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05/16/2018 Agreement
DATE: June 14, 2018 TO: Tammy Sweeting, Executive Assistant FROM: Sally M. Abrams, D.C. th SUBJECT: May 16 BOCC Meeting - Approved Agenda Item Attached is an electronic copy of the executed agenda item listed below together with their Performance Bond for your handling. [[375,1500,445,1556][11][B,I,][Calibri]]C11 [[445,1500,450,1556][11][,I,][Calibri]] [[450,1500,460,1556][11][,I,][Calibri]] [[460,1500,767,1556][11][,I,][Calibri]]Board granted a [[767,1500,909,155 6][11][,I,][Calibri]]pproval [[909,1500,922,1556][11][,I,][Calibri]] [[922,1500,961,1556][11][,I,][Calibri]]to [[961,1500,974,1556][11][,I,][Calibri]] [[974,1500,1031,1556][11][,I,][Calibri]]aw [[1030,1500,1053,1556][11][,I,][Calibri]]a [[1053,1500,1093,1556][11][,I,][Calibri]]rd [[1093,1500,1106,1556][11][,I,][Calibri]] [[1106,1500,1164,1556][11][,I,][Calibri]]bid [[1164,1500,1177,1556][1 1][,I,][Calibri]] [[1177,1500,1248,1556][11][,I,][Calibri]]and [[1248,1500,1262,1556][11][,I,][Calibri]] [[1262,1500,1286,1556][11][,I,][Calibri]]a [[1286,1500,1738,1556][11][,I,][Calibri]]uthorize d execution of a [[1738,1500,1752,1556][11][,I,][Calibri]] [[1752,1500,1778,1556][11][,I,][Calibri]]C [[1776,1500,1855,1556][11][,I,][Calibri]]ontr [[1853,1500,1877,1556][11][,I,][Calibri]]a [[1877,1500,1912,1556][11][,I,][Calibri]]ct [[1911,1500,1924,1556][11][,I,][Calibri]] [[1924,1500,2007,1556][11][,I,][Calibri]]with [[2007,1500,2020,1556][11][,I,][Calibri]] [[2020,1500,2081,1556][ 11][,I,][Calibri]]the [[2081,1500,2092,1556][11][,I,][Calibri]] [[375,1556,499,1612][11][,I,][Calibri]]lowest [[498,1556,529,1612][11][,I,][Calibri]] [[529,1556,546,1612][11][,I,][Calibri]]r [[545,1556,567,1612][11][,I,][Calibri]]e [[567,1556,726,1612][11][,I,][ Calibri]]sponsive [[726,1556,758,1612][11][,I,][Calibri]] [[758,1556,888,1612][11][,I,][Calibri]]bidder, [[888,1556,918,1612][11][,I,][Calibri]] [[918,1556,1018,1612][11][B,I,][Calibri]]Charl [[1017,1556,1041,1612][11][B,I,][Calibri]]e [[1041,1556,1247,1612][11][B,I,][Calibri]]y Toppino [[1247,1556,1279,1612][11][B,I,][Calibri]] [[1279,1556,1311,1612][11][B,I,][Calibri]]& [[1311,1556,1343,1612][11][B,I,][Calibri]] [[1343,1556,1443,1612][11][B,I,][Calibri]]Sons, [[1443,1556,1475,1612][11][B,I,][Calibri]] [[1475,1556,1488,1612][11][B,I,][Calibri]]I [[1486,1556,1529,16 12][11][B,I,][Calibri]]nc [[1529,1556,1552,1612][11][,I,][Calibri]]., [[1552,1556,1584,1612][11][,I,][Calibri]] [[1580,1556,1602,1612][11][,I,][Calibri]]f [[1598,1556,1622,1612][11][,I,][Calibri]]o [[1622,1556,1639,1612][11][,I,][Calibri]]r [[1638,1556,1670,1612][11][,I,][Calibri]] [[1670,1556,1901,1612][11][,I,][Calibri]]$368,000.00 [[1901,1556,1933,1612][11][,I,][Calibri]] [[1929,1556,1951,1612][11][,I,][Calibri]]f [[1947,1556,1971,1612][11][,I,][Calibri]]o [[1971,1556,1988,1612][11][,I,][Calibri]]r [[1987,1556,2019,1612][11][,I,][Calibri]] [[2019,1556,2081,1612][11][ ,I,][Calibri]]the [[2081,1556,2093,1612][11][,I,][Calibri]] [[375,1612,514,1668][11][,I,][Calibri]]constru [[514,1612,533,1668][11][,I,][Calibri]]c [[533,1612,606,1668][11][,I,][Calibri]]tion [[606,1612,619,1668][11][,I,][Calibri]] [[619,1612,766,1668][11][, I,][Calibri]]of drain [[766,1612,790,1668][11][,I,][Calibri]]a [[790,1612,813,1668][11][,I,][Calibri]]g [[813,1612,835,1668][11][,I,][Calibri]]e [[835,1612,853,1668][11][,I,][Calibri]] [[853,1612,924,1668][11][,I,][Calibri]]and [[924,1612,943,1668][11][,I,][Calibri]] [[943,1612,966,1668][11][,I,][Calibri]]p [[966,1612,990,1668][11][,I,][Calibri]]a [[990,1612,1085,1668][11][,I,][C alibri]]rking [[1085,1612,1103,1668][11][,I,][Calibri]] [[1103,1612,1370,1668][11][,I,][Calibri]]improvements [[1370,1612,1388,1668][11][,I,][Calibri]] [[1388,1612,1428,1668][11][,I,][Calibri]]at [[1427,1612,1446,1668][11][,I,][Calibri]] [[1446,1612,1507,1668][11][,I,][Calibri]]the [[1507,1612,1526,1668][11][,I,][Calibri]] [[1526,1612,1549,1668][11][,I,][Calibri]]E [[1548,1612,1606,1668][11 ][,I,][Calibri]]ast [[1605,1612,1625,1668][11][,I,][Calibri]] [[1625,1612,1688,1668][11][,I,][Calibri]]Ma [[1688,1612,1705,1668][11][,I,][Calibri]]r [[1704,1612,1797,1668][11][,I,][Calibri]]tello, [[1797,1612,1816,1668][11][,I,][Calibri]] [[1812,1612,1901,1668][11][,I,][Calibri]]fund [[1900,1612,1922,1668][11][,I,][Calibri]]e [[1922,1612,1946,1668][11][,I,][Calibri]]d [[1946,1612,1964,1668][1 1][,I,][Calibri]] [[1964,1612,1988,1668][11][,I,][Calibri]]b [[1988,1612,2009,1668][11][,I,][Calibri]]y [[2009,1612,2020,1668][11][,I,][Calibri]] [[2020,1612,2091,1668][11][,I,][Calibri]]the [[375,1668,505,1724][11][,I,][Calibri]]Tourist [[504,1668,512,1724][11][,I,][Calibri]] [[512,1668,761,1724][11][,I,][Calibri]]Development [[760,1668,769,1724][11][,I,][Calibri]] [[769,1668,914,1724 ][11][,I,][Calibri]]Council. [[914,1668,941,1724][11][,I,][Calibri]] Please contact me at extension 3550 with any questions. cc: County Attorney [[769,2126,796,2182][11][,I,][Calibri]] Finance [[604,2182,631,2238][11][,I,][Calibri]] File EAST MARTELLO DRAINAGE AND PARKING Agreement Between Owner and Contractor Where the basis of payment is a STIPULATED SUM AGREEMENT Made as of the 16 day of May, 2018 BETWEEN the Owner: Monroe County Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 And the Contractor: Charley Toppino & Sons, Inc. 129 Toppino Industrial Drive Key West, FL 33040 For the following Project: EAST MARTELLO DRAINAGE AND PARKING Scope of the Work The Scope of Work shall include, but not be limited to, all work shown and listed in the Project Drawings and Specifications. The Contractor is required to provide a complete job as contemplated by the drawings and specifications, which are a part of this bid package. The Contractor shall furnish all labor, supervision, materials, power, tools, equipment, supplies, permits and any other means of construction necessary or proper for performing and completing the Scope of Work, unless otherwise specifically stated. The base bid includes the drainage structures, exfiltration trench and swale, asphalt pavement with saw cutting, adjacent 12" ribbon curb and Type D Curb, and the complete ADA parking spot with signage. ARTICLE 1 The Contract Documents The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), 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 Contract represents the entire and integrated agreement between the parties hereto and AGREEMENT Page 1 of 14 EAST MARTELLO DRAINAGE AND PARKING 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 achieve Substantial Completion of the entire Work not later than One Hundred Twenty (120) calendar days after the date of commencement or issuance of a Notice to Proceed. 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 Director of Project Management'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. 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 the Contract Sum of Three Hundred Sixty -Eight Thousand and 00/100 Dollars ($368,000.00), 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: AGREEMENT Page 2 of 14 EAST MARTELLO DRAINAGE AND PARKING Alternate # 1 b: Construct the twenty -eight (28) parking spots with a PermaDrive and the adjacent Type D Curb and delineation. Ninety -Nine Thousand and 00/100 Dollars ($99,000.00) ARTICLE 5 Progress Payments 5.1 Based upon Applications for Payment submitted by the Contractor to the Director of Project Management, and upon approval for payment issued by the Director of Project Management and Architect, 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 (1) calendar month ending on the last day of the month, or as follows: 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 Director of Project Management may require. This schedule, unless objected to by the Director of Project Management, 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 Director of Project Management. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change. AGREEMENT Page 3 of 14 EAST MARTELLO DRAINAGE AND PARKING 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 Director of Project Management has withheld or nullified a Certificate for Payment as provided in Paragraph 9.5 of the General Conditions. 