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11-2021-CA-002647-0001-XX
Filing # 138354442 E-Filed 11/11/2021 12:56:23 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN
AND FOR COLLIER COUNTY, FLORIDA
WPM-SOUTHERN, LLC,
a Florida limited liability company,
Plaintiff, CIVIL ACTION
vs. CASE NO.
GATES GROUP, LLC, D/B/A GATES CONSTRUCTION
a Florida limited liability company,
UNITED STATES FIRE INSURANCE COMPANY, INC.,
a Foreign Corporation.
Defendants,
/
COMPLAINT
Plaintiff, WPM-SOUTHERN, LLC, (herein referred to as “WPM”) sues Defendants,
GATES GROUP, LLC D/B/A GATES CONSTRUCTION,, (herein referred to as “Gates” and
UNITED STATES FIRE INSURANCE COMPANY, (herein referred to as “United”) and alleges
that it is entitled to relief upon the following facts:
JURISDICTION, VENUE, AND PARTIES
1. This is an action for damages that exceeds $30,000.00 in Collier County, Florida.
2. Jurisdiction is proper because the events occurred in Collier County, Florida.
3. Venue is appropriate in this Court because the subject property is located in Collier County,
Florida.
4. Atall times, Plaintiff, WPM-SOUTHERN, LLC, was a Florida Limited Liability Company
authorized to do business in the state of Florida.
5. Atall times herein, Defendant, GATES GROUP, LLC D/B/A GATES CONSTRUCTION,
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 11/11/2021 12:56:23 PMwas a Florida Limited Liability Company authorized to do business in the State of Florida.
6. At all times herein, Defendant, UNITED STATES FIRE INSURANCE COMPANY is a
foreign corporation authorized to do business in the State of Florida.
COUNT 1~ CLAIM ON BOND
7. WPM alleges and incorporates the allegations set forth in paragraphs 1 and 6 above as if
fully set forth herein.
8. This is an action against Defendant, UNITED STATES FIRE INSURANCE COMPANY,
INC., for the Claim on the Bond.
9. On or about August 27", 2019, Plaintiff, WPM, entered into an agreement with Defendant
Gates for improvements on Marco Island Academy Charter High School real property in
Collier County. Exhibit “A”
10. On November 6%, 2021 Plaintiff filed a Claim of Lien. Exhibit “B”
11. On or about April 1%, 2021 Plaintiff's Claim of Lien was secured by a Surety Bond per The
Collier County Clerk of Courts. Exhibit “C”
12. In connection therewith and pursuant to §713.23, Florida Statute, Defendant, GATES, as
principal, and Defendant, UNITED STATES FIRE COMPANY, INC., as surety, executed
and delivered a lien transfer bond for said improvements to the Marco Island Academy
Charter High School.
13. Plaintiff, WPM, first date of work furnishing material and labor incorporated on the site
was April 1%, 2020.
14. Plaintiff's last work or furnishing materials under the order was on September 16%, 2021.
15. Plaintiffhas performed all duties, conditions precedent to payment, and statutory requisites
prior to breach by the Defendants.16. Defendants have failed to pay Plaintiff in breach of the condition of Exhibit “C”.
17. Plaintiff has been caused to retain counsel to maintain this action and has been obligated
to pay reasonable attorney fees, pursuant to Fla. Stat. 713 et al.
WHEREFORE, Plaintiff demands judgment for damages jointly and severally against the
Defendants, plus attorney fees, interest and costs.
COUNT I —- BREACH OF CONTRACT - GATES GROUP, LLC
18. This is an action against Defendant, GATES for Breach of Contract.
19, Plaintiff, WPM, alleges and incorporates the allegations set forth in paragraphs 1 through
18 above as if fully set forth herein.
20. On or about August 27", 2019, Plaintiff, WPM, entered into an agreement with Defendant
Gates for improvements on Marco Island Academy Charter High School real property in
Collier County. Exhibit “A”.
21, WPM has fully performed under the contract by providing labor and materials of
earthwork, utilities, storm drainage, asphalt and site concrete work and other construction
at GATE’S request and rendering the invoices requesting payment for the labor and
material of earthwork, utilities, storm drainage, asphalt and site concrete work and other
construction pursuant to the terms of the Agreement.
22. WPM has been damaged by GATES’S breach.
23. GATES owes WPM in the amount of $182,697.14 for the labor and materials regarding
earthwork, utilities, storm drainage, asphalt and site concrete work and other construction
work performed by WPM. Defendant owes in total to Plaintiff $182,697.14 and by which
is due with interest accruing at the statutory interest rate.24. The terms of the Agreement provide that WPM is entitled to recover its reasonable
attorney’s fees and costs from GATES.
WHEREFORE, Plaintiff WPM demands judgment against GATES for damages, including
prejudgment interest and court costs pursuant to the terms of the contract.
COUNT Il - UNJUST ENRICHMENT.
GATES — PLED IN THE ALTERNATIVE
25. This is an action against GATES for Unjust Enrichment.
26. WPM alleges and incorporates the allegations set forth in paragraphs 1 and 25 above as if
fully set forth herein.
27. Prior to the institution of this action, WPM, provided GATES with labor and materials
regarding earthwork, utilities, storm drainage, asphalt and site concrete and other
construction with the intention that WPM be compensated for rendering such services.
28. Although GATES has accepted the labor and materials of electrical work and other
construction so rendered to it by WPM, GATES has failed and refused to pay WPM for
such services.
29. The reasonable value of the labor and materials of electrical work and other construction
provided to GATES, by WPM and accepted by GATES equals or exceeds the sum of
$182,697.14.
30. Unless GATES is required by this Court to pay the entire remaining unpaid balance to
WPM, GATES will be unjustly enriched.
WHEREFORE, WPM demands judgment for damages against GATES on the principal
amount of $182,697.14 together with interest, costs, and for such further and other relief as this
Court deems just and proper.DEMAND FOR JURY TRIAL
COMES NOW, the Plaintiff, WPM, by and through its undersigned attorney, and pursuant
to Rule 1.430 (d), Rules of Civil Procedure, makes this its demand for trial by jury of any issues
triable by right of jury.
Dated: November 11", 2021.
MICHAEL F. KAYUSA, ESQUIRE
Attomey for Plaintiff
Post Office Box 2237
Fort Myers, Florida 33902
(239) 334-8200
(239) 334-2899 fax
mfk@mfkayusa.com
By:_/s/ Michael F. Kayusa
Michael F. Kayusa
Florida Bar No. 472433GAT=S
www.GATESinc.com
‘WPM, Inc
Supplier / Subcontractor: 4391 Colonial Blvd, Suite 105
Ft Myers, Fi 33966
(810)869-5377 Cell
Project Name and Location : Marco Island Charter Academy
SDP/DO:
Permit Number:
Project Manager:
Project Coordinator:
Superintendent:
2255 San Marco Road
Marco Island, FL 34145
# = SIT-19-02738
# COMM-19-06850
Contract Execution:
Olnitial each page of the contract
Complete Exhibit A.1 and A.2 (Contract will not be fully executed until these items are completed)
C)Return one (1) contract to the GATES Office for our signature. One (1) fully executed contract will be
returned to you.
Oo
oO
Prior to Commencement of Work:
C1Forward (1) hardcopy & (1) electronic copy of "Job Specific’ SDS/MSDS to the Project Coordinator
CForward electronic copies of submittals and/or samples to the Project Coordinator (listed below)
Prior to First Payment:
DAI of the above must be completed.
Prior to Final Payment:
(CFonward four Operation Manuals and maintenance Manuals to the Project Coordinator.
(Forward all Warranties (Product warranties and your Subcontractor warranty) to the Project Coordinator.
CForward all your As-Built Drawings to the Project Coordinator.
(Forward (1) CD containing all the above closeout documents
DAs part of the waiver of lien process (both interim and final) associated with this project, the Owner may
require that only orginal waivers of lien rights are acceptable - not copies. If the Owner indicates that
original waivers are required, payments to subcontracors will not be made until original waivers are
received at our office. This includes original waivers of lien for the subcontractor, all suppliers and
subcontractors who are working under the primary subcontractor.
David Greenblatt
Wayne Herbert {: (239)240-9563
EXHIBIT
yGAT=S
Contract Date :
‘Supplier / Subcontractor - (sup/sub) :
Project Name and Location :
Scope of Work:
Schedule of Values:
Wage/Rate Sheet:
Plans and Specifications :
Schedule :
GATES Safety Plan =
Contract Price :
CONTRACTOR AND SUPPLIERS / SUBCONTRACTORS (SUP/SUB) AGREE TO ALL TERMS AND CONDITIONS OF THIS
GATES Construction
General Contractors CGC1527296
Telephone : (239)593-3777
Fax : (239) 593-3477
27599 Riverview Center Blvd, Suite 205
Bonita Springs, Fl 34134
www.GATESinc.com
February 26, 2020
WPM, Inc
4391 Colonial Blvd, Suite 105
Ft Myers, F133966
(810)869-5377 Cell
Marco Island Charter Academy
2255 San Marco Road
Marco Island, FL 34148
SEE EXHIBIT" A"
SEE EXHIBIT" At"
SEE EXHIBIT" A.2"
SEE EXHIBIT" B"
SEE EXHIBIT" C"
SEE EXHIBIT" D“
$788,900.00
PURCHASE ORDER / CONTRACT ON THE DATE(S) INDICATED. (Signed and dated below)
ALL TERMS AND CONDITIONS ON THIS PAGE AND THE FOLLOWING PAGES ARE PART OF THIS PURCHASE ORDER / CONTRACT
AND ARE ACCEPTED AS SUCH.
GENERAL CONTRACTOR :
‘Supplier / Subcontractor - (sup/sub) :
GATES USE ONLY :
Job No. GG19-020
Code No. 02203
SIGNATURE :
PRINT NAME : David Greenblatt
TITLE: Project Manager
DATE:
SIGNATURE :
PRINT NAME :
TITLE =
DATE:WARRANTY AGREEMENT
| (Undersigned Party) and duly authorized agent hereby warranty all work.
By: WPM, Inc
Project: Marco Island Charter Academy
All work to be free from defects in materials and workmanship for a period of ONE (1) YEAR
FROM THE DATE OF SUBSTANTIAL COMPLETION, in accordance with Florida Statutes,
The undersigned parties further agree that they will, at their own expense, repair and
replace all such defective work and all other work damaged thereby during the term of this
Warranty.
are the requirements of the general conditions and specifications under which the contract
or sub-contract, was let, that this warranty would be given.
or sub-contract, was let, that such warranty would be given.
This Warranty does not apply to work, which has been abused, neglected or not maintain:
by the Owner, or its assignees.
the Owner, or its assignees.
DATED: WPM, Inc
BY:
State of Florida
County of
, Personally appeared before
methis___ day of 20__. He is personally known to me.
