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PROGRESSIVE DESIGN-BUILD AGREEMENT

LEE COUNTY PORT AUTHORITY, a political subdivision of the state and special district of the state of Florida by and through the Lee County Board of Port Commissioners (the “Authority”), hereby contracts with INSERT NAME (the "Design-Build Firm") of INSERT DESIGN-BUILD FIRM'S ADDRESS, whose federal tax identification number is INSERT DESIGN-BUILD FIRM'S FEID, a INSERT DESIGN BUILD-FIRM'S STATE (FLORIDA, DELAWARE, ETC.) Design-Build firm licensed and authorized to perform all Work in the State of Florida in connection with the Authority’s Solicitation No. INSERT SOLICITATION NO. (the "Project")., as said Work is set forth in the Plans and Specifications furnished by the Design-Build Firm and other Contract Documents hereafter specified.

SECTION 1. DEFINITIONS

Wherever used in the Contract Documents, the following terms have the meanings indicated which are applicable to both the singular and plural thereof:

A. Acceptance of the Work - Written acceptance of the WORK by the Authority and the Authority’s Representative.

B. Agreement – This written contract between the Authority and Design-Build

Firm for purposes of the Project covering the Work and other Contract Documents that are attached to or referred to in the Agreement, including any and all amendments to this Agreement. All such documents shall be deemed to be a part of the Agreement for all purposes.

C. Allowance Items - An amount proposed by Design-Build Firm for inclusion in the Contract Price for prescribed items not specified in detail. The amount of any proposed Allowance Item shall be the maximum amount paid for the specified item, unless otherwise amended in accordance with the Contract Documents.

D. Amendment - A document providing the written modification to a previously issued Agreement, adding, revising, replacing, or removing terms and conditions or provisions of the Agreement.

E. Architect and Engineer- A duly licensed individual or entity designated by

Design-Build Firm to perform or furnish specified professional engineering or architectural services, as applicable, in connection with the Work.

F. Authority’s Representative – A person designated to act as Authority's

Representative with respect to Design-Build Firm’s performance of the Work. Such person shall have complete authority to transmit instructions, receive information, interpret and define Authority’s policies, and make decisions with respect to performance of the Work.

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G. Board- shall mean the Board of Port Commissioners which is comprised of the Lee County Board of County Commissioners.

H. Bond – Performance and Payment Bond and other instruments of security.

I. Change Amendment (“CA”)– A written order to the Design-Build Firm signed by the Authority, issued after execution of the Agreement, authorizing a change in the Work or an adjustment in the Contract Amount or the Contract Time. The Contract Amount and the Contract Time may be changed only by a Change Amendment. A Change Amendment signed by the Design-Build Firm indicates its agreement therewith, including the adjustment in the Contract Amount or the Contract Time.

J. Construction – The process of performing the Work and the final end product of that process. This term may also refer to portions of the final end product. The terms construct and constructing and other similar variations of those terms also refer to Construction as defined herein. The term Construction shall not be deemed to include the performance of professional engineering or architectural design services.

K. Contract Amount – The amount specified in Section 4 of the Agreement.

The Contract Amount may be changed from time to time pursuant to the terms and conditions of this Agreement.

L. Contract Documents – The documents as are listed under Section 2 of the

Agreement.

M. Contract Time – The time stated in the approved Project Schedule to achieve Substantial Completion, and to finally complete the Work so that it is ready for final payment in accordance with the terms of this Agreement.

N. Defective – An adjective which when modifying the terms Construction or

Work refers to Construction or Work that is delayed, unsatisfactory, faulty or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents, or has been damaged prior to Authority’s final payment (unless responsibility for the protection thereof has been assumed by Authority as of the time of damage pursuant to the terms and conditions of the Contract Documents).

O. Design-Build Firm – The individual or entity with whom Authority has entered into the Agreement as indicated in the Agreement.

P. Design Criteria Package – The Drawings and Specifications and/or other graphic or written materials, criteria and information concerning Authority’s requirements for the Project, such as design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, which show or describe the

P a g e 3 | 27 character and scope of, or relate to, the Work to be performed or furnished and which have been prepared by or for Authority.

Q. Drawings – Those portions of the Contract Documents prepared by or for

Design-Build Firm and approved by Authority consisting of drawings, diagrams, illustrations, schedules and other data which show the scope, extent, and character of the Work.

R. Effective Date of the Agreement – The date indicated in the Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver.

S. Field Directive – A Field Directive (FD) will be utilized in the absence of an agreement, in the form of a change amendment, to express a written order by the Authority directing a change in work, or to expedite a change in work that is time and/or schedule sensitive.

T. Final Completion – The time at which all Construction and all Work has been fully, finally, and properly completed in accordance with the Contract Documents and all other duties, responsibilities, and obligations have been performed, as verified by the Authority with tests, inspections, or otherwise, so as to entitle the Design-Build Firm to submit a Bill or Invoice for final payment in accordance with the terms of this Agreement.