5.7 Retainage of ten percent (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, Section 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 Director of Project Management. 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 Director of Project Management. Such final payment shall be made by the Owner not more than twenty (20) days after the issuance of the final approval for payment. The following documents (samples in section 01027, Application for Payment) 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 common form (i.e. flash drive) of all the following, but not limited to: A. Project Record Documents (As Built Documents). B. Operating and maintenance data, instructions to the Owner's personnel. C. Warranties, bond and guarantees. D. Keys and keying schedule. AGREEMENT Page 4 of 14 EAST MARTELLO DRAINAGE AND PARKING 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 Section 01500, Temporary Facilities, 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 thirty -six (36) months from the date of being placed on the convicted vendor list. 7.6 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, Florida Statutes, 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 AGREEMENT Page 5 of 14 EAST MARTELLO DRAINAGE AND PARKING 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 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. 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. AGREEMENT Page 6 of 14 EAST MARTELLO DRAINAGE AND PARKING 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, 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. The parties 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. The parties 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 VII of the Civil Rights Act of 1964 (PL 88 -352), which prohibit discrimination in employment on the basis of race, color, religion, sex, and national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC §§ 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 § 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC §§ 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, §§ 523 and 527 (42 USC §§ 690dd -3 and 290ee -3), as amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC §§ 3601 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 §§ 12101), as amended from time to time, relating to nondiscrimination in employment on the basis of disability; 10) Monroe County Code Chapter 14, Article II, which prohibits discrimination on the basis of race, color, sex, religion, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; and 11) 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. I) 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. AGREEMENT Page 7 of 14 EAST MARTELLO DRAINAGE AND PARKING 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 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 Records Compliance. Contractor must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Contractor shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" 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 contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Contractor. Failure of the Contractor to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Contractor is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Pursuant to Fla. Stat. Sec. 119.0701 and the terms and conditions of this contract, the Contractor is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (2) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the contractor does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Contractor or keep and maintain public records that would be required by the County to perform the service. If the AGREEMENT Page 8 of 14 4. EAST MARTELLO DRAINAGE AND PARKING Contractor transfers all public records to the County upon completion of the contract, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the contract, the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Contractor of the request, and the Contractor must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Contractor does not comply with the County's request for records, the County shall enforce the public records contract provisions in accordance with the contract, notwithstanding the County's option and right to unilaterally cancel this contract upon violation of this provision by the Contractor. A Contractor who fails to provide the public records to the County or pursuant to a valid public records request within a reasonable time may be subject to penalties under Section 119.10, Florida Statutes. The Contractor shall not transfer custody, release, alter, destroy or otherwise dispose of any public records unless or otherwise provided in this provision or as otherwise provided by law. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS, BRIAN BRADLEY AT PHONE# 305 - 292 -3470 BRADLEY - BRIAN @MONROECOUNTY- FL.GOV, MONROE COUNTY ATTORNEY'S OFFICE 1111 12TH Street, SUITE 408, KEY WEST, FL 33040. 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 AGREEMENT Page 9 of 14 EAST MARTELLO DRAINAGE AND PARKING functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. 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, Contractor shall defend, indemnify and hold the COUNTY and the COUNTY's elected and appointed officers and employees harmless from and against (i) any claims, actions or causes of action, (ii) any 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) any costs or expenses that may be asserted against, initiated with respect to, or sustained by, any indemnified party by reason of, or in connection with, (A) any activity of Contractor or any of its employees, agents, contractors or other invitees during the term of this Agreement, (B) the negligence or recklessness, intentional wrongful misconduct, errors or other wrongful act or omission of Contractor or any of its employees, agents, sub - contractors or other AGREEMENT Page 10 of 14 EAST MARTELLO DRAINAGE AND PARKING invitees, or (C) Contractor's default in respect of any of the obligations that it undertakes under the terms of this Agreement, except to the extent the claims, actions, causes of action, litigation, proceedings, costs or expenses arise from the intentional or sole negligent acts or omissions of the COUNTY or any of its employees, agents, contractors or invitees (other than Contractor). The monetary limitation of liability under this contract shall be not Tess 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 that the completion of the project (to include 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. Should any claims be asserted against the County by virtue of any deficiency or ambiguity in the plans and specifications provided by the Contractor, the Contractor agrees and warrants that the Contractor shall hold the County harmless and shall indemnify it from all losses occurring thereby and shall further defend any claim or action on the County's behalf. The first ten dollars ($10.00) of remuneration paid to the Contractor is for the indemnification provided for the above. 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) Disadvantaged Business Enterprise (DBE) Policy and Obligation. It is the policy of the County that DBE's, as defined in C.F.R. Part 26, as amended, shall have the opportunity to participate in the performance of contracts financed in whole or in part with County funds under this agreement. The DBE requirements of applicable federal and state laws and regulations apply to this Agreement. The County and its Contractor agree to ensure that DBE's have the opportunity to participate in the performance of the Agreement. In this regard, all recipients and contractors shall take all necessary and reasonable steps in accordance with applicable federal and state laws and regulations to ensure that DBE's have the opportunity to compete and perform contracts. The County and Contractor and subcontractors shall not discriminate on the basis of race, color, national origin or sex in award and performance of contracts, entered pursuant to this Agreement. y) 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. z) Florida Green Building Coalition Standards. Monroe County requires its buildings to conform to Florida Green Building Coalition standards. AGREEMENT Page 11 of 14 EAST MARTELLO DRAINAGE AND PARKING Special Conditions, if any are detailed in Section 00100 of the Project Manual for this Project. 