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Backup Documents 06/09/2009 Item #16B 6 16B 6 MEMORANDUM Date: July 7, 2009 To: Rhonda Cummings, Purchasing Contract Specialist From: Martha Vergara, Deputy Clerk Minutes & Records Department Re: Contract #09-5241: "Lely Area Stormwater Improvement Project (LASIP) Mitigation Park Restoration Project" Contractor: EarthBalance Corp. Enclosed is one original contract, referenced above (Agenda Item #16B6), approved by the Board of County Commissioners on Tuesday, June 9, 2009. The second contract will be kept in the Minutes and Records Department as part of the Board's permanent records. If you should have any questions, please contact me at 252-7240. Thank you. Enclosure (1) ITEM NO.: ~U~ \\,-\o~ DATE RECEIVED: FILE NO.: 1'8. 6 ROUTEDTO:e?,PR~_C7{ ~5 f DO NOT WRITE ABOVE THIS LINE 'f'::"\ ,~ ~ \...~- -,:'--- -,- '~ -'I -:~'t- ./... rf Date: REQUEST FOR LEGAL" SER~IC June 30, 2009 ____ ~ County Attorney's Office ,/ ' 1 .i~ 1:{ Attention: Jeff KlatzkOW/ l \1 J [ v Rhonda Cummings, FCCN, CPPB, Contract Specialist "I V Purchasing Department, Extension 8941 \ r....) To: --<1 oj:. '-? J::" ..J ::-~.c-. -< -, -<~-, ,-) -..<< ~,-.,-, .,"-::,;~' :.:::: t \ '~ ", ,;'.( From: Re: Contract: #09-5241 "Lely Area Stormwater Improvement Project (LASIP) Mitigation Park Restoration Project Contractor: EarthBalance Corp. BACKGROUND OF REQUEST: This Contract was approved by the BCC on June 9, 2009; Agenda Item 16.B.6 This item has not been previously submitted. Contract review and approval. V ,. lo. oc) OY\E5 f 1<:: . c[Vs-Z.., ACTION REQUESTED: OTHER COMMENTS: This is a standard contract with no changes. Please forward to BCC for signature after approval. If there are any questions concerning the document, please contact me. Purchasing would appreciate notification when the documents exit your office. Thank you. C: Margaret Bishop, Stormwater RLS# {}'l-f1lfC- OP~~ B 6 CHECKLIST FOR REVIEWING CONTRACTS Entity Name: E A-t2 7/.1 tSALMYE.. OsrcP'c;(l...A TIt"..} Insurance Insurance Certificate attached? Insured registered in Florida? Contract # &lor Project referenced on Certificate? Certificate Holder name correct (BCC)? Commercial General Liability General Aggregate Required $ t '{\o\l \..... Products/CompVOp Required $ Personal & Advert Required $ Each Occurrence Required $ Fire/Prop Damage Required $ Automobile Liability Bodily Inj & Prop Required $ I Mll Workers Compensation Each accident Required $ S()(). CD P Disease Aggregate Required $ , Disease Each Empl Required $ Umbrella Liability Each Occurrence Provided $ If) 'N\ l L Aggregate Provided $ \. , Does Umbrella sufficiently cover any underinsured portion? Professional Liability Each Occurrence Required $ \ Pt Per Aggregate Required $ r-s \ Other Insurance Each Occur Type: Entity name correct on contract? Entity registered with FL Sec. of State? Required $ County required to be named as additional insured? County named as additional insured? Indemnification Does indemnification meet County standards? Is County indemnifying other party? Performance Bond Bond requirement referenced in contract? If attached, expiration date of bond Does dollar amount match contract? Agent registered in Florida? ~Yes ~Yes No No v' Yes ~Yes Yes ~Yes No No ~No No Provided $ -;2: M.t '- Provided $ 1\ Provided $ , M..\ L Provided $ H Provided $ (:5"',) "00 Exp. Date ~ Exp. Date l. Exp. Date \ , Exp. Date ~ t Exp. Date , . Provided $ I N\. 'I..L.- Exp Date $ J L7, }ttt I / l'V\,\ L Exp Date 1.1/( I II> \.\ Exp Date I , I \.' Exp Date I' Provided $ Provided $ Provided $ Exp Date ~'t.31D'i Exp Date l r --L Yes No Provided $ f MtL Provided $ I . Exp. Date 2 (f91 ttJ Exp. Date I' Provided $ Exp Date_ --L Yes No ~Yes No -.LYes - No Yes ~No -- Yes No Yes - No Yes No ~Yes - No ~Yes - No ~Yes - No ~Yes No ~Yes - No ~Yes No ~Yes No ~~es No ~ ReViewer Imtlals: Date: 04-COA-O I 03 7222 Signature Blocks Correct executor name in signature block? Correct title of executor? Executor authorized to sign for entity? Proper number of witnesses/notary? Authorization for executor to sign, if necessary: Chairman's signature block? Clerk's attestation signature block? County Attorney's signature block? Attachments Are all required attachments included? ~~ 168 ~'~6 MEMORANDUM TO: Ray Carter Risk Management Department FROM: f7 J(~ C Rhonda Cummings, FCCN, CPPB, Contract Specialist -';;;C' ~ Purchasing Department J / -'(l June 30, 2009 DATE: RE: Review of Insurance for Contract: #09-5241 "Lely Area Stormwater Improvement Project (LASIP) Mitigation Park Restoration Project Contractor: EarthBalance Corp. This Contract was approved by the BCC on June 9, 2009; Agenda Item 16.B.6 Please review the Insurance Certificates for the above referenced contract. If you have any questions, please contact me at extension 8941. Thank you. dod/R C B€C'E\\1E.D " 'l\)\)S ~\}~: '" t,^ j\\,\F\G.EME.N1 R\S\\ \'41 C: Margaret Bishop, Stormwater mausen_9 168"6 From: Sent: To: Cc: Subject: Raym ondCarter Thursday, July 02, 2009 3:20 PM CummingsRhonda; DeLeonDiana BishopMargaret; mausen_g Contract 09-5241 Lely Area Storm water Improvement Project (LASIP) Mitigbation Park Restoration Project All, I have approved the certificate of insurance provided by EarthBalance Corp. for contract 09-5241. The contract will now be forwarded to the county attorney's office for their review. Thank you, Ray ~~ Manager Risk Finanace Office 239-252-8839 Cell 239-821-9370 1 wv-w.sunbiz.org - Department of State Page 1 of3 16B Home Contact Us E-Filing Services Document Searches Forms Help Previous on List Next on List ~~turILTQJ...jst I Entity Name Search Submit I Events l'i~meJ:lL~19.1Y Detail by Entity Name Florida Profit Corporation EARTH BALANCE CORPORATION Filing Information Document Number H84315 FEI/EIN Number 592612208 Date Filed 11/04/1985 State FL Status ACTIVE Effective Date 11/01/1985 Last Event AMENDMENT Event Date Filed 02/14/2007 Event Effective Date NONE Principal Address c/o JACK O. HACKETT II 99 NESBIT ST PUNTA GORDA FL 33950 US Changed 04/16/2007 Mailing Address c/o JACK O. HACKETT II 99 NESBIT STREET PUNTA