Item C05 BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 10/16/2013 Division: County Administrator
Bulk Item: Yes Department: Airports
Staff Contact Person/Phone#: Peter Horton, 809-5200
Pedro Mercado 292-3470
AGENDA ITEM WORDING: Approval to award Bid and enter in � �� ... _.
to a Contract by and between Douglas N.
Higgins, Inc., hereafter"Contractor", and the Monroe County Board of Commissioners, Key West, Florida,
hereafter"Owner", Pavement Rehabilitation of Faraldo Circle, Key West International Airport, Monroe County,
Florida.
ITEM BACKGROUND: The County solicited competitive bids for the milling and repaving of Faraldo Circle
at Key West International Airport with 2 bidders responding to the solicitation. The airport's general airport
consultant, Jacobs Engineering, was responsible for preparing the bid documents, preparing the bid tab and
providing a recommendation based on the County's, and federal guidelines, for competitive solicitations. In this
case, as the bid tab indicates, D.N. Higgins, Inc., was the low bidder however, Jacobs recommended that the
County award the bid to the next lowest bidder, General Asphalt, Inc. The recommendation to award the bid to
the next lowest bidder was due to the fact that the bid solicitation had a DBE requirement, which General
Asphalt met but D.N. Higgins did not. Additionally, under federal guidelines, when a bid solicitation contains a
DBE requirement, a bidder has to either meet the DBE requirement or the bidder has to document a good faith
effort to meet the requirement. In this case, after having reviewed the documents D.N. Higgins provided, Jacobs
Engineering decided that D.N. Higgins had not demonstrated a good faith effort. Based on the above, Jacobs
found D.N. Higgins' bid to be non-responsive and recommended awarding the contract to General Asphalt.
However, under 49 CFR part 26, if a determination is made that an apparent successful bidder, in this case D.N.
Higgins, has failed to document a good faith effort, before a contract is awarded, the bidder(D.N. Higgins)
must be provided with an opportunity for administrative reconsideration. Following the recommendation by
Jacobs to award the contract to the next lowest bidder, D.N. Higgins exercised it's right under 49 CFR part 26
and requested an administrative reconsideration. It should be noted 49 CFR part 26 requires that the
administrative reconsideration be undertaken by an official who did not take part in the original determination
that the bidder failed to demonstrate a good faith effort and consistent with this requirement the County
Administrator assigned the task of administrative reconsideration to David Hill of the County's engineering
department. Pursuant to the requirements of 49 CFR Part 26, Mr. Hill personally met with representatives of
D.N. Higgins on August 23, 2013 in order to hear argument and receive responses to questions Mr. Hill had. In
addition to the argument and responses provided by D.N. Higgins on August 23`d, Mr. Hill also reviewed the
bid documents, the bid review checklist, the bid tab, Jacob's Engineering letter of recommendation dated July
12, 2013, numerous a-mails exchanged in this matter, D.N. Higgins summary argument brief dated August 19,
2013 and D.N. Higgins bid files for subcontractors and suppliers. Following his review, Mr. Hill issued a
written determination on September 3, 2013. In his determination Mr, Hill found that D.N. Higgins had in fact
demonstrated a good faith effort to comply with the DBE requirement and as a result Mr. Hill recommended
that the bid should be awarded Douglas N. Higgins Inc.
PREVIOUS RELEVANT BOCC ACTION: Ratification of the previously executed Federal Aviation
Administration Grant#3-12-0037-047-2013 providing funding to "Improve Airport Access Road; Improve
Runway 27 Safety Area(EMAS-Phase 1); Acquire Land for Runway 27 Approach Area; Improve Airport
Drainage (Phase 1); Rehabilitate Terminal Building (Customs Facility) and Update Airport Master Plan Study`
at the Key West International Airport approved at the 9/17/13 regular BOCC meeting, Item -C2.
CONTRACT/AGREEMENT CHANGES: New Contract.
-,w .... ww .-----..w..�........... .................. ....... .._ ..................
m_...m. �...� �....
STAFF RECOMMENDATION: Approval.
TOTAL COST: $478,901.60 INDIRECT COST: NA BUDGETED: Yes
DIFFERENTIAL OF LOCAL PREFERENCE: NA
COST TO COUNTY: None SOURCE OF FUNDS: FAA/FDOT/Operating
COST TO AIRPORT: $ 5%Match
COST TO PFC: None
REVENUE PRODUCING: Yes No X AMOUNT PER YEAR: NA
APPROVED BY: County Attorney /Purchasing " Risk Management
DOCUMENTATION: Included X Not Required
DISPOSITION: AGENDA ITEM#
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
w _ -.------
CONTRACT SUMMARY
Contract#
Contract with: Douglas N. Higgins, Inc. Effective Date: 10-16-2013
Expiration Date: 45 Days from Notice to
Proceed
Contract Purpose/Description: Pavement Rehabilitation of Faraldo Circle, Key West International Airport,
Monroe County, Florida
Contract Manager: Peter Horton # 5200 Airports - Stop# 5
(name) (Ext.) (Department/Stop)
for BOCC meeting on: 10/16/2013 Agenda Deadline: 10/01/2013
.�. .�..�.�. w_m .................__ ... ._ ...__ _._..........._._ ..._....
