CM@R_Contract_draft_10-02-25.pdf

CMAR Single Project April 2025 Edition

AGREEMENT BETWEEN CITY OF FORT MYERS

AND CONSTRUCTION MANAGER

NRCS Emergency Watershed Protection Grant, ITB 25-092

CMAR Single Project April 2025 Edition

TABLE OF CONTENTS

AGREEMENT BETWEEN CITY OF FORT MYERS AND CONSTRUCTION MANAGER

ARTICLE 1 Project

ARTICLE 2 The Construction Team and Extent of Agreement

ARTICLE 3 Construction Manager’s Basic Services

ARTICLE 4 Additional Services

ARTICLE 5 City of Fort Myers’ Responsibilities

ARTICLE 6 Schedule

ARTICLE 7 Guaranteed Maximum Price

ARTICLE 8 Construction Manager’s Compensation

ARTICLE 9 Cost of the Work

ARTICLE 10 Changes in the Work

ARTICLE 11 Discounts

ARTICLE 12 Notices ………………………………………………………………………………………….. 14

ARTICLE 13 E-Verify …………………………………………………………………………………………. 15

ARTICLE 14 Florida Public Records Law ………………………………………………………………….. 15

ARTICLE 15 Indemnification ………………………………………………………………………………… 16

EXHIBIT “A” General Terms and Conditions

EXHIBIT ‘B’ Construction Manager Proposed Key Personnel…………………………………………….19

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AGREEMENT BETWEEN CITY OF FORT MYERS AND CONSTRUCTION MANAGER

This Agreement Between the City of Fort Myers and Construction Manager (the “Agreement”) is made as of the Effective Date (as defined herein) by and between the City of Fort Myers, a municipal corporation, whose principal business address is 2200 Second Street, Fort Myers, Florida 33901, and Wharton-Smith, Inc., whose principal business address is 5961 Northland Road Unit 3, Fort Myers, Florida 33905 (hereinafter called the “Construction Manager”).

Construction Manager and the City of Fort Myers may be collectively referred to herein as the “parties” and each may be individually referred to herein as the “party.”

WITNESSETH:

WHEREAS, City of Fort Myers solicited statements of qualifications from interested construction managers for the construction of the Project (hereinafter defined in Article 1) described in the program provided to Construction Manager, a copy of which is available in the City of Fort Myers Procurement Department.

WHEREAS, based on Construction Manager’s proposal submission, qualifications statement, and presentation, the City of Fort Myers has selected Construction Manager for the Project; and

WHEREAS, the City of Fort Myers and Construction Manager desire to enter into this Agreement; and

WHEREAS, the City of Fort Myers intends to engage, or has engaged one or more Professionals to perform architectural/engineering services for the Project (hereinafter called the “Consultant”).

NOW THEREFORE, for and in consideration of the covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City of Fort Myers and Construction Manager agree as follows:

The parties acknowledge and agree that the above recitals are true and correct and incorporated herein by reference.

ARTICLE 1

Project

The Project for which Construction Manager is being hired to perform services under this Agreement shall consist of the following:

ARTICLE 2

The Construction Team and Extent of Agreement

2.1 Construction Manager agrees to furnish its best skill and judgment and to cooperate with the City of Fort

Myers’ Consultant in furthering the interests of the City of Fort Myers. Construction Manager agrees to furnish efficient business administration for the Project and to manage, supervise, and complete the Project in an expeditious and economical manner consistent with the interests of the City of Fort Myers.

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2.2 The Construction Team. Construction Manager, City of Fort Myers, and Consultant (the “Construction Team”) will work as a team through construction completion. Construction Manager shall provide leadership to the Construction Team on all matters relating to construction. The Consultant will provide leadership to the Construction Team on all matters relating to design.

2.3 Extent of Agreement. This Agreement is part of the Construction Contract, as same is defined in the General Terms and Conditions, ARTICLE 3

Construction Manager's Basic Services

3.1 Construction Manager's “Basic Services” under this Agreement include pre-construction phase services and construction phase services.

3.1.1 Construction Manager represents that it is thoroughly familiar with and understands the requirements of the Project scope and that it is experienced in the administration and construction of building projects of the type and scope contemplated by City of Fort Myers’ program for the Project. Construction Manager represents to City of Fort Myers that Construction Manager has all necessary construction education, skill, knowledge, and experience required for the Project and will maintain, at all times during the Agreement term, such personnel on its staff to provide the services contemplated hereby within the time periods required hereby. In addition, Construction Manager represents that it has, and all of the subcontractors performing services under this Agreement will have, all applicable licenses and/or any other documentation required by the State of Florida to perform such services.

