.. and dl.~~) IaaInrad b IblI 0wnIr in IDforCiaJ hs
rIIDIdIII __lbll laid.
'I'M Db'" ....... acIaIawfldtt ......--
(I) pu~ 10 Sillio&155.QS, rrIIrida....... .)'Cllballluhlllhml IiIJIIDfIClian qUIlt tbt SURLy
1IIdIIrthll JaftIlultbe .,.., .... oily...... the aw.r ~ lNIi6aDIdi provicIId, hawIWr. tbat
.. ... IllS tin ~ "... of 11IGb ... IhalllR appl1alltle to 11IGb Cl.......... aact IbI
obi_us Dr.. .. ........ tblllbe....l . aD .. "... of........-, .. upaa rIqUIIl 01 lIlY
.... clltlunl. .. PrIaelplJ IlIIll pnIIIIIllIy 1InIIh. ClIp)' Iflllil Baad ar pma1t a IMlpf III .. .....
('8) ., .. alllDDdlMw, .......1ddIdenI..ahupI whlai.. lit... tat till tInDI aftbl
ApIelMat at Ie II tha Wade. lit............ .Iht.tvlna "iii 0ItI1IH or Ifty _aN or liIII tDr
ltII ,...~otlUi~--' "1DY~arprllftlllftJllPlll1l" b)'o.m.lD PftacipI~ Dr
III)' 6..b.._ ~an the..- 01........ ~ia. Dr" PMcipII. or ekhet Dr IIf/ .rlMm. fA the
odw, _II 10111 lIIY_norlD or................. PriIoipII and 1Iw""" or'" aflhm.
tam JldIIliIy ......... IlI.IIIae at lie ...., ar my .. 1DOdlftCaIIam. .......... ""'-, clanaes,
..UlMi-. O~ JIIIIIIIlUn .....- btInnAcIa Mia...., _"14;
(e) ..,........ .praac.......... ar cqubabIe...JaUta uadcrda1sBaDd IbaIlblt...... .....courtI
Dflhe 811m Df'PIDrIda II MIIIn&-O. ~... latH U.s. Dia\ril:t CIIIItII' 1M SauIberIl DWtrlct DrFlarlda.
lad........,....,. tbllUlftIIlIbIIWl pIlUIIIIJllltldiaUaft ofdtoall-. for.. pulpllHat_.UdbnH,
__"plU'I~ 11II:
(II) .... .... is ... rIll t IIIdIllaUlld IMlrlUllln.1tetiaII2SS.D5, PlIrIdl_r ..Ue IUbJlCllUlle
....11II_ .........provIIiansaf... ""on. _prow- I1lddl Bond eann_lwllhlUCbltatiaD
_II be ..... dIIIttd hID dill Iaad ud JtAWlIfau contkten& wllb .... SIrian aU be itcmed
..,.....d hItIiL
......._......................... ...... ....................._..M..................... ,...................-............ ,...-.
.c..... CUI....... Dlc.1IIIf
CllnlNIIJIII. ~ ,..",.
~"'1, ~~1lI1:;0~~'{:f.Q4~~,-JAL
SEP-13-2121i15 11147
Document 1 Entered on FLSD Docket 02/22/2008 Page 35 of 45
iLl TIES ~I \IJ c.J' ........w "'___
..
IN wrnr&8I WH!JI,BO', lbI PrIDDIpIl aDd fie santy have caused 11I11 .0Dd CD be eDCU!Cd IhIa 12th
cia)' otOctalllr. 20.!4
~. .'
~IlDfCl'AL'
troPCK CoDItru=tiou
le1!'ri.el'. tAlh
(PriIltICI..
MIlt
By:
~/J~~
I'
tiJJu ~ ~""UIII.. J.
(Pd1ad Dfoflklr)
(Corporate SaIl)
(PriIIIid . ill' otIi:ct)
14'42 IV 98 "~t'e.
Hi..Ii t I'L !3186
L8uIiIwII AdINa. Tlltplaoac)
. (SO,) 116-8615
BYI
~LJJ~
1URM'Y
DeYllD"~. Surety &ad
IDl1l1....f r:, ~,
(PrkMIId ... ., IIII'Ity)
~~
Charla. D. ltaleaa
(MUd..... II ~MI)
aMrle. D. lfiabcm
(PriIIId un or............. ApIIl)
(~ 11II)
HOTIa Ifbatll PrlIClIpalIlll s.., IN ~ tbI NIpICtlVI ClcIpGr_ SUI_III bt: .nuad .1Id aftUhed.
AtIIdl atpy "duty ...... ..-. of A-." AftIney........
.trlbl...... ...,...... ..III.......,.,.....~ 6e~....IIUItIIlo...... Bond
IIId IIIIh all' ... ....hIW-\ ~ ilia MIl ......YI .. ~irK 10 IXICUta all ....f ofd1e
1CIIp1lllla.... Jr" ".,..lIajaEWIIIIJI, IIJjtlatwaan....._ .....1bIICIIIdaad........1tIu at'
dII... IhIU be...... _.......~ "U be IaeWId, ....... ,. eucudDft'" ....Jollt
~ IDcIadIllIllJalB _ pIIIIIIII. fbUGldlllliaaall. .
IND O' DOCUMIN'I' 1OA1
..........u......................._............... ......................................................... ....................,
.=_CaIM,..., a-.--.
CIIIIIMI_III1..... ..... ~
35 of 45
Nov, 30, 2004 2: 05PM Entered on FLSD Docket 02/22/2~b~750Page 36 of 45
Case 1 :08-cv-20484-JAL . Document 1
THE AMERICAN INSTITUTE OF ARCHITECTS
Bond No. 532 439P
AlA Document A311
labor and Material Payment Bond
THIS aONO IS ISSUED SIMUL TANEOUSL Y WITH PERFORMANCE BOND IN FAVOR OF THE
OWNER CONDmONEO ON THE FULL AND FAITHFUL PERFORrl.1ANCe OF THE CONTRACT
KNOW ALL MeN BY THESE PRESENTS: that
(Here in$tlrt MJ name ancl addl'e$$ or legallitle Of ~tracloc')
rr~CtmStructitmServicesJ> 1~t'14342 Soutliwest. geli <T~!Miami Proritfa 33186
as Principal, hereinafter called Contractor, and,
(Here insert fun name and aIldreas or legal tiUe Of Surety)
~ Svn:t:y and' lndf:mnity C~. lSQ Stmtfi. Pme lsfantf~ (P(amatitm, PIDri4a 33324
as Surety, hereinafter called Surety. are held and firmly bound unto (Here insert fuD nllmnnd Pddresa or Ieglll tiUe Of Owner)
~'4>atfs Cmmty-genera1 Smvices Nministro.titm, Const:ruction :Mfl1Ul8ement att.iI ~owt:ticm. Smices
'Ditiision,"111 fN~ 1st Street, Suite 242a !M:ia:mi, pl'oritftz 33128-1909
as Obligee, hereinafter called Owner, in the amount of
One N1I11tl1wf!}finl4f;y tNin, ~ Six.:Kwufrufr.Fifty Pwe amf!No!l00 CDoffars ($199,6.)$.00 J
for the payment whereof Contractor and Surety bind themselv9S\ their heirs, executors. administrators, suecesaors
and assigns, jointly and severally, firmly by'these presents.
WHEREAS,
Contractor hat by written agreement dated , entered Into a contract with Owner for
(Her8lnsert full name, addlellll and deet.:riptioo of project)
eJUl.fl.9rt - (j(pn.otfe( Wareliouse
(project !NO. UJ3017'0 Contract No. Clce .lO4{)'()/O7
In accordance with Drawings and Speclflcatlons prepared by (Here Insert full name and address or le;al1llle of Ald1Itect)
which contract is by reference made a part hereof. and is hereinafter referred to as the Contract
AJA DOCUMENT 11311 . PERFORMANCE BONO A.ND 1.A.SOR AND W\TERIAL PAYMENT BOND. AJA €I
FE8RUARY 1970 ED. THE AMERICAN INS'TTTUTE OF ARCHITECTS, 1735 N.Y. AVE,. N,W.. WASHINGTON. 0.C.2000e
3
C:~CUME~l'gmcclurS'LOCALS~l'Temp'TROPE_l.DOC
EXHIBIT "C"
36 of 45
Case ~:b~2cv~818JJ~tM Document 1
, ,
Entered on FLSD Docket 02/22/2tb0~750Pa~e '37 of 45
LABOR AND MATERIAL PAYMENT BOND
NOW, THEREFORE. THE CONDITION OF THIS OBLIGATION is such that. IT Principal shall promptly ma.ke payment to an
claimants as hereinafter defined. for all labor and material used or reasonably required for use in the perfonnance of the Contract,
then this obligation shall be Iloid: otherwise it shall remain in fun foree and effect. subJaet. however, to the foUowlrlg conditions:
1, Claimant Is defined as one having a dlreet contract
with the PrincIpal or with a Subcontractor of the Prlnclpal 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 ser.tice or rental of equipment
directly applicable to the Contract.
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 fun before the
expiration of a perIod of ninety (90) days after the date on
which the last of such claimanfs work or labor was done or
performed, or materials were furnished by such claimant.
may sue on this bond fur the use of such claimant,
pfQSewte the suit to final judgment for such sum or sLIms
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. No sun or action shall be commenced hereunder by
any claimant:
a) Unless clalmant, other than one having a direct centrad
WIth the Principal, shall have given wrltten notice to any two
of the following: the Principal. the Owner. or the Surety
above named, within ninety (SO) days after such claimant
did or perfonned the last of the work or labor, or furnished
the last afthe materials for which said claim is made, stating
with substantial
Signed and sealed this
3rt'
day of
(Witness)
accuracy the amount claimed and the name of the party to
whom the materials were furnished. 0 for whom the work or
labor was done or performed. Such notice shan be served
by mailing the same by registered mall or certified mall.
postage prepaid., in an envelope addressed to the Prlnclpal,
Owner or Surety, at any place where an ofI'lce 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, salle that such
service need not be made by a pUblic officer.
b) Aftar the expiration of one (1) year following the dat& on
whIch Principal ceased WOiK on sald Contract. It being
understood, however, that if any limitation embodied in Ihis
bond is prohibited by any Jaw controlling !he construction
hereof such limitation shall be deemed to be emended so
as to be equal to the minimum period of limitation pennitted
by such law.
c} other than In a state court of eompetent jurisdlctlon In
and for the county or other political subdivision of the state
in which the project. or any part thereof. is situated. and !\Ot
elsewhlilre.
4. The amount of this bond shan be reduced by and to the
extent of any payment or pIlyments made in good faith
hereunder, InclUs1\(e of the payment by Surety of
mechanic's liens which may be filed of record against said
improvement, whether or not Claim for the amount of 8UdI
lien be presented under and against this bood.
November;
2004.
Trooar Construction Services. Inc.
(Seal)
(Title)
(W1tnees)
DevQ/ODQfS Sul'8tV and Indemnltv Comaanv
Charles D. NleJ$on, At1omey.Jn.Fal:t and Florida Ruldent Agent
"".8OIID MIrC!W IS AIIINDIo 80 MT M Pftl:MIJONI AM
UMlTATIONS OF SECTION t5$.ofi OR 8IOTION 71...
~OAiDA STATUTES, WHI'CH1\'ER '...."'UCMt.S. MIl!
~lI'C*ATID WEAltH' I'f r(!FeAENCE. .;' .
AlA DOCUMENT 1<J11 . PERFORMANce BOND AND lABOR AND MATERIAL PAYMENT BOND. AlA ~
FEBRUARY 1970 eo . THE AMERICAN INSlTnlTE OF ARCHITECTS. 1735 N.Y. AVE., N.W., WASHINGTON. D.C. 20006 4
C:~CUMEN1~grncclure'LOCALS~1'Ternp'T.ROPE_l,DOC
37 of 45
Nov. 30. 2004 ?: O~~LM
Case 1 :08-cv-20484-JA
Document 1
Entered on FLSD Docket 02/22/2~[)s)750Pa~e 18 of 45
. ,
'U'!}:@
'r1SCi!JII:C
~
DISCLOSURE RIDER
Terrorism Risk Insurance Act of2002
The Terrorism Risk Insurance Act of 2002 created a three-year program under which the
Federal Government will share in the payment of covered losses caused by certain events of
international terrorism. The Act requires that We notify you of certain components of the Act, and
the effect; if any, the Act will have on the premium charged for this bond.
Under this program; the Federal Government will cover 90% oftb.e amount of covered
losses caused by certified acts of terrorism, as defiIled by the Act. The coverage is available only
when aggregate losses resulting from a certified act of terrorism exceed $5,000,000.00. Insurance
carriers must also meet a variable deductible established by the Act. The Act also establishes a
cap of $1 00 billion for which the Federal Government or an insurer ca:o. be responsible.
Participation in the program is mandatory for specified lines of property and casualty
insurance, including surety insurance. The Act does not, however, create coverage in excess. of
the amount of the bond, lior does it provide coverage for any losses that are otherwise excluded
by the terms of the bond, or by operation of law.
No additional premium has been charged for the terrorism coverage required by the Act.
Developers Surety and Indemnity Company
Indemnity Company of California
17780 Fitch; Suite 200
IrvIne, CA 92614
. (949) 263 3300
www.lnscoDico.com
10-1498 (Rev. 5103)
38 of 45
Nov. '10. 2004 ?:06~M
Case 1 :08-cv-20484-JAL
Document 1
Entered on FLSD Docket 02/22/2lOCl~750Pa~e 39 of 45
POWER OF ATTORNEY FOR
DEVELOPERS SURETY AND INDEMNITY COMPANY
PO BOX 197:25. IRVINE. CA Q.16.13 (Q4Q) 26~-~~()O
www.ln)(CoDko.com
KNOW ALL MEN BY THESE PRESENTS. thnt c~cert n< l"Xpre<.ly limil~d, DEVELOPERS SURl:;IY AND INDEMNITY COMPANY doe5 hereby moke.
con~titute and nrJXlint:
*** Charles]. Nielson, Warren M. Alter] Charles D. Nie[son, Brett M. Rosenhaus, KevIn R. Wojtowiczr Laura
Mosholder, jointly or severally ***
a~ il~ InlC nnd luwful Attorney(s)-in-Fact. to mnke. execute. dlllivcr and aCknowllldge. for und on behalf of said eorl1omtion lIS surety, bonds. undertakings and
conlT'Detl; of suretyship zivin~ Bnd l>'T1Intinl;l unto gaid A1tomlJy(sj.in.Fact full rower und outhorily 10 do and to IlCrfoml every IIct nece5sal)',requiSitc or I1rol1er to
he dl)ne in eonm:ctilll1 therewith lis the cOl'J'oration could do. hut rl1~erving to the corponuion fulll'Jower of ~lIb~tinltion Dnd revocation. ttnd ~1I of the ucts of snid
Artornc::yls)...in-FlIct.l'JlIn:lIant to thc~c J'll\.~nt~. are herehy rntifbl and confirmed.