CONTRACT COSTS
Total Dollar Value of Contract: $478,901.60 Current Year Portion: $478,901.60
Budgeted? Yes Account Codes:630172-GAKA154 FAA Grant
Grant: Yes 5% FDOT TBD
County Match: 5% KWIA 63002-560640 KW Airport
ADDITIONAL COSTS
Estimated Ongoing Costs: For: .
(not included in dollar value above) (eg. maintenance, utilities,janitorial, salaries,etc.)
CONTRACT REVIEW
Changes
Date In Needed Reviewer Date Out
Yes No
Airports Director 10/01/2013 ( ) ) 10/01/2013
I '�� �rton
o
Risk Management /�,/ ��..� �� � .:or R's M em nt
O.M.B./Purchasing _/_1 ( ) ( ) _/a7 / 13
for
,.w
County Attorney
°°AffSrney
Comments:
i BOARD OF COUNTY COMMISSIONERS
County of Monroe ��� Mayor George Neugent,District 2
- Mayor Pro Tern,Heather Carruthers,District 3
The Florida Keys Danny L.Kolhage,District I
David Rice,District 4
Sylvia J.Murphy,District 5
Public Works/Engineering Division
Project Management Department
1100 Simonton Street Roo 2-216
Key West,FL 3300
(305)292-4429
Fax: (305)295-4321
SUMMARY REPORT
Review & Decision Regarding
Good Faith DBE Bidding Efforts by Low Bidder, D.N. HIGGINS,
For Pavement Rehabilitation of Faraldo Circle,
Key West International Airport,
Key West, Monroe County, Florida
September 3, 2013
To Whom It May Concern,
I submit the following decision, having read:
A. The Bid Documents dated 04/13;
B. Bid Review Checklist dated July 3, 2013;
C. Bid Tabulations dated July 3, 2013;
D. Jacob Engineering's subsequent report by Ryan Fornay, AIA on his review of the
bids for this project dated July 12, 2013;
E. Relevant parts of the DBE (Disadvantaged Business Enterprise Program, Section
150);
F. Numerous a-mails (various dates) that were exchanged on this matter;
G. D.N Higgins Summary Argument Brief, dated August 19, 2013, and all submitted
back-up documents for D.N. Higgins' argument;
H. D.N. Higgins' internal DBE bid files for subcontractors and suppliers, as requested
by me on August 23, 2013.
In addition to reading, analyzing and considering all the afore-mentioned documents and
correspondence related to the subsequent 'contact award' dispute surrounding this matter,
my decision herein also took heavily into consideration the Argument, Thoroughness and
responsiveness to my requests for additional back-up information by the representatives
of D.N. Higgins on the days following our hearing on this matter held at the Gato Building
in Key West on Friday, August 23, 2013.
Page 1 of 2
Page 2of2
SUMMARY REPORT
Review & Decision Regarding
Good Faith DBE Bidding Efforts by Low Bidder, D.N. HIGGINS,
For Pavement Rehabilitation of Faraldo Circle,
Key West International Airport,
Key West, Monroe County, Florida
September 3, 2013
Decision:
1. It is my opinion that D.N. Higgins did, in fact, make a good faith effort to "tr/' to contact
and to "try" to secure bids from DBE subcontractors and suppliers for the Pavement
Rehabilitation of Faraldo Circle @ Key West International Airport, Key West, Monroe
County, Florida.
2. D.N. Higgins should not be precluded from being awarded the contract for this project
due to mitigating factors beyond Higgins control, i.e. the lack of willingness by DBE subs
and suppliers in Florida to bid such a small paving project of this size, combined with the
logistically difficulty location that is Key West, Florida. It further understood that many
DBE-qualified subcontractors and suppliers are not interested in bidding a small project of
this scope... and/or work in a location that is extremely hard to mobilize for and perform in
a timely manner as would be required... and therefore these [DBE] subs and suppliers
simply do not respond to requests to bid such work.
3. Additionally, in lieu of not receiving DBE bids from DBE subs and suppliers, DN Higgins
should not be precluded from self-performing and self-bidding said portions of work with
their own materials, equipment and employees ... most of whom are Key West and
Monroe County local residents. D.N. Higgins is a bonafide Key West and Monroe County
paving contractor with 25 years of local experience... crucial to performing work like this..
Based upon, but not limited to, the salient points mentioned herein, it is my firm opinion
that D.N. Higgins should be awarded the contract for this paving project at Key West
International Airport.
Sincerely,
David R. Hill, CGC
Director of Project Management
Engineering Department
MONROE COUNTY, FL
1100 Simonton St., Suite 2-216
Key West, FL 33040
Office: 305-292-4307
Mobile: 305-394-1251
Fax: 305-295-4321
E-mail: Hill-David&MonroeCounty-FL.Gov
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July 12, 2013
Mr. Peter Horton
Director of Airports
3491 South Roosevelt Boulevard
Key West, Florida
RE: Pavement Rehabilitation of Faraldo Circle
Key West International Airport
Bid Tabulation and Contract Award Recommendation
Dear Mr. Horton:
Enclosed for your review are the Bid Tabulation Sheet and a Bid Review Checklist for the referenced
project. The Bid Opening was conducted on July 3,2013 at 3:00 PM,which was the deadline established
for submitting the bids.