7.7 Any written notices or correspondence given pursuant to this contract shall be sent by United States Mail, certified, return receipt requested, or by courier with proof of delivery. Notice shall be sent to the following persons: For Contractor: Frank P. Toppino Charley Toppino & Sons, Inc. P.O. Box 787 Key West, FL 33041 • For Owner: Director of Proiect Management Assistant County Administrator, PW & E 1100 Simonton St., Room 2 -216 1100 Simonton St. Key West, Florida 33040 Key West, Florida 33040 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 9.1 The Contract Documents, except for Modifications issued after execution of this Agreement, are enumerated as follows: a) Drawings: Al, A2, A3, A4, A5, A6, C - 1, C - 2, C - 3, C - 4 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: January 2018 9.1.4 The Addenda, if any, are as follows: Number: Addendum No. 1 Date: February 23, 2018 Page: C -1 Number: Addendum No. 2 Date: March 9, 2018 Page: C -1 This Agreement is entered into as of the day and year first written above and is executed in at least two (2) original copies of which one (1) is to be delivered to the Contractor. Execution by the Contractor must be by a person with authority to bind the entity. AGREEMENT Page 12 of 14 EAST MARTELLO DRAINAGE AND PARKING SIGNATURE OF THE PERSON EXE� DOCUMENT MUST BE NOTARIZED. (SEAL) . e4 , • • ARD OF COUNTY COMMISSIONERS Attest: Kevin Madok, Clerk i? : ._ ,114 i MONROE COUNTY, FLORIDA \ ,... ./ % att ),- %,,. ,-,.--- -- .- . D p uty Clerk Mayor Airman Date 5J0'iI' (SEAL) CONTRACTOR'S Witnesses Attest: CONTRACTOR: - -- Contractor must provide two witnesses CHARLEY TOPPINO & SONS,'.INC. .r, signatures >= .r~ :pc" ,_ Signature: - f a, C-) =<: -I ■• o Signature: Print Name: \ r - T 4■CQ, ,J•ir , Print Name: ? -icie-- 04 Title: 7Sys.ccr`- Title: 4404(4/4v4s 7 Date: 1 -t - a0 . - c- i( Date: ly�o /r8 and 1 ) MONROE COUNTY ATTORNEY'S OFFICE LAN Signature: I I ( APPROVED AS TO F0 M Print Name: S ' 1 e - We ASSISTANTCOUNTY S ORNEY PATRICIA Title: Ad mini b- rorll -- DATE: K- 2`� Date: 41?)o))t STATE OF FLORIDA, COUNTY OF kAom e- On this day of r .\ 20 ', before me, the undersigned notary public, personally appeared V'rr‘,`<.?.'T-rr, , known to me to be the person whose name is subscribed above or who produced as identification, and acknowledged that he /she is the person who executed the above contract with Monroe County for East Martello Drainage and Parki for the purposes therein contained. Notary Public 4 41a, MICHAEL LABRADA ���lPAY PUBS i n ' _ � -State - Print Name Iv\�t,s,�\ z -• _: Com mission Florida # GG 1 Notary 16317 Public �1 " p`�� My Commission Expires My commission expires: � N 7p D..\ Seal June 19, 2021 AGREEMENT Page 13 of 14 EAST MARTELLO DRAINAGE AND PARKING GENERAL REQUIREMENTS Where Project Management is Not a Constructor Section 00750 General Conditions Section 00970 Project Safety and Health Plan Section 00980 Contractor Quality Control Plan Section 01015 Contractor's Use of the Premises Section 01027 Application for Payment Section 01030 Alternates Section 01040 Project Coordination Section 01045 Cutting and Patching Section 01050 Field Engineering Section 01200 Project Meetings Section 01301 Submittals Section 01310 Progress Schedules Section 01370 Schedule of Values Section 01385 Daily Construction Reports Section 01395 Request for Information — (RFI) Section 01410 Testing Laboratory Services Section 01421 Reference Standards and Definitions Section 01500 Temporary Facilities Section 01520 Construction Aids Section 01550 Access Roads and Parking Areas Section 01560 Temporary Controls Section 01590 Field Offices and Sheds Section 01595 Construction Cleaning Section 01600 Material and Equipment Section 01630 Post - Proposal Substitutions Section 01640 Product Handling Section 01700 Contract Closeout Section 01710 Final Cleaning Section 01720 Project Record Documents Section 01730 Operation and Maintenance Data Section 01740 Warranties AGREEMENT Page 