Notary:
My Commission Expires:
(CORPORATE SEAL)THIS CONTRACT IS SUBJECT TO THE FOLLOWING TERMS:
ARTICLE I PAYMENT:
§1.1 TIME FOR MAKING PAYMENT: Contractor will pay to Sup/sub for the work completed by the Sup/sub
during the previous month (as estimated by Contractor), subject to the Conditions Precedent to Payment set forth below in §1.2, less 10%
retainage if this Contract includes labor performed at the site; provided that the Sup/sub shall furnish to Contractor on or before the 23rd
day of the previous month, an application for payment with the Sup/sub's estimate of the work completed through the end of the month.
The final determination of the work completed for any given month shall be made by Contractor in its reasonable discretion. The amount
of any payment due for work completed shall be determined using the Wage/Pay Rate Sheet attached hereto as Exhibit A.2. Such
determination shall be recorded in the form of Exhibit A.1 attached hereto. Material stored on or off-site is not considered completed work
unless other arrangements have been made. Invoices will not be acceptable and billing must be on Contractor's form. Any changes that
affect the Contract amount will be changes to the Contract and billed on the application of payment, not on a separate invoice. The balance
of the payment due will be made after completion of all work and final acceptance of the work by the Owner, Architect and/or Contractor
and payment therefore by the Owner.
§1.2 CONDITIONS PRECEDENT TO PAYMENT: All payments hereunder shall be conditioned upon the
Sup/sub complying with the requirements of this Contract and all requirements of applicable law (including without limitations requirements
of Mechanic's/Construction Lien Law as well as federal, state and local laws, ordinances, rules and regulations that in any manner may
affect costs, progress or performance of the Work). Without limiting the foregoing, it is specifically agreed and understood that the following
shall serve as absolute conditions precedent to Sup/sub's right and entitlement to receive payment for labor, materials or services, or
applicable portions thereof, furnished under this Contract:
(a) Owner's payment to Contractor for labor, materials or services, or applicable portions thereof, within
the scope of this Contract; Contractor shall have no obligation to pay Sub/sub for work properly completed unless and
until Contractor receives payment therefore from Owner. Sup/sub knowingly accepts the risk of non-payment by Owner
for Sub/sub’s work.
(b) Sup/sub providing all necessary lien waivers, affidavits or other documents required to keep the Owner's
premises free from liens or claims for liens of all material men, suppliers or laborers, for all work for which the Sup/sub
is then requesting payment, as required in ARTICLE XVI; and
(©) Sup/sub providing insurance certificates and workers’ compensation verification, as required by
ARTICLE VI.
ARTICLE II CONTRACT DOCUMENTS: The Contract Documents applicable to this project are this Contract, the General
Conditions of the Contract for Construction, the Owner-Contractor agreement, the drawings and specifications prepared for this project by
the Design Professional, all addenda and all change orders, all of which are incorporated by reference into this Contract.
ARTICLE III MATERIALS AND SUPPLIES: All labor, materials and equipment furnished under this Contract shall be in
strict accordance with the Contract Documents. Where the Contract Documents describe work other than that specifically mentioned in
this Contract, then the Sup/sub shall perform the aggregate of all work specified in this Contract and all work described in the Contract
Documents which would be construed under the course of dealing and course of performance in the community as being within the purview
of the Sup/sub's work on the type of project under construction, and all work reasonably inferable as being necessary to complete Sup/sub’s
scope of work.
ARTICLE IV SUFFICIENCY OF WORK: If Sup/sub at any time refuses or neglects to supply a sufficient number of properly
skilled workmen, or of materials of the proper quantity or quality or fails in any respect to prosecute the work with promptness and diligence,
or fails in the performance of the terms contained within this Contract, Contractor reserves the right, at Contractor's discretion, to make
good such deficiency by any means Contractor deems necessary and to deduct the cost (plus 15% Overhead & Profit) thereof from payment
then or thereafter due the Sup/sub. This right shall be without any prejudice to any other remedies Contractor may have under this Contract
or under applicable Florida law. Sub/Sup agrees to maintain responsibility and warranty for any or all installations performed by supplement
force as part of their contracted scope of work.
ARTICLE V SHOP DRAWINGS: Sup/sub must forward eight copies (or the number of copies required by the Contract
Documents, whichever is greater) of all required shop drawings to Contractor for the Design Professional's approval. Sup/sub shall forward
all required shop drawings to Contractor in sufficient time but in no case less than 10 working days for Sup/sub to complete all work required
within the time frame of the construction project and the schedule for completion of the work. No extension of time shall be granted by
Contractor to Sup/sub for shop drawings either approved by Contractor or re-submitted by Contractor to Sup/sub for revision where such
approval or re-submission occurs within seven working days. Sup/sub shall therefore submit shop drawings in sufficient time for Sup/sub
to comply with its schedule of delivery and work, taking into account the seven working days afforded to Contractor for the approval of
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SUP/SUB INITIALSTHIS CONTRACT IS SUBJECT TO THE FOLLOWING TERMS:
shop drawings. Shop drawings and/or product literature are not part of the Contract Documents. Reviewed shop drawings returned to the
Sup/sub do not permit the Sup/sub to deviate from the Contract Documents as defined in this Contract.
INSURANCE/WORKER'S COMP: If this Contract requires Sup/sub to perform any services at the job site other than delivery of
materials, SUBCONTRACTOR is to secure, pay for, and file with the CONTRACTOR, prior to commencing any work under the
Subcontract, all certificates for Workers’ Compensation, Commercial General Liability, and such other insurance coverage’s as may be
required by specifications and addenda thereto, in at least the following minimum amounts with specification amounts to prevail if greater
than minimum amounts indicated. Notwithstanding any other provision of the Subcontract, the SUBCONTRACTOR shall provide the
minimum limits of liability insurance coverage as follows:
Insurance to be maintained as shown on the certificate of insurance during the entire duration of work being performed on behalf of
CONTRACTOR and with coverage continuing in full force including the additional insured endorsement for the duration of the statue of
repose in the applicable state contracted herein. Certificates to provide a minimum of 30 days notice of cancellation or alteration.
Auto Liability $1,000,000 Combined Single Limit
General Liability $2,000,000 Aggregate (Per Project)
$2,000,000 Products Aggregate
$1,000,000 Any One Occurrence
$1,000,000 Personal Injury
$ 50,000 Fire Damage/Legal
$ 5,000 Medical Payments
Additional Umbrella Liability $1,000,000 Occurrence / Aggregate
SUBCONTRACTOR shall furnish an original Certificate of Insurance indicating, and such policy providing coverage to,
CONTRACTOR named _as_an_additional insured on a PRIMARY and NON CONTRIBUTORY basis utilizing an ISO standard
endorsement at least as broad as CG 2010 (11/85), (policy or endorsement will include coverage for ongoing operations as well as “your
work” including products and completed operations) including a waiver of subrogation clause in favor of CONTRACTOR on their
General Liability and Workers’ Compensation policies. SUBCONTRACTOR will maintain the General Liability and Umbrella Liability
insurance coverage’s summarized above and further outlined at the end of this section with coverage continuing in full force including the
additional insured endorsement until at least 10 years beyond completion and delivery of the work contracted herein. CONTRACTOR’S
insurance shall be excess over coverage provided to them additional insured under said Subcontractors Additional Insured
Endorsement Naming the CONTRACTOR.
Notwithstanding any other provision of the Subcontract, the SUBCONTRACTOR shall maintain complete workers’ compensation
coverage for each and every employee, principal, officer, representative, or agent of the SUBCONTRACTOR who is performing any
labor, services, or material under the Subcontract. Further, SUBCONTRACTOR shall additionally maintain the following minimum
limits of coverage:
Bodily Injury Each Accident $ 500,000
Bodily Injury by Disease Each Employee $ 500,000
Bodily Injury by Disease Policy Limit $ 500,000
SUBCONTRACTOR shall provide the CONTRACTOR with a Certificate of Insurance verifying compliance with the workman's
compensation coverage as set forth herein and shall provide as often as required by the CONTRACTOR such certification which shal!
also show the insurance company, policy number, effective and expiration date, and the limits of workman's compensation coverage under
each policy.
SUBCONTRACTOR will comply with any and all safety regulations required by any agency or regulatory body including but not limited
to OSHA. SUBCONTRACTOR will notify CONTRACTOR immediately by telephone at (239) 593-3777 any accident or injury to
anyone that occurs on the jobsite and is related to any of the work being performed by the SUBCONTRACTOR.
To the fullest extent permitted by law, the Sub-contractor expressly agrees to indemnify, defend, and hold harmless the Contractor, the
project owner, the architect, and the engineer and their respective officers, directors, agents, and employees herein called the
“{ndemnitees” from any and all liability for damages, including, if allowed by law, reasonable attorney’s fees and court costs, such legal
expenses to include costs incurred in enforcing the indemnification and other rights agreed to in this Paragraph, to persons or property
caused in whole or in part by any act, omission, or default by the Sub-contractor or its sub-subcontractors, material men, or agents of any
tier or their employees, arising out of this Agreement or its performance, including any such damages caused in whole or in part by any
act, omission, or default of any indemnitee, but specifically excluding any claims of, or damages against an indemnitee resulting from
such indemnitee’s gross negligence, or the willful, wanton or intentional misconduct of such indemnitee or for statutory violation or
punitive damages except and to the extent the statutory violation or punitive damages are caused by or result from the acts or omissions of
the Sub-contractor or its sub-subcontractors, material men, or agents of any tier or their respective employees. Provided however that any
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SUP/SUB INITIALSTHIS CONTRACT IS SUBJECT TO THE FOLLOWING TERMS:
claim for indemnification for damages caused in whole or in part by any act, omission or default by indemnitee(s) shall be limited to the
amount of Sub-contractor’s insurance or $1 million per occurrence whichever is greater. The parties acknowledge that the amount of the
indemnity required hereunder bears a reasonable commercial relationship to this Agreement and it is part of the project specifications or
the bid documents, if any, as required by Section 725.06 F.S...
The indemnification obligations under this Agreement shall not be restricted in any way by any limitation on the amount or type of
damages, compensation, or benefits payable by or for the Sub-contractor under workers’ compensation acts, disability benefits acts, or
other employee benefits acts, and shall extend to and include any actions brought by or in the name of any employee of the Sub-contractor
or of any third party to whom Sub-contractor may subcontract a part or all of the Work. This indemnification shall continue beyond the
date of completion of the work.
Minimum limits of insurance required of SUBCONTRACTOR or THEIR Subcontractors:
1 Automobile Jiability and property damage including hired and borrowed vehicle liability in an amount of at least $1,000,000
combined single limit.
