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02/15/2017 ContractKEVIN MADOK, CPA MONROE COUNTY CLERK OF THE CIRCUIT COURT & COMPTROLLER DATE: February 23, 2017 TO: Lindsey Ballard, Aide to County Administrator FROM: Pamela G. Hancoputy Clerk SUBJECT: Febru 15th BOCC Meeting Enclosed is a duplicate original of Item N6, a Contract with Earth Tech Enterprises, Inc. to install a new air curtain system in Canal #290 located on Avenue I on Big Pine Key and demolishing portions of an ineffective weed barrier in place, in the amount of $88,780.00, of which $50,000.00 is funded by a FDEP grant and the remaining $38,780.00 is funded by budgeted infrastructure tax funds, for your handling. Should you have any questions, please feel free to contact me at ext. 3130. Thank you. cc: County Attorney Finance File'/ AGREEMENT Between Owner and Contractor Monroe County BOCC This AGREEMENT is: Made as of the 15 Day of February, 2017 BETWEEN the Owner: Monroe County Board of County Commissioners 1100 Simonton Street The Gato Building, Room 2 -205 Key West, Florida 33040 And the Contractor: Earth Tech Enterprises Inc. 5425 Golden Gate Parkway, Suite 3 Naples, Florida 34116 For the following Project: Air Curtain Installation Water Quality Improvement Project Canal #290 Avenue I, Big Pine Key, Monroe County, FL This Agreement represents one of the canal restoration demonstration projects approved by the Monroe County BOCC, whose public purpose is to improve the water quality in Monroe County. Scope of the Work 1. Project Overview The Scope of Work consists of removing an existing weed barrier system and installing a new weed barrier system at the mouth of Canal #290 located between Avenue I and J in Big Pine Key. The weed barrier activities are to be completed to prevent the migration of weed wrack into the canal and the subsequent water quality degradation associated with the accumulation of weed wrack on the canal bottom. 2. General Project Intent and Scope Provide all labor, supervision, engineering, materials, supplies, equipment, tools, transportation, surveying, layout, and protection for the proper execution and completion of all the work in accordance with the Contract Documents. The Work shall include but not be limited to that shown on the Drawings and detailed in the Technical Specifications if any included in this Contract. 3. General Requirements A. Construction work times shall be limited to: AGREEMENT Page 1 of 153 8AM to 6PM Mon -Fri, excluding County holidays B. Contractor needs to be aware of weather and location and plan accordingly. C. Contractor must remain aware of the community residences and plan accordingly. Coordination of each day's works shall be done in advance with approval from AMEC /Engineer. D. The Scope of Work shall include, but not be limited to, all work shown and listed in the Project Drawings and Technical Specifications as provided in the Request for Proposal Exhibits A. The Contractor is required to provide a complete job as contemplated by the drawings and specifications, which are a part of this contract. The Contractor shall furnish all labor, supervision, materials, power, tools, equipment, supplies and any other means of construction necessary or proper for performing and completing the Scope of Work, unless otherwise specifically stated. Monroe County has made all reasonable efforts to obtain the required permits for this project, with the exception of the permits for the Electrical work, which are the responsibility of the selected Contractor. If there are additional permits required, the Contractor shall obtain them with payment by the County. SPECIAL PROVISIONS The following Special Provisions are intended to clarify the scope of work, or highlight features of the work, or modify, change, add to, or delete from the General Scope of this Proposal Package. All licenses required in order to perform the scope of work in the specified location, shall be procured and maintained by the contractor and his subcontractors. Contractor shall submit copies to AMEC prior to notice to proceed. 2. Contractor is to review General Requirements for additional responsibilities required in order to perform this Work. 3. If in the event of conflicting, or overlapping requirements in any area of the proposal documents, technical specifications, or drawings, the most stringent condition shall be proposed and constructed The Contractor shall notify the County's Sustainability /Projects Director and AMEC in any event, in order to not compromise the Owner's right to make appropriate decisions. 4. Contractor shall maintain As -Built Drawings (Record Drawings per Section 01720), of his work progression. AGREEMENT Page 2 of 153 5. Contractor will be responsible for following the permit conditions in the South Florida Water Management District, U.S. Army Corp of Engineers, Florida Keys National Marine Sanctuary and Monroe County permits. 6. Contractor shall provide suitable storage container, and be responsible for disposal off -site of all debris and trash. 7. The Contractor will be responsible for demolition of the existing weed barriers, as detailed on the Drawings contained in Exhibit A of the RFP. The Contractor shall dispose of the demolition materials at a licensed solid waste facility and shall use a properly licensed solid waste hauling vendor, licensed to operate in Monroe County. Contractor shall provide to Monroe County the location of the licensed facility and waste hauler prior to any disposal. 8. The Contractor shall coordinate with Owner's representative on available hours for Job Site access. Job site will have limited 8AM -6PM work hours Mon - Friday. Contractor will need to schedule work shifts typically from 8AM -6PM weekly. Any change to the agreed upon schedule must be obtained in writing with a minimum of 72 hrs. advanced notice. 9. Coordination of each days works shall be done in advance with approval from AMEC / Engineer. 