14 of 14 • • ® DATE (MMIDD/YYYY) ACORD CERTIFICATE OF LIABILITY INSURANCE 5/24/2018 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 CONTACT Marsh & McLennan Agency LLC PHONE _ FAX 9850 N.W. 41st Street (A/ E :q: 305 - 591 -0090 (AIC.No): 948 -5665 Suite 100 ADD certsmiami @mma -fl.com Miami FL 33178 INSURER(S) AFFORDINO COVERAGE NAIC INSURER A : Travelers Indemnity Co of America 25666 INSURED CHARLTOPPI INSURER B: Phoenix Insurance Company 25623 Charley or & Sons Inc. INSURER C: Travelers Property Casualty Co of Amer 36161 C Monroe Concrete Products Inc. P.0 BOX 787 INSURER D: Travelers Indemnity Company of CT 25682 Key West FL 33041 INSURERE: INSURER F : COVERAGES CERTIFICATE NUMBER: 1997284252 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 TYPE O INSURANCE ADDL SUBR POLICY EFF POLICY EXP LIMITS LTR INSD WVD POLICY NUMBER (MM/DD/YYYY) (MM/DD/YYYY) A X COMMERCIAL GENERAL LIABILITY DTCO3202M181TIA18 5/19/2018 5/19/2019 EACH OCCURRENCE $ 2,000,000 DAMAGE TO CLAIMS -MADE X OCCUR PREMISES (Ea RENTED S 300,000 MED EXP (Any one person) S 5,000 PERSONAL & ADV INJURY $ 2,000,000 GE 'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE S 4,000,000 POLICY X LOC C PRODUCTS - COMP /OP AGG S 2,000,000 OTHER $ D AUTOMOBILELIABILITY DT8103202M181TCT18 5/19/2018 5/19/2019 COMBINED SINGLE LIMIT 51,000,000 (Ea accdent) X ANY AUTO BODILY INJURY (Per person) S OWNED SCHEDULED BODILY INJURY (Per accident) S AUTOS ONLY AUTOS X HIRED y NON -OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY (Per acddent) S C X UMBRELLA LIAB X OCCUR CUP3J65722118 5/19/2018 5/19/2019 EACH OCCURRENCE S 10,000,000 EXCESS LIAB CLAIMS -MADE AGGREGATE _ S 10,000,000 _ DED X RETENTION$ in000 S e WORKERS COMPENSATION UB4K52636618 5/19/2018 5/19/2019 X STATUTE OTH- ER AND EMPLOYERS' LIABILITY ANYPROPRIETOR /PARTNER/EXECUTIVE YrN E.L. EACH ACCIDENT 51,000,000 OFFICER/MEMBER EXCLUDED? n NIA APPF IV �y c . ENT (Mandatory In n NH) NH) / I . E.L. DISEASE - EA EMPLOYEE E 1,000,000 If yes, describe under d DESCRIPTION OF OPERATIONS below BY ` E.L. DISEASE - POLICY LIMIT S 1,000,000 DATE lat ` • WAIVPirt W ! YES DESCRIPTION OF OPERATIONS / LOCATIONS 1 VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) General Liability Aggregate applies per Project if required by written contract. Certificate holder, as Designated Organization, is an Additional Insured as respects General(including Products - Completed Operations), Auto and Umbrella Liability. General Liability is primary and non - contributory. Waiver of subrogation as respects General, Auto, Umbrella Liability and Workers Compensation in favor of Additional Insured. All of the above is applicable when required by written contract subject to the terms, conditions and exclusions of the policy. Monroe County Board of County Commissioners, its employees and officials, as Designated Organization, is an Additional Insured as respects General & Auto Liability. Umbrella follows form to the underlying policies as respects to Additional Insureds . All of the above is applicable when required by written contract subject to the terms, conditions and exclusions of the policy. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Monroe County Board of County Commissioners (BOCC) 500 Whitehead St AUTHORIZED REPRESENTATIVE Key West FL 33040 © 1988 -2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD ! AIA TM Document A312 — 2010 Bond No. 106731256 Performance Bond CONTRACTOR: SURETY: (Name, legal status and address) (Name, legal status and principal place of business) Charley Toppino & Sons, Inc. This document has important legal US Highway I, Mm 8.5 Travelers Casualty and Surety Company of America Rockland Key, Key West, FL 33040 One Tower Square consequences. Consultation with OWNER: Hartford, CT 06183 an attorney is encouraged with respect to its completion or (Name, legal status and address) modification. Any singular reference to Monroe County Board of County Commissioners Contractor, Surety, Owner or 1100 Simonton St., Key West, FL 33040 other party shall be considered CONSTRUCTION CONTRACT plural where applicable. Date: AIA