2. General liability including products, completed operations, and without restriction or limitation of residential work (applies to
residential type projects only), contractual liability, Damage to Work Performed by Subcontractors, or underground, collapse,
and explosion coverage in an amount of at least $1,000,000 per occutrence, $2,000,000 per project aggregate, general aggregate
and $2,000,000 products completed operations aggregate. (If providing Umbrella Liability, Underlying GL must be at least
$1,000,000 per occurrence.)
3. Professional liability (if any professional services are rendered such as design, engineering, etc.) in an amount of at least
$1,000,000 combined single limit.
4. Workers’ compensation insurance with statutory limits and $500,000 Employers’ Liability and in absence of any employees,
on a minimum “if any” basis of payroll or subcontracts.
5. Additional Umbrella Liability Insurance Including Products and Completed operations with Minimum limits of $1,000,000
per occurrence
6. Insurance to be maintained as shown on the certificate of insurance during the entire duration of work being performed on
behalf of CONTRACTOR and for at least 3 years after completion and delivery. Certificates to provide a minimum of 30 days
notice of cancellation or alteration.
ARTICLE VI WARRANTY: All labor, material and equipment furnished under this Contract shall be guaranteed by the Sup/sub
to the Contractor and Owner to be fit and sufficient for the purpose intended, and such labor, materials and equipment are guaranteed to be
merchantable, of good material and workmanship, and free ftom defects, and Sup/sub agrees to replace without charge to Contractor or
Owner said labor, materials and equipment, or remedy any defects, latent or patent, not due to any ordinary wear and tear or due to improper
use or maintenance, which may develop within one year from the date of acceptance by the Owner, or within the guarantee period set forth
in the applicable plans and specifications, or statutes, whichever is longer. The warranties herein are in addition to those implied by law.
Sup/sub agrees to replace any material and to correct any work deemed defective by the Contractor, Owner or Design Professional when
requested to do so. This Contract shall not operate as a waiver of any rights that the Contractor or Owner may have for breach of any
warranty or guarantee or as election of remedies and is expressly agreed to be supplemental to all other express warranties and any warranties
implied by law.
ARTICLE VII APPROVAL: All material and equipment furnished under this Contract shall be subject to the approval of the
Owner, Owner's Design Professional and Contractor. Sup/sub shall furnish the required number of submittal data, including but not limited
to shop drawings, or samples for said approval. In the event approval is not obtained, this Contract may be canceled by Contractor with no
liability on the part of the Contractor. It is understood and agreed that Owner has the right to approve or disapprove the employment of
Sup/sub and in the event that Owner does not approve Sup/sub, this Contract shall become null and void.
ARTICLE Vil TERMINATION OF CONTRACTOR: In the event of the termination of the Contract between the Contractor
and Owner, this Contract shall also be terminated upon written notice of the Contractor to the Sup/sub, and Contractor shall have no liability
whatsoever for any amounts not already billed as of the date of receipt of the written notice of termination or for any amounts not meeting
the Conditions Precedent for Payment as set forth in this Contract.
ARTICLE IX TERMINATION:
§9.1 For Cause. In the event the Sup/sub delays the progress of the work in the opinion of Contractor or fails to
comply with any schedule submitted to Sup/sub by Contractor, or fails in the performance of any of the provisions of this Contract, files for
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SUP/SUB INITIALSTHIS CONTRACT IS SUBJECT TO THE FOLLOWING TERMS:
bankruptcy or is involuntarily placed into bankruptcy, or becomes insolvent, or refuses or neglects to supply a sufficient number of properly
skilled workmen, or refuses or neglects to supply a proper quantity or quality of materials called for under this Contract, or fails in any
respect to prosecute the work with promptness and diligence called for this Contract, or to fail in the performance or otherwise breaches
any of the terms and conditions found throughout this Contract, the Contractor shall have the right to exercise any option Contractor deems
necessary to correct above mentioned deficiency including but not limited to immediate contract termination, which may be without notice.
In case of such termination, the Sup/sub shall not be entitled to receive any further payments under this Contract until the performance of
the work required to be performed under the Contract has been completed (by such person or persons selected by Contractor), at which
time, if the unpaid balance due Sup/sub exceeds the cost of completion, said amount shall be paid to Sup/sub, but if such expense incurred
by the Contractor including all damage and cost incurred through the default of the Sup/sub shall equal or exceed such unpaid balance, then
no payment shall be due to Sup/sub and Sup/sub shall be liable to Contractor for any such excess amounts. Any and all material, equipment,
tools, and/or supplies will not be removed from the jobsite by the Sup/sub. Contractor shall have the option to use same to complete the
scope of work described herein. If Contractor, or others hired by Contractor, complete Sup/sub’s work after termination, it shall do so for
Sup/sub’s account. In that event, Contractor shall be entitled to recover, or credit for, all labor, services, and materials furnished to complete
the work, together with fifteen percent (15%) overhead and profit, all of which shall be considered as part of the cost of the completion
work,
§9.2 Other. The Contractor may, for any reason and without cause, terminate this Contract upon written notice to the
Sup/sub not less than five (5) business days prior to the effective date of termination. In case of such termination, the Sup/sub shall be
entitled to all payments under this Contract earned by Sup/sub under the terms hereof through the effective date of termination, which
payments shall be paid in the same manner and subject to the conditions precedent, as set forth in ARTICLE I. Provided, the Contractor
shall exercise its right to terminate this Contract under this §10.2 in good faith. For these purposes, "good faith" shall include, but not be
limited to, circumstances in which the Project or the Work provided for under this Contract will not be completed. Any and all material
and/or supplies for which payment hereunder has been made will not be removed from the jobsite by the Sup/sub.
ARTICLE X ASSIGNMENT: Sup/sub agrees that it will not assign this Contract, or any of the monies due it, or to become due
hereunder, nor sublet any portion of the work without the prior written consent of Contractor.
ARTICLE XI TIME: Time is of the essence of this Contract. Not withstanding any other provision of this Contract, should
Sup/sub for any reason fail to make deliveries as required hereunder to the satisfaction of the Owner, Design Professional, or Contractor,
the Contractor shall be at liberty to purchase the materials or obtain the labor from another source, in which case no payment shall be due
to Sup/sub for the unsatisfactory materials or labor and any excess in cost of the replacement materials or labor obtained by Contractor over
the price herein provided shall be chargeable to and paid by the Sup/sub on demand. Should any delay on the part of the Sup/sub occasion
loss, damage or expense including consequential damages to the Owner or to Contractor, the Sup/sub shall indemnify against such loss,
damage or expense including attorney's fees as provided in ARTICLE XXIII. Any scheduling information whether or not contained within
this agreement is subject to change by the Contractor. It is the Sup/sub's responsibility to monitor the progress of the project and insure that
resources are available for the project when needed.
ARTICLE XII CHANGES OR ALTERATIONS: No additions, deductions or changes shall be made in the work, nor shall
there be any charges for premium time, except upon the prior written approval of Contractor, which order shall specify the amount of
additional compensation or credit to be applied to the amount of this Contract and shall specify the additional time or savings in time
attributable to the authorized change. Only the Contractor's project manager or officers of Contractor are authorized to provide any written
approvals for change orders. The Contractor’s field personnel do not have the authority to approve additional work and/ or modify this
Contract.
ARTICLE XI. TITLE TO MATERIAL AND EQUIPMENT: The materials and equipment covered by this Contract, whether
in a deliverable state or otherwise, shall remain the property of the Sup/sub until said materials and/or equipment are made a permanent part
of the project unless other arrangements are made for stored materials in such condition as determined by the Contractor. Any damage to
material and equipment or loss of any kind occasioned in transit or in storage shall be borne by the Sup/sub notwithstanding the manner in
which the goods are shipped or who pays the freight or other transportation costs or whether or not payments have been made for stored
materials. If for any reason, all or any portion of the work to be performed or the materials to be furnished are not delivered at the time or
times herein specified, the Contractor may, at his option, cancel this order as to all or any portion of the labor or materials not so delivered
and Contractor shall not be responsible for any costs or payments associated therewith.
ARTICLE XIV SITE: The Sup/sub shall clean up daily and place in a dumpster all debris caused by the execution of the work
or the furnishing of material. Upon failure to remove debris, Contractor may complete this work and charge double the cost to the Sup/sub.
ARTICLE XV LIENS: At the time of payment, the Sup/sub shall furnish all necessary lien waivers, affidavits or other documents
required to keep the Owner's premises free from liens or claims for liens of all material men, suppliers or laborers, for all work for which
the Sup/sub is then requesting payment.
13368-1 01168550.DOCX;1 3/6/2019 CONTRACTOR INITIALS
SUP/SUB INITIALSTHIS CONTRACT IS SUBJECT TO THE FOLLOWING TERMS:
ARTICLE XVI TAXES: Sup/sub shall pay all sales, consumer, use, and other similar taxes for the work or portions thereof
provided by the Sup/sub, which are legally enacted at the time bids are received, whether or not yet effective. Sup/sub shall also pay all
other contributions, taxes or premiums which may be payable under federal or state unemployment insurance law, worker's compensation
law, and the Federal Social Security Act, which taxes and assessments arise out of the performance of this Contract.
ARTICLE XVII DISPUTE RESOLUTION AND PARTICIPATION AGREEMENT: The Sup/sub acknowledges and agrees
that any controversy or claim arising out of or relating to this Contract, or the breach thereof, shall be resolved under the laws of the State
of Florida. If the Contractor is compelled into arbitration under the terms of its agreement with the Owner, Sup/sub agrees to participate in
the arbitration for the purpose of resolving any dispute arising out of common or interrelated issues of fact or law, or Sup/sub’s scope of
work. Sup/sub cannot compel the Contractor into arbitration under any such clause, but Contractor and Sup/sub may mutually agree to
enter into binding arbitration to resolve any dispute at the time the dispute arises.
Any litigation proceeding initiated under the terms of this Contract may, at the request of either party, be joined or consolidated
with other litigation proceedings involving additional parties if the disputes arise out of common or interrelated factual occurrences. Both
parties to this Contract agree that if the other party becomes involved in litigation concerning the project which is the subject of this Contract,
then the uninvolved party will participate in the litigation to the extent it involves questions of law or of fact which arise from or are related
directly or indirectly to the performance of the terms of this Contract by the party not involved in the litigation.
The Sup/sub and Contractor agree to include a provision regarding dispute resolution identical to the one contained herein in all
agreements with other contractors, subcontractors or suppliers. The parties further agree to contractually require the other contractors,
subcontractors and suppliers to include identical dispute resolution provisions in all agreements that they may enter into for labor, materials
or management to be furnished to the project.