10. The Contractor shall repair all damage and restore all properties within the project footprint to original or better than pre - construction conditions, including County right of way and roads. For roads, repairs shall be provided only for items beyond normal wear and tear. No additional cost to the County shall be allowed. The Engineer is: Amec Foster Wheeler Environment & Infrastructure Greg Corning 5845 NW 158 Street Miami Lakes, FL 33014 314- 920 -8359 The Owner and Contractor agree as set forth below. ARTICLE 1 The Contract Documents The Contract Documents consist of this _Agreement, Conditions of the Contract (General, Supplementary and other Conditions) the RFP and its attachments /exhibits Drawings, Specifications, Proposal Documents Addenda issued prior to execution of this Agreement, together with the response to RFP and all required insurance documentation, and Modifications issued after execution of this Agreement The AGREEMENT Page 3 of 153 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. In the event of a discrepancy between the documents, precedence shall be determined by the order of the documents as just listed. 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: N/A ARTICLE 3 Date of Commencement and Substantial Completion 3.1 The date of commencement is the date to be fixed in a notice to proceed issued by the Owner. The Contractor shall accomplish Substantial Completion of the construction of the air curtains at Canal #290 within Thirty (30) calendar days from Notice to Proceed for the completion of the installation and Final Completion 30 days from Substantial. The maintenance period shall begin at Final Completion, and shall be provided under a separate contract. 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 Final Completion Date for all work, modified by all approved extensions in time as set forth by the Sustainability /Projects Director's signature of approval on the Certificate of Final Completion. The liquidated damages table below shall be utilized to determine the amount of liquidated damages. 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. ARTICLE 4 Contract Sum 4.1 The owner shall pay the Contractor in current funds for the Contractor's performance of the Contract for Installation of the Air Curtain for the Contract Sum of AGREEMENT Page 4 of 153 FIRST SECOND 31ST DAY & CONTRACT AMOUNT 15 DAYS 15 DAYS THEREAFTER Under $50,000.00 $50.00 /Day $100.00 /Day $250.00 /Day $50,000.00- 99,999.00 100.00 /Day 200.00 /Day 750.00 /Day $100,000.00- 499,999.00 200.00 /Day 500.00 /Day 2,000.00 /Day $500,000.00 and Up 500.00 /Day 1,000.00 /Day 3,500.00 /Day 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. ARTICLE 4 Contract Sum 4.1 The owner shall pay the Contractor in current funds for the Contractor's performance of the Contract for Installation of the Air Curtain for the Contract Sum of AGREEMENT Page 4 of 153 Eighty Eight Thousand Seven Hundred Eighty Dollars ($88,780.00) subject to additions and deductions as provided in the Contract Documents. 4.2 The Contract Sum is based upon the following alternates, if any, which are described in the Contract Documents and are hereby accepted by the Owner: No Alternatives. ARTICLE 5 Progress Payments 5.1 Based upon Applications for Payment submitted by the Contractor to the Sustainability /Projects Director, and upon approval for payment issued by the Sustainability /Projects Director, and Engineer, the Owner shall make progress payments on account of the Contract Sum to the contractor as provided below and elsewhere in the Contract Documents. 5.2 The period covered by each Application for payment shall be one calendar month ending on the last day of the month, or other time interval approved by the Sustainability /Projects Director. 5.3 Payment will be made by the Owner in accordance with the Florida Local Government Prompt Payment Act, section 218.735, Florida Statutes. 5.4 Each Application for Payment shall be based upon the Schedule of Values submitted by the Contractor in accordance with the Contract Documents. The Schedule of Values shall allocate the entire Contract Sum among the various portions of the Work and be prepared in such form and supported by such data to substantiate its accuracy as the Sustainability /Projects Director may require. This schedule, unless objected to by the Sustainability /Projects Director, shall be used as a basis for reviewing the Contractor's Applications for Payment. 5.5 Applications for Payment shall indicate the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. 5.6 Subject to the provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: 5.6.1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the total Contract Sum allocated to that portion of the Work in the Schedule of Values, less retainage of Ten Percent 10 %. Pending final determination of cost to the owner of changes in the Work, amounts not in dispute may be included in Applications for Payment. The amount of credit to be allowed by the Contractor to the Owner for a deletion or change which results in a net decrease in the Contract Sum shall be the net cost to the Owner, less Overhead, Profit and Documented Costs incurred prior to the change Request, as indicated in the corresponding line item in the Approved Schedule of Values for that line item as confirmed by the Sustainability Program Manager. When both additions and credits covering related Work or substitutions are involved in a AGREEMENT Page 5 of 153 change the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change. 5.6.2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing), less retainage; 5.6.3 Subtract the aggregate of previous payments made by the Owner; and 5.6.4 Subtract amounts, if any, for which the Sustainability /Projects Director has withheld or nullified a Certificate for Payment as provided in Paragraph 9.5 of the General Conditions. 5.7 Retainage of 10% will be withheld in accordance with section 218.735 (8(b), Florida Statutes. 