A total of two bids were received. The following list provides the Engineer's Estimate, and the value of
the bids for the total of the Base Bid and Additive 1:
Engineer's Estimate: $407,660.00
Douglas N. Higgins, Inc. $478,901.60
General Asphalt Co., Inc. $530,000.00
The review of the bids indicated that the apparent low bidder, Douglas N. Higgins, Inc., did not provide
any DBE participation, which was established at 17.5%. Douglas N. Higgins, Inc. did not provide, as part
of their bid submittal, any documentation showing their good faith effort in meeting this goal.
Subsequent to the Bid opening, we requested from Douglas N. Higgins, Inc. evidence of their good faith
effort. Based on the documentation we received from Douglas N. Higgins, Inc.,it is apparent that a good
faith effort in contacting and using DBE firms was not made. As part of our due diligence to determine if
a good faith effort was made we are aware of one DBE Subcontractor, Bon's Barricades,who provided a
proposal to the apparent low bidder, but the low bidder chose not to utilize the DBE subcontractor. The
second bidder, showed DBE subcontractors in their bid and committed to the required 17.5%
participation.
Based on our bid evaluation, it is our recommendation to award the bid to the second lowest bidder,
General Asphalt Co. Inc. Our recommendation is also contingent upon available FAA funding and on the
County's legal review of the bid documents.
Should you have any questions regarding the information enclosed or the recommendation provided
above, please do not hesitate to give me a call at 954-309-9776.
Sincere) " —
Ryan Forney,AIA
JACOBS-Program Manager
CONTRACT
y d
Jacobs Key West International Airport 05/13
Monroe County
Pavement Rehabilitation of Faraldo Circle
Project No. GAKA154
DIVISION II
CONTRACT
SECTION A - PUBLIC CONSTRUCTION BOND.........................................................................II-3
SECTION B - CERTIFICATE OF OWNER'S ATTORNEY (N/A) ..............................................II-13
SECTION C -ACKNOWLEDGMENT FOR CHANGE ORDERS...............................................II-14
SECTION D - CONTRACT ......................................................................................II-15
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Pavement Rehabilitation of Faraldo Circle
Project No. GAKA 154
PUBLIC CONSTRUCTION BOND„
By this Bond, We as Principal, whose
principal business address is I as
corporation, as Surety, are bound to Monroe Counts hereinafter called County, in
the sum of U.S. Dollars $ (Minimum 100% of total bid amount) for
payment which we bind ourselves, our heirs, personal representatives, successors, and
assigns, jointly and severally.
THE CONDITION OF THIS BOND is that if Principal:
1. Performs the contract dated, 2013 between Principal and County for construction
of PAVEMENT REHABILITATION OF IFARALDO CIRCLE the Contract being made a
part of this Bond by reference, at the times and in the manner prescribed in the Contract.
2. Promptly make payments to all claimants, as defined in Section 255.05 (1), Florida
Statutes, supplying Principal with labor, materials, or supplies, used directly or indirectly
by Principal in the prosecution of the work provided for in the Contract, which is made a
part of this bond by reference, and in the times and in the manner prescribed in the
Contract; and
3. Pays the County all losses, damages, expenses, costs and attorney's fees,
including appellate proceedings, that County sustains because of a failure by Principal
under the Contract; and
4. Performs the guarantee of all work and materials furnished under the Contract for
the time specified in the Contract, then this Bond is void; otherwise it remains in full
force.
This bond is subject to the provisions of Section 255.05, Florida Statues, Any changes
in or under the Contract Documents and compliance or non-compliance with any
formalities connected with the Contract or the changes does not affect Surety's
obligation under this Bond.
Bond of contractor constructing public buildings; form; action by material men
(Florida Statues-Section 255.05)
(1)(a) Any person entering into a formal contract with the state or any county, city, or
political subdivision thereof, or other public authority or private entity, for the
construction of a public building, for the prosecution and completion of a public work, or
for repairs upon a public building or public work shall be required, before commencing
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the work or before recommencing the work after a default or abandonment, to execute,
deliver to the public owner, and record in the public records of the county where the
improvement is located, a payment and performance bond with a surety insurer
authorized to do business in this state as surety. A public entity may not require a
contractor to secure a surety bond under this section from a specific agent or bonding
company. The bond must state on its front page: the name, principal business address, and
phone number of the contractor, the surety, the owner of the property being
improved, and, if different from the owner, the contracting public entity; the contract
number assigned by the contracting public entity; and a description of the project
sufficient to identify it, such as a legal description or the street address of the property being
improved, and a general description of the improvement. Such bond shall be conditioned
upon the contractor's performance of the construction work in the time and manner prescribed
in the contract and promptly making payments to all persons defined in s. 713.01 who furnish
labor, services, or materials for the prosecution of the work provided for in the contract. Any
claimant may apply to the governmental entity having charge of the work for copies of the
contract and bond and shall thereupon be furnished with a certified copy of the contract and
bond. The claimant shall have a right of action against the contractor and surety for the
amount due him or her, including unpaid finance charges due under the claimant's
contract. Such action shall not involve the public authority in any expense. At the discretion
of the official or board awarding such contract when such work is done for any county,
city, political subdivision, or public authority, any person entering into such a contract which
is for $200,000 or less may be exempted from executing the payment and performance
bond. In the event such exemption is granted, the officer or officials shall not be personally
liable to persons suffering loss because of granting such exemption. Any provision in a
payment bond furnished for public work contracts as provided by this subsection which
restricts the classes of persons as defined in s. 713.01 protected by the bond or the venue of
any proceeding relating to such bond is unenforceable.