3.2 Reserved

3.3 Construction Phase. Unless otherwise authorized by City of Fort Myers in writing, all Work shall be performed under trade contracts held by Construction Manager. Construction Manager shall not bid on any of the trade contractor Work or perform such Work with its own forces without the prior written consent of City of Fort Myers.

The Construction Manager shall self-perform a maximum of 5% of Work. The Construction Manager shall:

3.3.1 Administer the construction phase as provided herein and as otherwise provided in the Construction Contract.

3.3.2 Commence the construction activities within ten (10) days from the Commencement Date. Both the Commencement Date and any negotiated Acquisition Time shall be included in the Notice to Proceed issued by the City of Fort Myers (reflecting City of Fort Myers’ Purchase Order number). The Acquisition Time shall be an allotted time to allow the Construction Manager to make all appropriate submittals, obtain necessary permits and licenses, and take delivery of materials needed for the project. The “Commencement Date” of construction shall be the start of the time clock for contract days for execution and completion of work. No construction work shall be performed prior to the Commencement Date. Any Construction Phase work performed by the Construction Manager prior to the Commencement Date shall be at the sole risk of the Construction Manager.

3.3.3 Ensure, to the best of its knowledge, the bid of the recommended trade contractors is bona fide, fair and reasonable. Promptly award and execute trade contracts with approved trade contractors. Provide copies of fully executed trade contracts, insurance certificates and, if required, bonds to City of Fort Myers.

3.3.4 Manage, schedule and coordinate the Work, including the Work of the trade contractors, and coordinate the Work with the activities and responsibilities of City of Fort Myers, Consultant and Construction Manager in order to complete the Project in accordance with City of Fort Myers' objectives of cost, time and quality.

Develop and maintain a program, acceptable to City of Fort Myers and Consultant, to assure quality control of the construction. Supervise the Work of all trade contractors, providing instructions to each when its Work does

April 2025 Version Page 5 of 19 not conform to the requirements of the plans and specifications and continue to manage each subcontractor to ensure that corrections are made in a timely manner so as to not affect the progress of the Work. Should disagreement occur between Construction Manager and the Consultant over acceptability of Work and conformity with the requirements of the specifications and plans, City of Fort Myers shall be the final judge of performance and acceptability.

3.3.5 Maintain exclusively for this Project a competent full-time staff at the Project site to coordinate and direct the Work and progress of the trade contractors on the Project. Construction Manager has provided Construction Manager’s personnel chart which lists by name, job category, responsibility and hourly rate, Construction Manager’s primary employees who will work on the Project as submitted during the Construction Manager selection process and outlined in Exhibit “B”. Construction Manager shall promptly inform City of Fort Myers in writing of any proposed replacements or additions to the personnel chart, the reasons therefore, and the name(s) and qualification(s) of proposed replacement(s) or addition(s). City of Fort Myers shall have the right, in its reasonable discretion, to reject any proposed replacement or addition. The costs for Construction Manager’s staff at the job site that is not full-time shall be deemed included in Construction Manager’s lump sum fee set forth in this Agreement.

3.3.5.1 Construction Manager shall promptly inform City of Fort Myers in writing of any proposed replacements to the list of subcontractors and suppliers in the final bid tabulation sheet provided to City of Fort Myers, the reasons therefore, and the name(s) and qualification(s) of proposed replacements(s).

City of Fort Myers shall have the right, in its reasonable discretion, to reject any proposed replacement.

3.3.5.2 City of Fort Myers shall have the right to direct Construction Manager to remove or replace any on-site personnel whose performance becomes unsatisfactory to City of Fort Myers. In such event, the Construction Manager shall promptly replace such personnel, without additional compensation for the replacement.

3.3.5.3 Construction Manager shall: establish on-site organization and lines of authority in order to carry out the overall plans of the Construction Team; identify an on-site staff member to represent Construction Manager on a daily basis, with authority to negotiate change orders and contract modifications on behalf of Construction Manager; and make available such executive personnel as necessary to execute change orders or other contract modifications on behalf of Construction Manager so as not to delay the progress of the Work.