5.8 Reduction or limitation of retainage, if any, shall be as follows: Monroe County is exempt from and not subject to Florida Statutes 255.078, "Public Construction Retainage". Reduction or limitation of retainage, if any, shall be reduced incrementally at the discretion of and upon the approval of the Sustainability /Projects Director. ARTICLE 6 Final Payment Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when (1) the Contract has been fully performed by the Contractor except for the Contractor's responsibility to correct nonconforming Work as provided in Subparagraph 12.2.2 of the General Conditions and to satisfy other requirements, if any, which necessarily survive final payment, and (2) a final approval for payment has been issued by the Sustainability /Projects Director. Such final payment shall be made by the Owner not more than 20 days after the issuance of the final approval for payment. The following documents ( samples in section 1027 are required for Final Payment: (1) Application and Certificate for Payment (2) Continuation Sheet (3) Certificate of Substantial Completion (4) Contractor's Affidavit of Debts and Claims (5) Contractor's Affidavit of Release of Liens (6) Final Release of Lien (7) Contractor shall provide two (2) hard copies in tabulated divided binders and one (1) saved electronically tabbed and indexed in Adobe Acrobat file (.PDF) format delivered on a downloadable CD /DVD or flash drive of all the following but not limited to: A .Project Record Documents (As Built Documents). AGREEMENT Page 6 of 153 B. Operating and maintenance data, instructions to the Owner's personnel. C. Warranties, bond and guarantees. D. Keys and keying schedule. E. Spare parts and maintenance materials. F. Electronic copies of approved submittals G. Evidence of payment and final release of liens and consent of surety to final release (includes final release from all utilities and utility companies). ARTICLE 7 Miscellaneous Provisions 7.1 Where reference is made in this Agreement to a provision of the General Conditions or another Contract Document, the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents. 7.2 Payment shall be made according to the Florida Local Government Prompt Payment Act and Monroe County Code. 7.3 Temporary facilities and services: As described in Article 34 of the General Conditions 7.4 Monroe County's performance and obligation to pay under this contract is contingent upon an annual appropriation by the Board of County Commissioners. 7.5 A person or affiliate who has been placed on the convicted vendor list following a conviction for public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a proposal on a contract with a public entity for the construction or repair of a public building or public work, may not submit proposals on leases of real property to public entity, may not be awarded or perform work as contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. 7.6 INSURANCE REQUIREMENTS. 7.6.1 GENERAL INSURANCE REQUIREMENTS. Prior to the commencement of work governed by this contract (including the pre- staging of personnel and material), the Contractor shall obtain, at his /her own expense, insurance as specified below, which are made part of this contract. The Contractor will ensure that the insurance obtained will extend protection to all Sub - Contractors AGREEMENT Page 7 of 153 engaged by the Contractor. As an alternative, the Contractor may require all Subcontractors to obtain insurance consistent with the attached schedules. The Contractor will not be permitted to commence work governed by this contract (including pre- staging of personnel and material) until satisfactory evidence of the required insurance has been furnished to the County as specified below. Delays in the commencement of work, resulting from the failure of the Contractor to provide satisfactory evidence of the required insurance, shall not extend deadlines specified in this contract and any penalties and failure to perform assessments shall be imposed as if the work commenced on the specified date and time, except for the Contractor's failure to provide satisfactory evidence. The Contractor shall maintain the required insurance throughout the entire term of this contract and any extensions specified in any attached schedules. Failure to comply with this provision may result in the immediate suspension of all work until the required insurance has been reinstated or replaced. Delays in the completion of work resulting from the failure of the Contractor to maintain the required insurance shall not extend deadlines specified in this contract and any penalties and failure to perform assessments shall be imposed as if the work had not been suspended, except for the Contractor's failure to maintain the required insurance. The Contractor shall provide, to the County, as satisfactory evidence of the required insurance, either: • Certificate of Insurance or • A certified copy of the actual insurance policy. The County, at its sole option, has the right to request a certified copy of any or all insurance policies required by this contract. All insurance policies must specify that they are not subject to cancellation, nonrenewal, material change, or reduction in coverage unless a minimum of thirty (30) days prior notification is given to the County by the insurer. The acceptance and /or approval of the Contractor's insurance shall not be construed as relieving the Contractor from any liability or obligation assumed under this contract or imposed by law. The Monroe County Board of County Commissioners, its employees and officials will be included as "Additional Insured" on all policies, except for Workers' Compensation. In addition, the County will be named as an Additional Insured and Loss Payee on all policies covering County -owned property. 7.6.2 WORKERS' COMPENSATION INSURANCE REQUIREMENTS AGREEMENT Page 8 of 153 Prior to the commencement of work governed by this contract, the Contractor shall obtain Workers' Compensation Insurance with limits sufficient to respond to the applicable state statutes. In addition, the Contractor shall obtain Employers' Liability Insurance with limits of not less than: WC3: $1,000,000 Bodily Injury by Accident $1,000,000 Bodily Injury by Disease, policy limits $1,000,000 Bodily Injury by Disease, each employee WCUSLH US Longshoremen & Harbor Workers Act WCJA Federal Jones Act - Same as Employer's Liability Coverage shall be maintained throughout the entire term of the contract. Coverage shall be provided by a company or companies authorized to transact business in the state of Florida. If the Contractor has been approved by the Florida's Department of Labor, as an authorized self- insurer, the County shall recognize and honor the Contractor's status. The Contractor may be required to submit a Letter of Authorization issued by the Department of Labor and a Certificate of Insurance, providing details on the Contractor's Excess Insurance Program. If the Contractor participates in a self- insurance fund, a Certificate of Insurance will be required. In addition, the Contractor may be required to submit updated financial statements from the fund upon request from the County. 