SOUTH COUNTY DRINKING WATER FACILITY

CIP NO. C32012 CMAR-1 CONSTRUCTION MANAGER AT RISK AGREEMENT

CONSTRUCTION MANAGER AT RISK AGREEMENT FOR

SOUTH COUNTY DRINKING WATER FACILITY PROJECT

(CIP NO. C32012)

CMAR NO.: 26-00264

TABLE OF CONTENTS

ARTICLE 1 INCORPORATION OF RECITALS

ARTICLE 2 DEFINITIONS

ARTICLE 3 PRELIMINARY MATTERS/NOTICES TO PROCEED/ ASSUMPTION OF RISKS BY

CONSTRUCTION MANAGER AT RISK

ARTICLE 4 CONSTRUCTION MANAGER AT RISK’S DUTIES AND RESPONSIBILITIES

ARTICLE 5 COUNTY’S DUTIES AND RESPONSIBILITIES/PROFESSIONAL’S STATUS

ARTICLE 6 RELATIONSHIP OF THE PARTIES

ARTICLE 7 PROJECT SCHEDULE/CONTRACT TIME/COMPLETION

ARTICLE 8 COST OF WORK AND METHOD OF PAYMENT

ARTICLE 9 CONTINGENCY AND ALLOWANCES

ARTICLE 10 CHANGES TO THE WORK

ARTICLE 11 WARRANTIES, GUARANTEES AND REPRESENTATIONS

ARTICLE 12 COVENANTS

ARTICLE 13 PERFORMANCE AND PAYMENT BONDS AND INSURANCE

ARTICLE 14 DEFAULT, TERMINATION AND OTHER REMEDIES

ARTICLE 15 SUSPENSION OF WORK

ARTICLE 16 INDEMNIFICATION

ARTICLE 17 OWNERSHIP OF DOCUMENTS AND MAINTENANCE OF RECORDS

ARTICLE 18 SMALL BUSINESS ENTERPRISE (SBE) REQUIREMENTS FOR CONSTRUCTION

CONTRACTS

ARTICLE 19 ASSIGNMENT

ARTICLE 20 RELIANCE UPON REPRESENTATIONS AND STATEMENTS OF ASSURANCE

ARTICLE 21 LEGALLY REQUIRED STATEMENT PROVISIONS REGARDING ACCESS TO RECORDS

FOR SERVICE CONSTRACTS

ARTICLE 22 CONSTRUCTION MANAGER AT RISK MUST USE E-VERIFY, MUST HAVE LEGALLY

AUTHORIZED WORKFORCE & UTILIZE IMAGE BEST PRACTICES

ARTICLE 23 TERMINATION FOR CONSTRUCTION MANAGER AT RISK ENGAGING IN BUSINESS

OPERATIONS IN CUBA OR SYRIA AND TERMINATION FOR CONSTRUCTION

MANAGER AT RISK BEING ON THE SCRUTINIZED COMPANIES LISTS SET FORTH IN

FLORIDA STATUTES, SECTION 287.135

ARTICLE 24 CONSTRUCTION APPRENTICE INCENTIVE PROGRAM

CIP NO. C32012 CMAR-2 CONSTRUCTION MANAGER AT RISK AGREEMENT

ARTICLE 25 MISCELLANEOUS

APPENDICES TO CONSTRUCTION MANAGER AT RISK AGREEMENT

APPENDIX 1 RFP/Proposal

APPENDIX 2 Preconstruction Services Scope of Work

APPENDIX 3 Project Specific Site and Performance Requirements

APPENDIX 4 Guaranteed Maximum Price (GMP) Proposal (To Be Determined)

APPENDIX 5 Project Schedule

APPENDIX 6 Payment Bond

APPENDIX 7 Performance Bond

APPENDIX 8 Small Business Enterprise (SBE) Requirements

APPENDIX 9 Hillsborough Equal Opportunity Clause

APPENDIX 10 Insurance Requirements/Certificate of Insurance Forms

APPENDIX 11 Application for Payment Form

APPENDIX 12 Subcontractor’s Statement of Satisfaction

APPENDIX 13 Allowance Authorization Release Form

APPENDIX 14 Change Order Form

APPENDIX 15 Construction Manager At Risk’s Affidavit of Payment of Debts and Claims

APPENDIX 16 IRS FORM W-9 Request for Taxpayer Identification Number and Certification

APPENDIX 17 Truth-in-Negotiation Certificate

APPENDIX 18 Direct Purchase Option Procedures

CIP NO. C32012 CMAR-3 CONSTRUCTION MANAGER AT RISK AGREEMENT

CONSTRUCTION MANAGER AT RISK AGREEMENT FOR

SOUTH COUNTY DRINKING WATER FACILITY PROJECT

(CIP NO. C32012)

This CONSTRUCTION MANAGER AT RISK AGREEMENT (“AGREEMENT”) is made and entered into this day of , 20 , between THE BOARD OF COUNTY COMMISSIONERS OF HILLSBOROUGH COUNTY, a political subdivision of the State of Florida, (the “BOCC”), and ____________________, a corporation, having a mailing address at ______________________________ ( “CONSTRUCTION MANAGER AT RISK.”)

RECITALS

WHEREAS, COUNTY desires to engage CONSTRUCTION MANAGER AT RISK to provide input and support during the Design Phase and to construct the South County Drinking Water Facility (the "Project") by providing construction manager at risk services including, but not limited to, preconstruction services, work, labor, materials and equipment necessary to deliver and complete the construction of the Project;

WHEREAS, CONSTRUCTION MANAGER AT RISK has reviewed the description of Work required under (i) this AGREEMENT, (ii) the Request for Proposals (“RFP”) No. CMAR-26-00264, and (iii) all Addenda, revisions and Modifications to any and all of them. CONSTRUCTION MANAGER AT RISK represents and warrants to COUNTY through its proposals in response to the RFP including all addenda, revisions and Modifications thereto, and by entering into this AGREEMENT that it is qualified, willing and able to provide, perform, and acquire all services, work, labor, materials and equipment necessary to support the design and to construct the Project in accordance with the provisions, conditions, and terms set forth in this AGREEMENT.