3.3.6 Establish, through the City of Fort Myers Project Management Platform (Procore), procedures for coordination among City of Fort Myers, Consultant, trade contractors and Construction Manager with respect to all aspects of the Work.

3.3.6.1 Require of the various trade contractors such Coordination Drawings as may be necessary to properly coordinate the Work among the trade contractors.

3.3.6.2 In coordination with the Consultant and the City of Fort Myers, establish and implement procedures for tracking and expediting the processing of shop drawings and samples, as required by the Construction Contract.

3.3.7 Schedule and conduct weekly progress meetings with trade contractors to review such matters as job procedures, construction progress, schedule, shop drawing status and other information as necessary. Provide prior notice to City of Fort Myers and Consultant of all such meetings and prepare and distribute minutes.

Attend weekly Construction Team meetings scheduled by the Consultant and City of Fort Myers.

3.3.8 Review the Project Construction Schedule with the various trade contractors and review or expand the level of detail to incorporate specific trade contractor input consistent with the overall completion requirements.

Regularly monitor and update the Project Construction Schedule and various sub-networks as construction progresses. Identify potential variances between scheduled and probable completion dates. Review the

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Project Construction Schedule for Work not started, or incomplete, and make adjustments in the schedule to meet the scheduled completion date. Provide summary reports of each monitoring and document all changes in the Project Construction Schedule. Regularly scheduled updates and reporting shall be included as part of the monthly project report. Display the current Project Construction Schedule in the on-site office and review the Project Construction Schedule at progress meetings.

3.3.9 Determine the adequacy of the trade contractors' personnel and equipment, and the availability of materials and supplies to meet the Project Construction Schedule. In consultation with City of Fort Myers and the Consultant, take necessary corrective actions when requirements of a trade contract or a trade contract schedule are not being met.

3.3.10 Direct Purchase Program.

3.3.10.1 Direct Purchase Program. City of Fort Myers is tax exempt and may elect to implement a direct purchase program whereby it may purchase materials and equipment included in any Subcontractor’s bid for a portion of the Work directly from the supplier of such materials or equipment in order to achieve sales tax savings. Such materials and equipment are referred to as “Direct Material Purchase.” Direct Materials Purchase shall be governed by the State of Florida Department of Revenue Rule, 12A-1.094 (“DOR Rule”), the terms herein, and City of Fort Myers’ policies on the subject in effect at the time Construction Manager commences construction of the Project. For each direct purchase, City of Fort Myers shall: (a) issue its purchase order directly to the vendor supplying the materials Construction Manager will use; (b) provide the vendor with a copy of City of Fort Myers’ Florida Consumer’s Certificate of Exemption; (c) make payment directly to the vendor based on the vendor’s invoice which must be issued directly to City of Fort Myers; (d) take title to the tangible personal property from the vendor at the time of purchase or delivery by the vendor; (e) assume the risk of damage or loss at the time of purchase; and (f) issue a Certificate of Entitlement pursuant to the DOR Rule to each vendor and to City of Fort Myers’ Construction Manager to confirm that the tangible personal property purchased from that vendor will go into or become part of a public work (a separate Certificate of Entitlement shall be issued by City of Fort Myers for each purchase order and each purchase order shall be attached to the applicable Certificate of Entitlement). Construction Manager shall provide City of Fort Myers with a written list of all potential Direct Materials Purchase and any other information required by City of Fort Myers with respect to each direct purchase. Construction Manager shall also provide City of Fort Myers with monthly reports pertaining to the Direct Materials Purchase.

Notwithstanding the fact that the vendor’s invoice must be issued directly to City of Fort Myers as provided above, Construction Manager shall be responsible for obtaining a copy of all Direct Materials’ Purchase invoices from the vendor and shall be accountable for verifying and ensuring that the materials received by City of Fort Myers through each direct purchase are in good condition and are consistent with the materials that were ordered from the vendor and described in each invoice.

3.3.10.2 The GMP amount shall be reduced by the net, undiscounted amount of the purchase order.

All sales taxes that would have applied shall be moved to a City of Fort Myers’ Contingency line item for use at the direction and discretion of the City of Fort Myers. ISSUANCE OF THE PURCHASE ORDERS

BY CITY OF FORT MYERS DOES NOT CHANGE ANY OF CONSTRUCTION MANAGER’S

RESPONSIBILITIES REGARDING THE RECEIVING AND INSTALLATION OF THE MATERIALS

PURCHASED. Construction Manager remains fully responsible for all other obligations it has under the terms of this Agreement and the Construction Contract.