7.6.3 GENERAL LIABILITY INSURANCE REQUIREMENTS Prior to the commencement of work governed by this contract, the Contractor shall obtain General Liability Insurance. Coverage shall be maintained throughout the life of the contract and include, as a minimum: Premises Operations Products and Completed Operations Blanket Contractual Liability Personal Injury Liability Expanded Definition of Property Damage The minimum limits acceptable shall be: GI-4 $2,000,000 Combined Single Limit (CSL) An Occurrence Form policy is preferred. If coverage is provided on a Claims Made policy, its provisions should include coverage for claims filed on or after the effective AGREEMENT Page 9 of 153 date of this contract. In addition, if coverage is provided on a Claims Made policy, the period for which claims may be reported should extend for a minimum of twelve (12) months following the acceptance of work by the County. If the Contractor has an Occurrence Form policy then the above referenced period for which claims may be reported extending for a minimum of twelve (12) months following the acceptance of work by the County does not apply. The Monroe County Board of County Commissioners shall be named as Additional Insured on all policies issued to satisfy the above requirements. 7.6.4 VEHICLE LIABILITY INSURANCE REQUIREMENTS Recognizing that the work governed by this contract requires the use of vehicles, the Contractor, prior to the commencement of work, shall obtain Vehicle Liability Insurance. Coverage shall be maintained throughout the life of the contract and include, as a minimum, liability coverage for: Owned, Non - Owned, and Hired Vehicles The minimum limits acceptable shall be: VL3 $1,000,000 Combined Single Limit (CSL) The Monroe County Board of County Commissioners shall be named as Additional Insured on all policies issued to satisfy the above requirements. 7.6.5 WATERCRAFT / POLLUTION LIABLITY 7.7 MISCELLANEOUS: The following items are included in 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 authorized 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 shall lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. The Parties waive their rights to trial by jury. The County and Contractor agree AGREEMENT Page 10 of 153 that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding, pursuant to Section XVI of this agreement. 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. 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 and court costs as an award against the non - prevailing party, and shall include attorney's fees and courts costs in appellate proceedings. e) Binding Effect. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of 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. Each party agrees that it has had ample opportunity to submit this Contract to legal counsel of its choice and enters into this agreement freely, voluntarily and with advice of counsel. 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 solicitations shall be approved by each party prior to submission. h) Adjudication of Disputes or Disagreements. County and Contractor agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If the issue or issues are still not resolved to the satisfaction of the parties, then any party shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law. This Agreement is not subject to arbitration. i) Cooperation. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this AGREEMENT Page 11 of 153 Agreement, County and Contractor agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement. County and Contractor specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. j) 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 all 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 -1683, 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 ss. 6101 -6107) 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 Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd -3 and 290ee -3), as amended, relating to confidentiality of alcohol and drug abuse patient records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. k) Covenant of No Interest. County and Contractor covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Agreement, and that only interest of each is to perform and receive benefits as recited in this Agreement. 1) Code of Ethics. County agrees that officers and employees of the County recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. m) No Solicitation /Payment. The County and Contractor warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a AGREEMENT Page 12 of 153 bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of the provision, the Contractor agrees that the County shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. n) Public Access. The County and Contractor shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Contractor in conjunction with this Agreement; and the County shall have the right to unilaterally cancel this Agreement upon violation of this provision by Contractor. Contractor is required to: (1) Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform the service. (2) Provide the public with access to public records on the same terms and conditions that the public agency would provide the records and at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (4) Meet all requirements for retaining public records and transfer, at no cost, to the public agency all public records in possession of the contractor upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the public agency in a format that is compatible with the information technology systems of the public agency. o) Non - Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the Contractor and the County in this Agreement and the acquisition of any commercial liability insurance coverage, self - insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the County be required to contain any provision for waiver. p) Privileges and Immunities. All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the County, when performing their respective functions under this Agreement within the territorial limits of the County shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. AGREEMENT