(b) The Department of Management Services shall adopt rules with respect to all
contracts for $200,000 or less, to provide:
1. Procedures for retaining up to 10 percent of each request for payment submitted by a
contractor and procedures for determining disbursements from the amount retained on a pro
rata basis to laborers, material men, and subcontractors, as defined in s. 713.01.
2. Procedures for requiring certification from laborers, material men, and subcontractors, as
defined in s. 713.01, prior to final payment to the contractor that such laborers, material men,
and subcontractors have no claims against the contractor resulting from the completion of
the work provided for in the contract.
The state shall not be held liable to any laborer, material man, or subcontractor for any
amounts greater than the pro rata share as determined under this section.
(c)1. The amount of the bond shall equal the contract price, except that for a contract in
excess of $250 million, if the state, county, municipality, political subdivision, or other
public entity finds that a bond in the amount of the contract price is not reasonably available,
the public owner shall set the amount of the bond at the largest amount reasonably
available, but not less than $250 million.
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2. For construction-management or design-build contracts, if the public owner does not
include in the bond amount the cost of design or other non-construction services, the
bond may not be conditioned on performance of such services or payment to persons
furnishing such services. Notwithstanding paragraph (a), such a bond may exclude
persons furnishing such services from the classes of persons protected by the bond.
(2)(a)1 . If a claimant is no longer furnishing labor, services, or materials on a project, a
contractor or the contractor's agent or attorney may elect to shorten the prescribed time
in this paragraph within which an action to enforce any claim against a payment bond
provided pursuant to this section may be commenced by recording in the clerk's office a
notice in substantially the following form:
NOTICE OF CONTEST OF CLAIM
AGAINST PAYMENT BOND
To: (Name and address of claimant)
You are notified that the undersigned contests your notice of nonpayment, dated
and served on the undersigned on
and that the time within which you may file suit to
enforce your claim is limited to 60 days after the date of service of this notice.
DATED on
Signed: (Contractor or Attorney)
The claim of any claimant upon whom such notice is served and who fails to institute a suit to
enforce his or her claim against the payment bond within 60 days after service of such notice
shall be extinguished automatically. The clerk shall mail a copy of the notice of contest to the
claimant at the address shown in the notice of nonpayment or most
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recent amendment thereto and shall certify to such service on the face of such notice
and record the notice. Service is complete upon mailing.
2. A claimant, except a laborer, who is not in privity with the contractor shall, before
commencing or not later than 45 days after commencing to furnish labor, services, or
materials for the prosecution of the work, furnish the contractor with a written notice that
he or she intends to look to the bond for protection. A claimant who is not in privity with
the contractor and who has not received payment for his or her labor, services, or
materials shall deliver to the contractor and to the surety written notice of the
performance of the labor or delivery of the materials or supplies and of the nonpayment.
The notice of nonpayment may be served at any time during the progress of the work or
thereafter but not before 45 days after the first furnishing of labor, services, or materials,
and not later than 90 days after the final furnishing of the labor, services, or materials by
the claimant or, with respect to rental equipment, not later than 90 days after the date
that the rental equipment was last on the job site available for use. Any notice of
nonpayment served by a claimant who is not in privity with the contractor which includes
sums for retainage must specify the portion of the amount claimed for retainage. No
action for the labor, materials, or supplies may be instituted against the contractor or the
surety unless both notices have been given. Notices required or permitted under this
section may be served in accordance with s. 713.18. A claimant may not waive in
advance his or her right to bring an action under the bond against the surety. In any
action brought to enforce a claim against a payment bond under this section, the
prevailing party is entitled to recover a reasonable fee for the services of his or her
attorney for trial and appeal or for arbitration, in an amount to be determined by the
court, which fee must be taxed as part of the prevailing party's costs, as allowed in
equitable actions. The time periods for service of a notice of nonpayment or for bringing
an action against a contractor or a surety shall be measured from the last day of
furnishing labor, services, or materials by the claimant and shall not be measured by
other standards, such as the issuance of a certificate of occupancy or the issuance of a
certificate of substantial completion.
(b) When a person is required to execute a waiver of his or her right to make a claim
against the payment bond in exchange for, or to induce payment of, a progress
payment, the waiver may be in substantially the following form:
WAIVER OF RIGHT TO CLAIM
AGAINST THE PAYMENT BOND
(PROGRESS PAYMENT)
The undersigned, in consideration of the sum of$ , hereby waives its right to claim
against the payment bond for labor, services, or materials furnished through (insert
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date} to insert the name of your customer) on the job of (insert the name,of the owner ,
for improvements to the following described project:
(description of project)
This waiver does not cover any retention or any labor, services, or materials furnished after
the date specified.