Final Completion occurs when the Project is accepted by the Authority as evidenced by a letter of Final Completion signed by the Authority’s Representative, the Design-Build Firm and the Authority. The terms “finally complete” and “finally completed” also refer to Final Completion.

U. Force Majeure Events – Those events that are not reasonably foreseeable and are beyond the control of both Design-Build Firm and the Authority, including acts of war, terrorist attacks, labor strikes, floods, earthquakes, epidemics, pandemics, riots, adverse weather conditions, and other acts of God.

V. Guaranteed Maximum Price – the maximum amount, including, but not limited to, the Preconstruction Phase Fee (Phase 1) and the Construction Phase Fee (Phase 2), that will be paid to the Design-Build Firm to fully complete phase 2 Final Design and Construction of the Project as set forth in the GMP Amendment. The Guaranteed Maximum Price (“GMP”) may be modified only by Change Amendment in accordance with this Agreement.

W. Hazardous Conditions – Any materials, wastes, substances, and chemicals deemed to be hazardous under applicable laws, rules, codes, regulations, ordinances or policies, or the handling storage, remediation, or disposal of which are regulated by applicable laws, rules, codes, regulations, ordinances or policies.

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X. Invoice or Bill – The form which is to be used by Design-Build Firm in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract Documents.

Y. Laws and Regulations – Any and all applicable laws rules, regulations, ordinances, codes and orders of any and all governmental bodies, agencies, authorities and courts having jurisdiction.

Z. Liquidated Damages – Damages, usually in the form of monetary payment, agreed to by the parties to a contract which are due and payable as damages in the event of a breach of all or part of such contract. Liquidated Damages may be applied on a daily basis for as long as the breach is in effect. Liquidated Damages are not considered by the parties as penal in nature.

AA. Notice of Noncompliance: A Notice of Noncompliance will be utilized by the

Authority to communicate in writing to the Design Build Firm either a deficiency in the Work or other action required of the Design Build Firm. The Design Build Firm will provide a written response within (5) working days of receipt of the notice unless otherwise directed. The Authority may withhold payment for noncompliant items until corrective action is complete.

BB. Notice to Proceed - Written notice(s) given by the Authority to Design-Build

Firm authorizing Design-Build Firm to proceed with the Design-Build Work and fixing the date on which the Contract Time will commence to run and identifying the corresponding Substantial Completion and Final Completion dates. The Contract Documents may specify more than one Notice to Proceed applicable to the different stages and/or portions of the Design-Build Work.

CC. Procore - The Authority’s application used for management of all project, records storage and access, payment applications, change management and construction documents, etc. Design-Build Firm shall solely use the Authority’s Procore application for performance of the Project.

DD. Product Data – Illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by Design-Build Firm to illustrate materials or equipment for some portion of the Work.

EE. Project – The entire undertaking by the Authority, identified by Authority as indicated in the Exhibits of the Agreement, including planning, study, design, construction, testing, commissioning, operational readiness, activation and transition (ORAT) and start-up, and of which the Work to be performed under the Contract Documents is a part.

FF. Record Drawings - The certified shop drawings from the Design-Build Firm.

Including a revised set of drawings that reflect all changes made in the specifications and shop drawings made during the Construction Phase of the Project.

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GG. Request for Change Amendment (RCA) - An RCA will be utilized by the Design Build Firm to formally present any request for contractual adjustment/contract amendment. The RCA will provide justification for entitlement to the change and will be substantiated.

HH. Request for Information (RFI) - A RFI will be utilized in the field to present any questions or clarifications requested by the Design Build Firm. The Design Build Firm will, upon receipt, forward the RFI to the appropriate source who will respond to the RFI in writing.

II. Schedule of Values – A schedule, prepared by Design-Build Firm and accepted by Authority, which divides the Work into various major components, units, or divisions and which assigns a portion of the Contract Price to each of such components, units or divisions.

JJ. Self-performed Work- Work performed by employees of: (1) the Design-

Build Firm; or (2) any entity that controls, is controlled by, or is under common control with any entity that is part of the Design-Build Firm. Self-Perform Work is distinguished from Work performed by Subcontractors unaffiliated with the Design-Build Firm or the entities of which the Design-Build Firm is comprised.

KK. Shop Drawings – Diagrams, schedules, drawings, and other types of data prepared specifically by the Design-Build Firm, and requiring approval review from the Authority’s Representative, to demonstrate how the Work will be implemented by the Design-Build Firm.

LL. Site – The real property or other areas designated in the Contract

Documents as being furnished by Authority for the performance of the Construction, storage, or access.

MM. Specifications – Those portions of the Contract Documents which are organized into divisions, sections, and articles pertaining to, but not limited to, materials, style, workmanship, fabrication, dimensions, colors, warranties, finishes, quality, manufacturer, grade and operational data of all components to be provided by the Design- Build Firm as applied to the Construction and incorporated into the Project with certain administrative details applicable thereto.

NN. Subcontractor – A person, firm, partnership, corporation, or entity who has a direct contract with the Design-Build Firm to perform any of the Work at the Site. The term Subcontractor does not include those whose sole purpose is that of a Supplier of materials, but a Supplier of materials shall be classified as a Subcontractor if it enters into any agreement, whether written or verbal, for the installation of said materials. The term Subcontractor means a Subcontractor or its authorized representative.