Page 13 of 153 q) Legal Obligations and Responsibilities: Non - Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the County, except to the extent permitted by the Florida constitution, state statute, and case law. r) Non - Reliance by Non - Parties. No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third -party claim or entitlement to or benefit of any service or program contemplated hereunder, and the County and the Contractor agree that neither the County nor the Contractor or any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. s) Attestations. Contractor agrees to execute such documents as the County may reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug -Free Workplace Statement. t) No Personal Liability. No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity, and no member, officer, agent or employee of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. u) Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. v) Hold Harmless and Indemnification. Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, the Contractor covenants and agrees that he shall indemnify and hold the COUNTY and the COUNTY's elected and appointed officers and employees harmless from and against (i) claims, actions or causes of action, (ii) litigation, administrative proceedings, appellate proceedings, or other proceedings relating to any type of injury (including death), loss, damage, fine, penalty or business interruption, and (iii) costs or expenses that may be asserted against, initiated with respect to, or sustained by the County and the COUNTY's elected and appointed officers and employees and the property owner upon which the work is performed from liabilities damages, losses and costs, including but not limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of the Contractor and persons employed or utilized by the indemnifying party in the performance of the construction contract. The monetary AGREEMENT Page 14 of 153 limitation of liability under this contract shall be not less than $1 million per occurrence pursuant to F. S. 725.06. Insofar as the claims, actions, causes of action, litigation, proceedings, costs or expenses relate to events or circumstances that occur during the term of this Agreement, this section will survive the expiration of the term of this Agreement or any earlier termination of this Agreement. In the event the completion of the project (including the work of others) is delayed or suspended as a result of the Contractor's failure to purchase or maintain the required insurance, the Contractor shall indemnify the County from any and all increased expenses resulting from such delay. In the event the completion of the project (including the work of others) is delayed or suspended as a result of the Contractor's failure to purchase or maintain the required insurance, the Contractor shall indemnify the County from any and all increased expenses resulting from such delay. The first ten dollars ($10.00) of remuneration paid to the Contractor is for the indemnification provided for above. The extent of liability is in no way limited to, reduced, or lessened by the insurance requirements contained elsewhere within this agreement. w) Section Headings. Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. x) Agreements with Subcontractors. In the event that the Contractor subcontracts any or all of the work in this project to any third party, the Contractor specifically agrees to identify the COUNTY as an additional insured on all insurance policies required by the County. In addition, the Contractor specifically agrees that all agreements or contracts of any nature with his subcontractors shall include the COUNTY as additional insured. y) Florida Green Building Coalition Standards. Monroe County requires its buildings to conform to Florida Green Building Coalition standards. Special Conditions, if any are detailed in Section 00990 of the Project Manual for this Project. ARTICLE 8 Termination or Suspension 8.1 The Contract may be terminated by the Owner as provided in Article 14 of the General Conditions. ARTICLE 9 Enumeration of Contract Documents AGREEMENT Page 15 of 153 9.1 The Contract Documents, except for Modifications issued after execution of this Agreement, are enumerated as follows: (Insert information here). a) Drawings: b) Project Manual: 9.1.1 The Agreement is this executed Standard Form of Agreement between Owner and Contractor. 9.1.2 The General Conditions are the General Conditions of the Contract for Construction. 9.1.3 The Supplementary and other Conditions of the Contract are those contained in the Project Manual dated: 9.1.4 The Addenda, if any, are as follows: Number Date Addendum No 1 01/20/17 Addendum No 2 1 01/23/17 9.1.5 The Alternates, if any, are as follows: Alternate No. 1: Not Applicable END ALTERNATES 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. Execution by the Contractor must be by a person with authority to bind the entity. SIGNATURE OF THE PERSON EXECUTING THE DOCUMENT MUST BE NOTARIZED AND WITNESSED BY ANOTHER OFFICER OF THE ENTITY. AGREEMENT Page 16 of 153 ivl , Date -- - — -? -� BOARD OF COUNTY COMMISSIONER S OF MONROE COUNTY, FLORIDA By: 5 Mayor /Chairman (SEAL) Attest: By: Print Name: Title: Date: And: By:_ Title: EARTH TECH ENTERPRISES INC By: l� Print name: Title: I/ >P Date: 3 / / Print Name: Date: 7) STATE OF FLORIDA /� COUNTY OF C v u On this �/ day of fAT> , 204 before me the undersigned notary public, Personally appeared , known to me to be the Person whose name is subscribed above or who produced TZ bL As identification, and acknowledged that he/ he is the person y ho executed the above contract w' onroe County for the S �f�✓ Project for p oses therein contained. e&#t W r By , ; Notary Public ' t� �. ry Print Name , NA-e40 o—�t My commission expires: /0 — 2'n If3 Seal - BEn' r t I Notary Public Stair 'y. w My Comm. Expires Jun 22, 201: Commission # FF 134510 AGREEMENT Page 17 of 153 EARTTEC -01 GFELI ACORO° CERTIFICATE OF LIABILITY INSURANCE DA 01 /31 01/31/2017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER C ACT Misha Redecker Risk Management Insurance PO Box 62487 Fort Myers, FL 33906 PHONE FAX A/C, No, Ext : (239) 278 - 3939 (A/C, N,) :(239) 278 - 4853 Iffiffli misha @riskmgmtins.com INSURERS AFFORDING COVERAGE NAIC # X INSURER A: FCCI Insurance Comp 10178 04105/2016 INSURED INSURER B: National Trust Insurance Co. 20141 INSURER C: Lloyd's of London DAMAGE TO RENTED Earth Tech Enterprises, Inc. INSURER D : MED EXP (Any one arson 5425 Golden Gate Pkwy # 3 Naples, FL 34116 INSURER E Contractual Liab. INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER- THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF POLICY EXP LIMITS A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE [X] OCCUR X X CPP0004599 12 04105/2016 04/05/2017 EACH OCCURRENCE $ 1,000,000 DAMAGE TO RENTED 100,000 X MED EXP (Any one arson 5,000 Contractual Liab. X Indep. Contractor PERSONAL & ADV INJURY 1'000,000 AGGREGATE LIMIT APPLIES PER: POLICY 1XI PERT F] LOC GENERAL AGGREGATE 2'000'000 GEN'L PRODUCTS - COMP /OP AGG 2,000,000 OTHER: A AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 BODILY INJURY Per person) $ X ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS X X CA 0005588 12 04/05/2016 04105 /2017 ODILY INJURY Per accident $ RR Parr accident AMAGE $ X O OS AUTOS ONLY X AUTO ONL PIP 10,000 B X UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 10'000,000 AGGREGATE 10,000'000 EXCESS LIAB CLAIMS -MADE X UMB0002919 12 04/0512016 04/05/2017 DED I X I RETENTION$ 10 A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY A PROPRIETOR/PARTNER/EXECUTIVE YIN (Mla I nd d ory In NH) EXCLUDED? H yes, describe under DESCRIPTION OF OPERATIONS below NIA X 001 -WC16A -72277 07/18/2076 07/18/2017 X PER OTH- T R E.L. EACH ACCIDENT 1,000,000 E.L. DISEASE - EA EMPLOYE 1,000,000 E.L. DISEASE - POLICY LIMIT 7,000,000 A lEquipment Floater CPP0004599 12 04/05/2016 04/05/2017 Equip -ACV C Maritime/Jones Act F04MOM928- 4701 -16 04/17/2016 04117/2017 1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more s ace Is required PROJECT: Air Curtain Installation Water Quality Improvement Project Canal #290 Avenue I, Big Pine ley, Monroe County, FL The Monroe County Board of County Commissioners, its employees and officials, State of Florida, Florida Department of Environmental Protection and the Board of Trustees of the Improvement Trust Fund are Included as additional Insureds on a primary and non - contributory basis with respects to the general liability per CGL0841013. Additional insured applies to the automobile per CAU0591209 Including waiver of subrogation. Waiver of subrogation applies to the general liability per CGLO881013 and the workers compensation per WC000313. Umbrella is follow form. AP ED NAGWENT CERTIFICATE HOLDER rANrFi I OTI nN ACORD 25 (2016/03) ©1988 -2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Monroe County Board of County Commissioners 1100 Simonton Street THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. The Gato Building, Room 2 -205 AUTHORIZED REPRESENTATIVE Key West, FL 33040 A Grt� ej. ACORD 25 (2016/03) ©1988 -2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Document issued to comply with the Florida Statue Chapter 713.245 Front page of Performance and Payment Bond Bond Number: 0665119 Contractor Name: Earth Tech Enterprises, Inc. Contractor Address: 5425 Golden Gate Parkway. Suite 3 Naples, Florida 34116 Phone: 239 - 774 -122 Surety Company: International Fidelity Insurance Company 1060 Maitland Center Commons Blvd. #310 Maitland. FL 32751 Phone: 407 - 661 -4076 Owner Name: Monroe County Board of County Commissioners Owner Address: 1100 Simonton Street. The Gato Building, Room 2 -205 Key West, FL 33040 Phone: 305 - 294 -4641 Obligee Name: Contract Number: Amount of Bond: Project Description: Project Location: Legal Description of Property: Monroe County Board of County Commissioners $88,780.00*** (Eighty Eight Thousand Seven Hundred Eighty & No /100) Air Curtain Installation Water Quality Improvement Project Canal #290 Avenue I, Big Pine Key, Monroe County FL This is the front page of the bond. All other bond page(s) are deemed subsequent to this page regardless of any page number(s) that may be present. Bond Inquires: Smith Insurance & Bonds 2039 W. First St. Suite 7 Ft Myers, FL 33901 P: 866.976.2185 PERFORMANCE BOND International Fidelity Insurance Company 1060 Maitland Center Commons Blvd., Maitland, FL 32751 Bond No.: 0665119 CONTRACTOR: (Name, legal status and address) Earth Tech Enterprises, Inc. 5425 Golden Gate Parkway, Suite 3 Naples, FL 34116 OWNER: (Name, legal status and address) Monroe County Board of County Commissioners 1100 Simonton Street, The Gato Building, Room 2 -205 SURETY: (Name, legal status and principal place of business) International Fidelity Insurance Company 1060 Maitland Center Commons Blvd. #310 Maitland, FL 32751 Key West, FL 33040 CONSTRUCTION CONTRACT Date: February 15, 2017 Amount: Eighty Eight Thousand Seven Hundred Eighty Dollars & No /100 ($88,780.00 * * *) Description: (Name and location) Air Curtain Installation Water Quality Improvement Project Canal #290 Avenue I, Big Pine Key, Monroe County, FL BOND Date: February 15, 2017 (Not earlier than Construction Contract Date) Amount: Eighty Eight Thousand Seven Hundred Eighty Dollars & No /100 ($88,780.00 * * *) Modifications to this Bond: 0 None See Section 16 CONTRACTOR AS PR PAL SURETY Company: (Corporate Seal) Company: ( r Seal) Earth Tech Enterp ses, International Fideli nc mp Signature: Signature: Name and Title Chris Gehring, esident Name and Matthew T. Smith orney -in -Fact (Any additional signatures appear on the last page of this Performance Bond.) (FOR INFORMATION ONLY —Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: Smith Insurance and Bonds (Architect, Engineer or other party.) 2039 West First Street Suite 7 Fort Myers, FL 33901 Amec Foster Wheeler Environment & Infrastructure § 1 The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. § 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except when applicable to participate in a conference as provided in Section 3. § 3 If there is no Owner Default under the Construction Contract, the Surety's obligation under this Bond shall arise after .1 the Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring a Contractor Default. Such notice shall indicate whether the Owner is requesting a conference among the Owner, Contractor and Surety to discuss the Contractor's performance. If the Owner does not request a conference, the Surety may, within five (5) business days after receipt of the Owner's notice, request such a conference. If the Surety timely requests a conference, the Owner shall attend. Unless the Owner agrees otherwise, any conference requested under this Section 3.1 shall be held within ten (10) business days of the Surety's receipt of the The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition I Owner's notice. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; .2 the Owner declares a Contractor Default, terminates the Construction Contract and notifies the Surety; and .3 the Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perform the Construction Contract. § 4 Failure on the part of the Owner to comply with the notice requirement in Section 3.1 shall not constitute a failure to comply with a condition precedent to the Surety's obligations, or release the Surety from its obligations, except to the extent the Surety demonstrates actual prejudice. § 5 When the Owner has satisfied the conditions of Section 3, the Surety shall promptly and at the Surety's expense take one of the following actions: § 5.1 Arrange for the Contractor, with the consent of the Owner, to perform and complete the Construction Contract; § 5.2 Undertake to perform and complete the Construction Contract itself, through its agents or independent contractors; § 5.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and a contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Section 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default; or § 5.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: .1 After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, make payment to the Owner; or .2 Deny liability in whole or in part and notify the Owner, citing the reasons for denial. § 6 If the Surety does not proceed as provided in Section 5 with reasonable promptness, the Surety shall be deemed to be in default on this Bond seven days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Section 5.4, and the Owner refuses the payment or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. § 7 If the Surety elects to act under Section 5.1, 5.2 or 5.3, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. Subject to the commitment by the Owner to pay the Balance of the Contract Price, the Surety is obligated, without duplication, for .1 the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; .2 additional legal, design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Section 5; and .3 liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non - performance of the Contractor. § 8 If the Surety elects to act under Section 5.1, 5.3 or 5.4, the Surety's liability is limited to the amount of this Bond. § 9 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators, successors and assigns. § 10 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. § 11 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after a declaration of Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312,2010 edition 2 to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. § 12 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. § 13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 14 Definitions § 14.1 Balance of the Contract Price. The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. § 14.2 Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and changes made to the agreement and the Contract Documents. § 14.3 Contractor Default. Failure of the Contractor, which has not been remedied or waived, to perform or otherwise to comply with a material term of the Construction Contract. § 14.4 Owner Default. Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. § 14.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 15 If this Bond is issued for an agreement between a Contractor and subcontractor, the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. § 16 Modifications to this bond are as follows: (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Name and Title: Address: Signature: Name and Title: Address: The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition 3 PAYMENT BOND Bond No.: 0665119 CONTRACTOR: (Name, legal status and address) Earth Tech Enterprises, Inc. 5425 Golden Gate Parkway, Suite 3 Naples, FL 34116 OWNER: (Name, legal status and address) Monroe County Board of County Commissioners 1100 Simonton Street, The Gato Building, Room 2 -205 International Fidelity Insurance Company 1060 Maitland Center Commons Blvd., Maitland, FL 32751 SURETY: (Name, legal status and principal place of business) International Fidelity Insurance Company 1060 Maitland Center Commons Blvd. #310 Maitland, FL 32751 Key West, FL 33040 CONSTRUCTION CONTRACT Date: February 15, 2107 Amount: Eighty Eight Thousand Seven Hundred Eighty Dollars & No /100 ($88,780.00 * * *) Description: (Name and location) Air Curtain Installation Water Quality Improvement Project Canal #290 Avenue I, Big Pine Key, Monroe County, FL BOND Date: February 15, 2017 (Not earlier than Construction Contract Date) Amount: Eighty Eight Thousand Seven Hundred Eighty Dollars & No /100 ($88,780.00 * * *) Modifications to this Bond: 0 None See Section 18 CONTRACTOR AS Company: Earth Tech Enteral Signature: Name and Title: C ristop Gehring, Signature: Name and (Any additional signatures appear on the last page of this Payment Boy._., (FOR INFORMATION ONLY— Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: Smith Insurance and Bonds (Architect, Engineer or other party.) 