GORDA FL 33950 US Changed 04/16/2007 Registered Agent Name & Address HACKETT, JACK 0 II 99 NESBIT STREET PUNTA GORDA FL 33950 US Name Changed: 04/16/2007 Address Changed: 04/09/2002 Officer/Director Detail Name & Address TitleVS KOCUR,CHARLESLJR 27320 EGRET PL. PUNTA GORDA FL 33983 US Title P http://www.sunbiz.org/scripts/cordet.exe?action=DETFIL&in~ doc _ number=H84315&in... 6/29/2009 ~;w.sunbiz.org - Department of State ROSS, DONALD H 2579 N. TOLEDO BLADE BOULEVARD NORTH PORT FL 34289 US TitleVT CLANCEY, FRANCIS J 4314 LONGCHAMP DR SARASOTA FL 33946 US Title VP BURNETT, KAREN F 2579 N. TOLEDO BLADE BOULEVARD NORTH PORT FL 34289 TitleVP LAROQUE, SARAH J 2579 N. TOLEDO BLADE BOULEVARD NORTH PORT FL 34289 Annual Reports Report Year Filed Date 2008 04/21/2008 2008 05/12/2008 2009 04/15/2009 Document Images 04/J5f2009~::ANNUAL REPORT 05/12/2008 = ANNUAL REPORT 04/211200a=ANNWAL REPORT 04/16/2007 -- ANNUAL REPORT 02/14/2001 =-Am~n<:lm~Dt 04/24/2009= ANNl.JALRE;PORT m@9/20Q5:::.ANNUAl,.R~PQRJ 05/10/2004 -- off/Dir Resigmillm 04[:2]/2004. -- Nq,r:!leCh<:!oge Q~QL2Q{t4.-=ANNl.)ALR,E;,P,QRI Q4/~QL200~-=ANNl.)Al,.RI;;_PQR.I 01LOlli2003 -- SharELE;xghg!1ge 01/03/2003 -- Amendment 04/09/2002 -- ANNU.AJ,,~RI;;PORI 04/28/2001 -- ANNUAL REPQRT 04/2(312000 -- ANNUAL REPORT 0411(3/J!1!1!1=ANNWAL REPORT 05/07/1998 = ANNUAL REPORT 02/14/1997 -- ANNUAL R!;.PQR..I 03/13/1996:::.ANNUAL REPORT Page 2 of3 16B View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format View image in PDF format Note: This is not official record. See documents if question or conflict. http://www.sunbiz.org/scripts/cordet.exe?action=DETFIL&in~ doc _ number=H84315&in... 6/29/2009 . www.sunbiz.org - Department of State Page 3 of3 16B~6 Previous on List Next.Q!LList RetJ.lrn To List Events Name History IEntity Name Search Submit I I Home I Contact us I Document Searches I E-Fillng Services I Forms I Help I Copyright and Privacy Policies Copyright @ 2007 State of Florida, Department of State. http://www.sunbiz.org/scripts/cordet.exe?action=DETFIL&inCL doc _ number=H84315&in... 6/29/2009 A G R E E MEN T 09-5241 '168 '6 for Lelv Area Stormwater Improvement Proiect (LASIP) Mitiaation Park Restoration Proiect THIS AGREEMENT is made and entered into this 9th day of June, 2009, by and between the Board of County Commissioners for Collier County, Florida, a political subdivision of the State of Florida (hereinafter referred to as the "County" or "Owner") and EarthBalance Corporation, authorized to do business in the State of Florida, whose business address is 2579 North Toledo Blade Blvd., North Port, Florida 34289 (hereinafter referred to as the "Contractor"). WIT N E SSE T H: 1. COMMENCEMENT: The contract shall commence upon issuance of the Notice to Proceed. The supplemental plantings will be substantially complete on or before ninety (90) days. The first exotic and nuisance species treatment maintenance event of the entire 1 09.3~ acre property will be substantially complete on or before October 31, 2009 and the second maintenance treatment event will be substantially complete on or before April 30, 2010, respectively. 2. STATEMENT OF WORK: The Board of County Commissioners deemed one (1) firm to be pre- qualified and awarded a Contract to EarthBalance. EarthBalance will provide complete services for the delivery and installation of the native plants in approximately 36.4 acres of wetlands on the site and two exotic/nuisance vegetative species maintenance events for the entire 1 09.3~ acre property as described in the Request for Bid as being located perpendicular to C.R. 951, one (1) mile north of Rattlesnake Hammock Road in Section 15, Township 50S, Range 26E, Collier County Florida in an area known as the Lely Area Stormwater Improvement Project, in accordance with the terms and conditions of Bid #09-5241 and the Contractor's bid, which is incorporated by reference and made an integral part of this Agreement. . 3. THE CONTRACT SUM: The Owner shall pay the Contractor for the performance of the Work pursuant to the quoted price offered by the Contractor in his response to the specific Invitation to Bid. 4. NOTICES: All notices required or made pursuant to this Agreement to be given by the County to the Contractor shall be made in writing and shall be delivered by hand, by fax, e-mail, or by the United States Postal Service Department, first class mail service, postage prepaid, addressed to the following Contractor's address of record: EarthBalance Corporation 2579 Toledo Blade Blvd., North Port, FL 34286 Telephone Number: (941) 426-7878 Fax Number: (941) 426-8778 Francis J. Clancey, V.P., Chief Operating Officer All notices required or made pursuant to this Agreement to be given by the Contractor to the County shall be in writing and shall be delivered by hand, by fax, e-mail, or by United States Postal Service Department, first class mail service, postage prepaid, addressed to the following County's address of record: Page -1- 160.4>.6 Collier County Government Complex Purchasing Department 3301 East Tamiami Trail Purchasing Building G Naples, Florida 34112 Attention: Stephen Y. Carnell Purchasing/General Services Director Phone: 239-252-8371 Fax: 239-252-6584 The Contractor and the County may change the above mailing address at any time upon giving the other party written notification. All notices under this Service Agreement must be in writing. 5. NO PARTNERSHIP: Nothing herein contained shall create or be construed as creating a partnership between the County and the Contractor or to constitute the Contractor as an agent of the County. 6. PERMITS: LICENSES: TAXES: In compliance with Section 218.80, Florida Statutes, all permits necessary for the prosecution of the Work shall be obtained by the Contractor. Payment for all such permits issued by the County shall be processed internally by the County. Contractor is not responsible for paying for permits issued by Collier County, but is responsible for acquiring all permits. Owner may require the Contractor to deliver internal budget transfer documents to applicable Collier county agencies when the Contractor is acquiring permits. All permits, fees and licenses necessary for the prosecution of the Work which are not issued by Collier County shall be acquired and paid for by the Contractor. Contractor shall pay all sales, consumer, use and other similar taxes associated with the Work or portions thereof, which are applicable during the performance of the Work. 7. NO IMPROPER USE: The Contractor will not use, nor suffer or permit any person to use in any manner whatsoever, county facilities for any improper, immoral or offensive purpose, or for any purpose in violation of any federal, state, county or municipal ordinance, rule, order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. In the event of such violation by the Contractor or if the County or its authorized representative shall deem any conduct on the part of the Contractor to be objectionable or improper, the County shall have the right to suspend the Contract of the Contractor. Should the Contractor fail to correct any such violation, conduct, or practice to the satisfaction of the County within twenty-four (24) hours after receiving notice of such violation, conduct, or practice, such suspension to continue until the violation is cured. The Contractor further agrees not to commence operation during the suspension period until the violation has been corrected to the satisfaction of the County. 8. TERMINATION: Should the Contractor be found to have failed to perform his services in a manner satisfactory to the County and requirements of this Agreement, the County may terminate said Agreement for cause; further the County may terminate this Agreement for convenience with a thirty (30) day written notice. The County shall be sole judge of non-performance. 9. NO DISCRIMINATION: The Contractor agrees that there shall be no discrimination as to race, sex, color, creed or national origin. Page -2- 168 6 10. INSURANCE: The Contractor shall provide insurance as follows: / Commercial General Liability: Coverage shall have minimum limits of $1,000,000 Per Occurrence, Combined Single Limit for Bodily Injury Liability and Property Damage Liability. This shall include Premises and Operations; Independent contractors; Products and Completed Operations and Contractual Liability. ~ Business Auto Liability: Coverage shall have minimum limits of $1,000,000 Per Occurrence, Combined Single Limit for Bodily Injury Liability and Property Damage Liability. This shall include Owned Vehicles, Hired and Non-Owned Vehicles and Employee Non- Ownership. ~. Workers' Compensation: Insurance covering all employees meeting Statutory Limits in compliance with the applicable state and federal laws. The coverage must include Employers' Liability with a minimum limit of $5~00 for each accident. Special Requirements: Collier County Board of County Commissioners shall be listed as the Certificate Holder and included as an AdditionaYlnsured on the Comprehensive General Liability. / Current, valid insurance policies meeting the requirement herein identified shall be maintained by Contractor during the duration of this Agreement. Renewal certificates shall be sent to the County thirty (30) days prior to any expiration date. There shall be a thirty (30) day notification to the County in the event of cancellation or modification of any stipulated insurance coverage. Contractor shall insure that all subcontractors comply with the same insurance requirements that he is required to meet. The same Contractor shall provide County with certificates of insurance meeting the required insurance provisions. 11. INDEMNIFICATION: To the maximum extent permitted by Florida law, the Contractor shall indemnify and hold harmless Collier County, its officers and employees from any and all liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys' fees and paralegals' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Contractor or anyone employed or utilized by the Contractor in the performance of this Agreement. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified party or person described in this paragraph. This section does not pertain to any incident arising from the sole negligence of Collier County. 12. PAYMENTS. Generally, the Contractor will be paid upon completion; however since work will be in excess of thirty (30) days, the Contractor may receive Progress Payments. Subsequent to the first payment, Contractor must provide Owner with a fully executed Release and Affidavit in the form attached hereto as Exhibit "A" as a condition precedent to release of each progress payment. All applications for payment, whether for full payment or a progress payment shall be in writing, and in substantially the form attached hereto as Exhibit "B". 13. PAYMENTS WITHHELD. Owner may decline to approve any Application for Payment, or portions thereof, because of defective or incomplete work, outstanding punchlist items, subsequently discovered evidence or subsequent inspections. The Owner may nullify the Page -3- 16B 6 whole or any part of any approval for payment previously issued and Owner may withhold any payments otherwise due Contractor under this Agreement or any other agreement between Owner and Contractor, to such extent as may be necessary in the Owner's opinion to protect it from loss because of: (a) defective Work not remedied; (b) third party claims failed or reasonable evidence indicating probable fling of such claims; (c) failure of Contractor to make payment properly to subcontractors or for labor, materials or equipment; (d) reasonable doubt that the Work can be completed for the unpaid balance of the Contract Amount; (e) reasonable indication that the Work will not be completed within the Contract Time; (f) unsatisfactory prosecution of the Work by the Contractor; or (g) any other material breach of the Contract Documents. If any conditions described above are not remedied or removed, Owner may, after three (3) days written notice, rectify the same at Contractor's expense. Owner also may offset against any sums due Contractor the amount of any liquidated or unliquidated obligations of Contractor to Owner, whether relating to or arising out of this Agreement or any other agreement between Contractor and Owner. 14. SUBMITTALS AND SUBSTITUTIONS. Any substitution of products/materials from specifications shall be approved in writing by Owner in advance. 15. CONTRACT TIME AND TIME EXTENSIONS. A. Time is of the essence in the performance of any Work under this Agreement and Contractor shall diligently pursue the completion of the Work and coordinate the Work being done on the Project by its subcontractors and materialmen, as well as coordinating its Work with all work of others at the Project Site, so that its Work or the work of others shall not be delayed or impaired by any act or omission by Contractor. Contractor shall be solely responsible for all construction means, methods, techniques, sequences, and procedures as well as coordination of all portions of the Work under the Contract Documents, and the coordination of Owner's supplies and contractors. B. Should Contractor be obstructed or delayed in the prosecution of or completion of the Work as a result of unforeseeable causes beyond the control of Contractor, and not due to its fault or neglect, including but not restricted to acts of Nature or of the public enemy, acts of Government, fires, floods, epidemics, quarantine regulation, strikes or lockouts, Contractor shall notify the Owner in writing within forty-eight (48) hours after the commencement of such delay, stating the cause or causes thereof, or be deemed to have waived any right which Contractor may have had to request a time extension. C. No interruption, interference, inefficiency, suspension or delay in the commencement or progress of the Work from any cause whatever, including those for which Owner may be responsible, in whole or in part, shall relieve Contractor of his duty to perform or give rise to any right to damages or additional compensation from Owner. Contractor expressly acknowledges and agrees that it shall receive no damages for delay. Contractor's sole remedy, if any, against Owner will be the right to seek an extension to the Contract Time; provided, however, the granting of any such time extension shall not be a condition precedent to the aforementioned "No Damage for Delay" provision. This paragraph shall expressly apply to claims for early completion, as well as to claims based on late completion. 16. CHANGES IN THE WORK. Owner shall have the right at any time during the progress of the Work to increase or decrease the Work. Promptly after being notified of a change, Contractor shall submit an itemized estimate of any cost or time increases or savings it foresees as a result of the change. Except in an emergency endangering life or property, or as expressly set Page -4- , ".""_"'_"'~"'_''''_'''_"_~'''''''<'''~;'._''_''''''',o''e. ,_. "","""~,_,.',_~___,___ 168 6 forth herein, no addition or changes to the Work shall be made except upon written order of Owner, and Owner shall not be liable to the Contractor for any increased compensation without such written order. No officer, employee or agent of Owner is authorized to direct any extra or changed work orally. Any modifications to this Contract shall be in compliance with the County Purchasing Policy and Administrative Procedures in effect at the time such modifications are authorized. A Change Order in the form attached as Exhibit "D" to this Agreement, shall be issued and executed promptly after an agreement is reached between Contractor and Owner concerning the requested changes. Contractor shall promptly perform changes authorized by duly executed Change Orders. The Contract Amount and Contract Time shall be adjusted in the Change order in the manner as Owner and Contractor shall mutually agree. 17.COMPLlANCE WITH LAWS. Contractor agrees to comply, at its own expense, with all federal, state and local laws, codes, statutes, ordinances, rules, regulations and requirements applicable to the Project, including but not limited to those dealing with taxation, workers' compensation, equal employment and safety (including, but not limited to, the Trench Safety Act, Chapter 553, Florida Statutes). If Contractor observes that the Contract Documents are at variance therewith, it shall promptly notify Owner in writing. 18. CLEAN UP. Contractor agrees to keep the Project site clean at all times of debris, rubbish and waste materials arising out of the Work. At the completion of the Work, Contractor shall remove all debris, rubbish and waste materials from and about the Project site, as well as all tools, appliances, construction equipment and machinery and surplus materials, and shall leave the Project site clean and ready for occupancy by Owner. 19. ASSIGNMENT. Contractor shall not assign this Agreement or any part thereof, without the prior consent in writing of Owner. If Contractor does, with approval, assign this Agreement or any part thereof, it shall require that its assignee be bound to it and to assume toward Contractor all of the obligations and responsibilities that Contractor has assumed toward Owner. 20. WARRANTY. Contractor shall obtain and assign to Owner all express warranties given to Contractor or any subcontractors by any materialmen supplying materials, equipment or fixtures to be incorporated into the Project. Contractor warrants to Owner that any materials and equipment furnished under the Contract Documents shall be new unless otherwise specified, and that all Work shall be of good quality, free from all defects and in conformance with the Contract Documents. Contractor further warrants to Owner that all materials and equipment furnished under the Contract Documents shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturers, fabricators, suppliers or processors except as otherwise provided for in the Contract Documents. If, within one (1) year after final completion, any Work is found to be defective or not in conformance with the Contract Documents, Contractor shall correct it promptly after receipt of written notice from Owner. Contractor shall also be responsible for and pay for replacement or repair of adjacent materials or Work which may be damaged as a result of such replacement or repair. These warranties are in addition to those implied warranties to which Owner is entitled as a matter of law. Page -5- -'.""-,"'"......~,-,.,._.,..,..,~._'.,,~.," "-"''''"^''"'~.'-'';-'''''''''-'''-_'"'___ 'W' 168 .6 21.STANDARDS OF CONDUCT: PROJECT MANAGER. SUPERVISOR. EMPLOYEES. The Contractor shall employ people to work on County projects who are neat, clean, well-groomed and courteous. Subject to the American with Disabilities Act, Contractor shall supply competent employees who are physically capable of performing their employment duties. The County may require the Contractor to remove an employee it deems careless, incompetent, insubordinate or otherwise objectionable and whose continued employment on Collier County projects is not in the best interest of the County. 22. TESTS AND INSPECTIONS. If the Contract Documents or any codes, laws, ordinances, rules or regulations of any public authority having jurisdiction over the Project requires any portion of the Work to be specifically inspected, tested or approved, Contractor shall assume full responsibility therefore, pay all costs in connection therewith and furnish to the Owner the required certificates of inspection, testing or approval. All inspections, tests or approvals shall be performed in a manner and by organizations acceptable to the Owner. 23. PROTECTION OF WORK. A. Contractor shall fully protect the Work from loss or damage and shall bear the cost of any such loss or damage until final payment has been made. If Contractor or anyone for whom Contractor is legally liable is responsible for any loss or damage to the Work, or other work or materials of Owner or Owner's separate contractors, Contractor shall be charged with the same, and any monies necessary to replace such loss or damage shall be deducted from any amounts due Contractor. B. Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it. C. Contractor shall not disturb any benchmark established by the Owner with respect to the Project. If Contractor, or its subcontractors, agents or anyone, for whom Contractor is legally liable, disturbs the Owner's benchmarks, Contractor shall immediately notify Owner. The Owner shall re-establish the benchmarks and Contractor shall be liable for all costs incurred by Owner associated therewith. 24. EMERGENCIES. In the event of any emergency affecting the safety or protection of persons or the Work or property at the Project site or adjacent thereto, Contractor, without special instruction or authorization from Owner is obligated to act to prevent threatened damage, injury or loss. Contractor shall give the Owner written notice within forty-eight (48) hours after the occurrence of the emergency, if Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby. If the Owner determines that a change in the Contract Documents is required because of the action taken in response to an emergency, a Change Order shall be issued to document the consequences of the changes or variations. If Contractor fails to provide the forty-eight (48) hour written notice noted above, the Contractor shall be deemed to have waived any right it otherwise may have had to seek an adjustment to the Contract Amount or an extension to the Contract Time. 25. COMPLETION. When the entire Work (or any portion thereof designated in writing by Owner) is ready for its intended use, Contractor shall notify Owner in writing that the entire Work (or such designated portion) is substantially complete and request that Owner issue a Certificate of Substantial Completion. Within a reasonable time thereafter, Owner and Contractor shall Page -6- 16B 6 make an inspection of the Work (or designated portion thereof) to determine the status of completion. If Owner does not consider the Work (or designated portion) substantially complete, the Owner shall notify Contractor in writing giving the reasons therefor. If Owner considers the Work (or designated portion) substantially complete, Owner shall prepare and deliver to Contractor a Certificate of Substantial Completion, Exhibit D, which shall fix the date of Substantial Completion for the entire Work (or designated portion thereof) and include a tentative punchlist of items to be completed or corrected by Contractor before final payment. Owner shall have the right to exclude Contractor from the Work and Project site (or designated portions thereof) after the date of Substantial Completion, but Owner shall allow Contractor reasonable access to complete or correct items on the tentative punch list. Upon receipt of written certification by Contractor that the Work is completed in accordance with the Contract Documents and is ready for final inspection and acceptance, Owner will make such inspection and, if Owner finds the Work acceptable and fully performed under the Contract Documents, he shall promptly issue a Certificate of Final Completion, Exhibit E, recommending that on the basis of his observations and inspections, and the Contractor's certification that the Work has been completed in accordance with the terms and conditions of the Contract Documents, that the entire balance found to be due Contractor is due and payable. Final payment shall not become due and payable until Contractor submits: (1) The Release and Affidavit in the form attached as Exhibit "A". (2) Consent of Surety (if applicable) to final payment. (3) If required by Owner, other data establishing payment or satisfaction of all obligations, such as receipt, releases and waivers of liens, arising out of the Contract Documents, to the extent and in such form as may be designated by Owner. Owner reserves the right to inspect the Work and make an independent determination as to the acceptability of the Work. Unless and until the Owner is completely satisfied, the final payment shall not become due and payable. 26. LIQUIDATED DAMAGES. The "Commencement Date" shall be established in the Notice to Proceed to be issued by the Owner. Contractor shall commence the work within five (5) calendar days from the Commencement Date. No Work shall be performed at the Project site prior to the Commencement Date. Any Work performed by Contractor prior to the Commencement Date shall be at the sole risk of Contractor. The Work shall be substantially completed within the time specified in the Request for Quotation. The date of substantial completion of the Work (or designated portions thereof) is the date certified by the Owner when construction is sufficiently complete, in accordance with the Contract Documents, so Owner can occupy or utilize the Work (or designated portions thereof) for the use for which it is intended. The Work shall reach final completion and be ready for final acceptance by Owner within the time specified in the Request for Quotation. Owner and Contractor recognize that since time is of the essence for any work under this Agreement, Owner will suffer financial loss if the Work is not substantially completed within the time specified in the Request for Quotation. Should Contractor fail to substantially complete the Work within the specified time period, Owner shall be entitled to assess as liquidated Page -7- 16 Q ~6 damages, but not as a penalty, the amount specified in the Request for Quotation for each calendar day thereafter until substantial completion is achieved. The Project shall be deemed to be substantially completed on the date the Owner issues a Certificate of Substantial Completion pursuant to the terms hereof. Contractor hereby expressly waives and relinquishes any right which it may have to seek characterize the above noted liquidated damages as a penalty, which the parties agree represents a fair and reasonable estimate of the Owner's actual damages at the time of contracting if Contractor fails to substantially complete the Work in a timely manner. When any period of time is referenced by days herein, it shall be computed to exclude the first day and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day shall be omitted from the computation, and the last day shall become the next succeeding day which is not a Saturday, Sunday or legal holiday. 27.CONTRACT ADMINISTRATION. This Agreement shall be administered on behalf of the County by the Stormwater Department. 28. COMPONENT PARTS OF THIS CONTRACT. This Contract consists of the attached or referenced component parts, all of which are as fully a part of the Agreement as if herein set out verbatim, including: Contractor's Bid, Insurance Certificate, RFB No. 09-5241, and any addenda made or issued pursuant to this Agreement, and any related plans or specifications. 29.PROHIBITION OF GIFTS TO COUNTY EMPLOYEES. No organization or individual shall offer or give, either directly or indirectly, any favor, gift, loan, fee, service or other item of value to any County employee, as set forth in Chapter 112, Part III, Florida Statutes, Collier County Ethics Ordinance No. 2004-05, and County Administrative Procedure 5311. Violation of this provision may result in one or more of the following consequences: a. Prohibition by the individual, firm, and/or any employee of the firm from contact with County staff for a specified period of time; b. Prohibition by the individual and/or firm from doing business with the County for a specified period of time, including but not limited to: submitting bids, RFP, and/or quotes; and, c. immediate termination of any contract held by the individual and/or firm for cause. 30.SUBJECT TO APPROPRIATION. It is further understood and agreed, by and between the parties herein that this Agreement is subject to appropriation by the Board of County Commissioners. 31.SALES TAX. Contractor shall pay all sales, consumer, use and other similar taxes associated with the Work or portions thereof, which are applicable during the performance of the Work. No markup shall be applied to sales tax. 32.IMMIGRATION LAW COMPLIANCE: By executing and entering into this agreement, the Contractor is formally acknowledging without exception or stipulation that it is fully responsible for complying with the provisions of the Immigration Reform and Control Act of 1986 as located at 8 U.S.C. 1324, et seq. and regulations relating thereto, as either may be amended. Failure by the Contractor to comply with the laws referenced herein shall constitute a breach of this agreement and the County shall have the discretion to unilaterally terminate this agreement immediately. Page -8- 168 6 33. VENUE: Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. 34.AGREEMENT TERMS: If any portion of this Agreement is held to be void, invalid, or otherwise unenforceable, in whole or in part, the remaining portion of this Agreement shall remain in effect. .:. .:. .:. .:. .:. .:. .:. .:. .:. .:. .:. .:. .:. .:. Page -9- 168 6 IN WITNESS WHEREOF, the Contractor and the County, have each, respectively, by an authorized person or agent, hereunder set their hands and seals on the date and year first above written. ATTEST: _ D . ht E;Brbck,Clerk of Courts BOARD OF COUNTY COMMISSIONERS ::LLlER ?f::::Od~ Donna Fiala, Chairman ~.,J( v: JlfldiJ First Witness ~rmra k. V;VJne~ Type/Print Witness Name JA.k/.; tJd.!." \ - Second Witness ~ jNOlol~ Wet (flW\l(.eV' Type/Print Witness Name EarthBalance CorDoration Contractor BY:~~ r: ~ ~ Signature{ c:Kae.t:=1J ~ ~e.tJl!!S1I '\ Typed Signature 0C!.E. lAcs / h ~ 'lrr Title Approved as to form and legal sufficiency: CfJ1h1JA d1~ Assistant County Attorney COlleb1 CsreenL Print Name Page -10- EXHIBIT A RELEASE AND AFFIDAVIT FORM 168 6 COUNTY OF COLLIER ) STATE OF FLORIDA ) Before me, the undersigned authority, personally appeared who after being duly sworn, deposes and says: (1) In accordance with the Contract Documents and in consideration of $ paid, ("Contractor") releases and waives for itself and it's subcontractors, material-men, successors and assigns, all claims demands, damages, costs and expenses, whether in contract or in tort, against the Board of County Commissioners of Collier County, Florida, relating in any way to the performance of the Agreement between Contractor and Owner, dated 200_ for the period from to (2) Contractor certifies for itself and its subcontractors, material-men, successors and assigns, that all charges for labor, materials, supplies, lands, licenses and other expenses for which Owner might be sued or for which a lien or a demand against any payment bond might be filed, have been fully satisfied and paid. (3) Contractor agrees to indemnify, defend and save harmless Owner from all demands or suits, actions, claims of liens or other charges filed or asserted against the Owner arising out of the performance by Contractor of the Work covered by this Release and Affidavit. (4) This Release and Affidavit is given in connection with Contractor's [monthly/final] Application for Payment No. CONTRACTOR BY: ITS: President DATE: Witnesses [Corporate Seal] STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of 200_, by , as of I a corporation, on behalf of the corporation. He/she is personally known to me or has produced as identification and did (did not) take an oath. My Commission Expires: (Signature of Notary) NAME: (Legibly Printed) (AFFIX OFFICIAL SEAL) Notary Public, State of Commissioner No.: Page -11- 168 6 EXHIBIT B FORM OF CONTRACT APPLICATION FOR PAYMENT (County Project Manager) (County Department) Collier County Board of County Commissioners (the OWNER) or Collier County Water-Sewer District (the OWNER) FROM: (Contractor's Representative) (Contractor's Name) (Contractor's Address) RE: Name) Bid No. 09-5241 Project No. Application Date Payment Application No. for Work accomplished through the Date: (Project Original Contract Time: Revised Contract Time: Retainage @ 10% thru[insert date] $ Retainage @ _% after [insert date] $ Percent Work completed to Date: Percent Contract Time completed to Date % % Liquidated Damages to be Accrued $ Original Contract Amount: $ Total Change Orders to Date $ Revised Contract Amount $ Total value of Work Completed and stored to Date $ Less previous payment (s) $ AMOUNT DUE THIS APPLICATION: $ ATTACH SCHEDULE OF VALUES AND ACCOMPANYING DOCUMENTATION TO THIS APPLICATION CONTRACTOR'S CERTIFICATION: The undersigned CONTRACTOR certifies that: (1) all previous progress payments received from OWNER on account of Work done under the Contract referred to above have been applied to discharge in full all obligations of CONTRACTOR incurred in connection with Work covered by prior Applications for Payment numbered 1 through _ inclusive; (2) title to all materials and equipment incorporated in said Work or otherwise listed in or covered by this Application for Payment will pass to OWNER at time of payment free and clear of all liens, claims, security interests and encumbrances (except such as covered by Bond acceptable to OWNER); (3) all amounts have been paid for work which previous payments were issued and received from the OWNER and that current payment is now due; (4) and CONTRACTOR agrees that all overruns as shown on the monthly estimate summary shall, in fact, be added to the revised contract and shall be incorporated into a future Change Order: By CONTRACTOR: DATE: (Contractor's Name) (Signature) (Type Name & Title) (shall be signed by a duly authorized representative of CONTRACTOR) Payment to the CONTRACTOR for the above AMOUNT DUE THIS APPLICATION is recommended: (DP's Name) (Signature) DATE: (Type Name & Title) Payment to the CONTRACTOR for the above AMOUNT DUE THIS APPLICATION is approved: By Design Professional: By OWNER'S Project Manager: Page -12- (Signature) DATE: (Type Name and Title) EXHIBIT C CHANGE ORDER 16R 6 CHANGE ORDER NO. CONTRACT NO. 09-5241 TO: DATE: PROJECT NAME: PROJECT NO.: Under our AGREEMENT dated ,200_. You hereby are authorized and directed to make the following change(s) in accordance with terms and conditions of the Agreement: FOR THE (Additive) (Deductive) Sum of: $ ($ Original Agreement Amount $ Sum of Previous Changes $ This Change Order (Add) (Deduct) $ Present Agreement Amount $ The time for completion shall be (increased/decreased) by calendar days due to this Change Order. Accordingly, the Contract Time is now (-> calendar days. The substantial completion date is and the final completion date is . Your acceptance of this Change Order shall constitute a modification to our Agreement and will be performed subject to all the same terms and conditions as contained in our Agreement indicated above, as fully as if the same were repeated in this acceptance. The adjustment, if any, to the Agreement shall constitute a full and final settlement of any and all claims of the Contractor arising out of or related to the change set forth herein, including claims for impact and delay costs. Accepted: ,200_ CONTRACTOR: OWNER: BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA By: By: DESIGN PROFESSIONAL: By: Page -13- 168 6 EXHIBIT D CERTIFICATE OF SUBSTANTIAL COMPLETION OWNER'S Project No. ENGINEER'S Project No. PROJECT: CONTRACTOR Contract For Contract Date This Certificate of Substantial completion applies to all Work under the Contract documents or to the following specified parts thereof: To OWNER And To The Work to which this Certificate applies has been inspected by authorized representatives of OWNER, CONTRACTOR AND DESIGN PROFESSIONAL, and that Work is hereby declared to be substantially complete in accordance with the contract documents on: DATE OF SUBSTANTIAL COMPLETION A tentative list of items to be completed or corrected is attached hereto. This list may not be all- inclusive, and the failure to include an item in it does not alter the responsibility of CONTRACTOR to complete all the Work in accordance with the Contract Documents. The items in the tentative list shall be completed or corrected by CONTRACTOR within days of the above date of Substantial Completion. Page -14- 168 '6 The responsibilities between OWNER and CONTRACTOR for security, operation, safety, maintenance, heat, utilities, insurance and warranties shall be as follows: RESPONSIBILITIES: OWNER: CONTRACTOR: The following documents are attached to and made a part of this Certificate: This certificate does not constitute an acceptance of Work not in accordance with the Contract Documents nor is it a release of CONTRACTOR'S obligation to complete the Work in accordance with the Contract Documents. Executed by Design Professional on ,2004 Design Professional By: Type Name and Title CONTRACTOR accepts this Certificate of Substantial Completion on ,2009 CONTRACTOR By: Type Name and Title OWNER accepts this Certificate of Substantial Completion on ,2009 OWNER By: Type Name and Title Page -15- 168 6 EXHIBIT E CERTIFICATE OF FINAL COMPLETION OWNER'S Project No. PROJECT: ENGINEER'S Project No. CONTRACTOR Contract For Contract Date This Certificate of Final completion applies to all Work under the Contract documents. To OWNER And To The Work to which this Certificate applies has been inspected by authorized representatives of OWNER, CONTRACTOR AND DESIGN PROFESSIONAL, and that Work is hereby declared to be finally complete in accordance with the contract documents on: DATE OF FINAL COMPLETION Page -16- 168 6 The following warranty is attached to and made a part of this Certificate: Executed by Design Professional on ,2009 Design Professional By: Type Name and Title CONTRACTOR accepts this Certificate of Final Completion on 2004 CONTRACTOR By: Type Name and Title OWNER accepts this Certificate of Final Completion on 2004 OWNER By: Type Name and Title Page -17- '~"'"""''''"''.'''iH'~ '""'<t' .. .......,.__..___""_",_"~......_"_,..,..,,,.,.,._~.O".T'.'.__".v,,,,.."'....-.-.".v........_....___. 16B 6 EXHIBIT F WARRANTY I n consideration of ten dollars, ($10.00), receipt of which is hereby acknowledged, the undersigned CONTRACTOR does hereby provide, warrant and guarantee all work done and executed under the contract either directly performed by the CONTRACTOR or at the express request of the CONTRACTOR by a SUBCONTRACTOR or CONSULTANT. Project Name: Date of Final Completion: Name and Address of CONTRACTOR: CONTRACTOR warrants and guarantees the work performed pursuant to the contract shall be free of all defects of materials and workmanship for a period of one year from the DATE OF FINAL COMPLETION. The undersigned party further agrees that it will, at its own expense, replace and/or repair all defective work and materials and all other work damaged by any defective work upon written demand by the COUNTY. It is further understood that further consideration for this warranty and guaranty is the consideration given for the requirement pursuant to the general conditions and specifications under which the contract was let that such warranty and guaranty would be given. This warranty and guaranty is in addition to any other warranties or guaranties for the work performed under the contract and does not constitute a waiver of any rights provided pursuant to Florida Statutes, Chapter 95, et seq. DATE: CONTRACTOR BY: Attest: Page -18- From: Becky Scarfone At: Lykes Insurance, Inc, FaxlD: 813-249-8607 To: Diana ACORD. CERTIFICATE OF LIABILITY INSURANCE Date: 6129121960BM pa96 of 4 OP 10 B2 I DATE (MM/DDIYYYY) EARTH-2 06/29/09 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. PRODUCER Lykes Insurance, Inc 400 N. Tampa st., suite 2200 Tampa FL 33602 Phone:813-223-3911 Fax: 813-221-1857 INSURED INSURERS AFFORDING COVERAGE INSURER A INSURER 8 we"tfi.ld Insu:rance COMpany Bxidg.field Employers Ins Co. NAlC# 24112 '" 10701 v' 42374 V Earthbalance corporation DBA EarthBalance 2579 North Toledo Blade Blvd Northport FL 34286 _I':JSU~~I<~___}{ous tOl! Cas ~~!ty Ins. CO. INSURER D INSURER E COVERAGES THE POLICIES OF INSURANCE LISTED BE_OW HAVE BEEN ISSUED TO THE INSURED NAMED ABO\/E FOR TH= POLlCv PERIOD INDICATED NOTV\,' THSTANDING ,ANy REQUIRE'AENT, TERM OR CONDITIOr-. OF ANY CONTRACT OR OTHER DOCl,MENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TC ALL THE TERMS, EXCLUSIONS AI~D CONDITIONS OF SUCH POLICIES AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS I'N"" NS'RC POLICY NUMBER 'i:J~'1!~(MM/DDIYYI '6'kWl(MMIDDIYYI LIMITS ./ LTR TYPE OF INSURANCE GENERAL LIABILITY EACH OCCURRENCE $ 1000000 .r - 08/23/08 08/23/09 p'REMisEs '( E~c~~~~~ence) A X ~ COMMERCI.t\L GENERAL LIABILITY CMM4053914 $ 150000 o CLAIMS MADE ~ OCCUR MED EXP (Anyone person) $ 10000 - ~ Contractual Liab PERSONAL & A~V INJURY $ 1000000 GENERAL AGGREGATE $2000000 - GEN'L AGGREGA-E L'MIT APPLIES PER PRODUCTS - COMP/OP ASS $2000000 "I !Xl PRO- nLOC ----, POLICY X JECT Emp Ben. 1000000 AUTOMOBILE LIABILITY COMBII,ED SINGLE L'MIT $ 1,000,000 V ..,/ - A ~ ANY AUTO CMM4053914 08/23/08 08/23/09 (Ea aCCIdent) AL_ OWNED AUTOS 80DIL Y INJURY - $ SCHEDULED AUTOS (Per p8~son) - ~ HIRED AUTOS BODIL Y INJURY $ ~ NOr,-OWNED AUTOS Wer acolden!) - PROPERTY DAMAGE $ (Per aCCident) GARAGE LIABILITY AUTO ONe Y - EA ACCIDENT $ ~ ANY AUTO OTHER THAN EA ACC $ AUlD ONLY AGG $ EXCESSIUMBRELLA LIABILITY EACH OCCURRENCE $ 10,000,000 A 8 OCCUR D CLAIMS MADE CMM4053914 08/23/08 08/23/09 AGGREGATE $ 10,000,000 $ 8 DEDUCTIBLE $ X RETENTION $ 0 $ / WORKERS COMPENSATION AND X :T6~\-t:~"TuS I xIJ~~' ./ B EMPLOYERS' LIABILITY 0830-37583 04/01/09 04/01/10 $ 1000000 "" ANY PROPRIETORfPARTNERfEXECUTIVE E LEACH ACCIDEr-. T OFFICER/MEMBER EXCLUDED? E L DISEASE - EA EMPLOYEE $ 1000000 If yes, describe under $ 1000000 SPECIAL PROVISIONS oelow E L DISEASE - P:JLlCY LIMIT OTHER A Property Section CMM4053914 08/23/08 08/23/09 Varies Varies C I Professional Liab H70711038 02/18/09 02/18/10 Prof Liab 1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS Collier County BOCC Purchasing Department is an addi7nal insured with respect to General Liability. CERTIFICATE HOLDER COLL413 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION Collier county BOCC Purchasing Department Attn: Diana P.O. Box 413016 Naples FL 34101-3016 DATE THEREOF. THE ISSUING INSURER WILL ENDEAVOR TO MAIL 10 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER. ITS AGENTS OR REPRESENTATIVES, A Z DR E ACORD 25 (20011081 @ACORD CORPORATION 1988 From: Becky Scarfone At: Lykes Insurance. Inc, FaxlD: 813-249-8607 To: Diana Date: 612912001026 pe Page: ~ 4 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). 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). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon, ACORD 25 (2001/08)