DATED ON ,
(Claimant)
By:
(c) When a person is required to execute a waiver of his or her right to make a claim
against the payment bond, in exchange for, or to induce payment of, the final payment,
the waiver may be in substantially the following form:
WAIVER OF RIGHT TO CLAIM
AGAINST THE PAYMENT BOND (FINAL PAYMENT)
The undersigned, in consideration of the final payment in the amount of$_ hereby
waives its right to claim against the payment bond for labor, services, or materials
furnished to (insert the name of your customer) ...on the job of �insert.the name of the owner),,
for improvements to the following described project;
0
(description of project)
DATED ON ,
C.lalmant).
By:
(d) A person may not require a claimant to furnish a waiver that is different from the
forms in paragraphs (b) and (c).
(e) A claimant who executes a waiver in exchange for a check may condition the waiver
on payment of the check.
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(f) A waiver that is not substantially similar to the forms in this subsection is enforceable in
accordance with its terms.
(3) The bond required in subsection (1) may be in substantially the following form: PUBLIC
CONSTRUCTION BOND
Bond No. (enter bond number)
BY THIS BOND, We , as Principal and a corporation, as Surety, are
bound to , herein called Owner, in the sum of , for payment of which we
bind ourselves, our heirs, personal representatives, successors, and assigns,jointly and severally.
THE CONDITION OF THIS BOND is that if Principal:
1. Performs the contract dated , , between Principal and Owner for
construction of , the contract being made a part of this bond by reference, at the
times and in the manner prescribed in the contract; and
2. Promptly makes payments to all claimants, as defined in Section 255.05(1), Florida Statutes,
supplying Principal with labor, materials, or supplies, used directly or indirectly by Principal in the
prosecution of the work provided for in the contract; and
3. Pays Owner all losses, damages, expenses, costs, and attorney's fees, including appellate
proceedings, that Owner sustains because of a default by Principal under the contract; and
4. Performs the guarantee of all work and materials furnished under the contract for the time
specified in the contract, then this bond is void; otherwise it remains in full force.
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.
Any changes in or under the contract documents and compliance or noncompliance with any
formalities connected with the contract or the changes does not affect Surety's obligation under
this bond.
DATED ON ,
,(Name of Princal�
By (As Attorney in Fact).
(N_ame of Surety)
(4) The payment bond provisions of all bonds required by subsection (1) shall be
construed and deemed statutory payment bonds furnished pursuant to this section and such
bonds shall not under any circumstances be converted into common law bonds.
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(5) In addition to the provisions of chapter 47, any action authorized under this section may
be brought in the county in which the public building or public work is being
constructed or repaired. This subsection shall not apply to an action instituted prior to May
17, 1977.
(6) All payment bond forms used by a public owner and all payment bonds executed
pursuant to this section by a surety shall make reference to this section by number and shall
contain reference to the notice and time limitation provisions in subsection (2).
(7) In lieu of the bond required by this section, a contractor may file with the state,
county, city, or other political authority an alternative form of security in the form of cash, a
money order, a certified check, a cashier's check, an irrevocable letter of credit, or a security
of a type listed in part II of chapter 625. Any such alternative form of security shall be for
the same purpose and be subject to the same conditions as those applicable to the
bond required by this section. The determination of the value of an alternative form of security
shall be made by the appropriate state, county, city, or other political subdivision.
(8) When a contractor has furnished a payment bond pursuant to this section, he or she may,
when the state, county, municipality, political subdivision, or other public authority makes any
payment to the contractor or directly to a claimant, serve a written demand on any claimant
who is not in privity with the contractor for a written statement under oath of his or her
account showing the nature of the labor or services performed and to be performed, if any;
the materials furnished; the materials to be furnished, if known; the amount paid on account
to date; the amount due; and the amount to become due, if known, as of the date of the
statement by the claimant. Any such demand to a claimant who is not in privity with the
contractor must be served on the claimant at the address and to the attention of any
person who is designated to receive the demand in the notice to contractor served by
the claimant. The failure or refusal to furnish the statement does not deprive the
claimant of his or her rights under the bond if the demand is not served at the address of
the claimant or directed to the attention of the person designated to receive the demand in
the notice to contractor. The failure to furnish the statement within 30 days after the
demand, or the furnishing of a false or fraudulent statement, deprives the claimant who fails to
furnish the statement, or who furnishes the false or fraudulent statement, of his or her rights
under the bond. If the contractor serves more than one demand for statement of account
on a claimant and none of the information regarding the account has changed since the
claimant's last response to a demand, the failure or refusal to furnish such statement does not
deprive the claimant of his or her rights under the bond. The negligent inclusion or omission
of any information deprives the claimant of his or her rights under the bond to the extent
that the contractor can demonstrate prejudice from such act or omission by the
claimant. The failure to furnish a response to a demand for statement of account does not
affect the validity of any claim on the bond being enforced in a lawsuit filed before the date
the demand for statement of account is received by the claimant.