2039 West First Street Amec Foster Wheeler Environment & Infrastructure Suite 7 Fort Myers, FL 33901 § 1 The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference, subject to the following terms. § 2 If the Contractor promptly makes payment of all sums due to Claimants, and defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity seeking payment for labor, materials or equipment SURETY (Corporate Seal) Company: Internation The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition 1 furnished for use in the performance of the Construction Contract, then the Surety and the Contractor shall have no obligation under this Bond. § 3 If there is no Owner Default under the Construction Contract, the Surety's obligation to the Owner under this Bond shall arise after the Owner has promptly notified the Contractor and the Surety (at the address described in Section 13) of claims, demands, liens or suits against the Owner or the Owner's property by any person or entity seeking payment for labor, materials or equipment furnished for use in the performance of the Construction Contract and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety. § 4 When the Owner has satisfied the conditions in Section 3, the Surety shall promptly and at the Surety's expense defend, indemnify and hold harmless the Owner against a duly tendered claim, demand, lien or suit. § 5 The Surety's obligations to a Claimant under this Bond shall arise after the following: § 5.1 Claimants, who do not have a direct contract with the Contractor, .1 have furnished a written notice of non - payment to the Contractor, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were, or equipment was, furnished or supplied or for whom the labor was done or performed, within ninety (90) days after having last performed labor or last furnished materials or equipment included in the Claim; and .2 have sent a Claim to the Surety (at the address described in Section 13). § 5.2 Claimants, who are employed by or have a direct contract with the Contractor, have sent a Claim to the Surety (at the address described in Section 13). § 6 If a notice of non - payment required by Section 5.1.1 is given by the Owner to the Contractor, that is sufficient to satisfy a Claimant's obligation to furnish a written notice of non - payment under Section 5.1.1. § 7 When a Claimant has satisfied the conditions of Sections 5.1 or 5.2, whichever is applicable, the Surety shall promptly and at the Surety's expense take the following actions: § 7.1 Send an answer to the Claimant, with a copy to the Owner, within sixty (60) days after receipt of the Claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed; and § 7.2 Pay or arrange for payment of any undisputed amounts. § 7.3 The Surety's failure to discharge its obligations under Section 7.1 or Section 7.2 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim, except as to undisputed amounts for which the Surety and Claimant have reached agreement. If, however, the Surety fails to discharge its obligations under Section 7.1 or Section 7.2, the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. § 8 The Surety's total obligation shall not exceed the amount of this Bond, plus the amount of reasonable attorney's fees provided under Section 7.3, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. § 9 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any construction performance bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. § 10 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for the payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligation to make payments to, or give notice on behalf of, Claimants or otherwise have any obligations to Claimants under this Bond. § 11 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition '§ 12 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date (1) on which the Claimant sent a Claim to the Surety pursuant to Section 5.1.2 or 5.2, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. § 13 Notice and Claims to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. Actual receipt of notice or Claims, however accomplished, shall be sufficient compliance as of the date received. § 14 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so famished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. § 15 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor and Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made. § 16 Definitions § 16.1 Claim. A written statement by the Claimant including at a minimum: .1 the name of the Claimant; .2 the name of the person for whom the labor was done, or materials or equipment furnished; .3 a copy of the agreement or purchase order pursuant to which labor, materials or equipment was furnished for use in the performance of the Construction Contract; .4 a brief description of the labor, materials or equipment furnished; .5 the date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; .6 the total amount earned by the Claimant for labor, materials or equipment furnished as of the date of the Claim; .7 the total amount of previous payments received by the Claimant; and .8 the total amount due and unpaid to the Claimant for labor, materials or equipment furnished as of the date of the Claim. § 16.2 Claimant. An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Construction Contract. The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. § 16.3 Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and all changes made to the agreement and the Contract Documents. § 16.4 Owner Default. Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. § 16.5 Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. § 17 If this Bond is issued for an agreement between a Contractor and subcontractor, the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition '§ 18 Modifications to this bond are as follows: (Space is provided below for additional signatures of addedparties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company: SURETY (Corporate Seal) Company: (Corporate Seal) Signature: Name and Title: Address: Signature: Name and Title: Address: The Company executing this bond vouches that this document conforms to American Institute of Architects Document A312, 2010 edition 4 and other writ and the exec COMPANY a acknowledge( This Power ( COMPANY ai of INTERNAL CASUALTY C "RESOf VIM IMT OFATTORNEY ur auW7�c�I�c�- 111�IiRI lV - -- -u aeai anu aeuver Tor ane on its oenait as surety, any and all bonds and undertakings'., contracts of indemnity obligatory m the nature thereof, which are or, may be allowed, required or permitted by law, statute rule, regulation, contract or otherwise of such instrument(s in pursuance of these presents, shall be as binding upon the said Wits NA NAL FIDELITY iNSURANCL 4LLEGHENY CASUALTY COMPANY, as fully and amply, to aR intents and purposes, as if the same had been duly executed and their regularly elected officers at their principal offices. b AL FIDEL LI ITY CASUA LTY RANCE COMPANY to me� under held on the 20th of o f J l owing 201-0 resolution the ado pted of cta ofALLL GHENY PANY at a meeting duly held on the 15th day of August, 000: ` by (1) the President_ Vita PraciriPnt Chiof Fvcra rtiun n ffi— of 4t .