WHEREAS, CONSTRUCTION MANAGER AT RISK will submit a Guaranteed Maximum Price (GMP)

Proposal upon the COUNTY’s completion of the design drawings, specifications and other descriptive documents defining the Work to be included in the GMP Proposal. Upon acceptance by COUNTY and approval by the BOCC, a Modification (GMP Modification) will be made to this AGREEMENT acknowledging the GMP amount and the drawings, specifications and other descriptive documents upon which the GMP is based. The GMP Modification shall take precedence as described in Article 8.

WHEREAS, COUNTY is selecting CONSTRUCTION MANAGER AT RISK as of this day to manage and construct the Project in accordance with Sections 287.055 and 255.20, Florida Statutes; the RFP, and any and all Addenda, Modifications and revisions thereto;

WHEREAS, COUNTY and CONSTRUCTION MANAGER AT RISK desire to enter into this

AGREEMENT to memorialize the terms, conditions, duties, and obligations of CONSTRUCTION MANAGER AT RISK’S engagement to provide input and support during the Pre-Construction Services phase of the Project Phase and to construct the Project.

NOW THEREFORE, in consideration of the mutual covenants, terms and provisions herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, COUNTY and CONSTRUCTION MANAGER AT RISK agree as follows:

ARTICLE 1

INCORPORATION OF RECITALS

1.1 RECITALS. The foregoing Recitals are true and correct, and the recitals and instruments referred to therein are hereby incorporated herein by reference.

CIP NO. C32012 CMAR-4 CONSTRUCTION MANAGER AT RISK AGREEMENT

ARTICLE 2

DEFINITIONS

2.1 The following words and expressions shall, wherever they appear in the AGREEMENT, be construed as follows:

2.1.1 Addenda. Written or graphic instruments issued prior to the opening of proposals which clarify, correct, or change the Request for Proposals.

2.1.2 AGREEMENT. This document executed by CONSTRUCTION MANAGER AT RISK and the BOCC and any and all documents referenced herein, and Attachments/Appendices attached hereto as well as all subsequent Change Orders and Modifications. AGREEMENT and Contract Documents as defined herein shall be considered as the same.

2.1.3 Allowable Cost of Work. The portion of the Construction Cost of Work upon which the Construction Manager at Risk Fee may be applied. The Allowable Cost of Work includes Direct Construction Costs and General Conditions. Allowable Cost of Work does not include any of the following: Cost of premiums for bonds, insurance, and letters of credit; permitting fees; non-reimbursable costs; and contingencies and allowances (except to the extent provided in Articles 9 and 10).

2.1.4 Application for Payment. The form issued by COUNTY which is to be used by CONSTRUCTION MANAGER AT RISK in requesting a progress or final payment and which shall include such supporting documentation as is required by this AGREEMENT.

2.1.5 Apprentice. For purposes of the Construction Apprenticeship Program shall mean any person who is enrolled and participating in an apprenticeship program registered with the Florida Department of Education or the United States Department of Labor, or a company-sponsored apprenticeship program approved by the Florida Department of Transportation

2.1.6 Apprentice Cost. For purposes of the Construction Apprenticeship Program shall mean compensation paid by a Contractor or Subcontractor to an Apprentice, the cost of benefits paid by a Contactor or Subcontractor for an Apprentice, and payroll taxes paid by a Contractor or Subcontractor for an Apprentice.

2.1.7 Approval. When applied to approval from COUNTY, shall mean approval which is, at a minimum, evidenced by a written document authored or initialed by COUNTY and subject to the formalities imposed by specific provisions in this AGREEMENT.

2.1.8 Architect/Engineer of Record. ARCHITECT/ENGINEER OF RECORD means the firm of Jacobs Engineering Group, Inc. who shall also act as the County’s professional representative (“Professional “) for purposes of this Agreement and will be responsible for providing design and/or professional services, whether architectural or engineering. Such party shall be engaged by COUNTY and shall provide the Design Documents and contribute to the Final Construction Documents to be incorporated into this AGREEMENT. All references to “Professional” in the Agreement shall be construed as referring to the Architect/Engineer of Record.

2.1.9 Beneficial Occupancy. The status of completion of a specified portion of the Project which, in the opinion of the Project Manager and as evidenced by a Certificate of Beneficial Occupancy which has been approved by the Professional, is sufficiently complete in accordance with the Contract Documents, so that COUNTY may utilize that portion for the purposes for which it was intended, and when said use will not significantly interfere with the construction of the remaining (uncompleted) part of the Project. Punch List Work may continue after the date of Beneficial Occupancy. Unless otherwise directed by the Project Manager, all asset management data and maintenance requirements shall be completed and operational in COUNTY’S applicable asset management system prior to the issuance of any Certificate of Beneficial Occupancy.

2.1.10 BOCC. The Board of County Commissioners of Hillsborough County, Florida.

2.1.11 Bonds. Proposal, Performance and Payment Bonds and other instruments of security furnished by the CONSTRUCTION MANAGER AT RISK and its Surety in accordance with the RFP and the AGREEMENT.

CIP NO. C32012 CMAR-5 CONSTRUCTION MANAGER AT RISK AGREEMENT

2.1.12 Business Day. Any day on which COUNTY’S administrative office is open to the public.

2.1.13 Change Order. A written order signed by the Chairperson of the BOCC authorizing an addition, deletion, or revision in the Work or an adjustment in the Guaranteed Maximum Price of a particular phase of the Project or of the overall Guaranteed Maximum Price for the Contract or the Contract Time issued after the execution of the

AGREEMENT.

2.1.14 CONSTRUCTION MANAGER AT RISK. The successful proposer, whether a corporation, partnership, individual or any combination thereof, with whom the BOCC has entered into the AGREEMENT.