OO. Submittal – A written or graphic document prepared by or for Design-Build

Firm which is required by the Contract Documents to be submitted to Authority by Design- Build Firm. Submittals may include, but are not necessarily limited to Drawings, P a g e 6 | 27

Specifications, progress schedules, Shop Drawings, samples, cash flow projections, and Schedules of Values. Submittals other than Drawings and Specifications are not Contract Documents.

PP. Substantial Completion – The time at which the Construction has progressed and the Work has been completed to the point where it is sufficiently complete, in accordance with the Contract Documents, so that the Construction can be effectively and efficiently utilized for the purposes for which it is intended without any material impairment of function for a pre-described period of time. If applicable, a temporary certificate of occupancy or compliance issued by the building official is required concurrent with or prior to issuance of a certificate of Substantial Completion. The terms “substantially complete” and “substantially completed” refer to Substantial Completion.

The term Substantial Completion may be used in the Contract Documents in reference to a particular portion of the Construction, in which case the term will be applied as defined above only to that portion of the Construction, otherwise it shall be deemed to refer to the total Construction.

QQ. Supplementary Conditions – The part of the Contract Documents which amends or supplements the General Terms and Conditions, including any conditions imposed by a grant funding agency.

RR. Supplier – A manufacturer, fabricator, distributor, materialmen or vendor.

SS. Surety – The surety company or individual that is bound by contract bond with and for the Design-Build Firm who is primarily liable, and is responsible for Design- Build Firm’s acceptable performance of the Project and payment of all debts pertaining to the Contract Documents in accordance with Section 255.05, Florida Statutes.

TT. Target Budget and Schedule – The initial not-to-exceed budget and schedule for the project agreed between Authority and the Design-Build Firm as the maximum total cost and construction duration for completing the project, including all design costs, pre-construction services costs and construction costs. The Target Budget shall be converted to a GMP once the design reaches the agreed level of detail defined above.

UU. Work – All labor, materials, equipment and incidentals required to fully, finally and properly complete the Construction and otherwise fully, finally and properly comply with all terms and conditions of the Contract Documents.

SECTION 2. CONTRACT DOCUMENTS & EXHIBITS

A. The Contract Documents shall consist of the following:

1. This Agreement, fully executed;

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2. Amendment(s) to this Agreement, fully executed (including the GMP Amendment);

3. The Exhibits to this Agreement, described as Section 7 of this Agreement, below;

4. The Legal Notice, RFQ _________________ and any addenda;

5. Field Directive / Change Amendments;

6. Notice(s) to Proceed;

All of the foregoing Contract Documents are incorporated by reference and made a part of this Agreement (all of said documents, including this Agreement, sometimes being referred to herein as the "Contract Documents" and sometimes as the "Agreement"). A copy of the Contract Documents shall be maintained by the Design-Build Firm at the Project Site at all times during the performance of the Work.

B. Any Work that may be reasonably inferred from the Specifications or Drawings as being required to produce the intended result shall be supplied whether or not it is specifically called for. In case of any inconsistency or conflict among the provisions of the Agreement and any other terms and conditions of any documents comprising the Contract Documents, the provisions of the Agreement shall control. Concerning the Contract Documents, the order of precedence shall be as follows: (1) Change Amendments; (2) the Agreement, including amendments and Exhibits; (3) Field Directive Change Amendments; (4) the solicitation documents, including any addenda. The Contract Documents listed above represent the entire and integrated Agreement between the parties hereto, and supersede prior negotiations, representations, or agreements, either written or oral.

C. Work, materials or equipment described in words which have a well-known technical or trade meaning, shall be deemed to refer to such recognized standards.

D. Authority shall furnish to the Design-Build Firm up to two (2) sets of the Contract Documents for execution of the Work. Additional copies of the Contract Documents shall be furnished, upon request, at the cost of reproduction.

E. The Design-Build Firm agrees to bind specifically every Subcontractor to the applicable terms and conditions of the Contract Documents for the benefit of the Authority.

F. Construction services provided by Design-Build Firm for the Project shall be under the general direction of Authority’s Representative, or their successor, who shall act as the Authority’s Representative during the term of this Agreement. If the Authority’s Representative is not an Authority employee, then Authority’s Representative is not

P a g e 8 | 27 authorized to issue changes to the Contract Amount, Contract Time, or Scope of Work without express approval by the Authority.

G. The Authority’s Representative, within the authority conferred by the Board, shall initiate written Change Amendments, and notification to the Design-Build Firm of any and all changes approved by the Authority in the Design-Build Firm’s: (1) compensation; (2) time and/or schedule of service delivery; (3) and any amendment(s) or other change(s) relative to the Work pursuant to this Agreement or Change Amendments pertaining thereto. Following Authority approval, the Authority’s Representative shall coordinate issuance of any such documents. The Authority’s Representative shall be responsible for acting on the Authority’s behalf to administer, coordinate, interpret and otherwise manage the contractual provisions and requirements set forth in this Agreement or any Change Amendments issued hereunder.