In any request by Sup/sub for a Change Order involving additional time, money or both, or in connection with any claim by, or
dispute between Sup/sub and Contractor, Contractor and Sup/sub agree that the following provisions shall apply:
(a) Sup/sub shall be bound by all dispute provisions of the Contract Documents, and by all final decisions
of any Design Professional under the Contract Documents to the same extent that Contractor is bound to Owner;
(b) Sup/sub shall exhaust all remedies under the Contract Documents before filing a Claim of Lien, claim
for arbitration, or any action or proceeding against Contractor or Owner;
() Sup/sub shall stay or abate any proceeding upon Contractor’s request until all Contract Document
remedies are exhausted;
@ Participate in any claim or proceeding concerning a dispute arising under the Contract Documents or
this Subcontract to which Contractor is a party in the form in which Contractor is a party on Contractor’s notice to do so;
© Sup/sub shall be bound by the decision of any Court or tribunal having jurisdiction over a claim or
dispute, whether Subcontractor is a party to he proceeding or not, to the extent that it covers a claim or demand of
Subcontractor;
@ Sup/sub shall cooperate fully with Contractor in any claim or proceeding between Owner and
Contractor involving Sup/sub’s scope of work hereunder;
(g) Sup/sub shall reimburse Contractor for all expense attributable to a claim, demand or defense, whether
asserted or not, of Sup/sub in any proceeding arising from this Subcontract to which Contractor is a party whether
Subcontractor is a party or not, and whether incurred at trial, on appeal or otherwise; and
(h) Sup/sub shall not be entitled to recover damages from Contractor unless Contractor is paid the amount
of damages by Owner, except when Contractor alone is responsible for the damages.
Sup/sub shall present, and Contractor shall promptly forward all reasonable claims or demands of Sup/sub to Owner, including
requests for time extensions, an increase in the Subcontract price, when Contractor is permitted to do so under the Contract Documents, and
shall invoke the provisions of the Contract Documents for determining disputes on behalf of Sup/sub when appropriate. Sup/sub shall not
permit a dispute to interfere with the progress of construction. Contractor shall be liable to Sup/sub in a claim or dispute only to the extent
that Owner is liable to Contractor, and to the extent of Contractor’s receipt of funds from Owner as a result of such claim or dispute. Sup/sub
shall not be entitled to any extension of time or extra compensation unless a claim for it is presented in a timely manner to enable Contractor
13368-1 01168550.DOCX;1 3/6/2019 CONTRACTOR INITIALS
SUP/SUB INITIALSTHIS CONTRACT IS SUBJECT TO THE FOLLOWING TERMS:
to make the claim against the Owner. Sup/sub shall furnish all witnesses, documents, information, network analysis and other items required
to process Sup/sub’s claims or demands at Sup/sub’s expense.
ARTICLE XVII ATTORNEY'S FEES: The parties to this Contract agree that in the event that either party is required to
enforce his legal rights under this Contract or under applicable Florida law against the other, the prevailing party shall be entitled to
reasonable attorneys' fees and court costs regardless of whether an action is filed or the matter is resolved prior to an action being filed, and
including all fees and costs associated with any appeal. The parties to this Contract agree to venue in the appropriate court in Collier County,
Florida.
ARTICLE XIX ENTIRE AGREEMENT: This Contract and any documents referenced herein constitute the entire agreement
between the Contractor and the Sup/sub. All prior representations, conversations, or preliminary negotiations shall be deemed to be merged
in this document, and no changes will be considered or approved unless this Contract is modified by an authorized representative of the
Contractor in writing.
ARTICLE XX SAFETY: All work will be performed in accordance with the Federal Occupational Safety and Health Standards
(20 CFR 1926/1910), OSHA 2207, Latest Revision, Construction Industry. (See Exhibit “D” of Contract package for penalties/fines for
violations). Fines levied against the Contractor by OSHA for actions or inactions of the Sup/sub and/or his employees shall be charged to
the Sup/sub and deducted from amounts due Sup/sub. Sup/sub agrees to perform all work and maintain necessary records to be in
compliance with the Hazard Communication Standards of OSHA, Sup/sub agrees to provide Contractor with all Safety Data Sheets ("SDS")
for the Project within the time prescribed by the Contract Documents or as otherwise required by applicable law.
ARTICLE XXI MISCELLANEOUS: All references in this agreement to "Sup/sub" shall mean the party signing as
"Supplier/Subcontractor" and shall not be construed to omit a party supplying labor, services, or materials and traditionally referred to as a
subcontractor. References to a party shall include that party whether masculine, feminine, or neuter, singular or plural. If any provision of
this Contract is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Contract, such
provision shall be fully severable; this Contract shall be construed and enforced as if such illegal, invalid, or unenforceable provision had
never comprised a part of this Contract; and the remaining provisions of this Contract shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its severance from this Contract. Furthermore, in lieu of each such illegal,
invalid, or unenforceable provision, there shall be added automatically as part of this Contract a provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable.
ARTICLE XXII INDEMNIFICATION: To the fullest extent permitted by law, the Sup/sub shall indemnify and hold harmless
the Owner, Contractor, Architect, their officers, directors, shareholders, partners employees, agents, or servants or any of them including
present and former officers, directors, employees, representatives, and subsidiaries and/or affiliated entities (individually, the “Indemnitee”,
collectively, the “Indemnitees”) from and against all claims, damages, losses, actions, causes of action, suits, judgments, other liabilities
and expenses (collectively, a "Claim"), including but not limited to attorneys’ fees (whether incurred prior to the institution of litigation or
in litigation, to include trial and appellate proceedings, and whether suit be brought or not) and other costs and expenses, whether at law or
in equity, arising out of, resulting from, or connected with:
(1) Any act, omission, or default of Sup/sub or any of its contractors, subcontractors, sub-subcontractors, material men, or agents
of any of the foregoing or their respective employees;
(2) any damages to person or property caused in whole or in part by any act, omission, or default of one or more Indemnitees
arising from this Contract or its performance; or
(3) Any breach of the obligations and representations of Sup/sub under this Contract, including without limitation those contained
in ARTICLE XXV below.
Such obligation to indemnify shall not be construed to negate, abridge, or otherwise reduce other rights or obligations of indemnity
which would otherwise exist as to a party or person described in this section.
Notwithstanding anything herein to the contrary, any indemnification obligation of the Sup/sub to an Indemnitee for a Claim caused
in whole or in part by any act, omission, or default of such Indemnitee shall, to the extent so caused by an act, omission, or default of such
Indemnitee, be limited to the applicable limitation for such Claim under the Sub/sup's General Liability policy, as set forth in ARTICLE VI
above; provided, such limitation shall not be less than One Million Dollars ($1,000,000) per occurrence in the event the Indemnitee is the
Owner. Furthermore, Sup/sub's indemnification obligations to an Indemnitee shall not include claims of, or damages resulting from, gross
13368-1 01168550.DOCX;1 3/6/2019 CONTRACTOR INITIALS
SUP/SUB INITIALSTHIS CONTRACT IS SUBJECT TO THE FOLLOWING TERMS:
negligence, or willful, wanton or intentional misconduct of such Indemnitee or its officers, directors, agents, or employees, or for statutory
violation or punitive damages, except and to the extent the statutory violation or punitive damages are caused by or result from the acts or
omissions of the Sup/sub or any of its contractors, subcontractors, sub-subcontractors, material men, or agents of any of the foregoing or
their respective employees.
The provisions of this ARTICLE XXII shall (i) be construed as agreements and covenants separate, independent and mutually
exclusive of any other provision of this Contract, (ii) be binding upon, and inure to the benefit of the Indemnitiees and their respective
successors and assigns, and (iii) survive the termination of this Agreement. Each of the Indemnitees who is not a party to this Contract is
an intended third party beneficiary of this Article.
ARTICLE XXII CROSS-COLLATERALIZATION: From time to time during the term of this Contract, Sup/sub and the
Contractor may be parties to other subcontractor agreements or other contracts (such agreements, including any renewal, modification,
extension or rearrangement thereof collectively referred to as the "Other Contracts"). All payments which the Contractor owes to the
Sup/sub hereunder or under any of the Other Contracts shall be subject to offset for any amounts owed to the Contractor from Sup/sub
pursuant to any provision of this Contract or the Other Contracts, including without limitation indemnification provisions set forth in
ARTICLE XXIII above. All rights granted to the Contractor under this ARTICLE XXIV shall be cumulative and not alternative, and shall
be in addition to and shall in no manner impair or affect any rights or remedies under this Contract, any of the Other Contracts or under any
statute or rule of law. Any default by Sup/sub under any other Subcontract or agreement with Contractor shall constitute a default hereunder,
and shall entitle Contractor to all remedies hereunder, just as if the default had occurred on this Subcontract.
ARTICLE XXIV SUP/SUB LIABILITY: The Contractor and/or owner shall not be held responsible for the loss, expense or
damage to any tools, equipment, vehicles, etc. (“Equipment”) due to theft, use by any other persons, Contractor, subcontractor, vendor,
workers or persons related or unrelated to any party. Nor is the Contractor and/or owner responsible for the safety or well-being of any
person or party for the Equipment or for damages caused by the use of the Equipment. Sup/sub shall be solely responsible for such loss,
expense, damage to Equipment as well as the safety or well being of any person or party utilizing said Equipment.
ARTICLE XXV EMPLOYEES OF SUP/SUB: The Sup/sub shall employ its own employees and shall be responsible for all
social security, worker's compensation, liability insurance, unemployment insurance, licensing, employee certification (Form I-9), worker
training requirements and any other federal and state labor requirements. The Sup/sub hereby certifies that all service providers furnished
by Sup/sub who are performing or assisting in performing services under this Contract are eligible to work in the United States. The Sup/sub
shall provide written evidence to Contractor of all licenses and certifications at such periodic intervals as the Contractor may request.
ARTICLE XXVI RELATIONSHIP BETWEEN PARTIES: The parties acknowledge that Sup/sub is an independent
contractor and not a joint venturer, partner, employee, or agent of the Contractor by virtue of this Contract. The Contractor has no direct
control over the manner or method by which Sup/sub meets Sup/sub's obligations hereunder, provided, that Sup/sub's services shall be
performed in a competent and efficient manner in accordance with current professional standards and in compliance with the policies of
Contractor and the terms of this Contract, The Contractor will not withhold for Sup/sub any sums for income tax, Social Security,
unemployment insurance. As between the Contractor and Sup/sub, Sup/sub shall be solely responsible for all employment related
withholdings and benefits. Contractor and Sup/sub agree that this Contract is non-exclusive and Sup/sub reserves the right and privilege of
furnishing labor and services to other businesses, and Contractor reserves the right and privilege of contracting with other labor contractors
for the performance of such services as may be required in the operation of its business. Nothing in this Contract constitutes or implies a
requirement or guarantee of a permanent or exclusive arrangement between Contractor and Sup/sub.