2.1.15 Construction Services. All labor, materials, and subcontract services to be provided by CONSTRUCTION MANAGER AT RISK in connection with the construction, alteration, repair, demolition, reconstruction or any other improvements to real property. Construction Services include the start-up, testing, commissioning of the Project, and the provision of warranty services, all as further described in the associated Contract Modification (s). These services commence on the issuance of Notice to Proceed with Construction Services and continue through Final Completion or termination of this AGREEMENT. Construction Services also means Work as defined herein below.

2.1.16 Contract Documents. Contract Documents shall mean the Definitions, Instructions, General Terms and Conditions, Special Terms and Conditions, Insurance and Bond requirements, Specifications, all Addenda, Modifications(s) issued pursuant to the Agreement, which is incorporated by reference, all the attached documents identified in the RFP, all supplementary drawings issued after award of the Contract, all Change Orders, all Allowance Authorization Releases (including direct purchase savings documentation), and all provisions required by law to be a part of the Contract Documents, whether actually inserted therein or not.

2.1.17 Contract Time. Contract Time means the number of calendar days stated in the AGREEMENT for completion of the Work, days reserved for performance of any Allowance Work hereunder, and days for any Work approved by Change Order(s) and Modifications. Contract Time shall be adjusted by deletion of unreleased Allowance Authorization Release Time in the final Change Order. The first Day of the Contract Time is the Notice to Proceed Date shown in the Notice to Proceed with Pre-Construction Services.

2.1.18 Construction Manager at Risk Fee. Construction Manager at Risk Fee is the combined overhead and profit a CONSTRUCTION MANAGER AT RISK can mark up on Allowable Cost of Work defined herein during the construction phase of the Project. The Construction Manager at Risk Fee shall be eight percent (8%) of the Allowable cost of Work. CONSTRUCTION MANAGER AT RISK Fee is included within the GMP. The CMAR Fee is not applicable to Pre-Construction Services.

2.1.19 COUNTY. COUNTY shall mean the BOCC and the BOCC acting by and through its authorized designees, agents and employees.

2.1.20 COUNTY’S Professional Representative or “PROFESSIONAL”. The terms COUNTY’S Professional Representative or PROFESSIONAL shall refer to the Architect of Record as defined in Section 2.1.8 who will provide consulting services and resources to oversee, review and make recommendations concerning the Work performed by the CONSTRUCTION MANAGER AT RISK.

2.1.21 Day. One (1) calendar day when used in the AGREEMENT, measured from midnight to the next midnight, unless the Contract Documents specifically say Business Day.

2.1.22 Defective. Defective is an adjective which refers to Work that is unsatisfactory, faulty, deficient or otherwise does not conform to the Final Contract Documents or the requirements of this AGREEMENT.

2.1.23 Department. The Department within COUNTY that is initiating and managing the Project. For this Project, the Department shall be COUNTY Water Resources Department.

2.1.24 Design Documents. Design Documents means all documents, from preliminary to record drawings, including, but not limited to, design documents, design drawings, plans, construction drawings, specifications, data, studies, surveys, calculations, permit applications, estimates, photographs, reports, memoranda, letters, sketches, renderings, approved submittals, as-builts and other documents prepared by the ARCHITECT/ENGINEER OF

CIP NO. C32012 CMAR-6 CONSTRUCTION MANAGER AT RISK AGREEMENT

RECORD and/or its Subconsultants, and/or Subcontractors, that fix, depict and/or describe the size, quality and character of the entire or any portion of the Project.

2.1.25 Direct Construction Costs. Cost of materials (including transportation, taxes, storage and handling), cost of construction labor, including subcontracted labor and benefits for staff employed directly by the CONSTRUCTION MANAGER AT RISK, and actual costs of rental equipment.

2.1.26 Director. Director shall refer to the Director of the Department or Division (or designee of either) initiating and managing the Project.

2.1.27 Equal/Equivalent. Equal and Equivalent means a product, service, component or system which is demonstrated, to the satisfaction of COUNTY, to be equal to the product, service, component or system specified.

COUNTY shall be the sole judge of acceptability of an Equal or Equivalent.

2.1.28 Field Order. A written direction to CONSTRUCTION MANAGER AT RISK from the PROFESSIONAL or the Project Manager that modifies drawings and specifications without changing the Guaranteed Maximum Price or Contract Time.

2.1.29 Final Completion. Acceptance of the Work by COUNTY as evidenced by the signature of the Project Manager, the PROFESSIONAL and any other required COUNTY personnel upon the Certificate of Final Completion form. Final Completion shall be deemed to have taken place only if and when such signature is affixed to such certificate. The Certificate of Final Completion shall be signed only after the Project Manager, the PROFESSIONAL and any other required COUNTY personnel have assurance by tests, certificates, inspections, or otherwise that all the provisions of the Work as called for in the AGREEMENT, have been carried out, including completion of the Punch List.

2.1.30 Final Construction Documents. Final Construction Documents means the approved, corrected, updated, coordinated and permitted construction documents at the 100% completion of the design stage for the Project or if, limited notices to proceed for construction have been issued, the 100% design for the phase involved, which are developed, prepared by the ARCHITECT/ENGINEER OF RECORD in coordination with the CMAR and approved by COUNTY, setting forth in detail all Work to be performed during the construction phase of the Project, including, but not limited to, all labor, materials, equipment, and services necessary to construct the Project and which will become part of the AGREEMENT.

Once the Final Construction Documents for the Project have been approved in writing by COUNTY, no changes shall be made thereto without the express written consent of COUNTY.

2.1.31 Force Majeure. An Event of Force Majeure is an act of God, an act of governmental authority, or necessity for compliance with any court order, law, statute, ordinance or regulation promulgated by a governmental authority having jurisdiction, a strike, lockout or other industrial disturbance, an act of the public enemy, sabotage, war, insurrection or blockade, riot or other civil disturbance, epidemic, an arrest and restraint of rulers and people; and any other similar event, including but not limited to, acts or negligence by COUNTY (subject to certain exceptions as specifically defined in the AGREEMENT) that affects and prevents the performance of CONSTRUCTION MANAGER AT RISK’S obligations hereunder in whole or in part., is not reasonably within the control of such party and which by the exercise of due diligence such party is unable to prevent or overcome.