This Power of Attorn..-y i, gmnted nnd i~ si~'Tled by fnc"imilc under ond by outhority Mthe foUowing N~ohl1ion adorJled by the Board of Director; ot'O~VI:LOP!:RS
SURETY AND INDeMNITY COMPANY cftcctive os of Novemhrr I. ~OOO:
ReSOLVeO. thot the ('hnimlno of the Boord, the P=id~nr and any Vice Pre,ident orthe cOl)lomtion be, and that ench ofthem hereby r'i. authorized to
execute POW!;"' oT Attorney. qllnlifyins the Attomey(sHn-l'act nnmed in the Powel'!: of Attorney tl) e:tceutc, on behnlf ofthe corportltion. bond.... undertakinC;$ cnd
contrnct~ of ~urctyship: und that the Secretory or uny As!>islnnt Set:r~lnry of the corporntion he. llnd each of them hc::rcby i~. authorized to nttt:~t the exccution of
tinY stIch Power of Atlomey;
RESOLVED, FURTllER. that the5i!ornotul1:s of such officm may be at'tixed t(llmy !>ueh Power of Att(lm~iy or 10 tiny ccrtiticntc rclBtjn~ thereto by
fotllimilc. Ilnd sny llueh Power of Attorney or ccrtifiClllc bcaring guch fllcsimilc signoturc.q whllll be VIllid and binding uJ'lOh the corponuion when so affixed ond in
the flllurc with respect to uny bond. undertakin~ or contnll:1 of~ul'Cty~hil1 to which it i~ aUnchcc.l.
IN WITN~SS WH~RI:Ofl. Dl::V~LOPeRS SUReTY AND INDeMNITY COMPANY hn~ caused thes~ l'Jre$el1~ to be ~igned by it~ tc:spective executive Vice
President llnd attested \'>y jt~ Secretary thj~ 1st dny of October. ~()(l~.
o~-)
,.II'"....,.~
.....~ AND '''',\
~Iit.~t.~ .,........., ~D~ ~
.......... ,.' "Og :~~" ...
1i'rif"'o~r ''''I~'~~
I lr.. '~"'*'\
i:!i OCT. \~i
=le! 10 in!
10\ 1936 ~ij
f~'......IOW'" ~/~~l
\;...~O' ,~........~ ~~.,,,,
~;" * ~~"
'."''''I.I'U''~
By:
Dnvid H. Rhode~. E.~eeutjve Vice.J>re.cident
BY' AM ~
Walter A. CltIWclL Sec:~lary
STATE 01' C,'A L1FORNIA
COUNTY Oil ORANGE
)
ISS.
)
On October 1.2003. before me. Diane.r. Kllwlltn. flenlono/ly ~flpcared DlIvid H. Rhodt!llllnd Walter A. Crowell. )Icl'lIonally known to lue (or proved to
me en the ba,js of ~ilti~factory evidencc::) to be Ihe rl1r.cons wno;(C nom.::; an: surn.t:ribed to the within' ingtrumcnt nnd Ilcknl.lwlc:dged to me that they Cli:ccuted the
KIImc: in their authorized capacltic!l. and thut hy thcir ~lgnRnlrl;s on the instrUment the l"tity upon behalf of which the pcr.;cms DCted, eXL'CUlcd the in$ttumcnt.
WITNESS my hand and officio I ~I
SJ~'_~)CM ~ ~
r
Q
:i
:;
f
-----q_T ...
....:
DIANE J.I<AWATA f
OOMM. '13347-4$ ~
Nolary Public - CIIIbm.. 3::
OAANGE COUNTY g
lAy Comm. Expinr& JAN. a. 2llO8 1
~ 1 f _ ~l
CERTIFICATE
The undcn<ignL-d. as Senior Vic:c-Pre~itlent. Underwriting. of DEVELOPERS SLJRETY AND INDEMNITY COMPANY, doC$ hClllby cortify thutthe
foreBoing POWer of Anomey remain~ In full fol'l..'C ~nd h~s not been revoked. and furthcnncm:. Ihut the I1rl1vi~ion~ of the resolution of the rc'pcctive Boards of
Directors of~id cOf'llOr:ltion ~et forth in the roworof Attom!;y. i~ in foree ns oflhe: dIlte: Oflhig Cettific:lle.
This Certilicate II( ell.ecuted in the City of Irvine, Cnlifornin. the 30th day of November
2004
w
JO-t43l1 (051) (Rev. JO/O.~)
39 of 45
" ,Ca,s191 :~~~Cj\t2~4-+f\~PM Document 1 Entered on FLSD Do~pet 02/22/~~?~744 p~~eI40 of 45
. . ,
THE AMERICAN INSTITUTE OF ARCHITECTS
AlA DocumentA311
Bond No. 632 438P
Perfo.rmance Bond
KNOW ALL MEN BY THESE PRESENTS: that
Ttope.:(.Const1'Uctitm.smnces~ In.c.,' 14342 Sout/i:wfSt 98f/i 7'emu:e, 5Miami, pfmitfa 33186
as Principal. hereinafter called Contractor, and, (Here irlsert fun Jlllme and address or legal tj~e of SurelY)
~ S1dfJty ana lndi:mnit.y Compa~' ISO Suutfi !'Pme lsfani'~at.(. ~tati<ml P!iJri&t. 33324
as Surety, hereinafter called Surety, are he!dand firmly bound unto (l-taraiMertfullnemeandaddreSCOtlegaltiUeofOMlel)
!MDn1'r1e County(}JoQirf qf County Commissioner'S; 500 f,lIli#eMatf ~ 1(#y mrt~l'furid4 33040
as Obligee. hereinafter called Owner, in the amount of _
Pi.TmNzmtf1'lli91iirty tFipe fJJiLwtmtff.Fow1fwtfrllflJJiinyaml9(o/l00 (])alfats ($SJJ,4JD.OO )
for the payment whereof Contractor and Surety bind themselves, their heirs, executors, admInistrators, succeesors
and assigns, jointly and severally. firmly by these presents.
WHEREAS,
Contractor has by written agreement dated Octo6er 2Q, 2004 t entered intQ a contract with Owner for
(Hole Insert fu8 name. adClr8$8 ancl de$erip~on of projod)
In ae<:ordance with Drawings and Specifications prepared by(Htre insert fuU name and atJdtasa or Jegallitla of Arch!lId)
. Matthew FoWler, Architect; 21 Ships Way, Big Pine Key, Florida 33043
which contract is by reference made a part hareof, and is hereinafter referred to a~ the Contract
Tawmier Wire Statirm No. 22;
(}3itf!}ffA CJr(<1>--230-136-Qw.2004iPtJc1t
AlA DOCUMENT A311 · PERFORMANCE BOND AND LABOR AND tM'iERw. PAYMerr BONO. AlA f>
FEBRUAAY 1970 ED.. THE AMERICAN INSTn'U'TE OF AACHlTECTS, 1735 No Y. AVE., N,W., WASHINGTON, D.C. 20006 1
C;\DOCUME~l'gmcclure~OCALS-l'Ternp'TROPE_l.DOC
EXHIBIT "D"
40 of 45
L D t 1 Entered on FLSD Doc~et 02/22/200~
..Ca.se 1 :~o~~'3t29~~4-~~2P\1 ocumen t,. Nc,0/44
PERFORMANCE BO~Q
Page 41 of 45
p, 2
NOW. THEREFORE. THE CONDITION OF THIS 08L1GA TlON is such that, if Contractor shall promptly and faithfully
perform said Contract, then this obligation sh.QU be null and void; otherwise it shalt remain In full force and effect,
The Surety hereby waives notice of any alteration or
extension ohime made by the Owner.
Whenever Contrac::tor shall be, and declared by Owner
to b& in dehlult under the Contract, the Owner having
performed C>.vner's obligation thereunder, the Surety may
promptly remedy the dafau~. or shall promptly
1) Complete the Contract in accordance with its terms and
conditions, or
2) Obtain a bid or bids for completing the Contract In
accordanc& with its term and conditions. and upon
determination by Surety of the lowest responsible bidder, or
if the Owner elects, upon determination by tI'le Owner and
the Surely jointly err the lowest responslbfe bidder, arrange
for a contract between auch bidder and Owner, and make
available as work progresses (even though there should be
a default or a succession of defaults
Sign&d and sealed this
3r1'
day 01'
(Wttnes$)
under the contract or contracts of completion
arranged under this paragraph) sufflclent funds 10 pay the
cost of cornpletion less the balance of the contract pl1oe; but
not exceeding, including other costs and damages for Which
the Surety may ~ liable hereunder, the amount set forth in
the first paragraph hereof. The term "balance of the
contract price," as USe<j in this paragraph, $hall mean the
total mount payable by cmner to Contractor under the
Contract and any amendments thereto, less the amount
properly paid by Owner to Contractor.
Any suit under this bond must be instituted before
the e:q>lration of two (2) years from the date on Which final
payment under the Contract falls due.
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.
November,
2004.
TroDex Cllnstr'uction SeIVlces. Inc.
(PrincipaO
(Title)
(SeaO
Develooens Surety and Indemnltv Comoanv
(Surety)
(vvrtness)
Charllt$ O. Nte/.son. Altomer-J1t.hd and Ronda Resident Agent
AJA DOCUMl:NT A!11 . PERFORMANCl:: 60ND AND lABOR AND MA.TERIAL PAYMENT BOND. AlA ~
FeBRUARY 1~70 ED' THS AMERIcAN INSTITUTE OF ARCHITECTS. 1735 N.Y. AVE., N.W.. WASHINGTON. D.C. 20006 2
C:~CUMENl'gmcclure~OCAtS~l'Temp'TROPE_l,DOC
41 of 45
. '. . .Ca.s~ 1 ifcl~-rif.-2R~~4-r:1~M Document 1
Entered on FLSD Docket 02/22/2008 Page 42 of 45
, No. 0144 p. 3
"lr1X(3
Inscrm.CC
~~
DISCLOSURE RIDER
Terrorism Risk Insurance Act of 2002
The Terrorism Risk Insurance Act of 2002 created a tbree~year program under which the
Federal Government will share in tho payment of coYered losses caused by certain events of
international terrorism. The Act requires that we notify you of certain. components of the Act, l'llld
the effect, if any. the Act win bave on the premium charged for this bond.
Under this program, the Federal Government will cover 90% of the amolUlt of covered
losses c.aused by certified acts of terrorism, as defined by the Act. The coverage is available only
when aggregate losses resulting from a certified act of terrorism exceed $5,000,000.00. Insurance
carriers must also meet a variable deductible established by the Act The Act also establishes a
cap of$100 billion fot' which the Federal Government or an insurer can be responsible.
Participation in the program is mandatory for specified lines of property and casualty
insurance, including surety msurance. The Act does not, however, create coverage in excess of
the amount of the bon4 nor does it provide coverage for any losses that are otherwise excluded
by the terms of the bond, or by operation oflaw.
No additional premitun has been charged for the terrorism coverage requited by the Act.
Developers SUrety and Indemnity Company
Indemnity Coinpany of Ca/iforniQ
17780 FItch, SUite 200
l!Vitia, 04 92614
. (949) 263 3300
wwwJnseoDleo.ccm
lo-1~ (Rev. 15/03)
42 of 45
. . :, pa.s~ 1 N~~-rt~~ff~41~~1M
Document 1
Entered on FLSD Docket 02/22/2008
:i No: 0744
Page 43 of 45
P. 4
POWER OF ATTORNEY FOR
DEVELOPERS SURETY AND INDEMNITY COMPANY
PO BOX I 97:!5. IRVINE. C'A Q2~23 /Q4t)) 21i3-3300
www.rn~oDico.com
KNOW ALL Mt!N BY THESt! PRliSENTS, that except a~ expml.,ly limiled. DEVELOPERS SURETY AND INDEMNITY COMPANY doc, hereby make.
eonstitllte nnd nppoin\:
*** Charles J. Nielson, Warren M. Alter, Charles D. NIelson, Brett M. Rosenhaus, Kevin R. WOjtowicz, Laura
Moshold~r, jointly or severally ***
a~ il!l true and lawflll Altomey(~)-in-F.et, to mukc. eXCl'IIlC. deliver nnd acknowledge. for und on hcholf of suid corporulion as surely. bonds.. undertBklngs Bnd
contl'llcts of surcty:lhip giVing and granting UnlO ~"id Allomcy(s}-in-Fncl full power and authority to do and to flCrform ~ycty ~ct necc:l>lulY. requisite Of proper to
be done in COnnCt'tion thercwith AS thc corporatioll could do. but rc_crYing to the- C(lrporotion full Jlower of _llb~tilUtion and revocation. and nil of the act._ of s:Jid
Attomcyl.l-in-f'nct, pu""uIJ11 to thc~c p11.-:<cnr.. arc herehy mlificd and cClnfil'tlll'd.
This Power ofAttom~y is !,'I1Inled and i. .igncd by t;,c.<imile under and hy omhori'y of the following re~ol\ltion odopted by the Booro ofPi",ctoT!; of DEV!:LOf'ERS
SURETY AND INDEMNITY rOMf'ANY eflt-etivc:l.' ot'NClvcmber l.lOOO:
RESOLVED. IhM lhe Chainnnn ofthc Board. the Prc~ident and nny Vice Prc~jdcnt ofthc e01p(1rntion be. and that cneh ofthcm hereby is. nuthori7.ed to
execllte Powers of Altom~y. qualifying the Anome)'rsHn-Fnct nnmed in the PClwel]; ot'Allomcy to e~eCllte. on behalf of the corpomlion. bond.,undcnokings and
Ct)lltr(lCl~ of ~lII'\)ty~hiJ'l: IInd thut Ihc 5ccretnry or uny A...<istHnt Secretary of the cO'1lomlion he. nnd euch of them hereby is, nuthorized to nttc.t the exccution of
any gllch I'ower of Altonlcy:
RESOLVED. fURTIIER. that Ihe .iznallltcS of .ueh officef1< mu)' he nflixed to Bny .ueh Power of Attorney or to uny certificate fclatillz themo by
fne,imile. and nny ~l1ch POWCl' of Alloml'Y or certificate beming .L1eh facsimile sigtUlturC!: shnll be vlllid nnd hind ins upon Ine cO'l'orntiorl when .0 affixed ond in
the filtlll'C with r<.':<l'wt to any bond.lIndcrt~king or eontrlld of SllTl:tyship 10 which it is attnched.
IN WITNt:SS WHEREOf. DEVELOPERS SURETY AND INDEMNITY COMPANY hBs ctlllsed Ihese pres"nl~ to be .igned by it!; re~JleCtivc executive Vice
PreRident nnd Bttc,tcd by it~ Sccrctmy this 1st day OfOC!otlef. J003.
o~
",Iun,..",
~"~~ AN D i"f,,,,
i'~"<- .....'....~... WC~....