ARTICLE XXVIIT_ REMEDIES BETWEEN SUBCONTRACTORS: Contractor shall not be liable to Sup/sub, its
materialmen, laborers or sub-subcontractors for any claim, demand, loss, damages or expenses sustained by any of them because of the act
or omission of another Subcontractor of Contractor on the project. Sup/sub shall have a direct right of action against the other Subcontractor
if the other Subcontractor executed a Subcontract containing this provision. Sup/sub indemnifies Contractor against any claim, demand,
damages, loss or expenses sustained by another Subcontractor, materialmen, laborer or Sub-subcontractor who performs on the project
resulting from Sup/sub’s acts or omissions in connection with Sup/sub’s work under this Subcontract.
13368-1 0116
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11-2021-CA-002647-0001-XX Filing # 138354442 E-Filed 11/11/2021 12:56:23 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA WPM-SOUTHERN, LLC, a Florida limited liability company, Plaintiff, CIVIL ACTION vs. CASE NO. GATES GROUP, LLC, D/B/A GATES CONSTRUCTION a Florida limited liability company, UNITED STATES FIRE INSURANCE COMPANY, INC., a Foreign Corporation. Defendants, / COMPLAINT Plaintiff, WPM-SOUTHERN, LLC, (herein referred to as “WPM”) sues Defendants, GATES GROUP, LLC D/B/A GATES CONSTRUCTION,, (herein referred to as “Gates” and UNITED STATES FIRE INSURANCE COMPANY, (herein referred to as “United”) and alleges that it is entitled to relief upon the following facts: JURISDICTION, VENUE, AND PARTIES 1. This is an action for damages that exceeds $30,000.00 in Collier County, Florida. 2. Jurisdiction is proper because the events occurred in Collier County, Florida. 3. Venue is appropriate in this Court because the subject property is located in Collier County, Florida. 4. Atall times, Plaintiff, WPM-SOUTHERN, LLC, was a Florida Limited Liability Company authorized to do business in the state of Florida. 5. Atall times herein, Defendant, GATES GROUP, LLC D/B/A GATES CONSTRUCTION, FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 11/11/2021 12:56:23 PMwas a Florida Limited Liability Company authorized to do business in the State of Florida. 6. At all times herein, Defendant, UNITED STATES FIRE INSURANCE COMPANY is a foreign corporation authorized to do business in the State of Florida. COUNT 1~ CLAIM ON BOND 7. WPM alleges and incorporates the allegations set forth in paragraphs 1 and 6 above as if fully set forth herein. 8. This is an action against Defendant, UNITED STATES FIRE INSURANCE COMPANY, INC., for the Claim on the Bond. 9. On or about August 27", 2019, Plaintiff, WPM, entered into an agreement with Defendant Gates for improvements on Marco Island Academy Charter High School real property in Collier County. Exhibit “A” 10. On November 6%, 2021 Plaintiff filed a Claim of Lien. Exhibit “B” 11. On or about April 1%, 2021 Plaintiff's Claim of Lien was secured by a Surety Bond per The Collier County Clerk of Courts. Exhibit “C” 12. In connection therewith and pursuant to §713.23, Florida Statute, Defendant, GATES, as principal, and Defendant, UNITED STATES FIRE COMPANY, INC., as surety, executed and delivered a lien transfer bond for said improvements to the Marco Island Academy Charter High School. 13. Plaintiff, WPM, first date of work furnishing material and labor incorporated on the site was April 1%, 2020. 14. Plaintiff's last work or furnishing materials under the order was on September 16%, 2021. 15. Plaintiffhas performed all duties, conditions precedent to payment, and statutory requisites prior to breach by the Defendants.16. Defendants have failed to pay Plaintiff in breach of the condition of Exhibit “C”. 17. Plaintiff has been caused to retain counsel to maintain this action and has been obligated to pay reasonable attorney fees, pursuant to Fla. Stat. 713 et al. WHEREFORE, Plaintiff demands judgment for damages jointly and severally against the Defendants, plus attorney fees, interest and costs. COUNT I —- BREACH OF CONTRACT - GATES GROUP, LLC 18. This is an action against Defendant, GATES for Breach of Contract. 19, Plaintiff, WPM, alleges and incorporates the allegations set forth in paragraphs 1 through 18 above as if fully set forth herein. 20. On or about August 27", 2019, Plaintiff, WPM, entered into an agreement with Defendant Gates for improvements on Marco Island Academy Charter High School real property in Collier County. Exhibit “A”. 21, WPM has fully performed under the contract by providing labor and materials of earthwork, utilities, storm drainage, asphalt and site concrete work and other construction at GATE’S request and rendering the invoices requesting payment for the labor and material of earthwork, utilities, storm drainage, asphalt and site concrete work and other construction pursuant to the terms of the Agreement. 22. WPM has been damaged by GATES’S breach. 23. GATES owes WPM in the amount of $182,697.14 for the labor and materials regarding earthwork, utilities, storm drainage, asphalt and site concrete work and other construction work performed by WPM. Defendant owes in total to Plaintiff $182,697.14 and by which is due with interest accruing at the statutory interest rate.24. The terms of the Agreement provide that WPM is entitled to recover its reasonable attorney’s fees and costs from GATES. WHEREFORE, Plaintiff WPM demands judgment against GATES for damages, including prejudgment interest and court costs pursuant to the terms of the contract. COUNT Il - UNJUST ENRICHMENT. GATES — PLED IN THE ALTERNATIVE 25. This is an action against GATES for Unjust Enrichment. 26. WPM alleges and incorporates the allegations set forth in paragraphs 1 and 25 above as if fully set forth herein. 27. Prior to the institution of this action, WPM, provided GATES with labor and materials regarding earthwork, utilities, storm drainage, asphalt and site concrete and other construction with the intention that WPM be compensated for rendering such services. 28. Although GATES has accepted the labor and materials of electrical work and other construction so rendered to it by WPM, GATES has failed and refused to pay WPM for such services. 29. The reasonable value of the labor and materials of electrical work and other construction provided to GATES, by WPM and accepted by GATES equals or exceeds the sum of $182,697.14. 30. Unless GATES is required by this Court to pay the entire remaining unpaid balance to WPM, GATES will be unjustly enriched. WHEREFORE, WPM demands judgment for damages against GATES on the principal amount of $182,697.14 together with interest, costs, and for such further and other relief as this Court deems just and proper.DEMAND FOR JURY TRIAL COMES NOW, the Plaintiff, WPM, by and through its undersigned attorney, and pursuant to Rule 1.430 (d), Rules of Civil Procedure, makes this its demand for trial by jury of any issues triable by right of jury. Dated: November 11", 2021. MICHAEL F. KAYUSA, ESQUIRE Attomey for Plaintiff Post Office Box 2237 Fort Myers, Florida 33902 (239) 334-8200 (239) 334-2899 fax mfk@mfkayusa.com By:_/s/ Michael F. Kayusa Michael F. Kayusa Florida Bar No. 472433GAT=S www.GATESinc.com ‘WPM, Inc Supplier / Subcontractor: 4391 Colonial Blvd, Suite 105 Ft Myers, Fi 33966 (810)869-5377 Cell Project Name and Location : Marco Island Charter Academy SDP/DO: Permit Number: Project Manager: Project Coordinator: Superintendent: 2255 San Marco Road Marco Island, FL 34145 # = SIT-19-02738 # COMM-19-06850 Contract Execution: Olnitial each page of the contract Complete Exhibit A.1 and A.2 (Contract will not be fully executed until these items are completed) C)Return one (1) contract to the GATES Office for our signature. One (1) fully executed contract will be returned to you. Oo oO Prior to Commencement of Work: C1Forward (1) hardcopy & (1) electronic copy of "Job Specific’ SDS/MSDS to the Project Coordinator CForward electronic copies of submittals and/or samples to the Project Coordinator (listed below) Prior to First Payment: DAI of the above must be completed. Prior to Final Payment: (CFonward four Operation Manuals and maintenance Manuals to the Project Coordinator. (Forward all Warranties (Product warranties and your Subcontractor warranty) to the Project Coordinator. CForward all your As-Built Drawings to the Project Coordinator. (Forward (1) CD containing all the above closeout documents DAs part of the waiver of lien process (both interim and final) associated with this project, the Owner may require that only orginal waivers of lien rights are acceptable - not copies. If the Owner indicates that original waivers are required, payments to subcontracors will not be made until original waivers are received at our office. This includes original waivers of lien for the subcontractor, all suppliers and subcontractors who are working under the primary subcontractor. David Greenblatt Wayne Herbert {: (239)240-9563 EXHIBIT yGAT=S Contract Date : ‘Supplier / Subcontractor - (sup/sub) : Project Name and Location : Scope of Work: Schedule of Values: Wage/Rate Sheet: Plans and Specifications : Schedule : GATES Safety Plan = Contract Price : CONTRACTOR AND SUPPLIERS / SUBCONTRACTORS (SUP/SUB) AGREE TO ALL TERMS AND CONDITIONS OF THIS GATES Construction General Contractors CGC1527296 Telephone : (239)593-3777 Fax : (239) 593-3477 27599 Riverview Center Blvd, Suite 205 Bonita Springs, Fl 34134 www.GATESinc.com February 26, 2020 WPM, Inc 4391 Colonial Blvd, Suite 105 Ft Myers, F133966 (810)869-5377 Cell Marco Island Charter Academy 2255 San Marco Road Marco Island, FL 34148 SEE EXHIBIT" A" SEE EXHIBIT" At" SEE EXHIBIT" A.2" SEE EXHIBIT" B" SEE EXHIBIT" C" SEE EXHIBIT" D“ $788,900.00 PURCHASE ORDER / CONTRACT ON THE DATE(S) INDICATED. (Signed and dated below) ALL TERMS AND CONDITIONS ON THIS PAGE AND THE FOLLOWING PAGES ARE PART OF THIS PURCHASE ORDER / CONTRACT AND ARE ACCEPTED AS SUCH. GENERAL CONTRACTOR : ‘Supplier / Subcontractor - (sup/sub) : GATES USE ONLY : Job No. GG19-020 Code No. 02203 SIGNATURE : PRINT NAME : David Greenblatt TITLE: Project Manager DATE: SIGNATURE : PRINT NAME : TITLE = DATE:WARRANTY AGREEMENT | (Undersigned Party) and duly authorized agent hereby warranty all work. By: WPM, Inc Project: Marco Island Charter Academy All work to be free from defects in materials and workmanship for a period of ONE (1) YEAR FROM THE DATE OF SUBSTANTIAL COMPLETION, in accordance with Florida Statutes, The undersigned parties further agree that they will, at their own expense, repair and replace all such defective work and all other work damaged thereby during the term of this Warranty. are the requirements of the general conditions and specifications under which the contract or sub-contract, was let, that this warranty would be given. or sub-contract, was let, that such warranty would be given. This Warranty does not apply to work, which has been abused, neglected or not maintain: by the Owner, or its assignees. the Owner, or its assignees. DATED: WPM, Inc BY: State of Florida County of , Personally appeared before methis___ day of 20__. He is personally known to me. Notary: My Commission Expires: (CORPORATE SEAL)THIS CONTRACT IS SUBJECT TO THE FOLLOWING TERMS: ARTICLE I PAYMENT: §1.1 TIME FOR MAKING PAYMENT: Contractor will pay to Sup/sub for the work completed by the Sup/sub during the previous month (as estimated by Contractor), subject to the Conditions Precedent to Payment set forth below in §1.2, less 10% retainage if this Contract includes labor performed at the site; provided that the Sup/sub shall furnish to Contractor on or before the 23rd day of the previous month, an application for payment with the Sup/sub's estimate of the work completed through the end of the month. The final determination of the work completed for any given month shall be made by Contractor in its reasonable discretion. The amount of any payment due for work completed shall be determined using the Wage/Pay Rate Sheet attached hereto as Exhibit A.2. Such determination shall be recorded in the form of Exhibit A.1 attached hereto. Material stored on or off-site is not considered completed work unless other arrangements have been made. Invoices will not be acceptable and billing must be on Contractor's form. Any changes that affect the Contract amount will be changes to the Contract and billed on the application of payment, not on a separate invoice. The balance of the payment due will be made after completion of all work and final acceptance of the work by the Owner, Architect