2.1.32 General Conditions Costs. Costs of wages and benefits of supervisory and project management staff required to meet the owner requirements for reporting and contract management, cost of site management including field offices, equipment and utilities, stormwater pollution prevention, safety and security controls, daily clean up including disposal and recycling, temporary roads and parking, materials management including equipment rental and labor to order, accept, deliver, store and protect materials and products and all other items necessary to deliver the scope of work that are not included in the Direct Construction Costs. Any travel expenses included are reimbursable only to the extent permitted under Section 112.061, Florida Statutes.

2.1.33 Guaranteed Maximum Price (GMP). Guaranteed Maximum Price means the maximum compensation to be paid hereunder by COUNTY to CONSTRUCTION MANAGER AT RISK for all salaries and fees including, but not limited to, Construction Manager At Risk Fee, costs, expenses, taxes, reimbursable costs and expenses, overhead and administrative costs, general requirements, general conditions, profits and costs of all labor, material, CIP NO. C32012 CMAR-7 CONSTRUCTION MANAGER AT RISK AGREEMENT services, equipment, tools, supplies and fixtures incurred or used by CONSTRUCTION MANAGER AT RISK or its Subconsultants or Subcontractors in providing and performing all the Work required to complete the construction of the Project. GMP includes allowances and contingencies as described in Article 9. The GMP shall be developed by CONSTRUCTION MANAGER AT RISK in accordance with the following:

The Scope of Work, specifications, and Architect/Engineer of Record’s project drawings All required permits;

CONSTRUCTION MANAGER AT RISK’S Proposal submitted in response to the RFP;

All documents and requirements of this AGREEMENT; and Any and all other documents agreed to by COUNTY and CONSTRUCTION MANAGER AT RISK

2.1.34 Limited Notice to Proceed with Construction. COUNTY’S written consent and authorization to CONSTRUCTION MANAGER AT RISK to commence with specific procurement and/or construction of a specific portion of the Project.

2.1.35 Modification(s). A written modification to the executed agreement covering such additions, deletions, changes or revisions and the amount of compensation to be paid therefore documented by a formal or administrative Change Order as defined herein. Reference herein to this AGREEMENT shall be considered to include any Modification thereto.

2.1.36 Nonconformance Report. A written notice from the Project Manager or the PROFESSIONAL to CONSTRUCTION MANAGER AT RISK reporting on an aspect of Defective Work which requires the immediate correction of same by CONSTRUCTION MANAGER AT RISK.

2.1.37 Notice. A written Notice. Notice served upon CONSTRUCTION MANAGER AT RISK at the place of business given in the AGREEMENT. Notice to COUNTY or to the Project Manager shall be served at the office of the Project Manager.

2.1.38 Notice to Proceed with Pre-Construction Services. A written notice given by the Project Manager to CONSTRUCTION MANAGER AT RISK setting the date on which the Contract Time will commence, and CONSTRUCTION MANAGER AT RISK shall start to perform the pre-construction obligations under the AGREEMENT. COUNTY reserves the right to issue multiple notices to proceed with different phases or portions of the Work.

2.1.39 Notice to Proceed with Construction Services. A written consent(s) and authorization(s) given by the Project Manager to CONSTRUCTION MANAGER AT RISK to commence with construction of the Project or designated portion of the Project. Notice to Proceed with Construction Services must be provided by COUNTY before CONSTRUCTION MANAGER AT RISK may proceed with any construction Work.

2.1.40 Pre-Construction Services. Services include the services described in the scope of work provided in Appendix 2 of this AGREEMENT and commencing on the issuance of the first Notice to Proceed. Pre-Construction Services may also include pre-purchasing of material and other services as authorized by COUNTY.

2.1.41 Professional. Professional means any individual, firm or entity, which provides design and/or professional service to COUNTY, whether architectural, engineering or surveying as identified in this Agreement.

2.1.42 Project. “Project” means the South County Drinking Water Facility Project, as defined in the RFP and Scope of Work, as may be modified as provided herein. .

2.1.43 Project Documents. All documents, including, but not limited to, the Design Documents, the Final Construction Documents and all documents prepared by ARCHITECT/ENGINEER OF RECORD and/or CONSTRUCTION MANAGER AT RISK through the completion of the Project.

2.1.44 Project Manager. An individual employed by COUNTY and assigned under the supervision of the County Administrator to manage and administer the Project which is the subject of this AGREEMENT. The Project Manager will provide direct contact and communication between COUNTY and CONSTRUCTION MANAGER AT RISK with respect to providing information, assistance, guidance, coordination, and review of CONSTRUCTION MANAGER AT RISK’S Work pursuant to this AGREEMENT and any authorized Change Order(s). The Project

CIP NO. C32012 CMAR-8 CONSTRUCTION MANAGER AT RISK AGREEMENT

Manager shall not be authorized to, and shall not, issue any verbal or written request or instruction or approval to CONSTRUCTION MANAGER AT RISK that might have the effect, or that might be interpreted to have the effect, of modifying or changing this AGREEMENT in any respect.

2.1.45 Project Officer. An individual employed by CONSTRUCTION MANAGER AT RISK to manage and administer the Project which is the subject of this AGREEMENT. CONSTRUCTION MANAGER AT RISK’S Project Officer will provide direct contact and communication between COUNTY and CONSTRUCTION MANAGER AT RISK with respect to providing information, assistance, guidance, coordination, and review of the Work pursuant to this AGREEMENT.