SECTION 3. SCOPE OF WORK

A. Project Description - Generally, the Design-Build Firm shall provide all planning, design, and architectural and engineering services required for the proper design and, upon the written Notice to Proceed by the Authority of the Construction Phase Amendment, for all other services necessary for the construction of the Project (the "Work").

B. Phase I – Preconstruction Phase. The Preconstruction Phase shall be divided into the following four (4) steps with a Notice(s) to Proceed (NTP) issued for each step:

Phase I, Step 1: Design-Build Firm shall validate the Target Budget and Schedule provided by the Authority based on the Owner-provided preliminary design package. The Target Budget and Schedule validation must be completed within a mutually agreed period between sixty (60) to ninety (90) days of a Notice to Proceed being issued, set by the Owner and Design-Build Firm prior to the Notice to Proceed for the Project.

Phase I, Step 2: The Design-Build shall be issued a NTP by the Authority for design of the project if the Target Budget and Schedule are validated. Should either the Target Budget or Schedule be exceeded, the Design-Build Firm shall meet with the Authority to evaluate solutions to meet the budget and schedule. Should the Authority agree with the need to increase the Target Budget or extend the Schedule, a Contract Amendment will be prepared and taken to the Board of Port Commissioners for approval prior to proceeding with the Project.

Phase I, Step 3: Upon the Authority’s written direction, the Design-Build Firm shall develop, in accordance with the Authority’s design package, the design development documents to fit the size and character of the Project as to architectural, civil, structural, mechanical and electrical systems, materials, and

P a g e 9 | 27 other appropriate associated items in the Project. These development documents shall be the basis of the remaining design and construction of the Project.

Phase I, Step 4. Once the design development documents are approved by the Authority, the Design-Build Firm shall prepare working Drawings and Specifications (Construction Documents) setting forth, in detail, the requirements for the Construction of the Project based upon codes, laws, or regulations which have been enacted at the time of their preparation.

During Step 3 the Design-Build Firm and the Authority will work closely to monitor the design in accordance with prior approvals so as to ensure that the Project can be constructed within the Target Budget and Schedule. As the working Drawings and Specifications are being completed, the Design-Build Firm will keep the Authority advised of the effects of any Authority requested changes on the Total Project Cost and Contract Time Schedule. During this Step the Design-Build Firm will go out for competitive procurement (using the same procurement procedures as the Authority) to select subcontractors to perform the work in Phase II of the Project.

At the point when the level of design reaches the 60 to 70 percent of completion and the remaining work to fully complete the Project is well defined, the Design- Build Firm shall propose a Guaranteed Maximum Price (GMP) for completion of design and construction of the Project. Phase II of the Project shall be constructed in accordance with the Drawings and Specifications (Construction Documents) as approved by the Authority. The Drawings and Specifications shall remain the property of the Authority and may be used by the Authority on this or other projects without written consent of the Design-Build Firm.

Prior to proceeding with Step 2 – Construction Completion under Phase II, the Authority shall execute a Contract Amendment to this Agreement, using the template set forth in Exhibit D attached hereto, to establish the GMP for design completion and construction. A Notice to Proceed must also be issued by the Authority prior to Phase II, Step 2 beginning. Should the Design-Build Firm enter into a contract with any subcontractor to perform the work for Phase II, Step 2 prior to the execution of the Contract Amendment to establish a GMP, it does so at its sole risk and expense, the Authority assumes no responsibility or liability for such action.

C. Phase II – Construction Phase. Phase II of the Project shall include: Step

1 – Early Construction Works and Step 2- Construction Completion following establishment of the GMP.

Phase II, Step 1: Early Construction Works shall consist of enabling projects for the full construction that can be designed, procured and constructed during full completion of the design. The Design-Build Firm is responsible for ensuring all early works construction can be fully incorporated into the Project at completion.

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Any cost and schedule impacts resulting from the need to redesign and/or modify early works construction resulting from design completion are the sole responsibility of the Design-Build Firm, unless that changes were the result of Authority direction.

The Design-Build Firm shall be issued an NTP by the Authority to proceed with full design and construction of the Project if the negotiated GMP remains within the Target Budget and Schedule. Should the GMP exceed the Board-Approved Target Budget or the Schedule must be extended, the Design-Build Firm shall meet with the Authority to evaluate solutions to meet the budget and schedule. Should the Authority agree with the need to increase the GMP beyond the approved Target Budget or extend the Schedule beyond the approved completion date, a Contract Amendment will be prepared and taken to the Board of Port Commissioners for approval prior to proceeding with the Project.

Phase II, Step 2: Construction Completion Works shall consist of the procurement of the remaining construction for the fully designed project as agreed between the Authority and Design-Build Firm

Phase II, Step 2 shall consist of the completion of design services for the Project, the procurement of all labor, materials, equipment and incidentals for the Project and the performance of construction phase services for the Project, the start-up, testing, and commissioning of the Project, participation in the Authority’s Operational Readiness, Activation and Transition (ORAT) program and the provision of warranty services, all as further described in the Contract Documents.