(9) On any public works project for which the public authority requires a performance and
payment bond, suits at law and in equity may be brought and maintained by and
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against the public authority on any contract claim arising from breach of an express provision or
an implied covenant of a written agreement or a written directive issued by the public authority
pursuant to the written agreement. In any such suit„ the public authority and the contractor
shall have all of the same rights and obligations as a private person under a like contract
except that no liability may be based on an oral modification of either the written contract
or written directive. Nothing herein shall be construed to waive the sovereign immunity of the state
and its political subdivisions from equitable claims and equitable remedies. The provisions of
this subsection shall apply only to contracts entered into on or after July 1, 1999.
(10) An action, except an action for recovery of retainage, must be instituted against the
contractor or the surety on the payment bond or the payment provisions of a combined payment
and performance bond within 1 year after the performance of the labor or completion of delivery of
the materials or supplies. An action for recovery of retainage must be instituted against the
contractor or the surety within 1 year after the performance of the labor or completion of
delivery of the materials or supplies; however, such an action may not be instituted until one of the
following conditions is satisfied:
(a) The public entity has paid out the claimant's retainage to the contractor, and the time provided
under s. 218.735 or s. 255.073(3) for payment of that retainage to the claimant has expired;
(b) The claimant has completed all work required under its contract and 70 days have passed
since the contractor sent its final payment request to the public entity; or
(c) At least 160 days have passed since reaching substantial completion of the
construction services purchased, as defined in the contract, or if not defined in the contract,
since reaching beneficial occupancy or use of the project.
(d) The claimant has asked the contractor, in writing, for any of the following information and the
contractor has failed to respond to the claimant's request, in writing, within 10 days after receipt of
the request:
1. Whether the project has reached substantial completion, as that term is defined in the contract„
or if not defined in the contract, if beneficial occupancy or use of the project has occurred.
2. Whether the contractor has received payment of the claimant's retainage, and if so, the date
the retainage was received by the contractor.
3. Whether the contractor has sent its final payment request to the public entity, and if so, the
date on which the final payment request was sent.
If none of the conditions described in paragraph (a), paragraph (b), paragraph (c), or paragraph
(d) is satisfied and an action for recovery of retainage cannot be instituted within the 1-year
limitation period set forth in this subsection, this limitation period shall be extended until 120
days after one of these conditions is satisfied.
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Principal agrees to record this Bond in the Official Records for Monroe County before
the commencement of the work subject of this Bond.
Dated on: 2013
PRINCIPAL:
Address:
By:
As Attorney-in-Fact
SURETY: Address:
Claims against this Bond are subject to the notice and time provisions set forth in Section
255.05, Florida Statutes.
In accordance with the provisions of Section 255..05„ Florida Statutes, the Contractor shall
provide to the County a hundred (100) percent Performance Bond and a hundred (100) percent
Labor and Material Payment Bond each in an amount not less than the total construction cost.
To be acceptable to the County as Surety for Performance Bonds and Labor and Material
Payment Bonds, a Surety Company shall comply with the following provisions:
1. The Surety Company shall have a currently valid Certificate of Authority,
issued by the State of Florida, Department of Insurance, authorizing it to write
surety bonds in the State of Florida..
2. The Surety Company shall have currently valid Certificate of Authority
issued by the United States Department of Treasury under Sections 9304 to
9308 of Title 31 of the United States Code.
3. The Surety Company shall be in full compliance with the provisions of the
Florida Insurance Code.
4. The Surety Company shall have at least twice the minimum surplus and
capital required by the Florida Insurance Code at the time the invitation to
bid is issued.
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Pavement Rehabilitation of Faraldo Circle
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5. If the Contract Award Amount exceeds Five Hundred Thousand
($500,000), the Surety Company shall also comply with the following
provisions:
A. The Surety Company shall have at least the following minimum ratings in
the latest issue of Best's Key Rating Guide.
POLICYHOLDER'S REQUIRED
CONTRACT AMOUNT RATING FINANCIAL RATING
$ 500,000 TO 1,000,000 A- CLASS 1
$1,000,000 TO 2,000,000 A- CLASS II
$2,000,000 TO 5,000,000 A- CLASS III
$5,000,000 TO 10,000,000 A- CLASS IV
$10,000,000 TO 25,000,000 A- CLASS V
$25,000,000 TO 50,000,000 A- CLASS VI
$50,000,000 TO 100,000,000 A- CLASS VII
$50,000,000 TO 100,000,000 A- CLASS VI
B. The Surety Company shall not expose itself to any loss on any one risk
in an amount exceeding ten (10) percent of its surplus to policyholders,
provided:
(a) Any risk or portion of any risk being reinsured shall be
deducted in determining the limitation of the risk as prescribed
in this section. These minimum requirements shall apply to
the reinsuring carrier providing authorization or approval by the
State of Florida, Department of Insurance to do business in
this state have been met.
(b) In the case of the surety insurance company, in addition
to the deduction for reinsurance, the amount assumed by any
co-surety, the value of any security deposited, pledged or held
subject to the consent of the surety and for the protection of
the surety shall be deducted.