2.1.46 Project Schedule. Project Schedule means the project schedule, showing the sequence and schedule of CONSTRUCTION MANAGER AT RISK’S furnishing of all labor, services, equipment and materials for the completion of the Project. The Project Schedule consists of Project Schedule Summaries which establish major milestones for the Project, and the Project Detailed Schedule (to be prepared by CONSTRUCTION MANAGER AT RISK and accepted by COUNTY) showing in detail the sequence and schedule of CONSTRUCTION MANAGER AT RISK’S Work for the Project. The initial accepted and approved Project Schedule Summary is attached hereto as Appendix 5 and incorporated herein. The Project Detailed Schedule shall be submitted by CONSTRUCTION MANAGER AT RISK for review and approval of COUNTY within thirty (30) Days of the Notice to Proceed with Pre-Construction Services, pursuant to Article 7.1 of the AGREEMENT. The Project Schedule may be amended, modified or revised only in accordance with the AGREEMENT.

2.1.47 Proper Invoice. An invoice that conforms with all statutory requirements and all requirements specified in the Contract Documents.

2.1.48 Proposal or RFP Proposal. The proposal of the proposer submitted on the prescribed forms along with all other documents submitted by the Proposer in response to COUNTY’S Solicitation Document.

2.1.49 Punch List. The approved list of incomplete, non-operational and/or deficient Work that shall be completed by CONSTRUCTION MANAGER AT RISK after Substantial Completion but before Final Completion for each phase can be certified by the Project Manager. The Punch List enumerates the items required to render complete, satisfactory and acceptable all Work by CONSTRUCTION MANAGER AT RISK. The Punch List is developed by CONSTRUCTION MANAGER AT RISK, COUNTY and Professional in accordance with the provisions of the AGREEMENT and within the time frames required therein. The Punch List includes items of a minor nature; major items must be completed before Substantial Completion and cannot be considered to be Punch List work.

2.1.50 Shared Savings. Shared Savings shall mean the cost savings that are eligible for sharing between the COUNTY and the CONSTRUCTION MANAGER AT RISK.

2.1.51 Site. Site shall mean the area on which CONSTRUCTION MANAGER AT RISK’S construction Work is to be performed and such other areas that may be designated as such by the Final Construction Documents, and upon which the Project and associated improvements are to be constructed by CONSTRUCTION MANAGER AT

RISK.

2.1.52 Subconsultant. Any person, firm or entity offering or providing professional and/or consulting services which is not included in the definition of "Professional" or “Architect/Engineer of Record” above and which has a direct contract with CONSTRUCTION MANAGER AT RISK or with any other Subconsultant for the performance of any part of CONSTRUCTION MANAGER AT RISK’S obligations in providing and performing the Work for which CONSTRUCTION MANAGER AT RISK is contractually obligated, responsible and liable under the AGREEMENT. Each Subconsultant shall possess all applicable valid and current trade licenses and all licenses necessary to operate in the State of Florida for the performance of the Work.

2.1.53 Subcontractor. Any person, firm or entity providing other than professional or subcontracting services which has a direct contract with CONSTRUCTION MANAGER AT RISK or with any other Subcontractor for the performance of any part of CONSTRUCTION MANAGER AT RISK’S obligations in providing and performing the Work for which CONSTRUCTION MANAGER AT RISK is contractually obligated, responsible and liable under the AGREEMENT. Each Subcontractor shall possess all applicable valid and current trade licenses and all licenses necessary for the performance of the Work.

CIP NO. C32012 CMAR-9 CONSTRUCTION MANAGER AT RISK AGREEMENT

2.1.54 Subcontractor Markup. The combined overhead and profit a Subcontractor of any tier can apply to its Allowable Cost of Work for Change Orders (post-GMP approval) and Allowance Authorization Releases as described in Article 10. The total maximum markup allowed including the Construction Manager at Risk Fee and Subcontractor Markup of all tiers, shall in no event exceed fifteen percent (15%).

2.1.55 Submittals. All drawings, diagrams, illustrations, reports, brochures, shop drawings, cost proposals, performance charts, instructions, diagrams, surveys, schedules, samples, test results, warranties and other data which are specifically prepared by CONSTRUCTION MANAGER AT RISK, its Subconsultants, or Subcontractors, or any manufacturers, fabricators, suppliers or distributors, and submitted by CONSTRUCTION MANAGER AT RISK as part of its services under this AGREEMENT and as required under the Final Construction Documents.

2.1.56 Substantial Completion. The completion of all Project work and all associated restoration work in their permanent state. The status of completion of the Work which, in the opinion of the Project Manager as evidenced by a definitive Certificate of Substantial Completion, is complete in accordance with the Contract Documents, except for minor outstanding items listed on the Punch List. Substantial Completion includes, but is not limited to, the following occurring:1) the Work can be safely utilized for the purposes for which it was intended; 2) all regulatory agency requirements are satisfied, including occupancy permits, operating certificates and similar releases, 3) all operational and performance testing has successfully occurred; 4) all required training has successfully occurred; 5) as-built drawings, certifications, warranties, guaranties, test reports, test logs, operational manuals have been provided by CONSTRUCTION MANAGER AT RISK and accepted by COUNTY. Unless otherwise directed by the Project Manager, all asset management data and maintenance requirements shall be completed and operational in COUNTY’S applicable asset management system prior to the issuance of any Substantial Completion.

2.1.57 Substitution. Substitution means a product, service, component or system which is not Equal to that specified but is proposed by CONSTRUCTION MANAGER AT RISK in lieu of that specified. The acceptability of a substitute shall be based on the data submitted and the benefit to COUNTY. COUNTY shall be the sole judge of acceptability.

2.1.58 User Agency. COUNTY division within the Department which will occupy and/or operate the Project. For this Project, the primary User Agency shall be the Water Resources Department, Field Maintenance Services (FMS).

2.1.59 Value Engineering. Value Engineering is a creative approach to be utilized by the CONSTRUCTION MANAGER AT RISK to identify and assess alternatives for cost savings for the COUNTY without sacrificing the reliability, efficiency or quality of the Project.

2.1.60 Work. Work means any and all authorized and approved work, materials supplies, tools, furnishings, fixtures, labor, services, equipment, design, professional, construction management and contract administration services for the design, permitting, site development, and construction of the Project (including both Pre-Construction and Construction Services) performed and provided by CONSTRUCTION MANAGER AT RISK (and its agents, employees, Subconsultants, and Subcontractors) pursuant to this AGREEMENT. The Work shall include the furnishing of all transportation and services, including fuel, power, water and essential communications and for the performance of all labor, work or other operations required for the fulfillment of the AGREEMENT. The Work shall be complete, and all work, materials and services not expressly shown or called for in the Final Construction Documents but which may be necessary for the complete and proper construction of the Project in good faith shall be performed, furnished and installed by CONSTRUCTION MANAGER AT RISK as though originally so specified or shown, at no increase in cost to COUNTY.

ARTICLE 3

PRELIMINARY MATTERS/NOTICES TO PROCEED/ ASSUMPTION OF RISKS BY CONSTRUCTION

MANAGER AT RISK

3.1 ENTIRE AGREEMENT/PRECEDENCE. The AGREEMENT consists of this document executed by the parties and any and all documents referenced herein and/or Attachments/Appendices attached hereto as well as all Change Orders and Modifications. It is the intent of the AGREEMENT and the Scope of Work to describe the total Work. The documents of the AGREEMENT are complementary; what is called for by one is as binding as if called for by all. If CONSTRUCTION MANAGER AT RISK finds a conflict or discrepancy within the AGREEMENT, in the Scope of Work and other documents included in the RFP, or between any of them, CONSTRUCTION MANAGER AT RISK shall call it to the Project Manager's attention in writing promptly upon discovery of such.

CIP NO. C32012 CMAR-10 CONSTRUCTION MANAGER AT RISK AGREEMENT

The Project Manager or PROFESSIONAL shall respond with a written clarification. CONSTRUCTION MANAGER AT RISK shall promptly make every reasonable effort to resolve any such conflict, error or discrepancy.

Any delays associated with the clarification shall be considered for time extensions. Damages for delay in excess of ninety (90) days for responses to requests for clarification may be considered on a case by case basis at the COUNTY’s discretion, if the delay is caused solely by the negligence of the COUNTY. In resolving such conflicts, errors, and discrepancies, the documents shall be given precedence in terms of the most stringent requirements as determined by COUNTY. Enforcement of the most stringent requirements shall be at COUNTY’S option. Documents shall be reviewed for interpretation in the following order:

1. Contract Modifications (including Guaranteed Maximum Price Modifications) and Change Orders

2. This Agreement, including all appendices

3. Final Construction Documents

4. Basis of Design Report

5. RFP, including all attachments

Any Work that may reasonably be inferred from the AGREEMENT as being required to produce the intended result shall be supplied whether or not it is specifically called for. Work, materials, or equipment described in words which, so applied, have a well-known technical or trade meaning shall be deemed to have such recognized meaning.

3.2 DELIVERY OF PERFORMANCE AND PAYMENT BONDS AND INSURANCE CERTIFICATES.

3.2.1 Delivery of Insurance Certificate(s). Within ten (10) days prior to approval of the AGREEMENT, the CONSTRUCTION MANAGER AT RISK shall provide insurance certificate(s) meeting the requirements of Article 13 and Appendix 10 of this AGREEMENT. and using COUNTY’S current forms and endorsements (see Appendix 10), or their equivalent.

3.2.2 Delivery of Performance and Payment Bonds. Within ten (10) Days following approval of the Guaranteed Maximum Price Modification to this AGREEMENT by the BOCC, CONSTRUCTION MANAGER AT RISK shall deliver to COUNTY the executed Performance and Payment Bonds. CONSTRUCTION MANAGER AT RISK shall provide a Performance Bond and a Payment Bond in substantially the same form shown in Appendices 6 and 7 of this AGREEMENT in an amount equal to the cost of the construction portion of the Project by a surety company authorized to do business in the State of Florida and considered satisfactory to COUNTY. If CONSTRUCTION MANAGER AT RISK fails to timely provide the required Bonds and installation floater and/or builders risk Insurance Certificate(s) within the timeframe specified herein, the COUNTY has the right to terminate the AGREEMENT without waiving any rights or remedies relating to such delay.

3.3 VERIFICATION BEFORE STARTING WORK. Before undertaking each part of the Work, CONSTRUCTION MANAGER AT RISK shall carefully study and compare the Scope of Work, Appendix 3 and this AGREEMENT, existing Construction Documents, or Final Construction Documents and check and verify pertinent figures and all applicable field information. CONSTRUCTION MANAGER AT RISK shall promptly report in writing to the Project Manager any conflict, error, or discrepancy which it may discover and CONSTRUCTION MANAGER AT RISK shall promptly make every reasonable effort to resolve any such conflict, error or discrepancy.

3.4 SCOPE OF WORK.

3.4.1 CONSTRUCTION MANAGER AT RISK shall provide and perform all Work as required in the Final Construction Documents and Appendix 3 necessary for the completion of the entire Project commensurate with the intended high quality construction and low maintenance cost for the Project. The Scope of Work shall include, but is not limited to, providing and performing all Work necessary (i) for the construction of the Project, (ii) to furnish efficient construction administration, supervision and superintendence, and (iii) for Site work, permitting, regulatory matters, approvals, testing, surveying, environmental mitigation, geotechnical, traffic, architectural, engineering, landscaping, security, construction, post- construction, accounting and control, coordination and efficient management to facilitate completion of the Project.

CIP NO. C32012 CMAR-11 CONSTRUCTION MANAGER AT RISK AGREEMENT

3.4.2 QUALITY OF SCOPE OF WORK. The Project, as constructed, shall be functionally sound, technically proficient and constructed with community awareness and consideration, structural integrity, exhibiting a high quality of materials and construction principles, shall be in compliance with all governing laws, regulations, building codes, hurricane requirements, Americans with Disability Act (ADA), all considered and applied during construction, and all in effect prior to the applicable Substantial Completion date.