1~~......o~POJl.f;,,~\.
0)' tJ ~\~\
irr:i OCT. i"'i
=lfl 10 I,.,s
\ 0 \, f 938 !Q!
\~"" JOW~/~b~
~O' f..J.k........ \-...,-
.'~/I',.I.!..I."...'''.,.
By:
David H. Rhode._ Executive Vice-Pre:<idcnt
"" Ak~
Wnhcr A. Crowell. Sccrctmy
STAn: OF CALifORNIA
)
)SS.
I
COUNTY Of OR.ANGe
On October 1.100~. bcfo~ me. Dign" J. Kawaltl. p.:r.;(llllllly ol'peared David H. Rhodes ood Wnl1er A. Crowell. personally known to me lor proved to
me on the ba..us ofSllti:dilc:tory evidenec) to he the; "o;l1lOn~ who:<c namlll' ure l'ubl:cribcd to thll wjthin.in:<tnlm~'lIt and ucknowledged to mc thgt Ihoy executed lite
Mme in rheir BUlhoritL'll capacities. snd that hy their slgnul\Ill::< on the inltnlll1~"IIt the entity upon bchnlfofwhlch the "coon.' P~1~'d, atCC\ltcd thc instnlmcnt.
WITNESS my hand snd official scul
I ~ - L. .DIANBJ.~~ 1 J
;;;i@ COMM.'I3347~ ~
:! NoWy PullIit . 0&llllmIa s::
~ ORANGE OOutffi' g
t r , __ ,My Oorrm. Explrn"Wu. 2IlO$ J
,
Sfgnnmre
~KM6 ~
CERTIFICATE
The undcn;llPlcd. Pll SCllior Vje~"Prt."l<idcnt. Undetwritinll.l'lf DEVELOPERS SURETY AND INDEMNITY COMPANY. doCII hereby cqnlfy that the
fbn:i01na Power at' Allomc:y remains In full fun..oe and h:~' not be~n rcvok.;d, and funhermol'll. that the f1l'O\lI~lon. ofth<J re.olatlon (If the resJlcetlvc Boards of
Oi_tors of said cOlJlt'ration set forth in the Power of Anomey. I~ In torce ~~ of thc date ofthill CertifICate.
This Cenllicale i! executed in the City of Irvine. Califomill. the 30thdnyof November
.2004
b
10-14.311 /DSI)(Rev. IlW:l)
43 of 45
.. _ C8$~ 1 :Q8-cv-20484-JAL Document 1
Entered on FLSD Docket 02/22/2008 Page 44 of 45
12/07/2005 08:32
9495538143
CLAIMS
PAGE 01/10
1fTF~
InseCIIICD
~@l61lb!J!}D
VlA .FA~ AND U.S. MAIL (305) 675...0342 (1Q...Pages)
December 7,2005
Mr. Angel M. Pareja
Tropex ConstnIction Services, Inc.
459 NW 25th Avenue
Miami, Florida 33125
RE: Bond #s;
Principal:
Obligee:
Surety:
532296P, Miami Dade College
532439P, R.A.A.M. Remodel Warehouse
532438P, Tavernier Fire Station #22
Trbpex Con.struction Services, Inc.
Various
Developers Surety and Indemnity Company
Dear Mr. Pareja:
Developers StU'ety and Indemnity Company (DSIC) has to date paid $67,119 in
satisfaction of valid claim.s against our bonds. We anticipate having to pay additional
claims. To facilitate such paymentsl the total of which wi.U likely exceed the remaining
contract funds yet to be received from the above referenced projects, reserves in the
amount of$130,000.00 were established against the above referenced Payment Bonds,
and for costs DSre may in.cur in processing and/or defending against such claims_
Pursuant to Paragraph 3 of the Indemnity Agreement signed by you and each of the
personal indemnitors listed below, demand is made on each of you., joilltly and severally,
to immediately post either cash collateral or the equivalent in the amount of$J 30,000.00.
A copy of the Indemnity Agreement is enclosed for your review.
Absent your compliance with this demand withi.n seven (7) days from the date of this
letter, DSIC will exercise all remedies available to us under the Indemnity Agreement.
Very truly yours,
DEVELOPERS SURE~~MNITY COMPANY
~=~
Gary A~' :)
Claims Assistant Manager
CC: Angel M. Pareja, Personal Indemnitor
Jorge Iglesias, Personal Indemnitor
Mr. Guy Harrison, Esq. Via facsimile only (954) 370~1682
44 of 45
EXHIBIT "E"
Insco Insurance Sf!rvices.lnc. · CA Lie. 0403172
OlodS 44 (Rev, 11/05)
Case 1 :08-cv-20484-JAL
Document 1 Entered on FLSD Docket 02/22/2008
CIVIL COVER SHEET
Page 45 of 45
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided
by local rules of court, This form. approved by the Judicial Conference ofthe United States in Seotember 1974. is reaUlred for the use of the Clerk of Court for the ourpose ofmitiating
the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM,) NOTICE: Attorneys MUST Indicate AU Re-fiIed Cases Below.
I. (a) PLAINTIFFS
DEVELOPERS SURETY AND INDEMNITY COMPANY
DEFENDANTS
TROPEX CONSTRUCTION, INC., ANGEL M. PAREJA and
JORGE IGLESIAS
County of Residence of First Listed Defendant 00\ vi. ...p
(IN u,s, PLAINTIFF CASES ONL Y)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT
LAND INVOLVED,
(b) County of Residence of First Listed Plaintiff J r;: ~1.. Ii
(EXCEPT IN U,S, PLAINTIFF CASES)
(C) Attorney's (Finn Name, Address. and Telephone Number)
Edward Etcheverry, Esq.
Etcheverry Harrison, LLP
150 S Pine Island Road, Suite 105
Fnrl T ~11flpr{hlp FT 11174
Attorneys (If Known)
(d) Check County Where Action Arose:~IAMI- DADE
D
o MONROE 0 BROWARD 0 PALM BEACH 0 MARTIN 0 ST, LUCIE 0 INDIAN RIVER OOKEECHOBEE
HIGHLANDS
Ill. CITIZENSHIP OF PRINCIPAL P ARTIES(Place an "X" in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
PTF DEF PTF DEF
I ..P' I Incorporated or Principal Place 0 4 0 4
of Business In This State
o
o 2 Incorporated and Principal Place I
of Business In Another State
o
o 3 Foreign Nation
01
u.s. Govemment
Plaintiff
II. BASIS OF JURISDICTION
03
(Place an "X" in One Box Only)
Citizen of This State
o 2 U,S, Government
Federal Question
(U,S, Government Not a Party)
o 110 Insurance
o 120 Marine
o 130 Miller Act
o 140 Negotiable Instrument
o 150 Recovery of Overpayment
& Enforcement of Judgment
o 151 Medicare Act
o 152 Recovery of Defaulted
Student Loans
(Exc\. Veterans)
o 153 Recovery of Overpayment
of Veteran's Benefits
~o Stockholders' Suits
~90 Other Contract
o 195 Contract Product Liability
o 196 Franchise
REAL PROPERTY
o 210 Land Condemnation
o 220 Foreclosure
o 230 Rent Lease & Ejectrnent
o 240 Torts to Land
o 245 Tort Product Liability
o 290 All Other Real Property
~RIGIN
I Original
Proceeding
PERSONAL INJURY
o 310 Airplane
o 315 Airplane Product
Liability
o 320 Assault. Libel &
Slander
o 330 Federal Employers'
Liability
o 340 Marine
o 345 Marine Product
Liability
0350 Motor Vehicle
0355 Motor Vehicle
Product Liability
o 360 Other Personal
In'u
CIVIL RIGHTS
o 44 I Voting
o 442 Employment
o 443 Housing/
Accommodations
o 444 Welfare
o 445 Amer. w/Disabilities -
Employment
o 446 Amer, w/Disabilities -
Other
o 440 Other Civil Rights
(Place an "X" in One Box Only)
o 2 Removed from 0 3
State Court
VI. RELATED/RE-FILED
CASE(S).
VII. CAUSE OF
ACTION
VIII. REQUESTED IN
COMPLAINT:
(See instructions
second page):
CLARENCE M
S.D. OF FLA' . . ST. CT.
- . FT. LAUD.
O TransIelIed GUftto
4 Reinstated or 5 another district
Reopened (specify)
b) Related Cases
Citizen of Another State p
Citizen or Subject of a
Forei Tn Countr
PERSONAL INJURY
o 362 Personal Injury -
Med, Malpractice
o 365 Personal Injury -
Product Liability
o 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
o 370 Other Fraud
o 371 Truth in Lending
o 380 Other Personal
Property Damage
o 385 Property Damage
Product Liability
FORFEITURE/PENAL TV
o 6 I 0 Agriculture
o 620 Other Food & Drug
o 625 Drug Related Seizure
of Property 21 USC 881
o 630 Liquor Laws
o 640 R,R, & Truck
o 650 Airline Regs,
o 660 Occupali onal
Safety/Health
o 690 Other
BANKRUPTCY
o 422 Appeal 28 USC 158
o 423 Withdrawal
28 USC 157
R PERTY RIGHT
o 820 Copyrights
o 830 Patent
o 840 Trademark
sac S
o 861 HIA (I395fl)
o 862 Black Lung (923)
o 863 DIWCIDIWW (405(g))
o 864 ssm Title XVI
o 865 RSI (405( ,))
FEDERALTAX SUITS
o 870 Taxes (U,S, Plaintiff
or Defendant)
hird Party
7609
08
o 6 Multidistrict
Litigation
OYES ONO
DOCKET
NUMBER
o 5
o 6 0 6
THERSTATUTES
o 400 State Reapportionment
o 410 Antitrust
o 430 Banks and Banking
o 450 Commerce
o 460 Deportation
o 470 Racketeer Influenced and
Corrupt Organizations
o 480 Consumer Credit
o 490 Cable/Sat TV
o 810 Selective Service
o 850 Securities/ConUDoditiesl
Exchange
o 875 Customer Challenge
12 USC 3410
o 890 Other Statutory Actions
o 891 Agricultural Acts
o 892 Economic Stabilization Act
o 893 Environmental Matters
o 894 Energy Allocation Act
o 895 Freedom ofInfonnation
Act
o 900Appeal of Fee Detel111ination
Under Equal Access
to Justice
o 950 Constitutionality of
State Statutes
o 7
Appeal to District
Judge from
Magistrate
Jud ent
R
o 710 Fair Labor Standards
Act
o 720 Labor/Mgmt. Relations
o 730 Labor/Mgmt.Reporting
& Disclosure Act
o 740 Railway Labor Act
o 790 Other Labor Litigation
o 791
PRISONERPETlTlONS
o 510 Motions to Vacate
Sentence
Habeas Corpus:
o 530 General
o 535 Death Penalty
o 540 Mandamus & Other
o 550 Civil Rights
o 555 Prison Condition
IrVTAKE Y
FEB 2 2
C!te th~ us, ~vil ~tatute undt:r w,hich y.ou at. e fi. ding and Write a ~riefStatement of:au,s.e (Do not ~ite jurisdiction!l~statules ~nl~ss , 1\
diversity), J( (o.ck .(J f- i \1\.;/ (''''~i~ I I ~i1 (A? r f. .piA". e (t ~ ~ (" ft- <'V, V cJ.. ~l W',( t( ..., \ 'AI I... 4, c h d....
~"vhIlJff( w J\ \iff> 1\~'1 (IV \' 'hi ). ~VI d I ,71 "y~ ill. )" (. I":)')')...
LENGTH Of TRIAL via ~ days estimated (for both sides to try entire case)
iJi CHECK IF THIS IS A CLASS ACTION DEMA $
UNDER F,R.C.P, 23
ABOVE INFORMATION IS TRUE & CORRECT TO
THE BEST OF MY KNOWLEDGE
45 of 45
Re-tiled-
(see VI below)
o
a) Re-filed Case 0 YES 0 NO
JUDGE
CHECK YES only if demanded in complaint:
JURY DEMAND: [QJYes I1:lJ No
AMOUNT
RECEIPT #
~51-
:5f? ;/Y/ /'
IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
CASE NO. 06 CA 44 P
TROPEX CONSTRUCTION SERVICE, INC.
Plaintiff,
v.
MONROE COUNTY BOARD OF COUNTY
COMMISSIOERS,
Defendant.
MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS,
Counter- Plain tiff,
v.
TROPEX CONSTRUCTION SERVICE, INC.
and
DEVELOPERS SURETY AND INDEMNITY
COMPANY,
Counter-Defendants.
I
PLAINTIFF'S MOTION TO STRIKE CERTAIN AFFIRMATIVE DEFENSES OF
COUNTER-DEFENDANT DEVELOPERS SURETY AND INDEMNITY COMPANY
Pursuant to Fla. R. Civ. P. 1. 140(b), Counter-Plaintiff Monroe County Board of
County Commissioners ("MONROE COUNTY"), by and through undersigned counsel,
hereby files its Motion To Strike Certain Affirmative Defenses of Counter-Defendant
Developers .surety And Indemnity Company ("SURETY") on the ground that Surety fails to
state a legal defense. In support whereof, Monroe County states as follows:
I. STANDARDS APPLICABLE TO PLEADING AFFIRMATIVE DEFENSES
Surety's affirmative defenses must either comply with the forms approved by the
Florida Supreme Court, or all of the elements to support each defense must be alleged.
American Nat'l Growers Corp. v. Harris, 120 So.2d 212 (Fla. 2d DCA 1960); Jenkins
Trucking Inc. v. Emmons, 212 So.2d 55 (Fla. 3d DCA 1968), The Surety's affirmative
defenses are not in conformity with the forms approved by the FlOrida Supreme Court, so
they must be properly supported.
"Florida is a fact pleading jurisdiction." Continental Baking Co. v. Vincent, 634
So.2d 242, 244 (Fla. 5th DCA 1994). Certainty is required in pleadings and a pleader must
set forth "facts in such a manner as to reasonably inform his adversary of what is proposed
o be proved in order to provide the latter with a fair opportunity to meet it and prepare his
evidence." Zito v. Washington Fed. Savings & Loan Assoc. of Miami Beach, 318 So.2d 175,
176 (Fla. 3d DCA 1975). Therefore, a pleading is legally insufficient where it asserts
opinions, conclusory factual statements, or conclusions of law, unsupported by specific,
ultimate facts. Ellison v, City of Fort Lauderdale, 175 So.2d 198. 200 (Fla. 1965).
The pleading requirements apply to claims and defenses alike. Cady v. Chevy Chase
Savings & Loan, Inc., 528 So.2d 136, 138 (Fla. 4th DCA 1988); Bliss v. Carmona, 418 So.2d
1017, 1019 (Fla. 3d DCA 1982); Walker v. Walker, 254 So,2d 832, 833-34 (Fla. }5t DCA
1971). An affirmative defense that contains mere conclusions of law without ultimate facts
is insufficient. Cady v. Chevy Chase, 528 So.2d at 138. See also Anchor Hocking Corp. v.