3.3.11 Develop and maintain an effective system of Project cost control which is satisfactory to City of Fort Myers. Revise and refine the initially approved Project construction budget, incorporate approved changes as they occur, and develop cash flow reports and forecasts as needed. Identify variances between actual and budgeted or estimated costs and advise City of Fort Myers and Consultant in writing whenever projected costs exceed budgets or estimates. Cost control reports shall be included as part of the monthly project report outlined in this Agreement.

3.3.12 Construction Manager shall maintain a system of accounting consistent with generally accepted

April 2025 Version Page 7 of 19 accounting principles. Construction Manager shall maintain full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Agreement and Construction Contract, and the accounting and control systems shall be satisfactory to City of Fort Myers.

3.3.13 City of Fort Myers may, upon reasonable notice, audit the records of its Construction Manager and its subcontractors and suppliers during regular business hours, during the term of this Agreement and for a period of five (5) years after final payment is made by City of Fort Myers to Construction Manager under this Agreement or longer, if required by law. Such audits may be performed by a City of Fort Myers' representative or an outside representative engaged by City of Fort Myers.

3.3.13.1 For purposes hereof, Construction Manager's "records" means any and all information, materials and data of every kind and character, whether hard copy or in electronic form, which may, in City of Fort Myers' judgment have any bearing on or pertain to this Agreement and the Conditions of Contract, including, without limitation, books, subscriptions, recordings, agreements, leases, contracts, commitments, arrangements, notes, daily diaries, written policies and procedures, time sheets, payroll registers, payroll records, cancelled payroll checks, subcontract files (e.g., including proposals of successful and unsuccessful bidders, bid recap), original estimates, estimating work sheets, correspondence, change order files (including documentation covering negotiated settlements), back-charge logs and supporting documentation, invoices and related payment documentation, general ledgers, records detailing cash and trade discounts earned, insurance rebates and dividends, superintendent reports, drawings, receipts, vouchers and memoranda.

3.3.13.2 City of Fort Myers' authorized representative shall have reasonable access to Construction Manager's facilities, shall be allowed to interview all current or former employees to discuss matters pertinent to this Agreement, shall be provided adequate and appropriate work space at Construction Manager's facilities, may count employees at the site, may be present for the distribution of payroll and shall have such other rights of access as may be reasonably necessary to carry out an audit.

3.3.13.3 If an audit discloses overpricing or overcharges of one percent (1.00%) of the total amount paid hereunder or $200,000, whichever is less, in addition to making adjustments for the overcharges (which adjustments shall be made in the event the audit discloses any overpricing or overcharge, regardless of the amount of such overprice or overcharge), and in addition to any and all remedies available under the law, the reasonable actual cost of the City of Fort Myers’ audit shall be reimbursed to the City of Fort Myers by Construction Manager. The auditor conducting the audit of the Cost of the Work shall be independent and shall not have any financial interest in the outcome of the audit. The auditor shall not receive any form of compensation, bonus, or incentive based on the findings or results of the audit. The auditor's compensation shall be fixed and agreed upon prior to the commencement of the audit and shall not be contingent upon the audit's conclusions or any adjustments made to the Cost of the Work. Any costs associated with the audit shall be borne by the Owner, and the Construction Manager shall provide reasonable access to all necessary records and documentation as required by the audit process.

3.3.13.4 Any adjustments and/or payments that must be made as a result of any such audit or inspection of Construction Manager’s invoices and/or records shall be made within ninety (90) calendar days from presentation of City of Fort Myers’ findings to Construction Manager.

3.3.14 Recommend necessary or desirable changes to City of Fort Myers and the Consultant, review requests for changes and submit recommendations to City of Fort Myers and Consultant.

3.3.14.1 When requested by City of Fort Myers or Consultant, promptly prepare and submit estimates of probable cost for changes proposed in the Work, including similar estimates from the trade contractors.

If directed by City of Fort Myers, promptly secure formal written change order proposals from such trade contractors.

3.3.15 Be responsible for initiating, maintaining and supervising effective safety programs and require similar

April 2025 Version Page 8 of 19 programs of the trade contractors and sub-contractors. The Occupational Safety and Health Administration (OSHA) guidelines shall serve as the basis for the construction safety program.