3.5 COMMENCEMENT OF WORK AND NOTICES TO PROCEED.

3.5.1 The Contract Time shall commence on the date indicated in the Notice to Proceed with Pre-Construction Services. Notice to Proceed with Pre-Construction Services shall be issued by the Project Manager after the CONSTRUCTION MANAGER AT RISK has delivered to COUNTY the executed AGREEMENT, the Insurance Certificates in accordance with the AGREEMENT, and the BOCC has approved this AGREEMENT.

3.5.1.1 NOTICE TO PROCEED WITH PRE-CONSTRUCTION SERVICES. The Notice to Proceed with Pre- Construction Services will be issued by COUNTY within fourteen (14) Days of approval of this AGREEMENT by the BOCC provided that CONSTRUCTION MANAGER AT RISK has delivered to COUNTY the executed AGREEMENT and Insurance Certificates required hereunder.

3.5.1.2 If the CONSTRUCTION MANAGER AT RISK fails to timely provide this executed AGREEMENT and all required Bonds and Insurance Certificates by the date specified, the COUNTY reserves the right to terminate the AGREEMENT or at its sole discretion, to allow for additional time for the delivery of the executed AGREEMENT and the Bonds and Insurance Certificates required hereunder without waiving any rights or remedies relating to such delay.

3.5.1.3 If COUNTY does not issue the Notice to Proceed with Pre-Construction Services within twenty-one (21) Days of approval of this AGREEMENT by the BOCC (provided CONSTRUCTION MANAGER AT RISK has delivered the executed AGREEMENT and Insurance as required by this AGREEMENT) then, at COUNTY’S option, the Contract Time, the Notice to Proceed with Pre-Construction Services, and the Completion Milestone dates may be extended on a day for day basis for up to ninety (90) Days. Should there be a delay of over ninety (90) Days in COUNTY’s issuance of a Notice to Proceed with Pre-Construction Services CONSTRUCTION MANAGER AT RISK may approach COUNTY to consider market changes that may have affected COUNTY’s Project budget defined under the Contract Documents. Any proposed modification to the AGREEMENT resulting therefrom shall be subject to the mutual agreement of the Parties. The County reserves the right to terminate the Contract as provided herein if no agreement can be reached by the parties.

3.5.2 NOTICE TO PROCEED WITH CONSTRUCTION SERVICES. CONSTRUCTION MANAGER AT

RISK shall begin the Work on the date the Contract Time commences. No Work shall be performed by CONSTRUCTION MANAGER AT RISK or its Subconsultants or Subcontractors, and no irrevocable commitments to vendors shall be made, until the issuance of the Notice to Proceed with Pre-Construction Services, or Notice to Proceed with Construction Services at which time CONSTRUCTION MANAGER AT RISK may commence to perform services in accordance with the requirements of this AGREEMENT. Any work performed by the CONSTRUCTION MANAGER AT RISK prior to execution by the County of the Contract or before the date of commencement listed on the applicable Notice to Proceed for the Project or a particular Phase of the Project shall be at the CONSTRUCTION MANAGER AT RISK’s risk and CONSTRUCTION MANAGER AT RISK shall be wholly liable for any Work done or costs incurred, unless such Work is approved in advance in writing by

COUNTY.

3.5.3 A separate Notice to Proceed with Construction Services shall be issued by the Project Manager. In the absence of written authorization from the Project Manager, no construction Work (off-Site or on-Site Work, including, but not limited to, mobilization and Site clearing) shall be performed by CONSTRUCTION MANAGER AT RISK and no irrevocable commitments to vendors shall be made until a separate Notice to Proceed with Construction Services (or Limited Notice to Proceed with Construction Services, if applicable) is issued by the Project Manager.

3.5.4 At COUNTY’S option, Limited Notice(s) to Proceed with Construction Services may be issued for a portion of the construction Work, subject to the conditions below.

3.5.5 LIMITED NOTICE(S) TO PROCEED WITH CONSTRUCTION SERVICES

CIP NO. C32012 CMAR-12 CONSTRUCTION MANAGER AT RISK AGREEMENT

3.5.5.1 CONSTRUCTION MANAGER AT RISK may request COUNTY consent to and issue a Limited Notice to Proceed with Construction Services for a specific portion of the Work. COUNTY, a t its option, may issue such Limited Notice to Proceed with Construction Services. Work must be performed within the overall Contract Time established in the AGREEMENT, unless extended through a Contract Modification.

3.5.5.2 CONDITIONS FOR LIMITED NOTICE TO PROCEED WITH CONSTRUCTION SERVICES. The following conditions must also be met before COUNTY will issue a Limited Notice to Proceed with Construction Services for limited portions of the Work:

i) Issuance by COUNTY of all Design Documents necessary or related to such portion of the Work, including but not limited to the applicable Final Construction Documents;

ii) Submittal by the CONSTRUCTION MANAGER AT RISK’S of the Draft Schedule of Values and Final Schedule;

iii) Issuance of all applicable permits and receipt of all applicable approvals relating to such portion of the Work from governmental agencies having or claiming jurisdiction over the Project or Site;

iv) CONSTRUCTION MANAGER AT RISK shall provide Installation Floater insurance certificate(s) meeting the requirements of Article 13 of this AGREEMENT and using the COUNTY’S current form (Appendix 10), or its equivalent along with written confirmation from CONSTRUCTION MANAGER AT RISK’S insurance agents and/or companies that all other insurance coverages required under this AGREEMENT are in full force and effect;

v) CONSTRUCTION MANAGER AT RISK’S written certification that there are no obstacles to obtaining any permits or approvals from authorities having jurisdiction over the Project or the Site, for the Work not covered by this Notice to Proceed;

vi) CONSTRUCTION MANAGER AT RISK’S written certification that phasing the construction as contemplated in the Limited Notice to Proceed with Construction Services shall not jeopardize the Substantial Completion and Final Completion dates;

vii) CONSTRUCTION MANAGER AT RISK shall assume the responsibility for coordinating the Work under the Limited Notice to Proceed with Construction Services with any future Work, including any costs and impacts generated.

3.5.6 NOTICE TO PROCEED WITH CONSTRUCTION SERVICES.

3.5.6.1 CONSTRUCTION MANAGER AT RISK may, request COUNTY consent to and issue one or multiple Notice(s) to Proceed with Construction Services. COUNTY, a t its option, may issue such Notice(s) to Proceed with Construction Services. Work must be performed within the overall Contract Time established in the AGREEMENT, unless extended through a Contract Modification.

3.5.6.2 CONDITIONS FOR NOTICE TO PROCEED WITH CONSTRUCTION SERVICES. The following conditions must also be met before COUNTY will issue a Notice to Proceed with Construction Services:

i) Written approval by COUNTY of all Design Documents necessary or related to such portion of the Work, including but not limited to required Submittals and the Final Construction Documents;

ii) Approval by COUNTY of CONSTRUCTION MANAGER AT RISK’S Final Schedule of Values and CPM Schedule;

iii) Issuance of all applicable permits and receipt of all applicable approvals relating to such portion of the Work from governmental agencies having or claiming jurisdiction over the Project or Site;

iv) CONSTRUCTION MANAGER AT RISK shall have provided insurance certificate(s) meeting the requirements of Article 13 of this AGREEMENT and using the COUNTY’S current form (Appendix 10) or its equivalent along with written confirmation from CONSTRUCTION MANAGER AT RISK’S insurance agents and/or companies that all other insurance coverages required under this AGREEMENT are in full force and effect; and

v) Written certification from CONSTRUCTION MANAGER AT RISK that there are no obstacles to the Substantial Completion of and Final Completion of within the Contract Time.

3.5.7 COUNTY and CONSTRUCTION MANAGER AT RISK expressly understand and agree that construction of the Project is contingent upon COUNTY’S issuing Notice to Proceed with Construction Services (or Limited Notice to Proceed with Construction Services, if applicable). COUNTY retains the right to withhold issuance of any Notice to Proceed with Construction Services and to elect not to require construction of the Project for any reason whatsoever. This shall not be construed as a Termination for Convenience, unless the County provides written

CIP NO. C32012 CMAR-13 CONSTRUCTION MANAGER AT RISK AGREEMENT

notice of same. In such event, CONSTRUCTION MANAGER AT RISK will be compensated only for those services rendered for and related to Pre-Construction services and any cost of bonds and insurance (to the extent applicable) incurred by CONSTRUCTION MANAGER AT RISK (pro-rated, as appropriate), and CONSTRUCTION MANAGER AT RISK shall have no claim for damages payable by COUNTY for withholding Notice to Proceed with Construction Services and COUNTY shall have no further obligations to CONSTRUCTION

MANAGER AT RISK.

3.5.8 COUNTY shall not issue the Notice to Proceed with Construction (limited or otherwise) unless the BOCC approves the AGREEMENT or Modification and the associated encumbrance of funds necessary for construction of the Project. COUNTY and CONSTRUCTION MANAGER AT RISK understand and agree that the construction of the Project is conditioned upon the BOCC’s determination of a method of funding for construction of the Project.

3.5.9 INITIAL WORK CONFERENCE. Within ten (10) business Days after the Notice to Proceed with any portion of the Work, an initial work conference shall be held for a joint review of the Scope of Work and the current design drawings, CONSTRUCTION MANAGER AT RISK’s responsibilities, the Project Schedule and to establish procedures for handling value engineering and constructability review, cost estimating and value engineering comparative pricing, processing Applications for Payment, and to establish a working understanding among the parties as to the Work.

3.5.10 PRE-CONSTRUCTION CONFERENCE. Prior to the Notice to Proceed with Construction Services or any Limited Notice to Proceed with Construction Services being issued, a pre-construction conference shall be held for review and acceptance of CONSTRUCTION MANAGER AT RISK’S Project Schedule, Schedule of Values, personnel and Subcontractor list, to review approaches to community outreach and information, to review approaches to construction, to review mobilization requirements, to establish procedures for handling shop drawings and other Submittals and Applications for Payment, and to establish a working understanding among the parties as to the Work.

3.6 ASSUMPTION OF RISKS BY CONSTRUCTION MANAGER AT RISK

3.6.1 CONSTRUCTION MANAGER AT RISK has entered into this AGREEMENT with the full understanding and knowledge that there is no guarantee that the Notice to Proceed with Pre-Construction Services or Notice to Proceed with Construction Services will be issued by COUNTY. CONSTRUCTION MANAGER AT RISK agrees that COUNTY shall not be liable for any damages associated with COUNTY’S withholding of such Notices to Proceed or decision to discontinue any phase or the Project as a whole.

3.6.2 CONSTRUCTION MANAGER AT RISK must absorb the risk of any delay in the issuance of the Notice(s) to Proceed and shall not be entitled to any damages for delay whatsoever if the Notice(s) to Proceed is (are) not issued within the time frames indicated in CONSTRUCTION MANAGER AT RISK’S Project Schedule except as provided for in Section 3.5.1.4.

3.6.3 CONSTRUCTION MANAGER AT RISK shall have a duty to anticipate and provide adequate contingencies for risks associated with the Work for the Project. CONSTRUCTION MANAGER AT RISK shall take into consideration and factor into its Project Schedule and GMP, all Site conditions and difficulties involved in the completion of the Work, the variations in permitting time frames, impacts due to addressing community concerns, and the time frames available to COUNTY for reviewing deliverables, schedules, and Applications for Payment.

3.6.4 CONSTRUCTION MANAGER AT RISK shall become familiar with and prepare for the normal weather conditions existing in Hillsborough County, Florida. Normal weather conditions are expected to impact the Work in numerous ways, including, but not limited to, delays during and after periods of rainfall, temporary flooding and ponding, wet ground, high winds and debris.