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S E C T I O N B
CERTIFICATE OF OWNER'S ATTORNEY
THIS SECTION IS NOT INCLUDED
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ACKNOWLEDGMENT FOR CHANGE ORDERS
TO: Monroe County Board of Commissioners
Key West, Florida
REF: PAVEMENT REHABILITATION OF FARALDO CIRCLE
...............11-11-11111-1.................... .............. ................
Ke
Gentlemen:
In order to avoid the necessity of extensive amendments to the referred contract, the
undersigned acknowledges hereby that the following conditions are those for which
change orders are allowed under the Bid Law:
1 Unusual and difficult circumstances which arose during the course of the
execution of the contract which could not have been reasonably foreseen.
2. Where competitive bidding for the new work for new money will work to the
serious detriment of the awarding authority.
3. Emergencies arising during the course of the work.
4. Changes or alterations provided for in the original bid and originals contract.
Contractor
By:
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Title: \)i C(- ri
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Pavement Rehabilitation of Faraldo Circle
Project No. GAKA154
CONTRACT TO
PAVEMENT REHABILITAT„ION OF FARA„LDO CIRCLE
Key West International Airport
THIS AGREEMENT made and entered into the 16t� day of October 2013 by and between
Douglas N. Higgins, Inc., hereafter "Contractor", and the Monroe County Board of Commissioners,
Key West„ Florida, hereafter"Owner".
WITNESSETH:
That the Contractor, for the consideration hereinafter fully set out hereby agrees with the
Owner as follows:
1. That the Contractor, shall furnish all the materials, and perform all of the work in the
manner and form as provided by the following enumerated Instruction to
Bidders, Form of Proposal, General Provisions„ Special Provisions, Technical
Specifications„ Form of Contract, Form of Bond„ Drawings and Addenda, which
are attached hereto and made a part hereof, as if fully contained herein, for the
construction of:
PAVEMENT REHABILITATION OF FARALDO CIRCLE
Key West International Airport
Monroe County„ Florida
2. That the Contractor shall commence the work to be performed under this
agreement on a date to be specified in a written order of the Owner and shall
fully complete all work hereunder within Forty-five (45) calendar days from the
Notice-to-Proceed (Construction) as per Special Provision No. 2.
The Owner hereby agrees to pay to the Contractor for the faithful performance of
the agreement, subject to additions and deductions as provided in the
specifications or proposal in lawful money of the United States as follows:
Approximately Four Hundred Seventy-Eight Thousand, Nine Hundred One and
60/100 Dollars ($478,901.60) in accordance with lump sum and unit prices set
forth in The proposal.
4. On or before the 15th day of each calendar month, the second party shall make
partial payment to the Contractor on the basis of a duly certified and approved
estimate of work performed during the preceding calendar month by the
Contractor, less ten percent (10%) of the amount of such estimate which is to be
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retained by the Owner until all work has been performed strictly in accordance
with this agreement.
5. Upon submission by the Contractor of evidence satisfactory to the Owner that all
payrolls, material bills and other costs incurred by the Contractor in connection
with the construction of the work have been paid in full, final payment on account of
this agreement shall be made within twenty (20) days after the completion by the
Contractor of all work covered by this agreement and the acceptance of such work
by the Owner.
6. It is mutually agreed between the parties hereto that time is of the essence in this
contract and in the event the construction of the work is not completed within the
time herein specified, it is agreed that from the compensation otherwise to be
paid to the Contractor, the Owner may retain the amounts described in the
Liquidated Damages, Special Provision No. 3, per day for each day thereafter,
Sundays and holidays included, that the work remains uncompleted, which sum
shall represent the actual damages which the Owner will have sustained per day by
failure of the Contractor to complete the work within the time stipulated and this
sum is not a penalty being the stipulated damages the Owner will have
sustained in the event of such default by the Contractor.
It is further mutually agreed between the parties hereto that if at any time after
the execution of this agreement and the surety bond hereto attached for its
faithful performance, the Owner shall deem the surety or sureties upon such
bond to be unsatisfactory, or if, for any reason, such bond ceases to be adequate
to cover the performance of the work, the Contractor shall, at its expense within
five (5) days after the receipt of notice from the Owner so to do, furnish an
additional bond or bonds in such form and amount and with such surety or
sureties as shall be satisfactory to the Owner. In such event, no further payment
to the Contractor shall be deemed to be due under this agreement until such new
or additional security for the faithful performance of the work shall be furnished in
manner and form satisfactory to the Owner.
8. MAINTENANCE OF RECORDS: 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.
9. 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
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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.
10. HOLD HARMLESS AND INSURANCE: 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 (including, without limitation,
costs of remediation and costs of additional security measures that t h e
Federal Aviation Administration , the Transportation
Security Administration or any other governmental agency requires
by reason of, or in connection with a violation of any federal law or
regulation, attorneys' fees and costs, court costs, fines and penalties) 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 on the Airport during the term of this Agreement, (B) the
negligence or willful misconduct of Contractor or any of its
employees, agents, contractors or other 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). 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.