and/or Contractor and payment therefore by the Owner. §1.2 CONDITIONS PRECEDENT TO PAYMENT: All payments hereunder shall be conditioned upon the Sup/sub complying with the requirements of this Contract and all requirements of applicable law (including without limitations requirements of Mechanic's/Construction Lien Law as well as federal, state and local laws, ordinances, rules and regulations that in any manner may affect costs, progress or performance of the Work). Without limiting the foregoing, it is specifically agreed and understood that the following shall serve as absolute conditions precedent to Sup/sub's right and entitlement to receive payment for labor, materials or services, or applicable portions thereof, furnished under this Contract: (a) Owner's payment to Contractor for labor, materials or services, or applicable portions thereof, within the scope of this Contract; Contractor shall have no obligation to pay Sub/sub for work properly completed unless and until Contractor receives payment therefore from Owner. Sup/sub knowingly accepts the risk of non-payment by Owner for Sub/sub’s work. (b) Sup/sub providing all necessary lien waivers, affidavits or other documents required to keep the Owner's premises free from liens or claims for liens of all material men, suppliers or laborers, for all work for which the Sup/sub is then requesting payment, as required in ARTICLE XVI; and (©) Sup/sub providing insurance certificates and workers’ compensation verification, as required by ARTICLE VI. ARTICLE II CONTRACT DOCUMENTS: The Contract Documents applicable to this project are this Contract, the General Conditions of the Contract for Construction, the Owner-Contractor agreement, the drawings and specifications prepared for this project by the Design Professional, all addenda and all change orders, all of which are incorporated by reference into this Contract. ARTICLE III MATERIALS AND SUPPLIES: All labor, materials and equipment furnished under this Contract shall be in strict accordance with the Contract Documents. Where the Contract Documents describe work other than that specifically mentioned in this Contract, then the Sup/sub shall perform the aggregate of all work specified in this Contract and all work described in the Contract Documents which would be construed under the course of dealing and course of performance in the community as being within the purview of the Sup/sub's work on the type of project under construction, and all work reasonably inferable as being necessary to complete Sup/sub’s scope of work. ARTICLE IV SUFFICIENCY OF WORK: If Sup/sub at any time refuses or neglects to supply a sufficient number of properly skilled workmen, or of materials of the proper quantity or quality or fails in any respect to prosecute the work with promptness and diligence, or fails in the performance of the terms contained within this Contract, Contractor reserves the right, at Contractor's discretion, to make good such deficiency by any means Contractor deems necessary and to deduct the cost (plus 15% Overhead & Profit) thereof from payment then or thereafter due the Sup/sub. This right shall be without any prejudice to any other remedies Contractor may have under this Contract or under applicable Florida law. Sub/Sup agrees to maintain responsibility and warranty for any or all installations performed by supplement force as part of their contracted scope of work. ARTICLE V SHOP DRAWINGS: Sup/sub must forward eight copies (or the number of copies required by the Contract Documents, whichever is greater) of all required shop drawings to Contractor for the Design Professional's approval. Sup/sub shall forward all required shop drawings to Contractor in sufficient time but in no case less than 10 working days for Sup/sub to complete all work required within the time frame of the construction project and the schedule for completion of the work. No extension of time shall be granted by Contractor to Sup/sub for shop drawings either approved by Contractor or re-submitted by Contractor to Sup/sub for revision where such approval or re-submission occurs within seven working days. Sup/sub shall therefore submit shop drawings in sufficient time for Sup/sub to comply with its schedule of delivery and work, taking into account the seven working days afforded to Contractor for the approval of 13368-1 01168550.DOCX;1 3/6/2019 CONTRACTOR INITIALS SUP/SUB INITIALSTHIS CONTRACT IS SUBJECT TO THE FOLLOWING TERMS: shop drawings. Shop drawings and/or product literature are not part of the Contract Documents. Reviewed shop drawings returned to the Sup/sub do not permit the Sup/sub to deviate from the Contract Documents as defined in this Contract. INSURANCE/WORKER'S COMP: If this Contract requires Sup/sub to perform any services at the job site other than delivery of materials, SUBCONTRACTOR is to secure, pay for, and file with the CONTRACTOR, prior to commencing any work under the Subcontract, all certificates for Workers’ Compensation, Commercial General Liability, and such other insurance coverage’s as may be required by specifications and addenda thereto, in at least the following minimum amounts with specification amounts to prevail if greater than minimum amounts indicated. Notwithstanding any other provision of the Subcontract, the SUBCONTRACTOR shall provide the minimum limits of liability insurance coverage as follows: Insurance to be maintained as shown on the certificate of insurance during the entire duration of work being performed on behalf of CONTRACTOR and with coverage continuing in full force including the additional insured endorsement for the duration of the statue of repose in the applicable state contracted herein. Certificates to provide a minimum of 30 days notice of cancellation or alteration. Auto Liability $1,000,000 Combined Single Limit General Liability $2,000,000 Aggregate (Per Project) $2,000,000 Products Aggregate $1,000,000 Any One Occurrence $1,000,000 Personal Injury $ 50,000 Fire Damage/Legal $ 5,000 Medical Payments Additional Umbrella Liability $1,000,000 Occurrence / Aggregate SUBCONTRACTOR shall furnish an original Certificate of Insurance indicating, and such policy providing coverage to, CONTRACTOR named _as_an_additional insured on a PRIMARY and NON CONTRIBUTORY basis utilizing an ISO standard endorsement at least as broad as CG 2010 (11/85), (policy or endorsement will include coverage for ongoing operations as well as “your work” including products and completed operations) including a waiver of subrogation clause in favor of CONTRACTOR on their General Liability and Workers’ Compensation policies. SUBCONTRACTOR will maintain the General Liability and Umbrella Liability insurance coverage’s summarized above and further outlined at the end of this section with coverage continuing in full force including the additional insured endorsement until at least 10 years beyond completion and delivery of the work contracted herein. CONTRACTOR’S insurance shall be excess over coverage provided to them additional insured under said Subcontractors Additional Insured Endorsement Naming the CONTRACTOR. Notwithstanding any other provision of the Subcontract, the SUBCONTRACTOR shall maintain complete workers’ compensation coverage for each and every employee, principal, officer, representative, or agent of the SUBCONTRACTOR who is performing any labor, services, or material under the Subcontract. Further, SUBCONTRACTOR shall additionally maintain the following minimum limits of coverage: Bodily Injury Each Accident $ 500,000 Bodily Injury by Disease Each Employee $ 500,000 Bodily Injury by Disease Policy Limit $ 500,000 SUBCONTRACTOR shall provide the CONTRACTOR with a Certificate of Insurance verifying compliance with the workman's compensation coverage as set forth herein and shall provide as often as required by the CONTRACTOR such certification which shal! also show the insurance company, policy number, effective and expiration date, and the limits of workman's compensation coverage under each policy. SUBCONTRACTOR will comply with any and all safety regulations required by any agency or regulatory body including but not limited to OSHA. SUBCONTRACTOR will notify CONTRACTOR immediately by telephone at (239) 593-3777 any accident or injury to anyone that occurs on the jobsite and is related to any of the work being performed by the SUBCONTRACTOR. To the fullest extent permitted by law, the Sub-contractor expressly agrees to indemnify, defend, and hold harmless the Contractor, the project owner, the architect, and the engineer and their respective officers, directors, agents, and employees herein called the “{ndemnitees” from any and all liability for damages, including, if allowed by law, reasonable attorney’s fees and court costs, such legal expenses to include costs incurred in enforcing the indemnification and other rights agreed to in this Paragraph, to persons or property caused in whole or in part by any act, omission, or default by the Sub-contractor or its sub-subcontractors, material men, or agents of any tier or their employees, arising out of this Agreement or its performance, including any such damages caused in whole or in part by any act, omission, or default of any indemnitee, but specifically excluding any claims of, or damages against an indemnitee resulting from such indemnitee’s gross negligence, or the willful, wanton or intentional misconduct of such indemnitee or for statutory violation or punitive damages except and to the extent the statutory violation or punitive damages are caused by or result from the acts or omissions of the Sub-contractor or its sub-subcontractors, material men, or agents of any tier or their respective employees. Provided however that any 13368-1 01168550.DOCX;1 3/6/2019 CONTRACTOR INITIALS SUP/SUB INITIALSTHIS CONTRACT IS SUBJECT TO THE FOLLOWING TERMS: claim for indemnification for damages caused in whole or in part by any act, omission or default by indemnitee(s) shall be limited to the amount of Sub-contractor’s insurance or $1 million per occurrence whichever is greater. The parties acknowledge that the amount of the indemnity required hereunder bears a reasonable commercial relationship to this Agreement and it is part of the project specifications or the bid documents, if any, as required by Section 725.06 F.S... The indemnification obligations under this Agreement shall not be restricted in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for the Sub-contractor under workers’ compensation acts, disability benefits acts, or other employee benefits acts, and shall extend to and include any actions brought by or in the name of any employee of the Sub-contractor or of any third party to whom Sub-contractor may subcontract a part or all of the Work. This indemnification shall continue beyond the date of completion of the work. Minimum limits of insurance required of SUBCONTRACTOR or THEIR Subcontractors: 1 Automobile Jiability and property damage including hired and borrowed vehicle liability in an amount of at least $1,000,000 combined single limit. 2. General liability including products, completed operations, and without restriction or limitation of residential work (applies to residential type projects only), contractual liability, Damage to Work Performed by Subcontractors, or underground, collapse, and explosion coverage in an amount of at least $1,000,000 per occutrence, $2,000,000 per project aggregate, general aggregate and $2,000,000 products completed operations aggregate. (If providing Umbrella Liability, Underlying GL must be at least $1,000,000 per occurrence.) 3. Professional liability (if any professional services are rendered such as design, engineering, etc.) in an amount of at least $1,000,000 combined single limit. 4. Workers’ compensation insurance with statutory limits and $500,000 Employers’ Liability and in absence of any employees, on a minimum “if any” basis of payroll or subcontracts. 5. Additional Umbrella Liability Insurance Including Products and Completed operations with Minimum limits of $1,000,000 per occurrence 6. Insurance to be maintained as shown on the certificate of insurance during the entire duration of work being performed on behalf of CONTRACTOR and for at least 3 years after completion and delivery. Certificates to provide a minimum of 30 days notice of cancellation or alteration. ARTICLE VI WARRANTY: All labor, material and equipment furnished under this Contract shall be guaranteed by the Sup/sub to the Contractor and Owner to be fit and sufficient for the purpose intended, and such labor, materials and equipment are guaranteed to be merchantable, of good material and workmanship, and free ftom defects, and Sup/sub agrees to replace without charge to Contractor or Owner said labor, materials and equipment, or remedy any defects, latent or patent, not due to any ordinary wear and tear or due to improper use or maintenance, which may develop within one year from the date of acceptance by the Owner, or within the guarantee period set forth in the applicable plans and specifications, or statutes, whichever is longer. The warranties herein are in addition to those implied by law. Sup/sub agrees to replace any material and to correct any work deemed defective by the Contractor, Owner or Design Professional when requested to do so. This Contract shall not operate as a waiver of any rights that the Contractor or Owner may have for breach of any warranty or guarantee or as election of remedies and is expressly agreed to be supplemental to all other express warranties and any warranties implied by law. ARTICLE VII APPROVAL: All material and equipment furnished under this Contract shall be subject to the approval of the Owner, Owner's Design Professional and Contractor. Sup/sub shall furnish the required number of submittal data, including but not limited to shop drawings, or samples for said approval. In the event approval is not obtained, this Contract may be canceled by Contractor with no liability on the part of the Contractor. It is understood and agreed that Owner has the right to approve or disapprove the employment of Sup/sub and in the event that Owner does not approve Sup/sub, this Contract shall become null and void. ARTICLE Vil TERMINATION OF CONTRACTOR: In the event of the termination of the Contract between the Contractor and Owner, this Contract shall also be terminated upon written notice of the Contractor to the Sup/sub, and Contractor shall have no liability whatsoever for any amounts not already billed as of the date of receipt of the written notice of termination or for any amounts not meeting the Conditions Precedent for Payment as set forth in this Contract. ARTICLE IX TERMINATION: §9.1 For Cause. In the event the Sup/sub delays the progress of the work in the opinion of Contractor or fails to comply with any schedule submitted to Sup/sub by Contractor, or fails in the performance of any of the provisions of this Contract, files for 13368-1 01168550.DOCX;1 3/6/2019 CONTRACTOR INITIALS, SUP/SUB INITIALSTHIS CONTRACT IS SUBJECT TO THE FOLLOWING TERMS: bankruptcy or is involuntarily placed into bankruptcy, or becomes insolvent, or refuses or neglects to supply a sufficient number of properly skilled workmen, or refuses or neglects to supply a proper quantity or quality of materials called for under this Contract, or fails in any respect to prosecute the work with promptness and diligence called for this Contract, or to fail in the performance or otherwise breaches any of the terms and conditions found throughout this Contract, the Contractor shall have the right to exercise any option Contractor deems necessary to correct above mentioned deficiency including but not limited to immediate contract termination, which may be without notice. In case of such termination, the Sup/sub shall not be entitled to receive any further payments under this Contract until the performance of the work required to be performed under the Contract has been completed (by such person or persons selected by Contractor), at which time, if the unpaid balance due Sup/sub exceeds the cost of completion, said amount shall be paid to Sup/sub, but if such expense incurred by the Contractor including all damage and cost incurred through the default of the Sup/sub shall equal or exceed such unpaid balance, then no payment shall be due to Sup/sub and Sup/sub shall be liable to Contractor for any such excess amounts. Any and all material, equipment, tools, and/or supplies will not be removed from the jobsite by the Sup/sub. Contractor shall have the option to use same to complete the scope of work described herein. If Contractor, or others hired by Contractor, complete Sup/sub’s work after termination, it shall do so for Sup/sub’s account. In that event, Contractor shall be entitled to recover, or credit for, all labor, services, and materials furnished to complete the work, together with fifteen percent (15%) overhead and profit, all of which shall be considered as part of the cost of the completion work, §9.2 Other. The Contractor may, for any reason and without cause, terminate this Contract upon written notice to the Sup/sub not less than five (5) business days prior to the effective date of termination. In case of such termination, the Sup/sub shall be entitled to all payments under this Contract earned by Sup/sub under the terms hereof through the effective date of termination, which payments shall be paid in the same manner and subject to the conditions precedent, as set forth in ARTICLE I. Provided, the Contractor shall exercise its right to terminate this Contract under this §10.2 in good faith. For these purposes, "good faith" shall include, but not be limited to, circumstances in which the Project or the Work provided for under this Contract will not be completed. Any and all material and/or supplies for which payment hereunder has been made will not be removed from the jobsite by the Sup/sub. ARTICLE X ASSIGNMENT: Sup/sub agrees that it will not assign this Contract, or any of the monies due it, or to become due hereunder, nor sublet any portion of the work without the prior written consent of Contractor. ARTICLE XI TIME: Time is of the essence of this Contract. Not withstanding any other provision of this Contract, should Sup/sub for any reason fail to make deliveries as required hereunder to the satisfaction of the Owner, Design Professional, or Contractor, the Contractor shall be at liberty to purchase the materials or obtain the labor from another source, in which case no payment shall be due to Sup/sub for the unsatisfactory materials or labor and any excess in cost of the replacement materials or labor obtained by Contractor over the price herein provided shall be chargeable to and paid by the Sup/sub on demand. Should any delay on the part of the Sup/sub occasion loss, damage or expense including consequential damages to the Owner or to Contractor, the Sup/sub shall indemnify against such loss, damage or expense including attorney's fees as provided in ARTICLE XXIII. Any scheduling information whether or not contained within this agreement is subject to change by the Contractor. It is the Sup/sub's responsibility to monitor the progress of the project and insure that resources are available for the project when needed. ARTICLE XII CHANGES OR ALTERATIONS: No additions, deductions or changes shall be made in the work, nor shall there be any charges for premium time, except upon the prior written approval of Contractor, which order shall specify the amount of additional compensation or credit to be applied to the amount of this Contract and shall specify the additional time or savings in time attributable to the authorized change. Only the Contractor's project manager or officers of Contractor are authorized to provide any written approvals for change orders. The Contractor’s field personnel do not have the authority to approve additional work and/ or modify this Contract. ARTICLE XI. TITLE TO MATERIAL AND EQUIPMENT: The materials and equipment covered by this Contract, whether in a deliverable state or otherwise, shall remain the property of the Sup/sub until said materials and/or equipment are made a permanent part of the project unless other arrangements are made for stored materials in such condition as determined by the Contractor. Any damage to material and equipment or loss of any kind occasioned in transit or in storage shall be borne by the Sup/sub notwithstanding the manner in which the goods are shipped or who pays the freight or other transportation costs or whether or not payments have been made for stored materials. If for any reason, all or any portion of the work to be performed or the materials to be furnished are not delivered at the time or times herein specified, the Contractor may, at his option, cancel this order as to all or any portion of the labor or materials not so delivered and Contractor shall not be responsible for any costs or payments associated therewith. ARTICLE XIV SITE: The Sup/sub shall clean up daily and place in a dumpster all debris caused by the execution of the work or the furnishing of material. Upon failure to remove debris, Contractor may complete this work and charge double the cost to the Sup/sub. ARTICLE XV LIENS: At the time of payment, the Sup/sub shall furnish all necessary lien waivers, affidavits or other documents required to keep the Owner's premises free from liens or claims for liens of all material men, suppliers or laborers, for all work for which the Sup/sub is then requesting payment. 13368-1 01168550.DOCX;1 3/6/2019 CONTRACTOR INITIALS SUP/SUB INITIALSTHIS CONTRACT IS SUBJECT TO THE FOLLOWING TERMS: ARTICLE XVI TAXES: Sup/sub shall pay all sales, consumer, use, and other similar taxes for the work or portions thereof provided by the Sup/sub, which are legally enacted at the time bids are received, whether or not yet effective. Sup/sub shall also pay all other contributions, taxes or premiums which may be payable under federal or state unemployment insurance law, worker's compensation law, and the Federal Social Security Act, which taxes and assessments arise out of the performance of this Contract. ARTICLE XVII DISPUTE RESOLUTION AND PARTICIPATION AGREEMENT: The Sup/sub acknowledges and agrees that any controversy or claim arising out of or relating to this Contract, or the breach thereof, shall be resolved under the laws of the State of Florida. If the Contractor is compelled into arbitration under the terms of its agreement with the Owner, Sup/sub agrees to participate in the arbitration for the purpose of resolving any dispute arising out of common or interrelated issues of fact or law, or Sup/sub’s scope of work. Sup/sub cannot compel the Contractor into arbitration under any such clause, but Contractor and Sup/sub may mutually agree to enter into binding arbitration to resolve any dispute at the time the dispute arises. Any litigation proceeding initiated under the terms of this Contract may, at the request of either party, be joined or consolidated with other litigation proceedings involving additional parties if the disputes arise out of common or interrelated factual occurrences. Both parties to this Contract agree that if the other party becomes involved in litigation concerning the project which is the subject of this Contract, then the uninvolved party will participate in the litigation to the extent it involves questions of law or of fact which arise from or are related directly or indirectly to the performance of the terms of this Contract by the party not involved in the litigation. The Sup/sub and Contractor agree to include a provision regarding dispute resolution identical to the one contained herein in all agreements with other contractors, subcontractors or suppliers. The parties further agree to contractually require the other contractors, subcontractors and suppliers to include identical dispute resolution provisions in all agreements that they may enter into for labor, materials or management to be furnished to the project. In any request by Sup/sub for a Change Order involving additional time, money or both, or in connection with any claim by, or dispute between Sup/sub and Contractor, Contractor and Sup/sub agree that the following provisions shall apply: (a) Sup/sub shall be bound by all dispute provisions of the Contract Documents, and by all final decisions of any Design Professional under the Contract Documents to the same extent that Contractor is bound to Owner; (b) Sup/sub shall exhaust all remedies under the Contract Documents before filing a Claim of Lien, claim for arbitration, or any action or proceeding against Contractor or Owner; () Sup/sub shall stay or abate any proceeding upon Contractor’s request until all Contract Document remedies are exhausted; @ Participate in any claim or proceeding concerning a dispute arising under the Contract Documents or this Subcontract to which Contractor is a party in