Upon receipt of Design-Build Firm’s GMP proposal for Phase II, the Authority, in its sole discretion, may (1) accept the Design-Build Firm’s GMP proposal and issue a Notice to Proceed with Phase II, Step 2 Design-Build Work, or (2) enter into a negotiation with Design-Build Firm to achieve a mutually acceptable GMP, scope and/or schedule on which to proceed or (3) accept the construction works completed to date and terminate the agreement in accordance with the Off Ramp provisions defined below.

The Contract Price for Phase II will be set forth in the GMP Amendment when mutually agreed between the parties. Upon execution of the GMP Amendment and receipt of the NTP from the Authority, Design-Build Firm shall fully complete the Phase II Design-Build Works.

As it relates to Phase II services to be provided by the Design-Build Firm, the Design-Build Firm shall not self-perform any of the construction. It shall perform all Work required by the Agreement except for the Construction Services.

Construction Services shall be performed by competitively procured subcontractor(s) of the Design-Build Firm.

D. Off-Ramp – During Phase I, in the event the Authority determines that the

Design-Build Firm’s GMP Proposal for Phase II is not in the best interest of the Authority, the Authority may, in its sole discretion, elect to take the Off-Ramp, as defined herein.

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The Off-Ramp shall be taken when the Authority formally rejects the GMP Proposal submitted by the Design-Build Firm, and terminates this Agreement. A termination of this Agreement under the Off-Ramp shall be for convenience unless the Design-Build Firm otherwise defaults under the provisions of this Agreement. In such event, the Design- Build Firm acknowledges and agrees that the Authority’s rejection of Design-Build Firm’s GMP proposal shall not entitle the Design-Build Firm to make any claim for damages, loss or profits or compensation of any kind for Work not yet performed, and all such claims are hereby waived and released by Design-Build Firm.

In the event the Authority takes the Off-Ramp, the Design-Build Firm shall remain obligated to the Authority for completion of the final design of the Project at the price agreed upon by the parties in the Contract Documents for Phase I, unless otherwise directed in writing by the Authority, and in accordance with the Contract Documents.

The parties acknowledge that the Authority’s ability to successfully complete the Project may be sufficiently impacted if the Authority elects to terminate this Agreement at the end Design and GMP Development, rather than proceeding to Phase II Construction and Commissioning, and that certain design consultant or engineering services subcontractors are not available to continue working on the Project upon such termination. Therefore, Design-Build Firm shall incorporate the obligations of this Agreement into its respective subcontractors, specifically including the Authority’s right to unilaterally utilize design documents in the event of termination as described in the Contract Documents. Design-Build Firm shall also include a provision whereby such subcontractor(s) may be assigned to the Authority. In the event of termination as described in Article 12, of the General Conditions to the Agreement attached hereto as Exhibit B, Design-Build Firm agrees to assign such subcontract(s) upon the Authority’s request, subject to the prior rights of a surety, if any obligated, under Bond relating to the Agreement. In the event the Authority accepts the assignment of the Subcontract(s), the Authority assumes the Design-Build Firm’s rights and obligations under such Subcontract(s).

SECTION 4. CONTRACT PRICE & PAYMENTS

A. The Contract Price for Phase I shall be computed separately and independently from the Contract Price for Phase II. All amounts included in the Contract Price are subject to lawful appropriation of funds by the Board.

B. Compensation for Phase I shall be an amount not-to-exceed ___________

($__________________), as provided in Exhibit C the Fee Proposal for Phase I. Any lump sum amounts shall constitute full payment for satisfactory performance of the Phase I Work including all direct and indirect labor, personnel related costs, taxes, expenses, costs, fees, overhead and profit, services of Subcontractors (including design consultants), and any other expenses or cost of whatever nature incurred by the Design- Build Firm as may be required and/or necessary to complete the Phase I Work and agreed to in writing by both parties to this Agreement. The Contract Price for Phase I design and pre-construction services of the Design-Build Firm shall be computed and submitted

P a g e 12 | 27 separately. Design-Build Firm shall be entitled to monthly progress payments in proportion to the percentage of the completed Phase I Work. Payment made to the Design-Build Firm pursuant to this Agreement for Phase I Work shall be the sole and complete compensation to which Design-Build Firm is entitled.

C. Allowance Items. The Contract Price for Phase I and Phase II may include

Allowance Items, as provided in the Phase 1 Fee Proposal or the GMP Amendment, for portion(s) of the Phase I or Phase II Work, respectively. The agreed upon total allowance (sum of allowance items) shall be the maximum amount of compensation to which Design-Build Firm is entitled for all Allowance Items unless otherwise modified by written Change Amendment. Savings in Allowance Items may be reallocated to an allowance contingency item at the Authority’s sole discretion. The contingency item may only be allocated for additional work within the Allowance Items with approval from the Authority.

No work shall be performed on any Allowance Item without prior written authorization by the Authority. The proposed amount for any Allowance Item shall include any and all costs, charges, fees, and other amounts, for all labor, materials, equipment, transportation, taxes, insurance, project management, general conditions, overhead and Design-Build Firm’s Fee associated with the applicable Allowance Item. Whenever the actual costs for the Allowance Items are more than or less than what is stated in the total Allowance Values, the Contract Price may be adjusted accordingly by Change Amendment. The amount of the Change Amendment, if approved, shall reflect the difference between actual costs incurred by Design-Build Firm for the proposed amount for the Allowance Items.

D. Compensation for Phase II Work shall be:

1. based on the lowest responsive and responsible bid for all Early Construction Works, and

2. based on the negotiated GMP for all works performed following establishment of the GMP. The Guaranteed Maximum Price that shall consist of the sum of allowable and reimbursable costs, Design-Build Firm’s Fee, Construction Costs, and Construction contingency. The GMP shall be developed and submitted to the Authority in accordance with the requirements set forth herein. Pursuant to Section 4 of this Agreement, in the event the Authority elects to negotiate and/or accept the submitted GMP proposal, a GMP Amendment in the form set forth in Exhibit D shall be issued and executed by both parties. The GMP as defined herein is the maximum price the Authority will pay to Design-Build Firm as payment for all of Phase II Work and is guaranteed by the Design-Build Firm to be the maximum price it will charge to fully and satisfactorily complete all Phase II Work of the Project.

E. For purposes of Phase II Work, formation of the GMP proposal, during

Phase I, Design-Build Firm shall prepare the GMP basis documents for the development of the GMP proposal. The GMP basis documents shall include, but not be limited to, the following:

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1. advanced design (60 to 70 percent) plans and specification (Construction Document),

2. detailed cost estimate at completion of the Project, including the Early Works, Construction Completion Works, and all Design-Build Firm costs for full design, construction, administration and turn-over of the Project,

3. detailed schedule for completion of the Project,

4. detailed breakdown of all assumptions, contingencies and allowances,

5. list of drawings and specifications prepared for the GMP,

6. list of assumptions and clarifications made by the DBF,

7. detailed cost estimates broken down by trade cats and contingencies,

8. procurement plans, subcontract plan and bidding process procedures,

9. date of substantial completion and final completion,

10. schedule of applicable alternative prices,

11. schedule of unit prices and allowable items,

12. Design-Build Firm key personal designated for Phase II of the Project,

13. risk assessment, and

14. timeframe for GMP to remain valid for consideration.

F. Design-Build Firm acknowledges and understands that the GMP basis documents may be incomplete, lack detail and require future adjustment at the time the GMP proposal is submitted to the Authority. Nevertheless, the GMP Proposal shall be intended to represent the Design-Build Firm’s offer to fully complete all Work under Phase I and II of the Project.

G. The GMP shall be based upon actual procured quotes and bids from

Subcontractors, vendors, and suppliers and estimated costs for remaining, unprocured design services and construction works. The GMP may include Contingency and Allowance Items within each Work package as determined by the Design-Build Firm and approved by the Authority. The amount for these Items will be used as the maximum value for the specific line item and all remaining funds within the Work package will revert to the Authority after the price is determined through competitive bidding by the Design- Build Firm. If a Contingency or Allowance Item is not included within the Work package, the agreed upon price is the maximum for that item.

H. After submission of the GMP proposal, Design-Build Firm and the Authority shall meet to review the GMP proposal. If the Authority has any comments regarding the GMP proposal, or finds any inconsistencies or inaccuracies in the information presented, it shall promptly give written notice to Design-Build Firm of such comments or findings.

Design-Build Firm shall fully respond to the Authority’s comments or findings and make appropriate adjustments to the GMP proposal. If the Design-Build Firm’s GMP proposal is acceptable to the Authority, a GMP Amendment, in the form set forth as Exhibit D to this Agreement, shall be prepared and executed. If the GMP proposal exceeds the Target Budget or Schedule a Contract Amendment will be prepared and taken to the Board of Port Commissioners for approval prior to proceeding with the Project.

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I. Subject to additions or deductions by approved Change Amendment as provided in this Agreement, Design-Build Firm shall certify in the GMP Amendment that the agreed GMP (1) contains sufficient amounts to perform all Work necessary for the Final Completion of the Project; and (2) contains sufficient amounts to provide and construct any items or facilities that are not contained in the GMP basis documents but which are necessary for fully functional and operational facilities that meet the requirements and criteria established for the Project. Design-Build Firm acknowledges and agrees that any and all Allowable and Reimbursable Costs which would cause the GMP to be exceeded shall be paid by the Design-Build Firm without reimbursement by the Authority and shall not be a basis of any Change Amendment.

J. Design-Build Firm shall not commence with Phase II, Step 2 Work prior to the GMP Amendment being fully executed and receipt of the Authority’s Notice to Proceed for Phase II Work. If the Authority rejects the GMP Proposal, or fails to notify the Design-Build Firm in writing on or before the date specified in the GMP proposal that it accepts the GMP proposal, the GMP proposal shall be deemed withdrawn and of no effect and this Agreement will be terminated. In such event, the Authority shall be free to use any of the documents and information developed per the terms of this Agreement for completion of the Project by others as designated by the Authority in its sole discretion.

K. Design-Build Firm’s Fee. The Design-Build Firm’s fee shall be an amount equal to a negotiated percentage of the sum of all costs, excluding allowances and contingencies provided in the GMP Proposal and included in the GMP Amendment. The Design-Build Firm’s Fee rate established in the GMP Amendment shall be applied to approved Change Amendments and the actual values of allowances and contingencies authorized by the Authority. In the event however, that the cumulative adjustment to the Contract Price exceed twenty-five percent (25%) of the original GMP, the Design-Build Firm’s Fee shall be subject to renegotiation.

L. Construction Contingency. The GMP shall include a Construction

Contingency which sum shall be mutually established by the Design-Build Firm and the Authority and included in the GMP Amendment. Construction Contingency shall be used by Design-Build Firm to pay for miscellaneous Work items which are required to complete the Project including, but not limited to, design evolution, trade scope gaps, missed work, areas of damage that may occur between trades during construction, Subcontractor coordination problems, Subcontractor insolvency or termination and replacement, emergencies, overtime costs to maintain/accelerate the Project schedule due to unavoidable delays (excludes acceleration requested by the Authority under an approved Change Amendment), and other costs that were not known or reasonably foreseeable at the time of submittal of the GMP proposal (and not otherwise recoverable by bond or applicable insurance). The Construction Contingency is not a design contingency and shall not be used for changes to the scope or schedule of Phase I Work. No increases in the Construction Contingency will be allowed once the GMP is established. Design-Build Firm shall not charge any sum to the Construction Contingency without the Authority’s prior written approval, which approval shall not be unreasonably withheld or delayed.

Design-Build Firm shall maintain a separate log of all contingency use requests with

P a g e 15 | 27 detailed backup and submit copies of the logs on a monthly basis to the Authority. The Authority shall receive all of the Construction Contingency remaining unallocated at Final Completion.

M. Design-Build firm shall be solely responsible for any and all costs resulting from errors and/or omissions in the construction documents prepared for the Project.

N. Authority’s Contingency. A lump sum amount for the Authority’s

Contingency shall be established by the Authority. The Authority’s Contingency is controlled solely by the Authority. The Authority’s Contingency is outside of the GMP and is not part of the original bond except to the extent that the Authority’s Contingency is utilized as a change to the Agreement in accordance with the terms herein and may only be used for Authority requested additions and revisions. Expenditures from the Authority’s Contingency must be made by Change Amendment issued and approved by the Authority. Design-Build Firm shall not be entitled to any compensation from any unused amounts of the Authority’s Contingency.

O. Project Cost Report. Design-Build Firm shall operate and maintain an open and transparent system of pricing and charging for costs incurred during the course of the Project which shall be updated to include actual costs incurred. A report on costs shall be prepared and provided on a monthly basis, to the Authority. Design-Build Firm agrees to make such changes to its system of keeping these records as the Authority may reasonably request in writing.

P. Allowable / Reimbursable Costs. The cost of all labor, equipment, materials and infrastructure, including all costs for setup, equipping, maintaining and operation of field project offices shall be included in the negotiated price for delivery of all services to manage, design, construct and turn over the complete project identified in or required for delivery of the Exhibit A Scope of Work. Allowances will be established for cost of permits and other eligible non-direct costs. The allowances will be defined during negotiation of final terms of the agreement between the Authority and the Design-Build firm. Prior to negotiation and execution of the GMP Amendment, design and construction contingency funds will be mutually agreed between the Authority and Design-Build firm to address potential unknown conditions that may found following the NTP for the project. The Design-Build firm shall request and the Authority will release contingency funds based on the Authority’s sole acceptance of costs for addressing the unknown condition. An Owner-Controlled contingency will be established for payment of changes to the scope of work requested by the Authority. Execution of the GMP Amendment will include any remaining allowances and contingencies renegotiated between the Authority and Design- Build firm.

Q. Non-reimbursable Costs. Any and all costs associated with correction of error and/or omissions in the design are not eligible for reimbursement. The cost of any business and professional licenses, certifications, insurances not directly associated with performance of the project of all members of the Design-Build firm project delivery team

P a g e 16 | 27 are non-reimbursable. Costs of offsite executive and administrative staff not included in the negotiated project costs are non-reimbursable.

R. Final GMP. At the completion of the Project, the Final GMP shall not include unused Contingency or Owner-Direct Purchases.

S. Procedures for Payment. The procedures for payments to be made to the Design-Build Firm for services provided shall be in accordance with Article 9 of the General Conditions attached hereto as Exhibit B.

SECTION 5. BONDS

A. Design-Build Firm shall provide a Performance and Payment Bond, in a form acceptable to and approved by the Authority, in the amount of one hundred percent (100%) of the Contract Amount, the costs of which to be paid by Design-Build Firm. If the Contract Amount is increased by a Change Amendment, it shall be the Design-Build Firm’s responsibility to ensure that the Performance and Payment Bond is amended accordingly and a copy of the amendment recorded by the Lee County Clerk of Court and forwarded to the Authority. The Performance and Payment Bond shall be underwritten by a Surety authorized to do business in the State of Florida and otherwise acceptable to the Authority; provided, however, the Surety shall be rated as "A-" or better as to general policy holders rating as reported in the most current Best Key Rating Guide, published by A.M. Best Company, Inc.

B. Attorneys-in-fact who sign Bonds for Authority projects must file with such

Bond a certified copy of their Power of Attorney to sign such Bond. All agents of Surety companies must list their name, address, and telephone number on all Bonds. The life of all Bonds provided to the Authority shall extend twelve (12) months beyond the date of final payment and shall contain a waiver of alternation to the terms of the Agreement, extensions of time and/or forbearance on the part of the Authority. The Surety must have fulfilled all of its obligations on all other Bonds previously provided to the Authority. The Surety must have a minimum underwriting limitation of $5,000,000 published in the latest edition of the Federal Register for Federal Bonds (U.S. Dept. of Treasury).

C. If the surety for any bond furnished by Design-Build Firm is declared bankrupt, becomes insolvent, its right to do business is terminated in the State of Florida, or it ceases to meet the requirements imposed by the Contract Documents, the Design-Build Firm shall, within five (5) calendar days thereafter, substitute another bond and surety, both of which shall be subject to the Authority's approval. Failure by the Design-Build Firm to maintain its bond in full force and effect at all times, including the warranty period, shall be grounds for termination of this Agreement.

D. Per Section 255.05, Florida Statutes, the Design-Build Firm shall be required to execute and record the Performance and Payment bond. The bond must state the name and principal business address of both the Principal and the Surety and a description of the Project sufficient to identify it.

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SECTION 6. CONTRACT TIME AND LIQUIDATED DAMAGES

A. Time is of the essence in the performance of the Work under this Agreement. Design-Build Firm shall commence the Work within ten (10) calendar days from the Commencement Date, established in each Phase's Notice(s) to Proceed. No Work shall be performed at the Project Site prior to such Commencement Dates. Design- Build Firm shall provide forty-eight (48) hours' notice prior to beginning the Work.

B. The Contract Time for the Construction Phase shall be established by mutual agreement between the Authority and Design-Build Firm at the completion of the Target Budget and Schedule validation period. The Contract Time shall be the time period from the Commencement Date in the Notice to Proceed for the Design Phase to the date of final completion of the Project. Interim milestones shall be set for specific project elements as defined in the Scope of Work attachment. Liquidated Damages for completion of the project and interim milestones shall be as defined in the Scope of Work.

C. Authority and Design-Build Firm recognize that, since time is of the essence for this Agreement, the Authority will suffer financial loss if the Work is not substantially completed within the time pe r iods specified. Should Design-Build Firm fail to substantially complete the Work within the time periods noted in the Scope of Work documents for Substantial Completion, Authority shall be entitled to assess, as Liquidated Damages, but not as a penalty, a dollar amount in a Contract Amendment, issued following the above defined validation period, for each calendar day thereafter until Substantial Completion is achieved. The Project shall be deemed to be Substantially Completed by the Authority on the date that the Authority certifies in writing that the Construction of the Project, or specified part thereof, is sufficiently completed in accordance with the Contract Documents, so that the Project or part can be utilized for the purposes for which it is intended. Along with such certification, the Authority shall compile a "punch list" of any remaining exceptions that do not adversely affect the use of the Project. Completion of these items will be required prior to final acceptance and payment as provided herein.

D. Design-Build Firm hereby expressly waives and relinquishes any right which it may have to seek to characterize the above noted Liquidated Damages as a penalty, which the parties agree represents a fair and reasonable estimate of the Authority's actual damages at the time of contracting if Design-Build Firm fails to substantially complete the Work in accordance with the progress schedule.

E. When any period of time is referenced to by days herein, it shall be computed to exclude the first day and include the last day of such period. All days shall mean calendar days and not business days.

SECTION 7. EXHIBITS INCORPORATED

The following documents are expressly agreed to be incorporated by reference and made a part of this Agreement.

P a g e 18 | 27

Exhibit A: Scope of Work Exhibit B: General Terms and Conditions Exhibit C: Compensation - Pre-Construction and Design Phase Fee Proposal Exhibit D: GMP Amendment Form Exhibit E: Request for Qualifications (RFQ ________) and response Exhibit F: Example Form of Performance and Payment Bond (most recent version attached) Exhibit G: Example Form of Release and Affidavit (most recent version attached) Exhibit H: Conceptual Design Package

SECTION 8. AUTHORITY’S REPRESENTATIVE & PROJECT MANAGER AND

NOTICES

A. The Authority’s Representative and Project Manager for purposes of this Agreement is Amani Dudley, aedudly@flylcpa.com.

B. All notices required or made pursuant to this Agreement by the Design-Build

Firm to the Authority shall be in writing and delivered by e-mail and uploaded to LCPA Procore management application, hand or by…