Document A312 - 2010 combines two separate bonds, a Performance Bond and a Amount: $368,000 Payment Bond, into one form. Description: This is not a single combined Performance and Payment Bond. (Name and location) East Martello Drainage & Parking Lot, Key West, FL BOND Date: April 27, 2018 (Not earlier than Construction Contract Date) Amount: $368,000 Modifications to this Bond: X None ❑ See Section 16 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: . orp%rate Seal) Travelers Casualty an S re Company of America Charley Toppino & Sons, Inc. Signature: 4 4Pwo Signature: / Name m 1� �, o .m Name William L. P. Attomey in Fact & FL Res Agent and Title: �cCs.eti and Title: (Any additional signatures appear on the last page of this Performanc: Bond.) (FOR INFORMATION ONLY— Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: (Architect, Engineer or other party:) InSource 9500 S. Dadeland Blvd.. Suite 400 Miami, FL 33156 Init. AIA Document A312T' - 2010. The American Institute of Architects. 061110 1 1 § 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 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 detennined, 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. Init. AIA Document A312T" — 2010. The American Institute of Architects. 2 § 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 Iiability 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 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 darnages 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. Init. AIA Document A312m — 2010. The American Institute of Architects. 3 1 § 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: Signature: - Name and Title: Name and Title: Address Address Init. AIA Document A312 — 2010. The American Institute of Architects. 4 0104A t '_t= Document A312TM -- 2010 Bond No. 106731256 Payment Bond CONTRACTOR: SURETY: (Name, legal status and address) (Name, legal status and principal place of business) Charley Toppino & Sons, Inc. US Highway 1, Mm 8 . 5 Travelers Casualty and Surety Company of America This document has Important legal Rockland Key, Key West, FL 33040 One Tower Square consequences. Consultation with Hartford, CT 06183 an attorney is encouraged with OWNER: respect to its completion or (Nance, legal status and address) modification. Monroe County Board of County Commissioners Any singular reference to 1100 Simonton St. Contractor, Surety, Owner or Key West, FL 33040 other party shall be considered CONSTRUCTION CONTRACT plural where applicable. Date: AIA Document A312 -2010 combines two separate bonds, a Amount; Performance Bond and a $368,000 Payment Bond, into one form. This is not a single combined Description: Performance and Payment Bond, (Name and location) East Martello Drainage & Parking Lot, Key West, FL BOND Date: April 27, 2018 (Not earlier than Construction Contract Date) Amount: $368,000 Modifications to this Bond: D None )7 See Section 18 CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: .rp ;rate Seal) Travelers Casualty a i ;ty ompany of America Charley Toppino & Sons, Inca, Signature: �-k tt.� � v` r i O ' Signature: Name �� ti? pJ.o Name and Title: Vrbs f`ek" and Title: William L. -ar er, Attorney in Fact & FL Res Agent (Any additional signatures appear on the last page of this Payment Bond) (FOR INFORMATION ONLY —Name, address and telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE: (Architect, Engineer or other party.) 1nSource 9500 S. Dadeland Blvd., Suite 400 Miami, FL 33155 Init. AIA Document A312" -2010. The American Institute of Architects. O61r�0 5 t § 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 furnished for use in the perfonnance 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. (nit. AIA Document M12" -- 2010. The American Institute of Architects. 6 1 § 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. § 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 furnished, 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 famished; .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. • trait AM Document A312 —2010. The American Institute of Architects. 