Jacksonville Elec. Auth., 419 F. Supp. 992, 1000 (M.D. Fla. 1976)(affirmative defense that
does not meet level of sufficiency should be stricken).
A pleading must contain sufficient ultimate facts supporting each element of the
defense. Clark u. Boeing, 395 So.2d 1226, 1229 (Fla. 3d CCA 1981); Beckler u. Hoffman, 550
So.2d 68, 70-71 (Fla. 3d DCA 1989). Where the defendant fails to plead an essential
element of an asserted defense, it should be stricken and the Court may not supply the
missing allegation. Walker u. Walker, 254 So.2d 832, 833-34 (Fla. 1st DCA 1971). Similarly,
purported defenses that merely point out a defect or lack of evidence in plaintiffs case are
not affirmative defenses.
2
Improperly pled affirmative defenses are susceptible to attack by a motion to strike.
Fla. R. Civ. P. 1. 140(b).
A Court must not tolerate shotgun pleading of affirmative
defenses and should strike vague and ambiguous defenses that do not respond to any
particular count, allegation or legal basis of a complaint. Morrison v. Executive Aircraft
Refinishing, Inc., 434 F. Supp.2d 1314 (S.D. Fla. 2005).
II. AFFIRMATIVE DEFENSES THAT SHOULD BE STRICKEN
A. Paragraph 37 Of Answer - Denial of Conditions Precedent
Although this is part of Surety's answer, it is essentially an affirmative
defense in that it denies Monroe County's allegation that all conditions precedent to its
Counterclaim have been satisfied, waived or the Surety is estopped from enforcing them,
This is legally insufficient. A denial that conditions precedent have been satisfied must
specify what conditions precedent were not performed or did not occur. Fla. R. Civ. P.
1.120(c); San Marco Contracting Co. v. Florida, 386 So.2d 615,616-17 (Fla. 1st DCA 1980).
Paragraph 37 makes a br'oad reference to all affirmative defenses, but fails to specify which
affirmative defense it is relying upon to support its denial of the performance of conditions
precedent. J
B. First Mfirmative Defense - Waiver
Surety's First Mfirmative Defense asserts that the County "waived any right
to claim that Tropex breached the Contract by never notifying Tropex that said actions
constituted breaches of the Contract, and by accepting Tropex' performance up through the
date Tropex terminated the Contract."
J Only the Tenth Mfirmative Defense uses the language of "condition precedent" by alleging that the
County failed to issue a notice to proceed, which is a condition precedent to liquidated damages. To
the extent that the Surety intends to assert any failure of a condition precedent other than the one in
the Tenth Affirmative Defense, it should be precluded from doing so and/or the motion to strike
should be granted with leave for the Surety to properly deny Monroe County's allegation that all
conditions precedent have been satisfied, waived or are subject to estoppel.
3
1. Elements Not Alleged To Support Waiver
Elements of IIwaiver" are (a) the existence, at the time of waiver, of a right, privilege,
advantage or benefit which may be waived; (b) actual or constructive knowledge of said
right; and (c) and intention to relinquish this known right. Mizell v. Deal, 654 So.2d 659
(Fla. 5th DCA 1995), To support a waiver defense, there must be allegations of affirmative
action that can reasonably be construed as an intent to abandon known rights. CBS
Broadcasting v. Primetime 24 Joint Venture, 48 F. Supp. 2d 1342, 1360 (S.D. Fla. 1998).
Surety has not alleged all of these requisite elements with sufficient ultimate facts.
2. Sovereign Immunity Precludes Waiver
The Counterclaim is based on Tropex's failure to comply with the notice
requirements and conditions precedent to its termination of the Contract. The County
alleges that Tropex did not comply with these requirements. 'rhe doctrine of waiver cannot
be used to defeat express terms of contract with a sovereign and, therefore, Monroe County
could not have waived the requirement for Tropex to provide written notice of the reasons
for its termination. County of Brevard u. Miorelli Engineering, Inc., 703 So.2d 1049 (Fla.
1997). Thus, for this reason, the Surety's First Affirmative Defense should be stricken.
C. Second Affirmative Defense - Estoppel
The Surety's Second Affirmative Defense alleges that the County is "estopped
from asserting that Tropex breached the Contract by never notifying Tropex that said
actions constituted breaches of the Contract, and by accepting Tropex' performance up
through the date Tropex terminated the Contract." This is wholly insufficient.
1. Estoppel Is Not Available To Surety As Defense Is Personal To
Tropex
As a matter of law, a stranger to a transaction cannot take advantage of an
estoppel arising from the transaction. 22 Fla. Jur.2d Estoppel & Waiver S85 (2004). See
also Villas of Lake Jackson Ltd. v. Leon County, 884 F. Supp. 1544 (N.D. Fla. 1995). Even
4
a successor in interest must establish independent facts to support an estoppel and cannot
rely on the representations made to its predecessor. Franklin v. Leisure Properties, Ltd.,
430 So.2d 475, 480 (Fla. pt DCA 1986); Fotomat of Florida v. R.B. Films Inc., 366 So.2d
1213 (Fla. pt DCA 1979).
Here, Surety is relying on the County's failure to notify Tropex, not Surety, as
constituting an estoppel. It is a third party and therefore, cannot rely on any
misrepresentations to Tropex as the basis for an estoppel defense to the County's action
against Surety, Although it is true that a Surety can generally raise all defenses available
to its principal, it cannot raise defenses that are personal to the principal. The estoppel
argument is personal to Tropex and Surety cannot rely on an estoppel defense otherwise
available to Tropex.
2. Elements Not Alleged To Support Estoppel
Estoppel requires allegations to establish the following elements of this
defense: (a) a representation by the party to be estopped to the party claiming estoppel as
to some material fact; (b) the representation is contrary to the ,condition of affairs later
asserted by the party to be estopped; (c) reliance upon the first representation of material
fact by the party claiming the estoppel; (d) a change in position of the party claiming the
estoppel to his detriment. Rayborn v. Department of Management, 803 So.2d 747 (Fla. 3d
DCA 2001). There are additional requirements that the Surety must establish because it
is asserting estoppel against a government entity.
The government may not be estopped on the same terms as any other litigant.
Heckler v. Community Health Services of Crawford County Inc., 467 U.S. 51 (1984).
Estoppel will apply against a governmental entity only in rare instances and under
exceptional circumstances. North American Co. v. Green, 120 So.2d 603, 610 (Fla. 1959).
In addition to the standard elements of estoppel, a party seeking to invoke estoppel
against the government must establish some affirmative conduct on the party of the
5
government that goes beyond mere negligence and that the government's actions will cause
serious injustice. Alachua County v. Cheshire, 603 So.2d 1334, 1337 (Fla. 1st DCA 1992);
Sutron Corp. v. Lake County Water Auth., 870 So.2d 930, 933 n.6 (Fla. 5th DCA 2004).
There must be affirmative and egregious misconduct. Sanz v. u.s. Sec. Ins. Co., 328 F.3d
1314, 1320 (11th Cir. 2003). Mistaken statements oflaw are insufficient to support estoppel
against a governmental entity. Ammans v. Okeechobee County, 710 So.2d 641, 644 (Fla. 4th
DCA 1998).
Surety has failed to allege ultimate facts to support its conclusory estoppel defense.
Surety has not identified what representations of material fact were made by the County to
Tropex or Surety. Nor has the Surety alleged facts showing that either Tropex or Surety
changed their positions in reliance on any purported statements by the County. The failure
to specifically identify the statements of material fact made by the County and how Surety
and Tropex changed their positions are fatal to Surety's estoppel defense because estoppel
depends on the existence of a misrepresentation of a material fact upon which one relied to
its detriment. See, e.g., Goodwin v. Blue Murray Ins. CO.,939 S.o.2d 1098 (Fla. 5th DCA
2006); Lennar Homes Inc. v. Gibb Construction Services Inc., 654 So.2d 649 (Fla. 3d DCA
1995); American National Growers Corp. v. Harris, 120 So.2d 212 (Fla. 2d DCA 1960).
The Surety's allegation that the County failed to notify Tropex of any breaches and
by accepting Tropex's performance is equally deficient. This allegation amounts to a
contention that silence on the part of the County constitutes estoppel. As a matter of law,
this is not a supportable contention. As explained in Ennis u. Warm Mineral Springs Inc.,
203 So.2d 514, 520 (Fla. 1967), estoppel does not arise merely from silence or acquiescence;
there must be special circumstances requiring the one sought to be estopped to speak. See
also City of Miami Beach v. State ex reZ, Wood, 56 So.2d 520, 521 (Fla. 1952)(time alone is
not a sufficient reason for sustaining defense of estoppel by acquiescence). Moreover, even
if silence were sufficient, the party seeking to invoke estoppel must allege and establish
6
that it reasonably relied upon the silence and detrimentally changed its position based on
such silence. See generally Pelican Island Property Owners Ass'n v. Murphy, 554 So.2d
1179 (Fla. 2d DCA 1989)(noting that essence of estoppel is that person should not be
permitted to unfairly assert inconsistent positions and holding that because there was no
evidence that the failure of the plaintiff to respond to defendant's inquiries could not be
reasonably relied upon by the defendant that it did not have to obtain written plans and
obtain written permission from the association to construct a carport),
Surety has completely failed to support any of the requisite elements to support an
estoppel defense. Furthermore, Surety's estoppel defense is completely silent as to any of
the necessary facts to support an estoppel defense against a government entity. Thus,
having failed to properly allege ultimate facts to support this conclusory defense, it must be
stricken.
2. Sovereign lnununity Precludes Estoppel
The Counterclaim is based on Tropex's failure to comply with the
notice requirements and conditions precedent to its termination of the Contract. The
County alleges that Tropex did not comply with these requirements. The doctrine of
estoppel cannot be used to defeat express terms of contract with a sovereign and, therefore,
Monroe County cannot be estopped from asserting the requirement for written notice of the
reasons for termination. County of Brevard v. Miorelli Engineering, Inc., 703 So.2d 1049
(Fla. 1997). Thus, for this reason, Surety's Second Affirmative Defense should be stricken.
D. Third Affirmative Defense - County Did Not Properly Terminate
Contract
The Surety's Third Affirmative Defense alleges that the County failed to
properly terminate the Contract because it took no action before Tropex terminated the
Contract. This is not an affirmative defense and makes no sense; further facts are required
before the County could be expected to respond to this "defense." The Counterclaim is
7
based on the premise that Tropex improperly terminated the Contract and abandoned the
Project. Thus, it is irrelevant whether the County took any action prior to Tropex
terminating the Contract and if one assumes that the County's allegation is correct, i.e.,
Tropex improperly terminated the Contract, it does not matter what the County did prior to
this breach by Tropex and no defense can be premised on what the County did or did not do
prior to Tropex's breach of the Contract.
At best, it is a mere denial of the County's
Counterclaim and, as such, must be stricken. Gatt u. Keyes Corp., 446 So.2d 211 (Fla. 3d
DCA 1984)(lower court properly struck affirmative defenses because they were no more
than denials of facts in the complaint); Wiggins u. Portmay Corp., 430 So.2d 541 (Fla. 1st
DCA 1983).
E. Fourth Affirmative Defense - Monroe Countyts Failure to Provide
Building Permit
Monroe County's Oounterclaim alleges that it was Tropex's obligation to
secure all permits, including the building and OSTDS permits, that Tropex never obtained
these permits and that 'Tropex never requested or advised Monroe County that Monroe
County was responsible for obtaining the building permit. The Surety alleges in the
Fourth Affirmative Defense that Monroe County lImaterially breached the Contract by
persistently refusing and/or failing to allow a building permit and permitted set of plans to
issue to Tropex, and by persistently refusing and/or failing to provide the permit and design
for the OSTDS to Tropex." This is not an affirmative defense based on the argument in
Paragraph C above, i.e., the Fourth Affirmative Defense is no more than a simple denial of
Monroe County's claim and fails to state any new matters to defeat Monroe County's
Counterclaim. As such, it should be stricken.
F. Fifth Affirmative Defense - Monroe County's Failure To Issue Notice
To Proceed
Monroe County's Counterclaim alleges that Tropex never gave Monroe
County of the need for a Notice To Proceed and that Tropex breached the Contract by
8
terminating the Contract without having given Monroe County notice of any reason for
termination other than the purported obligation and failure of Monroe County to obtain the
Building Permit. The Surety aileges in the Fifth Affirmative Defense that Monroe County
"materially breached the Contract by never issuing a Notice to Proceed to Tropex." This is
not an affirmative defense based on the argument in Paragraph B above, i,e., the Fifth
Mfirmative Defense is no more than a simple denial of Monroe County's claim and fails to
state any new matters to defeat Monroe County's Counterclaim. As such, it should be
stricken.
G. Sixth Affirmative Defense - Monroe County Failed To Respond To
Tropex Termination
The Surety alleges in the Sixth Affirmative Defense that Monroe County
"accepted and acquiesced in Tropex termination of the Contract by never responding to
same within the time required under the Contract." This is not a legally recognized
.
Affirmative Defense and should be stricken; at best it amounts to a waiver or estoppel
argument and should be' stricken for the reasons discussed in Paragraphs Band C above.
It is also duplicative of the Seventh, Eighth and Ninth Mfirmative Defenses and should be
stricken for that reason as well.
H, Seventh Affirmative Defense - Monroe County Is Estopped From
Contesting Tropex Termination
As discussed above, estoppel is not available against the sovereign Monroe
County under the facts alleged. However, even if sovereign immunity did not preclude
Surety from raising estoppel as an affirmative defense, it still failed to properly raise and
plead it. An essential element of estoppel is the allegation of a misrepresentation of a
material fact upon which one relied to its detriment. See, e.g., Goodwin v. Blue Murray Ins.
Co., 939 So.2d 1098 (Fla. 5th DCA 2006); American National Growers Corp. v. Harris, 120
So.2d 212 (Fla. 2d DCA 1960); Lennar Homes Inc. v. Gibb Construction Services Inc., 654
So.2d 649 (Fla. 3d DCA 1995).
9
Surety's Seventh Affirmative Defense premises its estoppel defense based on the
purported silence of Monroe County in response to Tropex's notice of termination.
However, "estoppel does not arise merely from silence of acquiescence; there must be
special circumstances requiring the one sought to be estopped to speak." Ennis v. Warm
Mineral Springs Inc" 203 So.2d 514, 520 (Fla. 1967). There must be special circumstances
requiring the one sought to be estopped to speak. [d. See also City of Miami Beach v. State
ex rei. Wood, 56 So.2d 520, 521 (Fla. 1952)(time alone is not a sufficient reason for
sustaining defense of estoppel by acquiescence). There is no allegation in Surety's Seventh
Mfirmative Defense demonstrating that Monroe County had an obligation to speak. In
addition, the Seventh Mfirmative Defense fails to allege what ground of termination
Monroe County is estopped from raising. There simply are no allegations of ultimate fact
as to what the notice to Monroe County stated and/or what or how Monroe County had an
obligation to respond to same and could not remain silent.
Finally, there is no proper allegation of detrimental reliance. Tropex terminated the
Contract and was leaving the project site based on its own determination of entitlement;
this fact is evident from the face of the pleadings including Surety's Answer and
Mfirmative Defenses. Thus, there is no detrimental reliance properly alleged in the
Seventh Mfirmative Defense.
H. Eighth Mfirmative Defense - Good Cause Existed For Tropex To
Terminate Contract
Monroe County's Counterclaim alleges that Tropex materially breached the
Contract by failing to comply with the notice requirements that are prerequisites to the
grounds relied upon by Tropex in terminating the Contract and by failing to give the
County notice of the grounds for its termination. See generally Counterclaim ~'I 28.29, 38.
45,48. The Surety alleges in the Eighth Affirmative Defense that "Good cause existed.. for
Tropex to terminate the Contract. Tropex' termination notice substantially complied with
10
the prOVISIOns of the Contract and notified the County of the reasons for Tropex'
termination." This is not an affirmative defense based on the argument in Paragraph D
above, i.e., this portion of the Eighth Affirmative Defense is no more than a simple denial of
Monroe County's claim and fails to state any new matters to defeat Monroe County's
Counterclaim. As such,' it should be stricken.
In addition, the last sentence of the Surety's Eighth Affirmative Defense alleges that
the County "waived any objections to Tropex' termination of the Contract by failing to
object to same within the time required by the Contract." As discuss above, waiver is not
available against the sovereign Monroe County under the facts alleged. In addition, Surety
has failed to properly plead an affirmative defense of waiver. The Surety has not alleged
ultimate facts to support a waiver, i.e., facts showing that Arrow intentionally relinquished
a known right, which is an essential allegation of waiver. See, e.g., Fireman's Fund Ins. Co.
u. Vogel, 195 So.2d 20 (Fla. 2d DCA 1967); Leonardo v. State Farm Fire and Cas. Co., 675
So.2d 176 (Fla. pt DCA 1996). The Surety's Eighth. Affirmative Defense is merely
conclusory in nature without supporting ultimate facts. This is insufficient as a matter of
law. Davis u. Davis, 123 So.2d 377 (Fla. pt DCA 196)(waiver by failure to act must be
specifically pleaded).
1. Ninth Affirmative Defense - Good Cause Existed For Tropex To
Terminate Contract
Monroe County's Counterclaim alleges that Tropex breached the contract
with Monroe County by, inter alia, improperly terminating the contract and failing to give
Monroe County proper notice. The Surety alleges in the Ninth Affirmative Defense that
"good cause existed pursuant to Article 14 of the Contract for Tropex to terminate the
Contract. ... The County failed and refused to cure the conditions justifying Tropex'
termination of the Contract within the time required by the Contract.'" This is not an
affirmative defense based on the argument in Paragraph D above, i.e., the Surety's Ninth
11
Affirmative Defense is no more than a simple denial of Monroe County's claim and fails to
state any new matters to defeat Monroe County's Counterclaim. As such, it should be
stricken.
J. Tenth Affirmative Defense - Lack of Notice To Proceed As Failure To
Comply with Condition Precedent to Liquidated Damages
The Surety's Tenth Mfirmative Defense alleges that the County cannot
assess liquidated damages for Tropexts delayed performance because the County never
issued a notice to proceed and a notice to proceed is a "condition precedent to liquidated
damages under the Contract." However, the face of the Contract negates this defense and
it should be stricken. Under the Contract, liquidated damages are imposed if Tropex failed
to complete the project within 365 days of the Date of Commencement. The Date of
Commencement is defined by the Contract as being the Date of the Contract unless the
date of commencement was established by a notice to proceed issued by the County. See
Contract, Article 3, Exhibit A to County's Counterclaim. There is no condition precedent
language with regard to' liquidated damages and the Surety failed to allege any ultimate
facts to explain or support its conclusion that a notice to proceed was a condition precedent
to liquidated damages. Consequently, it should be stricken.
In addition, the County's Counterclaim alleges that Tropex failed to comply with
conditions precedent to issuance of the Notice to Proceed and that Tropex never notified the
County of the need for a Notice to Proceed. Thus, Surety's Tenth Affirmative Defense is no
more than a mere denial of these allegations and is an invalid defense under the legal
authorities discussed in Paragraph D above. As such, it should be stricken.
K. Eleventh Affirmative Defense - Failure To Mitigate Damages
Suretis Eleventh Mfirmative Defense consists of an allegation that Monroe
County "has failed to mitigate its damages." This statement is deficient in that it fails to
12
identify how Monroe County could have mitigated its damages, which is an element of this
affirmative defense, City of Miami Beach v. Carner, 579 So.2d 248 (Fla. 3d DCA 1991).
L. Twelfth Affirmative Defense - Set Off
Surety's Twelfth Affirmative Defense alleges that Monroe County's damages
must be "reduced or set-off' by any damages caused by Monroe County to Tropex. This
should be stricken as the allegation is merely conclusory in nature without supporting
ultimate facts, which are required to support such an affirmative defense. See generally
Terri Van Winkle, P.A. v. Johnston, 813 So.2d 1065 (Fla. pt DCA 2002); Zito v. Washington
Fed. Savings & Loan Ass'n of Miami Beach, 318 So.2d 175 (Fla. 3d DCA 1975).
WHEREFORE, Counter-Plaintiff Monroe County requests that this Court enter an
order (1) striking Paragraph 37 and Surety's Affirmative Defenses for failure to state and/or
support affirmative defenses or, alternatively, require Surety to provide a more definite
statement of the defenses; and (2) grant such other and further relief as this Court deems
just and proper.
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via first
class mail this _l[taa:y of May 2007 to counsel for Counter-Defendant Tropex, Norman S.
Segall, Esq., Ruden McCloskey Smith Schuster & Russell, P.A., 701 Brickell Avenue, Suite
701, Miami, Florida 33131; and counsel for Counter-Defendant Surety, Guy Harrison,
Esq., Etcheverry Harrison LLP, 150 S. Pine Island Rd., Suite 105, Ft. Lauderdale, FL 33324.
FERENCIK LIBANOFF BRANDT BUSTANIANTE &
WILLIAMS, P.A.
150 S. Pine Island Rd., Suite 400
Ft. Lauderdale, Florida 33324
(954) 474- 0
Ira L,
Flori Bar No. 378429
Lori R. Shapiro
Florida Bar No. 0611026
By;
13
10111.7
IN THE CIRCUIT COURT OF THE
16TH JUDICIAL CIRCUIT IN AND FOR
MONROE COUNTY, FLORIDA
CASE NO. 06 CA 44 P
TROPEX CONSTRUCTION SERVICE, INC.,
a Florida corporation,
Plaintiff,
vs,
MONROE COUNTY BOARD OF COUNTY
COMMISSSIONERS,
Defendant.
/
SECOND AMENDED COMPLAINT
Plaintiff, TROPEX CONSTRUCTION SERVICE, INC, a Florida corporation
("Tropex"), sues Defendant MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
(the "County"), and states:
GENERAL ALLEGATIONS
1. This is an action for declaratory relief and for damages that exceed $15,000.00.
2. Tropex was the successful bidder on a contract for renovations of the Tavernier Fire
Station No. 22 located in Tavernier, Florida (the "Fire Station"). The parties entered into a
Contract dated October 20, 2004 (the "Contract"), However, the work was awarded to Tropex on
November 17, 2004 and Tropex was not furnished with a signed Contract until March 9,2005.
3, The Contract is voluminous and incorporates various addenda, documents, plans and
specifications, Relevant parts are attached hereto as Exhibit A.
4. Tropex furnished a Performance Bond as required by the Contract.
5. The General Conditions to the Contract provide, in pertinent part:
MIA:337756:2
RUDEN, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A
Tropex v Monroe County Board
Case No. 06 CA 44 P
2.2.3 Except for permits and fees which are the responsibility of the
Contractor! under the Contract Documents, the Owner shall secure and
pay for necessary approvals, easements, assessments and charges required
for construction... Unless otherwise provided under the Contract
Documents, the Owner, through the Construction Manager, shall secure
and pay for the building permit.
2,2.4 Information or services under the Owner's control shall be furnished
by the owner with reasonable promptness to avoid delay in orderly
progress of the Work.
14.1.1 The Contractor may terminate the Contract if the Work is stopped
for a period of 30 days through no act or fault of the Contractor..., for any
of the following reasons:
.4 if repeated suspensions, delays, or interruptions by the Owner. . .
constitute in the aggregate.,. more than 120 days in any 365-day period...;
or
.5 the Owner has failed to furnish to the Contractor promptly,
upon the Contractor's request, reasonable evidence as required by
Subparagraph 2.2.
14.1.3 If the Work is stopped for a period of 60 days through no act or
fault of the Contractor... because the Owner has persistently failed to
fulfill the Owner's obligations under the Contract Documents with respect
to matters important to the progress of the work, the Contractor may, upon
seven additional days' written notice to the Owner, Construction Manager
and Architect, terminate the Contract...
6_ The County did not fulfill its obligations with respect to matters important to the
progress of the work on the Fire Station. It did not:
a. Furnish a signed Contract to Tropex until March 9, 2005.
b. Obtain and complete plans and/or specifications for significant items without
which the building permit could not have been issued including, without
limitation, the failure to provide the capacities, design, method or location of the
on site treatment and disposal system ("OSTDS"), or specify how 1;he effluent was
to be removed from the site.
I Under the Contract, Tropex is identified as the "Contractor" and the County is identified as the
"Owner."
M1A:337756:2
2
RUDEN, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A
Tropex v Monroe County Board
Case No. 06 CA 44 P
c. Apply for or obtain approval of the OSTDS by the Florida Department of Health;
or designate Plaintiff as agent to obtain such approval, without which a master
building permit could not issue.
d. Secure and pay for the building permit.
e. Issue a Notice to Proceed.
f. Take action to cure delays or defaults within seven days of Tropex' notice of
default.
7. The County failed to fulfill the above Owner's obligations under 'the Contract or,
alternatively, delayed the work for a time exceeding the periods set forth in paragraph 14.1 and
its subsections.
8. Tropex has retained the undersigned counsel and 1S obligated for a reasonable
attorney's fee, and its investigative and out-of-pocket expenses.
COUNT 1- DECLARATORY RELIEF
Paragraphs 1-8 are re-alleged as though herein set out in full.,
9. There is a bona fide, actual, present practical need for declaration of the parties'
respective rights,
10. The declaration concerns a present, ascertained or ascertainable state of facts or
present controversy as to a state of facts. The parties have taken opposing positions on whether
Tropex was entitled to terminate the Contract.
11. Tropex terminated the Contract by Notice of Termination on June 2,2005.
12. On July 29, 2005 the COlUlty, through its counsel, notified Tropex of alleged default
and termination of the Contract for cause. Prior to the alleged default, the County had not
obtained a "certification by the Architect that sufficient cause exists to justify such action" as
required by Article 14.2,2 of the General Conditions of the Contract.
M1A:337756:2
3
RUDEN, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A
Tropex v Monroe County Board
Case No. 06 CA 44 P
13. A power, privilege or right of the Plaintiff is dependent upon the facts or the law
applicable to the facts,
14. The parties have, or reasonably may have, an actual, present, adverse and antagonistic
interest in the subject matter, either in fact or law.
15. Plaintiff is in doubt as to its right to terminate the Contract or the County's right to
terminate the Contract.
16. The antagonistic and adverse interests are all before the court.
17. The relief sought is not merely giving of legal advice or the answer to questions
propOlll1ded for curiosity.
WHEREFORE, Plaintiff respectfully demands judgment declaring:
a, Tropex was entitled to terminate the Contract; and
b. Tropex i~ entitled to recover its attorney's fees, costs, investigative and out-of-
pocket expenses; and
c. For such other and further relief as the court deems just and proper.
COUNT II - BREACH OF CONTRACT
Paragraphs 1-8 are re-alleged as though herein set out in full.
18. The County further breached its obligations to provide Tropex with all information
and services under the County's control with reasonable promptness so as to avoid delay in the
progress of the work, as required by Article 2.2.4 of the General Conditions of the Contract.
Alternatively, the County did not furnish Tropex any of the documentation that the Florida
Department of Health required for review of the OSTDS and the issuance of the pennit
including, without limitation, the detailed site plan, percolation tests, usage information and floor
plan showing sleeping quarters in breach of Articles 2.2,2 and 2.2,3 of the General Conditions of
the Contract.
MIA:337756:2
4
RUDEN, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A
Tropex v Monroe County Board
Case No. 06 CA 44 P
19. All conditions precedent to the County's liability have occurred or been performed.
20. Tropex terminated the Contract by Notice of Termination on June 2, 2005. The
County did not respond to said Notice or commence to cure the defaults within seven days as
provided by the Contract.
21. Tropex has incurred expenses and fees in preparation for and in connection with its
work under the Contract.
22, The County materially breached the Contract when it did not fulfill its obligations
with respect to matters important to the commencement and progress of the work. Tropex
suffered damages because of the County's breach,
WHEREFORE, plaintiff respectfully demands judgment for damages, attorney's fees,
investigative and out-of-pocket expenses against the County.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
fax and mail on this l;th day of October, 2006, to Ira L. Libanoff, Esquire, Attorney for
Defendant, 150 Pine Island Road, Suite 400, Ft. Lauderdale, Florida 33324.
RUDEN, McCLOSKY, SMITH,
SCHUSTER & RUSSELL, P.A.
Attorneys for Plaintiff
701 Brickell Avenue, Suite 701
Miami, Florida 33131
(305) 789-21 . -?
Fax (305 t 55/.
MIA:337756:2
5
RUDEN, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A
.~
Section 00500
Standard Form of Agreement
Between Owner and Contractor
where the basis of payment is a STlPULA TED SUM
AGREEMENT
made as of the 20th day of October in the year of TWO THOUSAND FOUR
(In WOlds. Indicate day, month and yeM.)
BETWEEN the Owner:
(Name and address)
Monroe County Board of County Commissioners
500 Whitehead Street
Key West, Florida 33040
and the Contractor:
(Name and address)
Tropex Construction Service Inc.
459 Northwest 25th Avenue
Miami, Florida 33125
For the following Project: Tavernier Fire Station No. 22
(Include detailed description of project. 151 Marine Avenue
location, address and scope) Tavernier, Florida
SCOPE: Renovation of an existing concrete structure. including installation of site utilities, lighting, landscaping.
grading, and drainage. Renovation of existing space within a concrete structure including the addition of new
space comprising an additional approximate 315 square feel
The Construction Manager is:
(Name and address)
Berry B. Rikard, Jr., P.E.
Monroe County Construction Management
1100 Simonton Street
Second Floor - Room 2-216
Key West, Florida 33040
The Architect is:
Matthew Fowler, Architect - Thomas M. Timmins, P.E.
21 Ships Way
Big Pine Key, Fl33043
The Owner and Contractor agree as set forth below.
10/12/2004
AGREEMENT BETWEEN OWNER AND CONTRACTOR
00500-1
( Subparagraphs and Clauses in the document or (3) the titles of other documents published by
the American Institute of Architects.
(
1.5 Interpretation
1 .5,1 In the interest of brevity the Contract Documents frequently omit modifying words such
as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or an article is
absent from one statement and appears in another is not intended to affect the interpretation of
either statement.
ARnCLE 2
OWNER
2.1 Definition
2.1,1 The Owner is the person or entity identified as such in the Agreement and is referred to
throughout the Contract
Documents as if singular in number. The term "Owner" means the Owner or the Owner's
authorized representative.
2.2 Information and Services Required of the Owner
2.2.2 The owner shall. furnish surveys describing physical characteristics, legal limitations and
utility locations for the site of the Project, and a legal description of the site.
2.2.3 Except for permits and fees which are the responsibility of the Contractor under the
Contract Documents, the Owner shall secure and pay for necessary approvals, easements.
. assessments and charges required for construction, use or occupancy of permanent structures
or for permanent Changes in existing facilities. Unless otherwise provided under the Contract
Documents, the Owner, through the Construction Manager, shall secure and pay for the
building permit.
2.2.4 Information or services under the Owner's control shall be furnished by the Owner with
reasonable promptness to avoid delay in orderly progress of the Work.
2,2.5 Unless otherwise provided in the Contract Documents. the Contractor will be furnished,
free of charge, such copies of Drawings and Project Manuals as are reasonably necessary for
execution of the Work,
2.2.6 The Owner shall forward all communications to the Contractor through the Construction
Manager and shall contemporaneously provide the same communications to the Architect.
2.2.7 The foregoing are in addition to other duties and responsibilities of the Owner
enumerated herein and especially those in respect to Article 6 (Construction by Owner or by
Other Contractors), Article 9 (Payments and Completion) and Article 11 (Insurance and Bonds).
2.3 Owner's Right to Stop the Work
2,3.1 If the Contractor fails to correct Work which is not in accordance with the requirements
of the contract Documents as required by Paragraph 12.2 or persistently fails to carry out Work
in accordance with the Contract Documents, the Owner, by written order signed personally or
by an agent specifically so empowered by the Owner in writing, may order the Contractor to
stop the Work, or any portion thereof, until the cause for such order has been eliminated;
10/13/200410:34 AM
General Conditions of the Contract for Construction
00750-4
ARTICLE 1
The Contract Documents
The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and
other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement, other
documents listed in this Agreement and Modifications issued after execution of this Agreement: lhese form the
Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract
represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations,
representations or agreements, either written or oral. An enumeration of the Contract Documents, other than
Modifications, appears in Article 9.
ARTICLE 2
The Work of this Contract
The Contractor shall execute the entire Work described in the Contract Documents, except to the extent
specifically indicated in the Contract Documents to be the responsibility of others, or as follows:
Scope of Work as specified in the Project Manual for this project, Section 00300.
ARTICLE 3
Date of Commencement and Substantial Completion
3.1 The dale of commencement is the date from which the Contract Time of Paragraph 3.2 is measured, and
shall be the date of this Agreement, as first written above, unless a different date is stated below or provision is
made for the date to be fixed in a notice to proceed issued by the Owner.
Unless the date of commencement is established by a notice to proceed issued by Ihe Owner, the Contractor shall
notify the Owner, through the Construction Manager, in writing not less than five days before commencing the
Work.
-
3.2 The Contractor shall achieve Substantial Completion of the entire Work not later than
(Insert the calendar date or number of calendar days after the date of comm6flC8ment. Also Insert any requirements for earlier Substantial
Completion of certain portions of the Worll', if not stated elsewtlere in the Contract Documents.)
365 calendar days from date of Commencement.
subject to adjustments of the Contract Time as provided by the Contract Document
UQUIDA TED DAMAGES
Uquiclated damages will be based on the Substantial CompletiOl1 Date tor all work, modified by all approved extension In time as set forth by
the Construction Manager's signature of approval on the Certificate of Substantial Completion. The liquidated damages tabla below shall be
utilized to determine the amount of liquidated damages.
FIRST
15 DAYS
$SOO.OOIOAY
SECOND
15 DAYS
$1,OOO.OOIOAY
31sT DAY &
THEREAFTER
$3,500IDA Y
The Contractor's recovery of damages, and sole remedy for any delay caused by the Owner Shall be an extension of lime on the Contract
ARTICLE 4
Contract Sum
4.1 The owner shall pay the Contractor in current funds for the Contractor's performance of the Contract the
Contract Sum of five-hundred thirty-five thousand four hundred thirtv Dollarsf100 ($535.430.00). subject to
additions and deductions as provided in the Contract Documents.
10/12/2004
AGREEMENT BETWEEN OWNER AND CONTRACTOR
00500-2
..
7.6 The following items are part of this contract:
a) Contractor shall maintain all books, records, and documents directly pertinent to performance
under this Agreement In accordance with generally accepted accounting principles consistently applied, Each
party to this Agreement or their authoriz.ed representatives shall have reasonable and timely access to such
records of each other party to this Agreement for public records purposes during the term of the Agreement and
for four years following the termination of this Agreement. If an auditor employed by the County or Clerk
determines that monies paid to Contractor pursuant to this Agreement were spent for purposes not authorized by
this Agreement, the Contractor shall repay the monies together with interest calculated pursuant to Sec. 55.03,
FS, running from the date the monies were paid to Contractor.
b) Governing Law, Venue, Interpretation, Costs, and Fees: This Agreement shall be governed by
and construed in accordance with the laws of the State of Florida applicable to contracts made and to be
performed entirely in the State.
In the event that any cause of action or administrative proceeding is instituted for the enforcement
or interpretation of this Agreement, the County and Contractor agree that venue will lie in the appropriate court or
before the appropriate administrative body in Monroe County, Florida,
c) Severability. If any term, covenant, condition or provision of this Agreement (or the application
thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of
competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement, shall not be
affected thereby; and each remaining term, covenant. condition and provision of this Agreement shall be valid and
shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms,
covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of
this Agreement. The County and Contractor agree to reform the Agreement to replace any stricken provision with
a valid provision that comes as close as possible to the intent of the stricken provision,
fa
d) Attorney's Fees and Costs. The County and Contractor agree that in the event any cause of
action or administrative proceeding is initiated or defended by any party relative to the enforcement or
interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs,
investigative, and out-of-pocket expenses, as an award against the non-prevailing party, and shall include
attorney's fees, courts costs, investigative, and out-of-pocket expenses .in appellate proceedings_ Mediation
proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of
Civil Procedure and usual and customary procedures required by the circuit court of Monroe County.
e} Binding Effect. The terms, covenants, conditions, and provisions of this Agreement shall bind and
inure to the benefit 0' the County and Contractor and their respective legal representatives, successors, and
assigns.
f} Authority. Each party represents and warrants to the other that the execution, delivery and
performance of this Agreement have been duly authorized by all necessary County and corporate action, as
required by law.
g) Claims for Federal or State Aid. Contractor and County agree that each shall be, and is,
empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Agreement
provided that all applications, requests, grant proposals, and funding solicitatiolJs shall be approved by each party
prior to submission.
h) Nondiscrimination. County and Contractor agree that there will be no discrimination against any
person, and it is expressly understood that upon a determination by a court of competent jurisdiction that
discrimination has occurred, this Agreement automatically terminates without any further action on the part of any
party, effective the date of the court order. County or Contractor agree to comply with all Federal and Florida
statutes, and aU local ordinances, as applicable, relating to nondiscrimination, These include but are not limited to:
1) Title VI of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or
national origin: 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681-1663, and
1685-1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as
amended (20 USC s, 794), which prohibits discrimination on the basis of handicaps; 4} The Age Discrimination Act
of 1975, as amended (42 USC 5S. 6101- 61 07) which prohibits discrimination on the basis of age; 5) The Drug
Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the basis of
drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act
of 1970 (PL 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7)
The Public Health SeNice Act of 1912, $S. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3) , as amended, relating
to confidentiality of alcohol and drug abuse patent records; 8) Title Vlll of the Civil Rights Act of 1968 (42 use $. et
10/12/2004 AGREEMENT BETWEEN OWNER AND CONTRACTOR 00500-5
This Agreement is entered into as of the day and year first written above and is executed in at
least four original copies of which one is to be delivered to the Contractor, one each to the
Construction Manager and Architect for use in the administration of the Contract, and the
remainder to the Owner
I: ;-:::t;~;~;i\~;\!
,,",~J ~~AA-itl.. KOLHAGE, Clerk
:.' .",~:!,,:~_ ";~~'I"";:l~-/ , ,
"'c,. .,..,."~;;
"i3i(',;:j< .:'~ ,:-f'; ;::~
uty lerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
..~t:~
Mayor/Chairman
By
Date October 20, 2004
(SEAL) CONTRACTOR
Attest;
By: By:
Title;
END OF SECTION 00500
1 0/1 2/2004
AGREEMENT BETWEEN OWNER AND CONTRACTOR
00500-9
Section 00750
General Conditions of the Contract for Construction
Where the Construction Manager is Not a Constructor
Table of Articles
1. General Provisions 8, Time
2. Owner 9, Payments and Completion
3. Contractor 10. Protection of Persons and
Property
4. Administration of the Contract 11. Insurance and Bonds
5. Subcontractors 12. Uncovering and Correction of Work
6. Construction by Owner or By Other 13. Miscellaneous Provisions
Contractors
7. Changes in the Work 14. Termination or Suspension of the
Contract
10/13/2004 10:34 AM General Conditions o1tha Contract for Construction
00750-1
Subparagraphs and Clauses in the document or (3) the titles of other documents published by
the American Institute of Architects.
1.5 Interpretation
1.5.1 In the interest of brevity the Contract Documents frequently omit modifying words such
as "all" and "ant and articles such as "the" and "an," but the fact that a modifier or an artide is
absent from one statement and appears in another is not intended to affect the interpretation of
either statement.
ARTICLE 2
OWNER
2.1 Definition
2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to
throughout the Contract
Documents as if singular in number. The term "Owner" means the Owner or the Owner's
authorized representative.
2.2 Information and Services Required of the Owner
2.2.2 The owner shall furnish surveys describing physical characteristics, legal limitations and
utility locations for the site of the Project, and a legal description of the site,
2.2.3 Except for permits and fees which are the responsibility of the Contractor under the
Contract Documents, the Owner shall secure and pay for necessary approvals, easements,
. assessments and charges required for construction. use or occupancy of permanent structures
or for permanent changes in existing facilities. Unless otherwise provided under the Contract
Documents, the Owner, through the Construction Manager, shall secure and pay for the
building permit.
2.2.4 Information or services under the Owner's control shall be furnished by the Owner with
reasonable promptness to avoid delay in orderly progress of the Work.
2.2.5 Unless otherwise provided In the Contract Documents, the Contractor will be furnished,
free of charge, such caples of Drawings and Project Manuals as are reasonably necessary for
execution of the Work.
2.2.6 The Owner shall forward aU communications to the Contractor through the Construction
Manager and shall contemporaneously provide the same communications to the Architect.
2.2.7 The foregoing are in addition to other duties and responsibilities of the Owner
enumerated herein and especially those in respect to Article 6 (Construction by Owner or by
Other Contractors), Article 9 (Payments and Completion) and Article 11 (Insurance and Bonds),
2.3 Owner's Right to Stop the Work
2.3.1 If the Contractor fails to correct Work which is not in accordance with the requirements
of the contract Documents as required by Paragraph 12.2 or persistently fails to carry out Work
in accordance with the Contract Documents. the Owner, by written order signed personally or
by an agent specifically so empowered by the Owner in writing. may order the Contractor to
stop the Work, or any portion thereof, until the cause for such order has been eliminated;
10/13/2004 10:34 AM
General Conditions of the Contract for Construction
00750-4
'.
3.4.4 The Contractor shall be totally responsible lor the security of his work, materials,
equipment, supplies, tools, machinery, and construction equipment.
3.4.5 The Contractor shall be responsible for complete, timely and accurate lield
measurements as necessary lor proper coordination, labrication and installation of his materials
and equipment. The Contractor agrees to cooperate with the Construction Manager, if
required, to accommodate any discovered variations or deviations from the Drawings and
Specifications so that the progress of the Work is not adversely affected.
3.5 Warranty
3.5.1 The Contractor warrants to the Owner, Construction Manager and Architect that
materials and equipment furnished under the Contract will be of good quality and new unless
otherwise required or permitted by the Contract Documents, that the Work will be free from
defects not inherent in the quality required or permitted, and that the Work will conform with the
requirements 01 the Contract Documents. Work not conforming to these requirements,
including substitutions not properly approved and authorized, may be considered defective,
The Contractor's warranty excludes remedy for damage or defed caused by abuse,
modifications not executed by the Contractor, improper or insufficient maintenance, improper
operation, or normal wear and tear under normal usage. If required by the Construction
Manager or Architect, the Contractor shall furnish satisfactory evidence as to the kind and
quality of materials and equipment.
3.6 Taxes
3,6,1 The Contractor shall pay sales, consumer, use and similar taxes for the Work or
portions thereof provided by the Contractor which are legally enacted when bids are received or
negotiations concluded. whether or not yet effective or merely scheduled to go into effect.
3.7 Permits, Fees and Notices
3.7.1 The Contractor shall secure and pay for all permits, impactfees. governmental fees,
licenses, inspections and surveys required by Federal, State, or Municipal.bodies having
jurisdiction over the project for the proper execution and completion of the Work which are
customarily secured after execution of the Contract and which are legally required at the time
bids are received. The Owner will not assess any County building permit or County impact
fees. The Contractor will be responsible for any other building permit costs or impact fees
required for this project. The Contractor shall secure and pay for all building and specialty
permits including plumbing, electrical. HVAC, etc.
3.7.2 The Contractor shall comply with and give notices required by laws, ordinances, rules,
regulations and lawful orders of public authorities bearing on performance of the Work.
3.7.3 It is not the Contractor's responsibility to ascertain that the Contract Documents are in
accordance with applicable laws, statutes, ordinances, building codes, and rules and
regulations. However. if the Contractor observes that portions of the Contract Documents are at
variance therewith, the Contractor shall promptly notify the Construction Manager, Architect and
Owner in writing, and necessary changes shall be accomplished by appropriate Modification.
3.7.4 If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances,
building codes, and rules and regulations without such notice to the Construction Manager,
Architect and Owner, the Contractor shall assume full responsibility for such Work and shall
bear the attributable costs.
10/13/2004 10:34 AM
General Conditions of the Contract for Construction
00750-7
~
ARTICLE 14
TERMINATION OR SUSPENSION OF THE CONTRACT
14.1 Termination by the Contractor
14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 30
days through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their
agents or employees or any other persons performing portions of the Work under contract with
Contractor, for any of the following reasons:
.1 issuance of an order of a court or other public authority having jurisdiction;
.2 an act of government, such as a declaration of national emergency,making material
unavailable;
.3 because the Construction Manager or Architect has not issued a certificate for
Payment and has not notified the Contractor of the reason for withholding certification as
provided in Subparagraph 9.4.2, or because the Owner has not made payment on a Certificate
for Payment within the time stated in the Contract Documents;
.4 if repeated suspensions, delays or interruptions by the Owner as described in
Paragraph 14.3 constitute in the aggregate more than 100 percent of the total number of days
scheduled for completion, or 120 days in any 36S-day period whichever is less; or
.5 the Owner has failed to furnish to the Contractor promptly, upon the Contractor's
request, reasonable evidence as required by Subparagraph 2.2.
14,1.2 If one of the above reasons exists, the Contractor may, upon seven additional days'
written notice to the Owner. Construction Manager and Architect, terminate the Contract and
recover from the Owner payment for Work executed and for proven loss with respect to
materials. equipment, tools. and construction equipment and machinery, including reasonable
overhead, profit and damages.
14.1.3 If the Work is stopped for a period of 60 days through no act or fault of the Contractor or
a Subcontractor or their agents or employees or any other persons performing portions of the
Work under contract with the Contractor because the Owner has persistently failed to fulfill the
Owner's obligations under the Contract Documents with respect to matters important to the
progress of the Work, the Contractor may, upon seven additional days' written notice to the
Owner, Construction Manager and Architect. terminate the Contract and recover from the
Owner as provided in Subparagraph 14.1.2.
14.2 TermInation by the Owner for Cause
14.2.1 The Owner may terminate the Contract if the Contractor:
.1 persistently or repeatedly refuses or fails to supply enough properly skilled workers
or proper materials;
.2 fails to make payment to Subcontractors for materials or labor in accordance with the
respective agreements between the Contractor and the Subcontractors;
.3 persistently disregards laws, ordinances, or rules, regulations or orders of a public
authority having jurisdiction;
.or
.4 otherwise is guilty of substantial breach of a provision 01 the Contract Documents.
10/13/2004 10:34 AM
General Conditions of the Contract for Construction
00750-35
(
I.
14.2.2 When any of the above reasons exist, the Owner, after consultation with the
Construction Manager, and upon certification by the Architect that sufficient cause exists to
justify such action, may without prejudice to any other rights or remedies of the Owner and after
giving the Contractor and the Contractor's surety, if any, 72 hours written notice, terminate
employment of the Contractor and may, subject to any prior rights of the surety:
.1 take possession of the site and of all materials, equipment, tools, and construction
equipment and machinery thereon owned by the Contractor;
.2 accept assignment of subcontracts pursuant to Paragraph 5.4; and
,3 finish the Work by whatever reasonable method the Owner may deem expedient.
14.2.3 When the Owner terminates the Contract for one of the reasons stated in Subparagraph
14,2.1, the Contractor shall not be entitled to receive further payment until the Work is finished.
14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including
compensation for the Construction Manager's and Architect's services and expenses made
necessary thereby, such excess shall be paid to the Contractor. If such costs exceed the
unpaid balance, the Contractor shall pay the difference to the Owner. The amounts to be paid
to the Contractor or Owner, as the case may be, shall, upon application, be certified by the
Architect after consultation with the Construction Manager, and this obligation for payment shall
survive termination of the Contract.
14.3 Suspension by, the Owner for Convenience
14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, delay or
interrupt the Work in whole or in part for such period of time as the Owner may determine,
14,3.3 Adjustments made in the cost of performance may have a mutually agreed fixed or
percentage fee,
END OF SECTION 00150
10/13/2004 10:34 AM
General Conditions of the Contract for Construction
00750-36
MONROE COUNTY FIRE STATION No. 22
(
l
SECTION 00350
MILESTONE SCHEDULE/LIQUiDATED DAMAGES
This section contains the project milestone schedule. The contractor is required to determine
his proposed schedule to meet these milestone dates.
The Contractor is to note the following special milestone dates.
1. Bid Documents Available.. .............. ......m........................,....... ....,... 02 JULY 2004
2. Pre-Bid Conference ........................................,.........,............"..n.... .15 JULY 2004
3. Bid Due Date .....n.........., ............... .............................................17 AUGUST 2004
4. Award Date (Anticipated) ....................................,...............20 SEPTEMBER 2004
5. Notice to Proceed & Pre-Construction Meeting (Anticipated).. 04 OCTOBER 2004
6. Final Completion ,..,............................,..,......................,.......... 03 OCTOBER 2005
Contract Completion' within 365 DAYS of Commencent.
I
\
UQUIDATED DAMAGES
Conditions Under Which Liquidated Damages are Imposed-The time or times stipulated in
the contract for completion of the work of the contract or of specified phases of the contract shall
be the calendar date or dates listed in the milestone schedule.
Liquidated damages will be based on the Substantial Completion Date for all work, modified by
all approved extensions in time as set forth by the Construction Manager's signature of approval
on the Certificate of Substantial Completion. The liquidated damages table below shall be
utilized to determine the amount of liquidated damages.
CONTRACT AMOUNT
Under 50,000.00
$50,000.00-99,999.00
$100,000.00-499,999.00
$500,000.00 and Up
FIRST
15 DAYS
$50.00/Day
100.00/Day
20o.0o/Day
500.00/Day
SECOND
15 DAYS
$100.00/Day
200.00/Day
500.0o/Day
1,OOO.00/Day
31ST DAY &
THEREAFTER
$250.00IDay
750.00/Day
2,OOO.OO/Day
3,500.00IDay
The Contractor's recovery of damages, and sole remedy for any delay caused by the Owner
shall be an extension of time on the Contract.
END OF SECTION 00350
6/29/04
MILESTONE SCHEDULE/LIQUIDATED DAMAGES
00350-1
~- (
IN THE c( 'TJIT COURT OF THE 16TH JUDICIi CIRCUIT
IN h<~D FOR MONROE COUNTY, FLORL.A
CASE NO. 06 CA 44 P
TROPEX CONSTRUCTION SERVICE INC.,
Plaintiff,
vs.
MONROE COUNTY BOARD OF
COUNTY COMISSIONSERS,
Defendant,
/
MONROE COUNTY BOARD OF
COUNTY COMISSlONSERS,
Counter- Plaintiff,
vs.
TROPEX CONSTRUCTION SERVICE INC.,
and.
DEVELOPERS SURETY AND
INDEMNITY COMPANY,
Defendant.
/
ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM OF
DEFENDANT MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
Defendant MONROE COUNTY BOARD OF COUNTY COMISSIONERS
("MONROE COUNTY"), by and through undersigned counsel, sets forth its Answer,
Mfirmative Defenses and Counterclaim in response to PlaintiffTROPEX CONSTRUCTION
SERVICE lNC.'s ('TROPEX") Second Amended Complaint.
ANSWER AND AFFIRMATIVE DEFENSES
1. Denies that the action is for declaratory relief as Court dismissed count for
declaratory relief. Denies that the action is for damages in excess of $15,000.00.
FERENCIK lIBANOFF BRANDT BUSTAMANTE AND WILLIAMS, P .A.
1 50 S. PINE ISLAND ROAD, SUITE 400, FORT LAUDERDALE, FLORIDA 33324
BRQWARD (954)474-8080 DADE (305)949-8003 fAX (954)474-7343
URL: http/ /ww.v.f1bblaw.com
Case No. 06 CA 44 P
2. Admit that Tropex was the successful bidder and that the Contract was dated
October 20, 2004. Deny that the remainder of the allegations in Paragraph 2.
3. Admit that Contract is voluminous and incorporates various addenda,
documents, plans and specifications and deny the remainder of the allegations in
Paragraph 3.
4. Admit that Tropex furnished a Performance Bond.
5. Admit that the language in Paragraph 5 is contained in the Contract, deny
that this language is the only pertinent part of the Contract or the General Conditions.
6. Denied.
7. Denied.
8. Monroe County states that it is without knowledge of the arrangements made
with counsel, and denies that there is any basis for Tropex's recovery of attorneys' fees.
Breach of Contract
Monroe County incorporates by reference its responses to Paragraphs 1-8 as if fully
set forth herein.
18. Denied.
19. Denied that that all conditions precedent have occurred or been performed.
Tropex failed to request information or give notice as required by General Condition 14.1,
and any stoppage of the Work was due to the fault of Tropex. Tropex alleges new breaches
of contract in its Second Amended Complaint that were not previously identified by Tropex
to Monroe County.
2
FERENCIK L1SANOFF BRANDT BUSTAMANTE AND WILLIAMS, P.A.
150 5. PINE ISLAND ROAD, 5um 400, FORT LAUDERDALE, FLORIDA 33324
BROWARD (954)474-8080 DADE (305)949-8003 FAX (954)474-7343
URl: httpllwww.flbbwlaw.com
Case No. 06 CA 44 P
20. Admit that Tropex sent a letter of termination to Monroe County that was
dated June 2, 2005, deny that it was received on June 2, 2005, and deny the remainder of
the allegations in Paragraph 20.
21. Monroe County states that it is without knowledge of whether Tropex
incurred expenses in preparation for its work under the Contract.
22. Denied.
WHEREFORE, Defendant MONORE COUNTY respectfully requests that the court
enter a judgment in its favor and against TROPEX and award MONROE COUNTY court
costs, and for such other and further relief as this Court may deem appropriate.
Mfirmative Defense No.1
Tropex's action is barred because it failed to comply with conditions precedent to
terminating the Contract. Tropex failed to notify Monroe County Ot request that Monroe
County provide information or permits that it contended were Monroe County's
responsibility to provide. There was no request from Tropex to the County that went
unanswered and stopped the work for a period of 30 days. There was no "persistent failure"
by Monroe County to fulfill its obligations that stopped the work for a period of 60 days.
Affirmative Defense No.2
Tropex's action is barred by its priOr material breaches of the Contract, which excused
Monroe County from further performance. These breaches include, but are not limited to,
failure to obtain the building permit and OSTDS permit; failure to timely submit insurance
3
FERENCIK L1BANOFF BRANDT BUSTAMANTE AND WILLIAMS, P A
150 5. PINE ISLAND ROAD, SUITE 400, FDRT LAUDERDALE, FLORIDA 33324
BROWARD (954)474-8080 DADE (305)949-8003 FAX (954)474-7343
URL: httP/ jwww.flbbwlaw.com
(
Case No. 06 CA 44 P
certificates; failure to provide product approval sheets for doors, windows and roof
coverings; failure to submit copies of all licenses of its subcontractors, failure to submit a
construction schedule.
Affirmative Defense No.3
Tropex's action is barred by the doctrines of estoppel and waiver to assert any basis its
termination of the Contract other than the contention that it was Monroe County's
responsibility to obtain the building permit, because this is the only basis that was in its
notice to Monroe County.
Affirmative Defense No.4
Tropex's action is barred by the doctrines of estoppel and Waiver that Tropex failed to
request from Monroe County information Tropex needed to perform its work and/or notify
Monroe County of the persistent failures to fulfill contractual obligations.
Affirmative Defense No.5
The purported failure of Monroe County to furnish a signed Contract until March 5, 2005
was not a material breach of the Contract and did not justify Tropex's terminating the
Contract and bringing this action.
4
FERENClK L1BANOFF BRANDT BUSTAMANTE AND WILLIAMS, P.A.
150 S. PINE ISLAND ROAD, Sum 400, FORT LAUDERDALE, FLORIDA 33324.
BROWARD (954)474-8080 DADE (305)949-8003 FAX (954)474-7343
URL: httpllwww.flbbwlaw.com
Case No. 06 CA 44 P
Affirmative Defense No.6
Tropex's action is barred by failing to fulfill and materially breaching its contractual
obligations under the Contract by failing to perform, terminating the Contract without
cause, and abandoning the Project.
Affirmative Defense No.7
Tropex's claim for attorneys' fees is barred by its failure to assert any reference to contract
terms or law entitling Tropex to such fees.
Affirmative Defense No.8
Tropex waived its cause of action by failing to return to its work after Monroe County
notified Tropex that it was Tropex's obligation to obtain the building permit and demand
that Tropex cure its material breach and return to work.
Affirmative Defense No.9
Tropex's action is barred by reason of laches by failing to notify Monroe County in a timely
manner of Monroe County's purported failure to fulfill contractual obligations and failure to
identify all of Monroe County's breaches in Tropex's notice of termination dated June 2,
2005, thereby depriving Monroe County of the ability to cure such breaches.
5
FERENCLK lIBANOff BRANOT BUSTAMANTE AND WILLIAMS, P.A.
150 S. PINE ISLAND ROAD, SUITE 400, FORT LAUDERDALE, FLORIDA 33324
BROWARD (954)474-8080 DADE (305)949-8003 FAX (954)474-7343
URL: httpllwww.flbbwlaw.com
Case No. 06 CA 44 P
Affil~mative Defense No. 10
Tropex's action is barred because Tropex's own failure to perform and culpable conduct
were the proximate cause of any damages Tropex incurred.
Affirmative Defense No. 11
Tropex's action is barred by reason of set off in that Monroe County incurred damages to
complete Tropex's work on the Project.
Mfirmative Defense No. 12
Tropex's action is barred because it repudiated and abandoned the Contract.
Affirmative Defense No. 13
Tropex's action is barred because it failed and/or refused to mitigate any damages it
incurred.
Reservation of Additional Defenses
This action and any relief sought may be barred, in whole or in part, by additional
defenses that cannot be articulated due to the generality of Tropex's Second Amended
Complaint, the fact that discovery is not yet complete, or other presently undeveloped
information. Accordingly, Monroe County reserves its right to supplement the foregoing
defenses and to raise additional defenses as may appear as this case progresses to the
fullest extent allowed under Florida or other applicable law.
6
FERENClK lIBANOFf BRANDT BUSTAMANTE AND WILLIAMS, P.A.
150 S. PINE ISLAND ROAD, SUITE 400, FORT LAUDERDALE, FLORIDA 33324
BROWARD (954)474-8080 DADE (305)949-8003 FAX (954)474-7343
URL: httpll......-v.w.ftbbwlaw.com
Case No. 06 CA 44 P
COUNTERCLAIM
Defendant/Counter-Plaintiff MONROE COUNTY BOARD OF COUNTY
COMISSIONERS ("MONROE COUNTY"), through undersigned counsel, asserts the
following causes of action against TROPEX CONSTRUCTION SERVICES ("TROPEX")
and its surety DEVELOPERS SURETY AND INDEMNITY COMPANY ("SURETY")
pursuant to the following facts:
1. This is an action for damages in excess of $15,000.00.
2. Monroe County is a political subdivision of the state of Florida.
3. Tropex is a Florida corporation and possesses a license as a Construction
Qualified Business, which it has held since March 1, 2002.
4. Mr. Angel M. Pareja is the President and Primary Qualifying Agent for
Tropex, and possesses a license as a Certified General Contractor, which he has held since
March 1, 2002.
5. Surety IS a foreign corporation with a branch office In Broward County,
Florida, authorized to conduct business in the State of Florida.
6. Venue is proper in Monroe County pursuant to the terms of the Contract, the
performance bond at issue herein, and applicable statutes.
7. Tropex submitted a bid for the renovation and construction services for the
Tavernier Fire Station No. 22 in Tavernier, Florida ("Project").
8. On or about October 20, 2004, the Monroe County Board of Commissioners
approved the awarding of the bid to Tropex.
7
FERENClK l1BANOFf BRANDT BUSTAMANTE AND WiLLIAMS, P.A.
150 S. PINE ISLAND ROAD, SUITE 400, FORT LAUDERDALE, FLORIDA 33324
BROWARD (954}4 74-8080 DADE (305}949-8003 FAX (954)474-7343
URL: httpllwww.flbbwlaw.com
Case No. 06 CA 44 P
9. On October 22, 2004, Monroe County transmitted to Tropex, VIa federal
express, four duplicate original contracts to Tropex. The transmittal requested that Tropex
sign the contracts and return them to Monroe County. The transmittal also advised Tropex
that "it is very important to have your insurance certificates attached to each contract,
originals will be required, before they will execute the contract."
10. Monroe County and Tropex entered into an agreement dated October 20,
2004 ("Contract"), under which Tropex was to perform renovation and construction
services for the Tavernier Fire Station No. 22 in Tavernier, Florida ("Project"). A true and
accurate copy of a portion of the Contract, consisting of the Agreement and other provisions
referenced in this Counterclaim, are attached hereto as Exhibit A. The parties are in
possession of a copy of the entire Contract, which is voluminous and, therefore, a copy is not
attached hereto. The amount of the Contract included a base of $498,655, with alternates 1
through 5 in the amount of $36,775, for a total of $535,430.00.
11. On or about November 30, 2004, Surety issued public works Performance
Bond No. 532 438P in compliance with Florida Statutes 255.05(1)(a) (TlBOND"). Tropex
furnished the Bond to Monroe County, which Bond reflects that Surety is bound to obligee
Monroe County in the amount of $535,430.00. A copy of the Bond is attached hereto as
Exhibit B.
12. The Instruction to Bidders required the submission of bond and insurance
certificates within 5 days after Tropex's receipt of the Notice of Award.
8
FERENCIK L1BANOFF BRANDT BUSTAMANTE AND WILUAMS, P.A.
150 S. PINE ISLAND ROAD, SUITE 400, FORT LAUDERDALE, FLORIDA 33324
BROWARD (954)474-8080 DADE (30S}949-8003 FAX (954)474-7343
URL: http/ Iwww.flbbwlaw.com
f.
I
\
Case No. 06 CA 44 P
13. Under General Condition l' 8.2.2, 11.1.1, and 11.1.2, Tropex was prohibited
from commencmg work at the project site until satisfactory evidence of insurance was
furnished.
14. Tropex did not furnish the Bond within 5 days of Contract award.
15. Tropex completed its submission of compliant insurance certificates on or
about February 3, 2005.
16. Under Paragraph 1.2.1 of Section 00300, Scope of Work, in the Bidding
Documents, Tropex was required to submit copies of all licenses of its subcontractors prior
to Monroe County's issuance of a Notice to Proceed ("NTP").
17. Tropex never submitted the licenses of its subcontractors to Monroe County.
18. General Condition 3.10.1 of the Contract required Tropex to submit a
construction schedule within 7 days after contract award. Paragraph 1.1.C.1 of General
Requirement Section 01310 required Tropex to submit construct~on progress schedules
promptly after award of the Contract and prior to proceeding with site work on the Project.
19. Tropex never submitted construction progress schedules to Monroe County.
20. Paragraph 5.4.3 of Section 00100 of the Instructions To Bidders required the
contractor to secure all permits, impact fees, inspections and surveys required for the
execution of the Contract.
21. Item 3 of Addendum 1 to the Bidding Documents (part of the Agreement)
directs bidders to General Condition Article 3.7 for the permits and fees that were the
responsibility of the bidder.
9
FERENCIK liBANOFF BRANDT BUSTAMANTE AND WILLIAMS, P.A.
150 S. PINE ISLAND ROAD, SUITE 400, FORT LAUDERDALE, FLORIDA 33324
BROWARD (954)474-8080 DADE (305)949-8003 FAX (954)474-7343
URL: httpllwww.flbbwlaw.com
Case No. 06 CA 44 P
22. General Condition 3.7.1 required Tropex to secure and pay for all building
and specialty permits for the Project.
23. Tropex never obtained the Building Permit or the onsite treatment and
disposal system ("OSTDS") Permit.
24. Tropex never requested or advised Monroe County, prior to June 2, 2005,
that it was Tropex's understanding that Monroe County was responsible for obtaining the
Building Permit.
25. Tropex never requested orally or in writing that Monroe County provide
information needed for the Building Permit, never notified Monroe County orally or in
writing that Tropex believed Monroe County was required to obtain the OSTDS permit,
never notified Monroe County orally or in writing that information was needed for Tropex
to obtain the OSTDS permit, and never notified Monroe County orally or in writing that it
needed to issue the NTP.
26. On June 2, 2005, Tropex sent a letter to Monroe County, writing that it was a
notice of termination by Tropex pursuant to General Condition 14.1.2 of the Contract
("TROPEX NOTICE"). The Tropex Notice advised that Monroe County had failed to
secure the Building Permit as required by General Condition 2.2.3, which was a violation of
General Condition 14.1.1.5 and had delayed commencement of the Project by over 200 days
contrary to General Condition 14.1.1.4.
27. Monroe County received the Tropex Notice on June 7, 2005.
28. General Condition 14.1.2 of the Contract and 14.1.1.5 allow Tropex to
terminate the Contract if, after a request from Tropex, Monroe County fails to furnish
10
FERENClK LiBANOFF BRANDT BUSTAMANTE AND WILLIAMS, P.A.
150 S. PINE ISLAND ROAD, SUITE 400, FORT LAUDERDALE, FLORIDA 33324
BROWARD (954}474-8080 DADE (305)949-8003 FAX (9S4)474-7343
URL: httpllwww.flbbwJaw.com
('>
Case No. 06 CA 44 P
Tropex reasonable evidence required by General Condition 2.2. and results in a stoppage of
work for a period of 30 days through no act or fault of Tropex. Tropex must give Monroe
County an additional 7 days written notice prior to termination.
29. General Condition 14.1.1.4 of the Contract and 14.3 allow Tropex to
terminate the Contract if Monroe County, without cause, repeatedly orders Tropex III
writing to suspend, delay or interrupt its work that amount to more than 100% of the total
number of days scheduled for completion or 120 days in any 365 day period, whichever is
less, and results in a stoppage of work for a period of 30 days through no act or fault of
Tropex, Tropex must give Monroe County an additional 7 days written notice prior to
termination.
30. On June 6, 2005, Monroe County sent a letter to Tropex inquiring about the
status of permitting for the Project and requesting that Tropex provide a schedule for
submitting all required information to the Building and Health pepartments within 10
days. This letter also advised that a delay had arisen because Tropex had failed to submit
Product Approval Sheets to the Building Department. Tropex never responded to this
letter.
31. Tropex never commenced work at the Project site and, despite having
received Monroe County's June 6, 2005 letter, never returned to the Project to commence its
work.
32. Under Article 3.2 of the Agreement portion of the Contract, Tropex is
obligated to pay Monroe County liquidated damages if it did not achieve Substantial
Completion of the Work no later than 365 calendar days from the date of Commencement.
11
FERENCIK LiBANOFF BRANDT BUSTAMANTE AND WiLLIAMS, P.A.
150 S. PINE ISLAND ROAD, SUITE 400, FORT LAUDERDALE, FLORIDA 33324
BROWARD (954)4 74-80BO DADE (305)949-8003 FAX (954)474-7343
URL: httpllwww.flbbwlaw.com
Case No. 06 CA 44 P
33. Monroe County made demand on Surety to take prompt appropriate action
pursuant to the terms of the Bond attached as Exhibit R Surety failed and refused to take
any action with respect to the terms of the Bond.
34. Due to Tropex and Surety's failure and refusal to complete the Project,
Monroe County was required to enter into an agreement with a replacement contractor to
complete the Project.
35. As a direct and proximate result of Tropex and Surety's failure and refusal to
complete the Project, Monroe County has suffered damages in the form of increased
construction costs, delays, and other increased costs,
36. Monroe County has been required to retain the serViCes of undersigned
counsel in order to defend the Tropex action and to maintain its counterclaim action, and is
obligated to pay reasonable attorneys' fees. Monroe County is entitled to its reasonable
attorneys fees in accordance with Florida Statutes Sections 627.42~ and 627.756,
37. All conditions precedent to this action have been satisfied, or Tropex and/or
Surety have waived or are estopped from enforcing them.
COUNT I AGAINST TROPEX
(BREACH OF CONTRACT)
Monroe County realleges and incorporates by reference Paragraphs 1-37 above as if
fully set forth herein.
38. Tropex materially breached its obligations under the Contract by failing to
secure the Building and OSTDS Permits, failing to provide a construction progress
schedule, and failing to provide a list of subcontractors with their licenses.
12
FERENClK lIBANOFF BRANDT BUSTAMANTE AND WILLIAMS, P.A.
150 S. PINE ISLAND ROAD, SUITE 400, FORT LAUDERDALE, FLORIDA 33324
BROWARO (954)474-8080 DADE (305)949-8003 FAX (954)4 74-7343
URL: httP! Iwww.flbbwlaw.com
Case No. 06 CA 44 P
39. Tropex materially breached its obligations under the Contract by failing to
commence and complete its work on the Project and by terminating the Contract.
40. Tropex materially breached its obligations under the Contract by terminating
the Contract based on the purported obligation and failure of Monroe County to obtain the
Building Permit because Tropex was responsible for obtaining the Building Permit.
41. 'l'ropex materially breached its obligations under the Contract by terminating
the Contract without having complied with General Condition 14.1.1.5 by failing to
previously request from Monroe County reasonable evidence as required by General
Condition 2.2.
42. Tropex materially breached the Contract by terminating the Contract
pursuant to General Condition 14.1.1.4, 14.3 and 14.1.2 without the existence of any
written orders from Monroe County to Tropex to suspend, delay or interrupt the work.
43. Tropex materially breached the Contract by terrp.inating the Contract
pursuant to General Condition 14.1.1.4 and 14.1.2 without the existence of the conditions
required by General Condition 14.1.1.4
44. Tropex materially breached the Contrf,l.ct by terminating the Contract
pursuant to General Condition 14.1.2 because the work was not stopped for a period of 30-
days and any stoppage was due solely to Tropex's actions and failure to act.
45. Tropex materially breached the Contract by terminating the Contract
without having given Monroe County notice of any reason other than the purported
obligation and failure of Monroe County to obtain the Building Permit.
13
FERENCIK lIBANOFF BRANDT BUSTAMANTE AND WILLIAMS, P.A.
150 S. PINE ISLAND ROAD, SUITE 400, FORT LAUDERDALE, FLORIDA 33324
llROWARD (954)474-8080 DADE (305)949-8003 FAX (954)474-7343
URL: httpllwww.flbbwlaw.com
Case No. 06 CA 44 P
46. As a direct and proximate result of Tropex's material breaches of the
Contract, Monroe County has suffered damages in the form of increased construction costs
of at least $449,028, delays, and liquidated damages.
WHEREFORE, Monroe County demands judgment in its favor and against Tropex
as follows:
(1) damages for all of Monroe County's losses, damages, and expenses resulting
from Tropex's breaches and improper termination of the Contract, and Surety's breaches of
its Bond obligations, plus interest, cost and attorneys' fees;
(2) for such other and further relief as this Court deems appropriate.
COUNT II AGAINST SURETY
(Breach of Contract)
Monroe County realleges and incorporates by reference Paragraphs 1-46 above as if
fully set forth herein.
47. Under the Bond, Surety was required to complete the work under the
Contract in the event Tropex breached and defaulted.
48. Tropex breached and defaulted under the terms of the Contract by
improperly terminating the Contract and abandoning the Project.
49. Monroe County notified Surety of Tropex's improper termination of the
Contract and default and requested that Surety fulfill its obligations under the Bond.
50. Surety failed and refused to take any action or to fulfill its obligations under
the Bond.
14
FERENClK UBANOff BRANDT BUSTAMANTE AND WiLLIAMS, P.A.
150 5. PINE ISLAND ROAD, SUITE 400, FORT LAUDERDALE, FLORIDA 33324
BROWARD (954)474-8080 DADE (305)949-8003 FAX (954)474-7343
URL: http/ !'NWW.flbbwlaw.com
Case No. 06 CA 44 P
51. Surety materially breached its contractual obligations under the Bond by
failing and refusing to take any action after Tropex improperly terminated the Contract
and abandoned the Project.
52. As a direct and proximate result of Tropex's material breaches of the
Contract, and Surety's material breaches of its Bond obligations, Monroe County has
suffered damages in the form of increased construction costs of at least $449,028, delays,
and other increased costs.
WHEREFORE, Monroe County demands judgment in its favor and against Surety
as follows:
(1) damages for all of Monroe County's losses, damages, and expenses resulting
from Tropex's breaches and improper termination of the Contract, and Surety's breaches of
its Bond obligations, including but not limited to increased construction costs and
liquidated damages,plus interest, cost and attorneys' fees;
(2) for such other and further relief as this Court deems appropriate.
1 5
FERENClK LIBANOFf BRANDT BUSTAMANTE AND WILLIAMS, P.A.
150 S. PiNE ISLAND ROAD, SUITE 400, FORT LAUDERDALE, FLORIDA 33324
BRDWARD (954)474-8080 DADE (305)949-8003 FAX (954)474-7343
URL: httpll'^""-'W.flbbwlaw.com
Case No. 06 CA 44 P
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via
facsimile and first class mail this 16th day of January, 2007, to: Attorney for Plaintiff,
Norman S. Segall, Ruden, McClosky, Smith, Schuster & Russell, P.A., 701 Brickell
Avenue, Suite 701, Miami, Florida 33131.
FERENCIK LIBANOFF BRANDT
BUSTAMANTE & WILLIAMS, P.A.
Q
16
FERENCIK LiBANOFF BRANDT BUSTAMANTE AND WILLIAMS, P.A.
1505. PINE ISLAND ROAD, SUITE 400, FORT lAUDERDALE, FLORIDA 33324
BROWARD (954)474-8080 DADE (305)949-8003 FAX (954)474-7343
URL: httpllwww.fJbbwlaw.com