the form in which Contractor is a party on Contractor’s notice to do so; © Sup/sub shall be bound by the decision of any Court or tribunal having jurisdiction over a claim or dispute, whether Subcontractor is a party to he proceeding or not, to the extent that it covers a claim or demand of Subcontractor; @ Sup/sub shall cooperate fully with Contractor in any claim or proceeding between Owner and Contractor involving Sup/sub’s scope of work hereunder; (g) Sup/sub shall reimburse Contractor for all expense attributable to a claim, demand or defense, whether asserted or not, of Sup/sub in any proceeding arising from this Subcontract to which Contractor is a party whether Subcontractor is a party or not, and whether incurred at trial, on appeal or otherwise; and (h) Sup/sub shall not be entitled to recover damages from Contractor unless Contractor is paid the amount of damages by Owner, except when Contractor alone is responsible for the damages. Sup/sub shall present, and Contractor shall promptly forward all reasonable claims or demands of Sup/sub to Owner, including requests for time extensions, an increase in the Subcontract price, when Contractor is permitted to do so under the Contract Documents, and shall invoke the provisions of the Contract Documents for determining disputes on behalf of Sup/sub when appropriate. Sup/sub shall not permit a dispute to interfere with the progress of construction. Contractor shall be liable to Sup/sub in a claim or dispute only to the extent that Owner is liable to Contractor, and to the extent of Contractor’s receipt of funds from Owner as a result of such claim or dispute. Sup/sub shall not be entitled to any extension of time or extra compensation unless a claim for it is presented in a timely manner to enable Contractor 13368-1 01168550.DOCX;1 3/6/2019 CONTRACTOR INITIALS SUP/SUB INITIALSTHIS CONTRACT IS SUBJECT TO THE FOLLOWING TERMS: to make the claim against the Owner. Sup/sub shall furnish all witnesses, documents, information, network analysis and other items required to process Sup/sub’s claims or demands at Sup/sub’s expense. ARTICLE XVII ATTORNEY'S FEES: The parties to this Contract agree that in the event that either party is required to enforce his legal rights under this Contract or under applicable Florida law against the other, the prevailing party shall be entitled to reasonable attorneys' fees and court costs regardless of whether an action is filed or the matter is resolved prior to an action being filed, and including all fees and costs associated with any appeal. The parties to this Contract agree to venue in the appropriate court in Collier County, Florida. ARTICLE XIX ENTIRE AGREEMENT: This Contract and any documents referenced herein constitute the entire agreement between the Contractor and the Sup/sub. All prior representations, conversations, or preliminary negotiations shall be deemed to be merged in this document, and no changes will be considered or approved unless this Contract is modified by an authorized representative of the Contractor in writing. ARTICLE XX SAFETY: All work will be performed in accordance with the Federal Occupational Safety and Health Standards (20 CFR 1926/1910), OSHA 2207, Latest Revision, Construction Industry. (See Exhibit “D” of Contract package for penalties/fines for violations). Fines levied against the Contractor by OSHA for actions or inactions of the Sup/sub and/or his employees shall be charged to the Sup/sub and deducted from amounts due Sup/sub. Sup/sub agrees to perform all work and maintain necessary records to be in compliance with the Hazard Communication Standards of OSHA, Sup/sub agrees to provide Contractor with all Safety Data Sheets ("SDS") for the Project within the time prescribed by the Contract Documents or as otherwise required by applicable law. ARTICLE XXI MISCELLANEOUS: All references in this agreement to "Sup/sub" shall mean the party signing as "Supplier/Subcontractor" and shall not be construed to omit a party supplying labor, services, or materials and traditionally referred to as a subcontractor. References to a party shall include that party whether masculine, feminine, or neuter, singular or plural. If any provision of this Contract is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Contract, such provision shall be fully severable; this Contract shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part of this Contract; and the remaining provisions of this Contract shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Contract. Furthermore, in lieu of each such illegal, invalid, or unenforceable provision, there shall be added automatically as part of this Contract a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and enforceable. ARTICLE XXII INDEMNIFICATION: To the fullest extent permitted by law, the Sup/sub shall indemnify and hold harmless the Owner, Contractor, Architect, their officers, directors, shareholders, partners employees, agents, or servants or any of them including present and former officers, directors, employees, representatives, and subsidiaries and/or affiliated entities (individually, the “Indemnitee”, collectively, the “Indemnitees”) from and against all claims, damages, losses, actions, causes of action, suits, judgments, other liabilities and expenses (collectively, a "Claim"), including but not limited to attorneys’ fees (whether incurred prior to the institution of litigation or in litigation, to include trial and appellate proceedings, and whether suit be brought or not) and other costs and expenses, whether at law or in equity, arising out of, resulting from, or connected with: (1) Any act, omission, or default of Sup/sub or any of its contractors, subcontractors, sub-subcontractors, material men, or agents of any of the foregoing or their respective employees; (2) any damages to person or property caused in whole or in part by any act, omission, or default of one or more Indemnitees arising from this Contract or its performance; or (3) Any breach of the obligations and representations of Sup/sub under this Contract, including without limitation those contained in ARTICLE XXV below. Such obligation to indemnify shall not be construed to negate, abridge, or otherwise reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this section. Notwithstanding anything herein to the contrary, any indemnification obligation of the Sup/sub to an Indemnitee for a Claim caused in whole or in part by any act, omission, or default of such Indemnitee shall, to the extent so caused by an act, omission, or default of such Indemnitee, be limited to the applicable limitation for such Claim under the Sub/sup's General Liability policy, as set forth in ARTICLE VI above; provided, such limitation shall not be less than One Million Dollars ($1,000,000) per occurrence in the event the Indemnitee is the Owner. Furthermore, Sup/sub's indemnification obligations to an Indemnitee shall not include claims of, or damages resulting from, gross 13368-1 01168550.DOCX;1 3/6/2019 CONTRACTOR INITIALS SUP/SUB INITIALSTHIS CONTRACT IS SUBJECT TO THE FOLLOWING TERMS: negligence, or willful, wanton or intentional misconduct of such Indemnitee or its officers, directors, agents, or employees, or for statutory violation or punitive damages, except and to the extent the statutory violation or punitive damages are caused by or result from the acts or omissions of the Sup/sub or any of its contractors, subcontractors, sub-subcontractors, material men, or agents of any of the foregoing or their respective employees. The provisions of this ARTICLE XXII shall (i) be construed as agreements and covenants separate, independent and mutually exclusive of any other provision of this Contract, (ii) be binding upon, and inure to the benefit of the Indemnitiees and their respective successors and assigns, and (iii) survive the termination of this Agreement. Each of the Indemnitees who is not a party to this Contract is an intended third party beneficiary of this Article. ARTICLE XXII CROSS-COLLATERALIZATION: From time to time during the term of this Contract, Sup/sub and the Contractor may be parties to other subcontractor agreements or other contracts (such agreements, including any renewal, modification, extension or rearrangement thereof collectively referred to as the "Other Contracts"). All payments which the Contractor owes to the Sup/sub hereunder or under any of the Other Contracts shall be subject to offset for any amounts owed to the Contractor from Sup/sub pursuant to any provision of this Contract or the Other Contracts, including without limitation indemnification provisions set forth in ARTICLE XXIII above. All rights granted to the Contractor under this ARTICLE XXIV shall be cumulative and not alternative, and shall be in addition to and shall in no manner impair or affect any rights or remedies under this Contract, any of the Other Contracts or under any statute or rule of law. Any default by Sup/sub under any other Subcontract or agreement with Contractor shall constitute a default hereunder, and shall entitle Contractor to all remedies hereunder, just as if the default had occurred on this Subcontract. ARTICLE XXIV SUP/SUB LIABILITY: The Contractor and/or owner shall not be held responsible for the loss, expense or damage to any tools, equipment, vehicles, etc. (“Equipment”) due to theft, use by any other persons, Contractor, subcontractor, vendor, workers or persons related or unrelated to any party. Nor is the Contractor and/or owner responsible for the safety or well-being of any person or party for the Equipment or for damages caused by the use of the Equipment. Sup/sub shall be solely responsible for such loss, expense, damage to Equipment as well as the safety or well being of any person or party utilizing said Equipment. ARTICLE XXV EMPLOYEES OF SUP/SUB: The Sup/sub shall employ its own employees and shall be responsible for all social security, worker's compensation, liability insurance, unemployment insurance, licensing, employee certification (Form I-9), worker training requirements and any other federal and state labor requirements. The Sup/sub hereby certifies that all service providers furnished by Sup/sub who are performing or assisting in performing services under this Contract are eligible to work in the United States. The Sup/sub shall provide written evidence to Contractor of all licenses and certifications at such periodic intervals as the Contractor may request. ARTICLE XXVI RELATIONSHIP BETWEEN PARTIES: The parties acknowledge that Sup/sub is an independent contractor and not a joint venturer, partner, employee, or agent of the Contractor by virtue of this Contract. The Contractor has no direct control over the manner or method by which Sup/sub meets Sup/sub's obligations hereunder, provided, that Sup/sub's services shall be performed in a competent and efficient manner in accordance with current professional standards and in compliance with the policies of Contractor and the terms of this Contract, The Contractor will not withhold for Sup/sub any sums for income tax, Social Security, unemployment insurance. As between the Contractor and Sup/sub, Sup/sub shall be solely responsible for all employment related withholdings and benefits. Contractor and Sup/sub agree that this Contract is non-exclusive and Sup/sub reserves the right and privilege of furnishing labor and services to other businesses, and Contractor reserves the right and privilege of contracting with other labor contractors for the performance of such services as may be required in the operation of its business. Nothing in this Contract constitutes or implies a requirement or guarantee of a permanent or exclusive arrangement between Contractor and Sup/sub. ARTICLE XXVIIT_ REMEDIES BETWEEN SUBCONTRACTORS: Contractor shall not be liable to Sup/sub, its materialmen, laborers or sub-subcontractors for any claim, demand, loss, damages or expenses sustained by any of them because of the act or omission of another Subcontractor of Contractor on the project. Sup/sub shall have a direct right of action against the other Subcontractor if the other Subcontractor executed a Subcontract containing this provision. Sup/sub indemnifies Contractor against any claim, demand, damages, loss or expenses sustained by another Subcontractor, materialmen, laborer or Sub-subcontractor who performs on the project resulting from Sup/sub’s acts or omissions in connection with Sup/sub’s work under this Subcontract. 13368-1 0116