The first ten ($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,
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Pavement Rehabilitation of Faraldo Circle
Project No. GAKA154
CERTIFICATES OF INSURANCE. Original Certificates of Insurance shall be
provided to the COUNTY at the time of execution of this Agreement and certified
copies provided if requested. Each policy certificate shall be endorsed with a
provision that not less than thirty (30) calendar days' written notice shall be
provided to the COUNTY before any policy or coverage is canceled or restricted.
The underwriter of such insurance shall be qualified to do business in the State of
Florida. If requested by the County Administrator, the insurance coverage shall be
primary insurance with respect to the COUNTY, its officials, employees,
agents and volunteers. Failure of CONTRACTOR to comply with the
requirements of this section shall be cause for immediate termination of this
agreement.
11. NON-WAIVER _OF IMMUNITY: Notwithstanding the provisions of Sec. 768,28„
Florida Statutes, the participation of COUNTY and CONTRACTOR 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 Agreement entered into by the COUNTY be required to contain any provision
for waiver.
12. NO PLEDGE OF CREDIT: CONTRACTOR shall not pledge the COUNTY'S
credit or make it a guarantor of payment or surety for any contract, debt,
obligation, judgment, lien, or any form of indebtedness. CONTRACTOR further
warrants and represents that it has no obligation or indebtedness that would
impair its ability to fulfill the terms of this contract.
13. NOTIC.E. REQUIREMENT: Any notice required or permitted under this
agreement shall be in writing and hand delivered or mailed, postage prepaid, to
the other party by certified mail, returned receipt requested, to the following:
FOR COUNTY FOR CONTRACTOR:
County Administrator Paul Waters
1100 Simonton Street Regional Manager
Key West, Florida 33040 Douglas N. Higgins, Inc.
1213 Glynn Archer Drive, #281
Key West, Florida 33040
(305) 292-7889 — Phone
(305) 797-1019 — Mobile
dnh, inskeywest@a aol,com — E-Mail
14. GOVERNING LAW, VENUE, AND INTERPRETATION: This Agreement shall be
governed by and construed in accordance with the laws of the State of Florida
applicable to Agreements made and to be performed entirely in the State. In the
event that any cause of action or administrative proceeding is instituted for the
enforcement or interpretation of this Agreement, the COUNTY and
CONTRACTOR agree that venue will lie in the appropriate court or before the
appropriate administrative body in Monroe COUNTY, Florida.
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Pavement Rehabilitation of Faraldo Circle
Project No. GAKA154
15. MEDIATION: 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. Mediation proceedings initiated and
conducted pursuant to this Agreement shall be in accordance with the Florida
Rules of Civil Procedure and usual and customary procedures required by the
circuit court of Monroe County.
16. 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.
17. ATTORNEY'S FEES AND COSTS: 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 attorney's fees, in appellate proceedings. Each party agrees to pay its own
court costs, investigative, and out-of-pocket expenses whether it is the prevailing
party or not, through all levels of the court system..
18. 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
COUNTY and CONTRACTOR. If no resolution can be agreed upon within 30
days after the first meet and confer session, the issue or issues shall be
discussed at a public meeting of the Board of County Commissioners. If the
issue or issues are still not resolved to the satisfaction of COUNTY and
CONTRACTOR, then any party shall have the right to seek such relief or remedy as
may be provided by this Agreement or by Florida law.
19. 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
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Monroe County
Pavement Rehabilitation of Faraldo Circle
Project No. GAKA154
specifically agree that no party to this Agreement shall be required to
enter into any arbitration proceedings related to this Agreement.
20. BINDING EFFECT: The terms, covenants, conditions, and provisions of
this Agreement shall bind and inure to the benefit of COUNTY and
CONTRACTOR and their respective legal representatives, successors„
and assigns,
21. 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.
22. 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.
23. LEGAL I OBLIGATIONS AND RESPONSIBILITIES: 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.
24. 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.
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Monroe County
Pavement Rehabilitation of Faraldo Circle
Project No. GAKA154
25. 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.
26. 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 COUNTY and CONTRACTOR hereto may execute this
Agreement by signing any such counterpart.
27. NON-DISCRIMINATION: Contractor agrees 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. Contractor agrees 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.
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Monroe County
Pavement Rehabilitation of Faraldo Circle
Project No. GAKA154
IN WITNESS WHEREOF the parties hereto have executed this agreement on the day and
date first above written in three (3) counterparts, each of which shall, without proof or accounting
for the other counterpart, be deemed an original contract.
I 16
(Contractor) (Monroe County Board of Commissioners)
Title: V L t I Title:
1 aPresident*
WITNESS: WITNESS:
STATE OF F 4.t C.,01 CiANI
COUNTY OF rv• °U!A
9 Y Notary Y � � by certify
thate u ersi ned authority, Nota Public i�hoseoname as
oun� andState�he�e of
:mm tm ;,, is signed to the foregoing instrument and who
is known to me, acknowledged before me on this day that being informed of the contents
of the within instrument, he, in his capacity as such, executed the same voluntarily on the
date the same bears date.
Given under my hand and seal this Jd. I day of -20a..
*Who is authorized by the corporation to execute this contract,
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a W T U Y