7 • § 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. § 18 Modifications to this bond are as follows: This bond is given to comply with section 255.05 Florida Statutes, and any action instituted by a claimant under this bond for payment must be in accordance with the notice and time limitation provisions in Section 255.05 (2). Florida Statutes • (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) Charley Toppino & Sons, Inc. (� Travelers Casualty and Surety Comp. ' s A erica Signature: v s Signature: 1 Name and Title: „ti `To .)- ,fie erh Name and Title: Address Address US Highway 1, Mm 8.5, Rockland Key, Key West, FL 33040 William L. Parker Attorney in Fact & FL Res Agent One Tower Square, Hartford, CT 06183 Init. AIA Document A312 •- 2010. The American Institute of Architects. 8 WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER 41110k POWER OF ATTORNEY TRAVELERS Farmington Casualty Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Company Travelers Casualty and Surety Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company St. Paul Guardian Insurance Company Attorney -In Fact No. 230629 Certificate No 0 0 7 3 0 4 9 6 0 KNOW ALL MEN BY THESE PRESENTS: That Farmington Casualty Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company are corporations duly organized under the laws of the State of Connecticut, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc., is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies "), and that the Companies do hereby make, constitute and appoint William L. Parker, Davor I. Mimica, Ileana M. Bauza, William Frederick Kleis, and Eduardo A. Menendez of the City of Miami , State of Florida , their true and lawful Attorney(s) -in -Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this instrument to be signed and their corporate seals to be hereto affixed, this 25th day of July 2017 Farmington Casualty Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Company Travelers Casualty and Surety Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company St. Paul Guardian Insurance Company t Y ry , r,/.84, �It FIRE 4 RK I RS d INS q W4511RF7 k RPO 1 t+V/ c : : : � - O RA P l k � 't 'f ', f P ' PORAl l�l 9 w+ �� z vicAa ft ' �^,.tepq. -; . � ` ' ' i n � - : ol t fl� ��0 �x ,S ` ✓Je t � Ll + o3 �atSB bL:'s o 2 , ` s c, F Ec� v •.- ......: a j o. .,, + y� 31 �� uN lg ... r wv...+� WOO State of Connecticut By: v d clz a( e „,./ Y City of Hartford ss. Robert L. Raney, Senior Vice President On this the 25th day of July 2017 before me personally appeared Robert L. Raney, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. G% In Witness Whereof, I hereunto set my hand and official seal. *Or \.04A4A' C My Commission expires the 30th day of June, 2021. r Ate* `p * Marie C. Tetreault, Notary Public 58440 -5 -16 Printed in U.S.A. WARNING. THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER This Power of Attomey is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys -in -Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company whet? (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys -in -Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys -in -Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kevin E. Hughes, the undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals of said Companies this 27 day of April 2 0 $ Kevin E. Hughes, Assistant Sec tary GA6Uq �' RIY / "�� 'W 'q M IN . tV A °'m+. • 4 .yaa \� S U JP� NO S 1 y6 54A CfY W O .' + /� ` � F j o Q G �O \'y 4;i!!!';'*‘ ... ` ,� s" � 'w0 h S C1 1.7I ! p n .- 'Zt` ozho 1ATf; V i PO NA T! � : 3 • 1982 o a.•: m a a 2 .n, " HARTFORD, t H49TFDRq �S W e E 1 .9Jri S I � ASE ALA o CONN. n cow in t896 � u �. ✓ o �• ° a \ S81LL t W o CA ,{+� t , ^' T,4,,NCEC °1 1 5 7.500 of... . N a° ` n,t• /NV". '4�.; , ATN°' • 2.. ..'� a dP� To verify the authenticity of this Power of Attorney, call 1 -800- 421 -3880 or contact us at www.travelersbond.com. Please refer to the Attomey -In -Fact number, the above -named individuals and the details of the bond to which the power is attached. WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER