IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, TAMPA DIVISION DREDGE AMERICA, INC., Case No, BiN5-CV- ROQ-T- (TEAS Division Ph v BENDERSON DEVELOPMENT COMPANY, LLC, SERVE AT: 7978 Cooper Creek Blvd., #100 University Park, Florida 34201 SARASOTA COUNTY, FLORIDA, SERVE AT: Board of County Commissioners Sarasota County, Florida Carolyn Mason, Chair 1660 Ringling Blvd., 2! Floor Sarasota, Florida 34236 Defendants. COMPLAINT FOR DAMAGES (WITH DEMAND FOR JURY TRIAL Plaintiff, Dredge America, Inc., by and through its undersigned counsel, hereby sues Defendants, and alleges: ‘THE PARTIES 1. Plaintiff, Dredge America, Inc. (“Dredge”), a Missouri corporation, is a leading portable hydraulic dredging company providing services throughout the United States and having i, 64153, its prineipal place of business at 9555 NW Highway N., Kansas City, Missov2. Defendant, Benderson Development Company, LLC (“Benderson”), is a New York corporation with its principal business offices at 570 Delaware Avenue, Buffalo, New York, 14202 and at 7978 Cooper Creek Blvd., #100, University Park, Florida 34201. 3. Defendant, Sarasota County, Florida (the “County”), is a government entity and may be served through the Board of County Commissioners for Sarasota County, Florida, Carolyn Mason, Chair, 1660 Ringling Blvd., 2" Floor, Sarasota, Florida 34236. JURISDICTION AND VENUE 4. Jurisdiction exists by virtue of diversity of citizenship, 28 U.S.C. $1332. This is an action between citizens of different states. Plaintiff is a citizen of the State of Nevada and Defendants are citizens of the State of Florida. The amount in controversy exceeds Seventy-Five Thousand Dollars ($75,000), exclusive of interest and costs. 5. Venue is proper in this judicial district under 28 U.S.C. §1391(a) because a part of the counts giving rise to the claims in this action occurred in this Distriet, and the Defendants are subject to personal jurisdiction within this District. 6. Defendants are each subject to the jurisdiction of this Court because they are citizens of the State of Florida. 7. This Court’s exercise of jurisdiction over Defendants complies with Florida's long- ‘arm statute, Section 48.193, Florida Statutes, because the claims in this action atise from: a, Defendants operating, conducting, engaging in, and carrying on a business in Florida; and b. Defendants contracting with Talk Fusion, a Florida corporation, and t by failing to perform acts required to be performed in Florida breaching that contra and/or causing damage in Flor8 This Court’s exercise of jurisdiction over Defendants also complies with Florida's long-arm statute, Section 48.193, Florida Statutes, because each of the Defendants is engaged in substantial and not isolated activity within the State of Florida. 9. This Court’s jurisdietion over Defendants comports with the due process principles because Defendants have sufficient minimum contacts with the State of Florida. FACTS COMMON TO ALL COUNTS 10. Dredge incorporates every statement, allegation, and averment set forth in Paragraphs 1- 9, above, as if all such statements, allegations, and averments were set forth fully hereii 11. In or around April of 2005, the County entered into a contract with Benderson For Benderson to act as general contractor in connection with the development and construction of a project in Sarasota, Plorida, to be known as the Nathan Benderson Aquatic Nature Center (the “Project”) 12, The Project would feature a lake, which would be used for recreational purposes as well as for competitive rowing events. 13. Pursuant to its contract with the County, Benderson was entitled to receive a management fee for its services based upon a percentage of the total cost of the Project. 14, Contrary to the requirements of Florida law, the County failed to secure from Benderson a payment and performance bond in connection with the Project. 15. After contracting with the County, Benderson nevertheless began soliciting bids from potential subcontractors for work that Benderson had determined would be necessary for the development and construction of the Project,16. Beginning in or around February, 2012, Benderson solicited Dredge to submit a bid for the lake dredging work that was needed in order to make the Project’s lake suitable for anticipated recreational activities and rowing competitions. 17. After reviewing the bid documents, Dredge sent Benderson a list of written questions concerning the proposed use and retention of dredged fine-grained sediments to construct an island in the Project’s lake, Benderson acknowledged and answered these questions in “Addendum #2” to its Request for Proposals. 18. Onorabout May 31, 2012, Benderson and Dredge entered into a Standard Contract for Site Construction (the “Contraet”). ‘The Contract (at Section 8.1) expressly references and incorporates the “Contract Documents,” including without limitation the “Addendum #2” that is referenced in the immediately preceding paragraph of this Petition. (A true and correct copy of “A” and incorporated herein the Contract, including Addendum #2, is attached hereto as Exhibil by reference.) 19, Under the Contract, Dredge agreed to perform dredging services on the Project pursuant to certain specifications and Benderson agreed to pay Dredge $1,646,000.00 for such led in the Contract. services, subject to potential additions and deductions as de 20. Between June 21, 2012 and March 31, 2013, Dredge performed all services required under the Contract. 21. As confirmed by @ third-party analysis of the lake, pursuant to the express requirements of the Contract, Dredge dredged a total of 317,573 cubic yards of material in the course of its work on the Project. 22. In the course of performing its dredging work in the Project’s lake, Dredge experienced significant delays and incurred significant additional expense as a result of thepresence of large quantities of concealed rock in the lake bed, and Dredge promptly notified Benderson of these issues. 23, Pursuant to the express terms and conditions of the Contract, Dredge is entitled to additional compensation from Benderson as a result of having had to work through the concealed rock and having experienced significant delays and incurred significant additional expense in connection with the presence of such concealed rock. 24, Pursuant to its contract with the County, Benderson was required to pay Dredge and other vendors and subcontractors directly for work performed on the Project and the County would later reimburse Benderson upon approval of paid invoices and other records submitted by Benderson. 25. Benderson made several payments to Dredge in connection with Dredge's work on the Project, but has failed to pay Dredge in full for the amounts owed. 26. Afier crediting Benderson for all funds paid to Dredge to date, there remains due and owing to Dredge: (a) the sum of $529,490.97, representing amounts already billed to Benderson but remaining unpaid; and (b) additional compensation in excess of $500,000.00 in connection with the significant delays and additional expense Dredge incurred as a result of the presence of concealed rock in the lake bed. Benderson’s indebtedness in the sum of $529,490.97 is reflected in Dredge’s invoice dated November 18, 2013, a true and correct copy of whieh is it “B" and incorporated herein by reference. The precise amount of attached hereto as Exh Benderson’s indebtedness for additional sums in connection with concealed rock will be determined by Dredge’s proof at trial27. Upon information and belief, the County has already approved a substantial portion of Dredge’s invoices in connection with work that Dredge has completed but for which Dredge has not yet been paid. 28. It is Dredge’s further understanding, upon information and belief, that the County has already disbursed to Benderson significant funds to be distributed to Dredge in connection with work Dredge has completed but for which Dredge has not been paid, 29, Despite Benderson’s receipt of such funds from the County ~ funds that, upon’ the County intended be immediately distributed to Dredge, Benderson has information and bel withheld those funds and refused to distribute them to Dredge. 30. Upon information and belief, Benderson has also received a management fee from the County based upon a percentage of all of the funds the County has disbursed to him for payment to Dredge even though Benderson has not, in fact, paid a substantial portion of those funds to Dredge. 31. Despite Dredge’s repeated demands, Benderson has persisted in its refusal to distribute to Dredge the funds referenced in the immediately preceding paragraphs and has also persisted in its wrongful refusal to pay Dredge the remaining portion of (a) the $529,490.97 and (b) additional compensation in connection with the concealed rock, both of which are still owed to Dredge in connection with its completed work on the Project. 32. Because the County failed to secure from Benderson the required payment and performance bond in connection with the Project, Dredge is unable to proceed against such a bond and, pursuant to Florida law, Dredge is therefore entitled to obtain and enforce an equitable lien against the County. See School Board of Broward County, Florida v. Trane Co., 840 So.2d 1095 (FI. Dist, Ct. App. 2003).33. Pursuant to the Contract, the parties have agreed that any dispute concerning their respective rights and obligations will be govemed by Florida law. (Exhibit A, at Section 9.4.) COUNT I: BREACH OF CONTRACT 34, Dredge incorporates every statement, allegation, and averment set forth in Paragraphs 1- 33, above, as if all such statements, allegations, and averments were set forth fully herein. all terms and conditions of the Contract and is 35. Dredge has fully complied entitled to enforce each and every provision of the Contract. 36. Benderson’s failure and refusal to pay Dredge the full amounts to which Dredge is entitled under the Contract represent clear breaches of the Contract. 37. Asa direct and proximate result of Benderson’s breaches of the Contract, Dredge has incurred (a) damages in the sum of $529,490.97, representing amounts already billed to Benderson but remaining unpaid, and (b) damages in excess of $500,000.00, representing additional compensation owed in connection with the significant delays and additional expense Dredge incurred as @ result of the presence of the concealed rock, and Dredge is entitled to recover ‘those sums from Benderson, as well as prejudgment interest, post-judgment interest, and other relief, 38. Asaconsequence of its failure to obtain from Benderson the required payment and performance bond, the County is likewise liable to Dredge for such damages, interest, and other relief. WHEREFORE, Dredge respectfully requests that the Court enter Judgment under Count I of this Petition in its favor and against Benderson and the County, jointly and severally, for: (1) the sum of five hundred twenty-nine thousand, four hundred ninety dollars and ninety-seven cents($529,490.97); (2) an additional sum in excess of $500,000.00 in connection with the presence of concealed rock; and (3) prejudgment interest, post-judgment interest, and the costs of this action. In addition, Dredge respectfully requests the imposition of an equitable lien against the County in the above-stated sums, and any further Order or relief the Court deems just and proper. COUNT I: QUANTUM MERUIT 39. Dredge incorporates every statement, allegation, and averment set forth in Paragraphs 1- 33, above, as if all such statements, allegations, and averments were set forth fully herein. 40. As detailed above, Dredge provided Benderson and the County a significant benefit, in the form of dredging services performed on the Project. 41. Benderson and the County knowingly assented to, received, and accepted such n the ordinary course of common events, a reasonable person services under circumstances whieh, receiving such services would normally be expected to pay for them, 42. Under the circumstances presented, Benderson and the County have been unjustly enriched at Dredge’s expense and it would be inequitable for Benderson and/or the County to retain the benefit of the services provided by Dredge without paying Dredge the full value of such services. 43. As evidenced by the rates and amounts set forth in the Contract, the fair value of the portion of Dredge’s services which Benderson and the County have knowingly received without compensating Dredge is (a) $529,490.97, representing amounts already billed to Benderson but remaining unpaid, and (b) a sum in excess of $500,000.00, representing additional compensation owed in connection with the significant delays and additional expense Dredge incurred as a result of the presence of the concealed rock,WHEREFORE, Dredge respectfully requests that the Court enter Judgment under Count II of this Petition in its favor and against Benderson and the County, jointly and severally, for: (1) the sum of five hundred twenty-nine thousand, four hundred ninety dollars and ninety-seven cents ($529,490.97); (2) an additional sum in excess of $500,000.00 in connection with the presence of concealed rock; and (3) prejudgment interest, post-judgment interest, and the costs of this action. In addition, Dredge respectfully requests the imposition of an equitable lien against the County in the above-stated sums, and any further Order or relief the Court deems just and proper. COUNT III: PROMISSORY ESTOPPEL 44, Dredge incorporates every statement, allegation, and averment set forth in Paragraphs 1- 33, above, as iffall such statements, allegations, and averments were set forth fully herein, 48. Benderson and/or the County represented to Dredge on one or more occasions that Benderson would pay Dredge in full for its dredging work on the Project in the amounts and at the rates set forth in the Contract. 46. Benderson and/or the County made these representations with the expectation that Dredge would rely upon them, 47. In reliance upon these representations as set forth in the immediately preceding paragraphs, Dredge fully performed and completed the dredging work requested by Benderson and/or the County and dredged a total of 317,573 cubic yards of material in the course of its work. on the Project, working through concealed rock and other unanticipated conditions. 48. Dredge’s reliance upon Benderson’s and/or the County's representations was reasonable under the circumstances.49. Despite Dredge’s performance of all requested and required dredging work in reasonable reliance upon Benderson’s and/or the County's above-referenced representations, Benderson and the County have failed and refused to pay Dredge for its work in full and at the promised rates. 50. Asadirect and proximate result of Benderson’s and the County's failure and refusal to pay Dredge the promised amounts, Dredge has incurred damages (a) in the sum of $529,490.97, representing amounts already billed to Benderson but remaining unpaid, and (b) in excess of $500,000.00, representing additional compensation owed in connection with the significant delays and additional expense Dredge incurred as a result of the presence of the concealed rock. 51. As aconsequence of its failure to obtain from Benderson the required payment and performance bond, the County is likewise liable to Dredge for such damages, interest, and other relief. WHEREFORE, Dredge respectfully requests that the Court enter Judgment under Count III of this Petition in its favor and against Benderson and the County, jointly and severally, for: (1) the sum of five hundred twenty-nine thousand, four hundred ninety dollars and ninety-seven cents ($529,490.97); (2) an additional sum in excess of $500,000.00 in connection with the presence of concealed rock; and (3) prejudgment interest, post-judgment interest, and the costs of this action, In addition, Dredge respectfully requests the imposition of an equitable lien against the County in the above-stated sums, and any further Order or relief the Court deems just and proper.COUNT IV: BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 52. Dredge incorporates every statement, allegation, and averment set forth in Paragraphs 1- 33, above, as if all such statements, allegations, and averments were set forth Tully herein. 53. Under governing Florida law, there is implied in every contract a covenant of good faith and fair dealing intended to protect the contracting parties’ “reasonable expectations.” 54. This covenant of good faith and fair dealing is implied in the Contract and in the parties’ dealings in the above-captioned case. 53. Through Benderson’s acts and omissions as detailed above, including without limitation its failure and refusal to timely pay Dredge in full for the work Dredge performed pursuant to the requirements of the Contract, Benderson has breached its duty of good faith and fair dealing. 56. Asadirect and proximate result of Benderson’s breach of its duty of good faith and fair dealing in connection with the Contract, Dredge has incurred damages (2) in the sum of $529,490.97, representing amounts already billed to Benderson but remaining unpaid, and (b) a sum in excess of $500,000.00, representing additional compensation owed in connection with the significant delays and additional expense Dredge incurred asa result of the presence of the concealed rack. 57. Asaconsequence of its failure to obtain from Benderson the required payment and. performance bond, the County is likewise liable to Dredge for such damages, interest, and other relief.WHEREFORE, Dredge respectfully requests that the Court enter Judgment under Count IV of this Petition in its favor and against Benderson and the County, jointly and severally, for: (1) the sum of five hundred owenty-nine thousand, four hundred ninety dollars and ninety-seven cents ($529,490.97); (2) an additional sum in excess of $500,000.00 in connection with the presence of concealed rock; and (3) prejudgment interest, post-judgment interest, and the costs of this action. In addition, Dredge respectfully requests the imposition of an equitable lien against the County in the above-stated sums, and any further Order or relief the Court deems just and proper. COUNT V: VIOLATION OF THE FLORIDA LOCAL GOVERNMENT PROMPT PAYMENT ACT 58. Dredge incorporates every statement, allegation, and averment set forth in Paragraphs 1- 33, above, as if all such statements, allegations, and averments were set forth fully herein. 59. Pursuant to Florida’s Local Government Prompt Pay Act (the “Aet”), at F.S.A. § 218,735(6), Benderson was required to remit payment to Dredge in the full amount of all funds it received from the County in connection with Dredge’s services and to do so within ten (10) days of having received such funds from the County. 60. In violation of the Act, Benderson has received substantial funds from the County for payment of a portion of the services provided by Dredge but Benderson has failed and refused to timely remit those funds to Dredge. 6l. As adirect and proximate result of Benderson’s violation of the Act, Dredge has incurred damages in the amount of the County funds provided to Benderson for Dredge's benefit but wrongfully withheld by Benderson.62. In addition, the Act mandates, at F.S.A. §218.76(3), an award to Dredge of its attorneys’ fees and costs incurred in this action to recover amounts due under the Act. 63, Asa consequence of its failure to obtain from Benderson the required payment and performance bond, the County is likewise liable to Dredge for such damages, interest, attorneys” fees, costs, and other relief. WHEREFORE, Dredge respectfully requests that the Court enter Judgment under Count st Benderson and the County, jointly and severally, in the V of this Petition in its favor and ag total sum of the County funds provided to Benderson for Dredge’s benefit but wrongfully withheld by Benderson, plus prejudgment interest, post-judgment interest, statutory attorneys’ fees, and the costs of this action, In addition, Dredge respectfully requests the imposition of an equitable lien against the County in connection with such sums, and any further Order or relief the Court deems just and proper. DEMAND FOR JURY TRIAL, Plaintiff hereby demands trial by jury on all issues so triable, Respectfully submitted by: SIVYER BARLOW & WATSON, P.A. s/ Mahlon Barlow. Mahlon Barlow, Esq. Florida Bar No. 0871117 401 E, Jackson Street, #2225 Tampa, FL 33602 Telephone: (813) 221-4242 Email: mbarlow@sbwlegal.com Lead Counsel for Plaintiff‘SEYFERTH BLUMENTHAL & HARRIS LLC isi Bruce A, Moothart Bruce A. Moothart, MO Bar 45517 Kevin J. Karpin, MO Bar 45456 4801 Main Street, Suite 310 Kansas City, MO 64112 Telephone: (816) 756-0700 Facsimile: (816) 756-3700 Email: bruce@sbhlaw.com kevin@sbhlaw.com (Motion Admission for Pro Hac Vice pending)NATHAN BENDERSON AQUATIC NATURE CENTER STANDARD CONTRACT FOR SITE CONSTRUCTION (OWNER — CONTRACTOR AGREEMENT) Provect: _--NATWAN BENDERSON AQUATIC NATURE CENTER Ovens PROJECT NO.’ 1375114 rebate Cowrract Dare: Mev 3i, 2012 22500 HoNone BOULEVARD ‘Serasota, FLORIDA 34235 ‘Owner BENDERSON DEVELOPMENT COMPANY, LLC 570 DELAWARE AVENUE BUFFALO, New Yoak 14202 howe: (716) 886-1100 Fax: " (716) 886-2269 ATTN: Mike DePatesT Conreacror: DREDGE AMERICA, INC Kawsas Crry OFFice 9555 NW Hichway N. ansas Crry, MO 64153, Py, 816.330.3100 Fee 816.330.3103 ATTN: Daw McDoUsa General Construction Scope of Work Summary ‘THE WORK (as dined in Paragraph 14 ofthe General Conditions) Unless otherwise noted includes a! labor, equipment, material, tools, supplies, transporation, temporary construction of every nature, insurance, all sales and consumer use taxes, all fees, management and supervision to complete the flowing construction work as required by the Cortract Documents necessary to consiruct all work for the projecyall necessary submits, as deseribed inthe contractor constuction documents and In accordance withthe construction schedule. Dredging Operations “The work of this contact shal include but shall nat be limited to all the werk Included in the Contraet Documents Mobilization and Contract Closcou Dredging contractor shall provide all required trae contol as well as barricades, fences, barriers, Msshers fe to protect the public from entering the demolitiowconsiuctlon aren. The coniractr shall provie all ‘erosion coriral as required by all regulatory agencies. The dredging contractor must also coordinate his ‘work with that ofthe general Contactor consrveting N. Callleien Road, All equipment must be free of ny potential invasive species (zbra mussels etc). Contractor shall provide, maintain and remove all saniay, water and electrical necessary for their work denn Det Comps LLC Omens Agen i i om 204‘Mechontea! andfar hydraulic dredge us outlined In Tostructions(o Bidders and Audendumdl Dredging contractor shell dredge all material as shown on the Water Resource Plans deted Febraury 10, 2012 using either mechanicel or hydraulic dredging, Placement of dre¢ge spoils shall be only in éesignnied ‘reas shown these plans. Dredging contractor shall be responslele for all instllaion, maintenance and removal of ll eroporary pipelines, seiling basins and placement of materia ‘Soil Stabtization with Sod All acts lsturbed above 19,8 shall be stblzed wih sod in order to etablich slopes and prevention ‘rosin. his doesnot inlue lod aes a ret end off), CLARIFICATIONS AND OWNER FURNISHED ITEMS (All management, coordination and delivery schedules by Contracter) 1, Contractor will only provide barricades forts pertaining to Jessen's Law, open tenches and traic corso, and perimeter construction fence 2. Contractor responsible for al sitework layout, 3. Contactor shall remove and dspose of Wood per on weat side of lke including piles 4. Final elean up by Contractor, 5, Landscaping and frguton beyond sod instalation by Over, 6 Contractor (0 maintsin current as bult drawings ache se and tum over fo Ovenuras requested, 7. All drudged material tobe placed in “Island area" as oullined on Dredging Plans by Waer Resource ‘Assooiates deted 21011 8. Over shal perfarm “pre? and “post bathymetie surveys ofthe lke. These surveys wil estblish final payment quarts, POST BID PREAWARD CLARIFICATIONS INCLUDED IN THIS AGREEMENT 1. Payment tems as deseribed in Article 4 THIS AGREEMENT is mode as of the 22nd day of May, 2012, by and between Dredge Amerion, Ines, 8 Genera! Site Contractor having is principal place of business 1: 9555 NW Highwoy N., Kansas City, MO and Benderson Development Compeny 11.C, n New York corporation with its principal place of business at $70 Delaware Avene, Buffalo, NY 14202 ("Ownes") The terms of his Agreement wil apply to all portions of tie work (as defined ix Paragraph 11.4 of the General Conditions) andl Arete 2 hereof whisk Contraatr wil perfaan in eannection withthe construction of ‘Nathan Benders Aauiic. Nate Center Dredgian.. ‘Therefor, in consideration of Contrutor’s promise 10 perform the work and Owner's promise fo pay forthe same, and in consideration of other mutual prises and obligeiors herelneRer sel fot, the partes, gnc {ntending to be legally boune, do covenant, promise and ogre as fll ARTICLE 1 ‘THE CONTRACT DOCUMENTS. ‘The Contact Docurnents consist of his Agreement, the Conditions ofthe Contract (Gener, Supplementary and ther Conditlons, if ony), the Drawings, the Speifzatons, all dceuments incorpamted by reference as set forh Jn Parograph 1.1.2 of the General Coniticns, al} Addenda issued prior to exscution of this Agreement, oher dovumerts listed inthis Agreement these for the Contac, and ures fll a pet of the Contract as ifatached to this Agreerient or repeated hereln, The Contact represents the entre an Iniograted agreement between the Paties and supersedes prior negotiations, epresentations er agreement, either written or oa. An enumeration Sh Doan Cong; LC Ove Cea Ane Ht El, 2.201 2ofthe Contract Documents, other than modifications, appears in Arle 8. Any referoneo to this Agreement or the Conirat shal be deemed tobe reference tothe Contesct Documents ARTICLE? ‘THE WORK OF THIS CONTRACT ‘Contrector shal execu the enire scope of work described Inthe Contract Documents end identified on the cover page of this Agreemenl, and os hovin in Exhibit "A". ARTICLES DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 43.1 The date of commencement isthe date from which the Conrset Time of Purageaph 3.2 Is measured, The ate of commenecment is June 18, 2012, 3.2. All wark under this contsct i o be substntatly complete by December 28 2012, ifdvected by Owner, oF his designatod representative, Contractor shall ckange the tine of ts performance hereunder in order to malnesin ‘orimprove upon such schedule, 32.1 ‘The Over designates Bria Bernier, as Site Project Supervisor for Benderson Development Conspany LLC. ‘The Projest Supervisor shall serve ns che Owner's prime ‘contaet withthe Contractor. This shall in no way lilt the authority of other members of ‘Owner's staff to inspost, qusslon oF disuse the work a any time with Contractor or Suboontractors oF tir eres. .2.1.la The Prajcet Supervisor acs, us Owner's representative fn adotlsiering the Contec Unless othecwise speed herein, whenever In the Contract Documents there appears ‘reference to the "Owner, tho Project Supervisor shall have the authority asset forth ‘ers, to act for and bind the Over, References in the Contract Documents to the Project Supervisor shall clude such persons as te Project Supervisor may designate in-welting as his representallve for the specific righs, tasks, oct esponsiilies. ‘Tho designated Projet Management Teum for this project will bess flows: Dicer of Site Constnaion; Mike DeP ist (716) 878-9601 ‘© Must approve any cheng orders before the start of work Qasite Project Supsivisoz: Brian Bernler (978) 460-3510 Senior authority on i + Will wt as Director's representative onsite, Proje Supeintendet: TBD + Managss coordialion of ll contactors and thelr employees on a dsily basis 1+ Providesinerpretition of spees plans and deals leld Techaielay Ardaman & Associates Ine. + Brovies technica supporto other projent team members. ‘+ Acts us assistant (o lhe Project Supervisor. eadoeo Dele rnp LC Oven Apt Ht lo 30 3‘Peolsct Boulucer: Water Resource Associates, tre, ‘Acts as design Professional representing Owner Develops, provides enginering design. © Manages coordination of and provides dminfsration oF ll dasiga documents ‘required execute the work Le, drawings, specs, detuls and engineering ‘ncluing but not nite to Slework. + As Owner represeniatve, regarding compliance review of design and afl state ot Iocal code andor municipal requirements, ‘+ Will inspect the work for qually and eonformance withthe Contract Documents. + Manages review and approval of all sclated design submittals and/or substiutions, 3.2.1. The Projet Supervisor is authorized 1 halt whe work al his disereton, His nome shal be known by Contractor to all persons involved in the work so that he may exercise his authority. No other person representing Owner may halt work unless obvious signs of derger ta lifer propeny ate believed vo exist. Contractar will not be ented to any relief for time lost de to a properly dered cessation of wark where the cause ‘was 1 flue 10 observe the provislons of O.S.H.A. and other governmental regulations. 3.2.L.t6 All equests for payment shall be processed tough the Project Supervisor. 3:2.té The Projeet Supervisor shall stall times have access fo the work whenever itis in proparuton and progress, Conlrator shall provide facies for such ecess so the Profel Supervisor may perfonnfuneilons unr the Contret Documents, 32.Le Based on she Project Supervisor's observations ard an evaluation of Contractor's Application for Payment, Ieluding any information eoncoming fllure v0 pay any Subcontractors, Ue Project Supervisor will determine the amounis owing. the ‘Contricioe and wil authorize payment of such emouns, as provide in Anite 5 32,1.1F The Projeat Supervisor with assistance of Enginesr willbe the inital Interpreter ofthe Fequirements ofthe Contact Dosuments and te judge of the performaneo thereunder by Contractor. 2.Nelg The Project Supervisor wil have authority lo reject work which is defective ar whit docs not conferm to the Contact Decuments. Whenever the Projeet Supervisor considers it necessiry or advisable for the implementation of the Intent of the Contract Documents, he will nave the authority to require specia! inspection or testing ‘ofthe work. 32. ].Ah The Project Supervisor will eondve Inspeciions to determine the date of Substantial Completion and will eccive and review writen warantics and related documents ‘oquired by te Coral an tssembled by the Contactar, and the Project Supervisor I authorize fine payment upon complianee with the requirements of Article 6, 33. THE PARTIES AGREE THAT TIME IS OP THE ESSENCE OF THIS AGREEMENT AND THAT IN TH EVENT SUBSTANTIAL COMPLETION OF THE WORK IS DELAYED BEYOND THE DATE ESTABLISHED THEREFOR [N THE CONTRACT DOCUMENTS, OWNER WILL SUFFER HARM AND DAMAGE WHICH WOULD BE IMPRACTICAL PRECISELY TO ASSESS OR COMPUTE. ACCORDINGLY, THE PARTIES HAVE BARGAINED AND AGREE THAT AS LIQUIDATED DAMAGES, AND NOT AS A PENALTY, OWNER SHALL BE ENTITLED TO PAYMENT BY CONTRACTOR OF $0.00 PER DAY FOR EACH DAY THAT SUBSTANTIAL COMPLETION OF lesen Deh Cn LE Cte gene Ha Ei. 20 4‘THE WORK IS UNEXCUSABLY DELAYED BEYOND THE DATE FOR SUBSTANTIAL COMPLETION SET FORTH IN PARAGRAPH 3.2. OWNER MAY OFFSET ANY LIQUIDATED DAMAGES OWED BY ‘CONTRACTOR HEREUNDER AGAINST ANY AMOUNTS OWING FROM OWNER TO CONTRACTOR. ARTICLE 4 CONTRACT SUM 4.1. Owner shall pay to Contretor in current funds for Contactors performance of the Coniteet the Contact Sum of One Millon Dollars and Zero Cents ($1,646,000,00), subeet to additions and deductions es provided in the Contrast Documents. 42 The Contract Sum is basedimodified by the following alternates, any, which are described fn the Contract Documens fisted below and are hereby approved/dsapproved as ned by Over (Include cost of any bonds, feqpired by the Bidding Documents): NA 43 The Comract Sum i based upon the following Schedule of Values for the following elements oF he work: See Bxhibit'“Am" 4.4 Unit prices, itany, areas follows: ‘See Exhibit “B” 4.5 Altemate pring, ifeny, ure ws follows: ‘Seo Exhibit *B" 46 Time and mera rates, iCany, are as follows: NA ARTICLES PROGRESS PAYMENTS 5.1, Based upon Applications for Payment submited by Conacior and approved by the Owner, Owner shall ‘rake progress payments on account ofthe Conract Sum to Cantctor ws provided below and tt Article 9 ofthe General Conditions, Sule At least fve (5) days before the date for each progress payment established in this Agreement, Contractor shall submit 10 the Over an itemized Applietion for Payinent bused upon the Schedule of| Values whieh Is consistent with Paragraph 43, furher described In Paragriph92 of the General Conditions and in the foam requlred by Subpargraph 9.2.2 ofthe General Conditions, supported by such data substantiating Contracta’'s righ o payment and reflecting retalnage, if any, es provided elsewhere in ‘he Contract Documents. Appliemons fr Payment most include achustments (adds or dedues) to the Cantnct Sum, resulting am work performed under approved Change Orders (apecfied under Aniole 7 oF the General Conditions) and shall be shown separately on the Application for Payment. Contactor shall provide a Puntal Waiver of Lien signed by Contractor and each Subcomtriior and Sub-subeaniractor ‘warranting that tle fo ell work and prodvet covered by the Application for Payrnent will pass to Owner cither by ineorporaion into ihe work or upon receipt of payment by Contractor, whichever oceurs fist, {re und slea of aliens, elms, seewty Imerests or encumbrances, and thal mo work oF praduel covered bey an Application for Payraen will have been aequired by Contractor or by any ager person performing ‘work at the site or furnishing product for the Project, sutJeet 10 an agrcement under which an interest nnn Dept apa AC Denon Mt Ele 281 5‘herein or an encumbrance hereon is relsined by the seller or otherwise imposed by Contnctor or such other person, Applications for Payment shall indicate the percentage of eompletton of och portion of the ‘work as ofthe end of the geriod covered by the Applica for Paymsn. 5:2, The priod covered by each Application for Payment shal be 30 days rennin fom the frst day ofa month so the thirtieth day of the same month, fe cenit {53 Aer the Oviner has uthrized payment, Ona sal mice such paynent ws flows: 3311 Payment is due 30 days after dale of lnvlee, 10% retention Wil be Held an all work performed ‘until substantial completion, 5.3.2 Provided the work then is flly completed and necepted by Owner and the Contact fully performed, Ovrmer shall make a final payment of the entre Balance due Contractor thirty (30) days after Substanal Completion of the work, The bsis for payinent shal boas Wescxibedin Arik 6, 5.33. Applications snd Recommendations for Payment shall be notarized oF otherwise ected as 10 authenticity of signature by a person duly authorizod or licensed for such purpate in the slate Where the jobsite is located. 5.34 Upoa recelgt of payment from Owner, Conrcior salt promptly pay each Subcontrator out of the ‘amount paid to Contrecior ca account of such Subcontmictors work, the moun to which the Subcontractor Is ented reflecting the pescentage actually retained, If ony, fram payments to Contractor ‘on account of such Subeontractors work, By an appropriate writen agreement with each Subcontractor, ‘Contractor shall require exch Subcontractor lo make payments 1 his Sub-subcontractrs in simile manne Contniclor shal use ail payments to slisty indebtedness to any person funishing labor or materas for use in performing the work before such paymerts, or any portion thereof, ae used in any other mane. 5.4.8 No authortation or payment of any progress payment, nor ay panial or elie use or occupancy of ihe Projeet by Ovmer or any afte of Owner shall eonstte aeceptaec of any work not In ascordonce ‘withthe Contract Documents ARTICLE 6 PINAL PAYMENT inal payment, consttting (he enti unpaid balanee of the Contrast Sum, sll be made by Owner to Contractor 15 provided below and inthe General Conditions, 6.1 Flowing Substantial Completion of the work, Contractor shall forward to the Ovmer Gi written notes that ‘the work Is ready for Maal Inspection and aezeptanse and (final Application for Payment, When the Owner finds the work acceptable under the Contrast Documents sd the Contract fully performed, he wil approve end recommend final payment to Contractor. 62. Nelther the Mnal payment nor the remaining reainnge shall become due util Canteactor submits to the ‘Owner (1) an affidavit that ell payrolls, bills for product and ether Indebtedness connected with the work for which Owner or any afflste or any of thelr property might {9 any vay be responsible, have been pald oF oheswise satisfied, (2) other data establishing payment or sasfaction ofall such obligations, such us roeers bad releases, arising out of the Contract, to the extent and in such form a8 may be designated by Ovme.Lien Relenses by all subcontractors and conraciors, 63. Nether the final payment nor the remalning retelnage shall become de unl the following have eeeurred (@) acecplanes ofthe Wark by Owner as fully perfonned under the tenws of the Contract Docurnents (0) labor tnd material payments bond reqelrements under the Covsract Documents have been furnished and completed enzo ebpsen Cnsiy, Le anasto Agen Fi ii 01 6ond ell eccounts for extra work, prot, and allowances for omissions have boon rendered, aucted, ond sgreed ‘o and incorporated in such recommendation (e) Contractor shall have submitted, on forms provides by Owner, ‘and Owner shall have approved Contractors ané each Suboantuclar and Sub-seontracor Welver an Release Of Liens on the form provided ty Owner; (d) Owner shall have approved Contractors submission, on a form ‘ccepiable to Owner, ofthe written consent of Contractor's surly, i ay, for final payment; (e) submission of all warintes and guarantees required by the Contract Documents; (f) submission of all three copies. of ‘Maintenance Manuals in ting binders (2) completion an sign-fT by ower of puneilst and (h) submission of Project Record Doeurtontss required, ARTICLE? ‘TERMINATION OR SUSPENSION TA The Contras ray be ter Conditions. ied by Owner or Coniracer a8 provided In Anticle 14 of the General 7.2 The work may be suspended by Oviner as provided in Ancle 14.2.3 of the General Conditions. ARTICLES ENUMERATION OF CONTRACT DOCUMENTS 8,1 The Contract Documents, except for modifications issued afer exceution of this Agreement, re enurmernted es follows: B.L:L The Agreement Is this exeeuted Standard Contract for Constnction, 41.2. The General Condltions are the Benderson Development Compary, LLC. Standard Genera Conditions ofthe Contract for Construction, updated April 4, 2008, 8.1.3 The other Conditions ofthe Contract are thase contsine inthe Profect Bid Package for dreding, doled Febraury 24, 2012 and Leter of tent Doted April 30,2012, 8.14 The Spectienions are thate provided by Ardaman & Astosiates, Ine dated 2/19/12, 8.15 The drawings are as enumerated onthe Lls of Drawings and Dates, as listed inthe id projeot manual 8.1.6 The Addenda, IPary, areas follows: Addendum 8! dated 3/19/12 and Addendum #2 dated 3/29/12, 7 Other documents, ifany, which ate pet ofthe Contre Documen's, reas fellows ARTICLES GENERAL PROVISIONS 9.1 Where reference is mad In this Agresment to « provision af the General Conétlons or another Contrast Docunien, the reference refers to that provision as umsended of supplemented by other provisions of the Contact. Documents, Any ten not defined hereln shall have the meaning, se forth in the olher Contract Documents, enon Daren Com LLC Owner rene Mt Bi. J 206 19.2 Contactor represcos tbat it has fitisrized iiss withthe nature andl extent of the Contact Documents, work, site, lealty, snd all focal conditions and Laws and Regulatlons that in any enter may ates! eas, progress, schodled completion, performance o: fumishing ofthe work 93. Owner and Contractor each binds itself its partners, successors, assigns and legal representatives tothe other party hercio, its parners, successors, asigns and logal representatives In respect of all covenants, ‘Agreements und obligations contained in the Conimet Documents. ‘94 “This Agroement shall be construed nd enforced in accoxdance withthe Inws ofthe Slate of Floride, 9.5 Contractor eprees that: ‘A. Aay lege process or notice connested with eny litigation may be served on a pasty by United States registered mall, postage prepaid, adresse to such purty a is addess stated in thi Agreement or ft the address stated in this Agreement for the furisbing of nodces to such pany oF ot ts last ‘known uddess, and thal sevice in such mznner shell eonstute good and valid service of process. 1 This Agreement may be prosenied in court as conclusive evidense of the foregoing agreement, 96 Iany provision ofthe Contrast Documents becomes os declared by a court af competent frisdctlon o be legal, unenforceatie or void, the Contract Documents shall contin in ful Force and effect without said provision, IN WITNESS WHEREOF, Owner and Coniroetor have signed this Agreement in plete, One counterpart bas been delivered to Contactor BENDERSON DEVELOPMENT LLC DREDGE AMERICA, INC. at »_ hd Presdec] (ACKNOWLEDGEMENT OF CONTRACTOR, IF A PARTNERSHIP) Seaton Ben Comp LLC Onn eae Agena Fl He. 2 8STATE OF Flortigh. COUNTY oF/ghe ono Doyo TUNE an Aictreaepenenaiyeme Mike Defrost tw me Key and knox to mie tbe te sam person whe execute he faragoing Contact as soch ak, dt th «ly ackowhedged fo ro that ho oxceted the sug pursue ote power mhorty vested fn ins by. 8 leap nel isd ht his signature fs 0 axed Notary Public ote. uv oowussinn ennai |. (ORES. FB 2014. ent ov stone (ACKNOWLED ENT OF CONTRACTOR. IF A CORPORATION) smareor MO_» a, 88 county or ac Koy 2012 bore pray cue apd wpetred oni’ uayar Mn 1G haa win boty oy sa i pos ae Ba be Sig SSS A the nis Md: ti had bei the Bredidcua of eS ne ‘he Gomparaion deseribud! in and ‘vile ekeedte ie forgoing estanunt tha he knows the seal af aid poporatin, tha one ofthe seals alfye wo sa inset s such sal that Leas so eff xe by one of tho dvejors of sail earportto, an that he signed his nme thereto by lke order. Segarra hers SierTaN ELTON NoTABY PUBIEROTARY BEA. ‘Srareormssaunt TIAGASON SOUNTY (ou zsHeet cou extinee 02018 [Notary Public Goan eapnt cua ino ene He a J 4(ACKNOWLEDGEMENT OF CONTRACTOR, Ir ANINDIVIDUAL) STATE OF. ) ‘COUNTY OF Sea On tis __ day of, 201, beta toe persoelly acme and appeared {fe eno end kown tome tobe the person desedbed in und who exsoued the ‘ezogoing tsirucent and acknowledged thet ho exexatd tho sane. Goal) ‘Notary Publio (ACKNOWLEDGEMENT OF OWNER) STATROR ) ss: cOUNTYOR) On sis__ day of 201_, befor te persorally ene er appeared fase oom, ng hye ly every opr en ny hei and hal o_o Benferaun Development LLC the ccxpomtion overbed nnd which cexonited the forogohg lnnnicenl mad chatheslgned ble aoe thereto by ordar af fe bout of rectors of sed ceorporation, Noteey ann Dero Gey, Cesta Pst in, 29) 10-Nathan Benderson Park Aquatic Nature Center Sarasota, Fl DREDGING SPECIFICATIONS FOR Benderson Development Co. LLC PROJECT NO. 1375J18c 1.04 1.08 1.06 PUMPING OF BILGES: Contractor is warned that pumping oll or bigo water containing oll into navigable waters, or Into areas which would permit the oll to flow into such waters, 18 prohibted by Section 13 of the River and Harbor Act of 1899, approved March 3, 1899 (30 stat. 1182; 33 U.S.C. 407), Violation ofthis prohibition Is subject to the penalties under the referenced acts. DISCOVERY OF HISTORICAL ARTIFACTS ‘A. Ifany artifact, or other objects of antquly that have sciantie or historical valve, or are of interest to the publ, are discovered, located, andlor recovered, the Contractor acknowledges that 4. The site(s) articles, or other materials are the property of the stata of Florida, with the thle vested in the department of state, division of historic resource; and that, 2 He will immediately notify the Engineer. MATERIAL TO BE REMOVED ‘A. Gonerally the material to be removed Is sil, sand, and clay. If dredging acthities in the vicily ofthe project encounter notable debris andfor trash In the dredging sodiments, separation, removal, and disposal shall be In accordance with all applicable Federal, State, and local regulations. B, Quantity of Material: The material shall be removed to the minimum tis indicatod on the drawings. Surveys wil bo required to verty that removal to the Indicated timits has been accomplished. The total estimated amount of matorial to be romoved from within the spectied limits, including side slopes is estimated ‘and indicated on the Bld Proposal. ‘The Owner doos nt guarantee the accuracy of the estimated quantty. The actual payable quantity will be determined by pro and post dredge surveys, ©. Qvordepth Drodaing: To cover unavoldable Inaccuractes of dredging processes, Material should be romoved up to a maximum depth of 2.0 foot below the minimum required dredge depth indicated, specified and within the dredging limits, Contractor shall use its best efforts to achlove dredging to the full ovar~ ddopth.No payment will be made for dredging outside the pay prism lrits or balow the overdredge mt, D. Goverage Area: Dredging, a8 a minimum, shall cover the area as shown on the pans to the contour line 2-foot below the minimum specified dredge depth of 18.0 feet, E, Side Slones: Dredging on side slopes shall follow, as closely as practicable, the lines indicated or specified, 2.0 foot allowance will be made for dredging below ‘he Indicated or specified side slopes, éxcept as provided herain, F, Sloughing: All dredge areas, except for sideslopes, are to be ‘box cut in nature, ‘The Contractor shall realze and anticipate that thers wil be sioughing of ‘materials on side slopes, The Contractor shall be responsible for removal of such materlals as well as the removal of any matorial that has migrated from outside the dredging limits nto dredge area at no additional cost to the Ovmer. ‘The Contractor shall also be responsible for removal of any materials he dapost's ‘outside the required dredging limits at no addkonat cost to the Owner.1.07 PERMITS: The Contractor shall comply with conditions and requirements of tho Comps of Engineers Permit and other State or Federal permits. The Owner has oblainad, or is obtaining, the permit for dredging and disposal of material 2s Indicated, Make arrangements wlth the Engineer for the placement of excavated rmaterlals on the Island, 2, ENVIRONMENTAL PROTECTION REQUIREMENTS: Provide and maintain during the life of the contract, environmental protectve measures. Provide environmental protective measures required to correct conditions, such as oll spils or debris, which ‘occur during the dredging operations, “Comply with Federal, Sla‘e, and local regulations. pertaining to water, alt, and nolse pollution, a8 wel as, turbidty testing, monitoring and feporting, 3, EXECUTION 3.01 3.02 INSPECTION: Inspect the work, keep records of work performed, and ensure that gages, targets, ranges, and othar markers are in place and usable for the Intended Purpose, Furnish, at the request of the Engineer, boats, boatmen, laborers, and materials necassary for Inspecting, supervising, and surveying the work. When required, provide transportetion for the Engineer and Inspectors to and from the disposal area and betwoan the dredging barges and adjacent points on shore. CONDUCT OF DREDGING WORK A, Order Of Work ~ The Engineer will approve the Contractor's order of work, The Engineer reserves the right to change the order of work at any time in the best interest of the project, The Contractor shal consider these constraints in establishing the project schedule, 8. Ranges, Gages. and Lines: Fumi, sol, and mainteln ranges, buoys, and markers needed to define the work and to Yaclitste Inspection, Establish and maintain gages in locatlons observable from each part of the work so that the depth may be determined. Suspend dredging when the gages or ranges cannot be seen of folowed. C. Plant: Matntain the plant, scows, coamings, barges, and associated equipment {o meet the requirements of the work. D. Work ares: The Contractor will be permitted to exclude the publ from the work areas In the Immediate vidnty of his dredging, transporting, and disposal ‘operations. The Contractor shall prevent pubic access to the disposal area, Enforcement shall bo the Contractor's responsiblity at no additional cost to the Owner. The enforcement shall be coordinated with local enforcement agencies, and wil be subject to approval of the Engineer, 41. Access: The Contractor shall be responsible for providing and maintaining ‘access necessary for his equipment and plant to and ffom the work sit, mooring ares, and disposal area. The Contractor shall ascertan the erwironmental conditions which can affect the access such as climate, ‘winds, currents, waves, depths, shoaling, and scouring tendencies 2, Protection of Existing Waleways: The Contractor shall conduct his Operations In such a manner thet material or other debris ere not pushed Outside of dredging tints or otherwise deposited in existing side channels, basins, docking areas, or other ateas being utlized by vessels. Tho Contractor wil be required to change his method of operations as may be Tequlred to comply with the above requirements. Shou any bottom‘material or other debris be pushed into areas described above, as a recult of the Contractors operations, the same must be promptly removed by and at the expense of the Contractor {othe satisfaction of the Engineer, 3. Aalacent Prozerty and Stuctures: Any damage to private or publc property or structures resulting from the disposal or dredging operations: Shell be repalred immediately by the Contractor at his expense. Any damage to structures as a result of the Contractor's negligence will resutt in. Suspension of dredging and require prompt repair at the Contractor's fexpence as a preteauete tothe resumption of dradglng. 4. Subaqueous Gable Crossings: The Contractor shall be responsible for veritying the locations and depths of all utilly crossings and teke precautions egainst damages which might result from his operations, especially the sinking of dredge spuds andior anchors into the channel bottom, In the vient of utlty crossings. If any damage occurs as @ result efi operalons, the Coniractor willbe required to suspend dredging unt the damage is repaired and approved by the Engineer. Costs of such repairs and downtime of the dredge and attendant plant shall be at the Contractor's expense. 8. Turbidity: |. The Contractor shalt comply with turbidity requirements at each dredge plant. Contracior shall submit iis water quality monitoring plan for approval prior to starting werk. As a minimum the Contractors plan shall Include performing turbllty analysis before start of work each day ‘and every four hours thereafter during dredging. Background turbidity readings shall be taken 4,000 feet up current ofthe dredge, and every four hours thereafter readings shall be taken 200 feet downstream of the dredge. Every four houts turbcity readings shall be teken at the discharge weir ofthe lake, Turbldty readings shall be recorded in a 4og with the date, time and location so noted. The cost of ths turbidity monitoring and’ analysis sample is covered as part of the Environmental Protection Pay item in the Bid Proposal. form. Contractor will do one or more ofthe fotowing to reduce turbidity levels, if at any time the downstream readings. exceed the upstream background reading by more then Q NTU's and/or any time the readings at the aiscnarce weir are above the background reading: ‘© Change to an environmental bucket with a closed i, ‘© Deploy turbidity screen around the point of dredging. + Reduce the dredge operator's cycle time on mechanical dredging. |.Contractor shall furnish Authotity a copy of the turbldlty log at the end cof each work week, The log shall be accompanied by Contractor's dally log which wil document the dally dredge work actives and any down tines and reasons for same, Contractor shall assist Authority with preparing credge activities report to Florida Department of Environmental Protection. This report will include dally tirbdity resuts and results of monthy testing of water quality for metals and toxic Contaminants. Contractor's work to take samples for monthly testing of metals and toxic contaminants is covered under the Environmental Protection Pay Item in the Bid Proposal form. Cost of laboratory testing Is compansable under the Gonoral Allowance Item for "Laboratory Testing’. E, Disposal of Excavated Matetial - Provide for safe transportation and disposal of ‘dredged materials, at the disposal site, Water and dredge material shail not be