3.3.15.1 Promptly notify City of Fort Myers and, where applicable, City of Fort Myers' insurance administrator, in writing, upon receiving notice of filing of any charge of noncompliance from OSHA, or upon receiving notification that a federal or state inspector shall visit or is visiting the Project site.

3.3.15.2 At progress meetings with trade contractors, conduct a review of job safety and accident prevention, and prepare minutes of such meetings that will be available to City of Fort Myers' Representative on request. The minutes of job safety and accident prevention portion of such progress meetings shall be made available to City of Fort Myers' Insurance Administrator, where applicable, upon request.

3.3.15.3 Designate a full-time staff member to also serve as the project safety director covering all Projects assigned; in his/her role as the project safety director, he/she shall oversee job safety and accident prevention for Construction Manager, trade contractors, and sub- contractors involved in the Work, in addition to any other responsibilities assigned to such staff member unrelated to his/her role as project safety director.

3.3.16 Make provisions for Project security acceptable to City of Fort Myers, to protect the Project site and materials stored off-site against theft, vandalism, fire and accidents, etc., as required by job and location conditions. Mobile equipment and operable equipment at the site, and hazardous parts of new construction subject to mischief, shall be locked or otherwise made inoperable or protected when unattended.

3.3.17 Record the progress of the Project. Submit written monthly progress reports to City of Fort Myers and the Consultant including information on the trade contractors' Work, the percentage of completion, current estimating, computerized updated monthly “Critical Path Method” scheduling and project accounting reports, including “Estimated Time to Completion” and “Estimated Cost to Complete”. Keep a daily log available to City of Fort Myers and the Consultant. Report and record such additional information related to construction, including but not limited to, information pertaining to City of Fort Myers’ Direct Materials Purchase.

3.3.18 Construction Manager shall be responsible for the removal, encapsulation, transportation and disposal of any hazardous materials, including any asbestos or asbestos-related products only if, and as specified in the GMP; provided, however, hazardous materials or substances brought by Construction Manager or the trade contractors to the Project site shall remain their responsibility for proper removal, encapsulation, transportation and disposal at their sole cost and expense without any additional cost to City of Fort Myers.

Construction Manager shall notify City of Fort Myers immediately if any hazardous materials are discovered on the Project site and, except to the extent such hazardous materials are brought to the Project site by Construction Manager or the trade contractors of the Project site, City of Fort Myers shall be responsible for testing any such hazardous materials discovered and, if required by law, remediating the Project site prior to Construction Manager continuing the Work. Any hazardous materials not specifically described in the GMP and not otherwise brought into the Project site by Construction Manager or the trade contractors shall be considered a concealed condition and if City of Fort Myers elects for Construction Manager to perform any needed removal, encapsulation, transportation and disposal of such hazardous materials, City of Fort Myers shall issue a change order for the additional Work.

3.3.19 Any asbestos abatement work required in connection with the Work shall only be performed by an asbestos contractor which has been approved and pre-qualified by City of Fort Myers.

3.3.20 Construction Manager shall use a digital model using Building Information Modeling (BIM) Standard and Guide (“BIM Standards”) in coordination with the Consultant. Construction Manager shall host a digital model that the City of Fort Myers and Consultant can access.

ARTICLE 4

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Additional Services

4.1 Upon the mutual agreement of City of Fort Myers and Construction Manager, and upon prior written authorization from City of Fort Myers, Construction Manager shall provide additional services which are beyond the scope of the Basic Services described in this Agreement. Construction Manager shall be compensated for such additional services in an amount to be negotiated by City of Fort Myers and Construction Manager at the time of the additional service request.

ARTICLE 5

City of Fort Myers’s Responsibilities

5.1 City of Fort Myers shall designate a representative to act on its behalf. City of Fort Myers’ representative shall be the sole party authorized to render decisions under this Agreement on City of Fort Myers’ behalf. City of Fort Myers’ representative will monitor the progress of the Work, serve as liaison with Construction Manager and the Consultant, receive and process communications and paperwork, and represent City of Fort Myers in the day-to-day conduct of the Project. Construction Manager will be notified in writing of City of Fort Myers’ representative and any changes thereto.

5.2 City of Fort Myers may retain a threshold inspector, if required by Chapter 553, Florida Statutes.

5.3 City of Fort Myers shall use its best efforts to review and approve or take other appropriate action on

Construction Manager's pre-construction deliverables within fifteen (15) calendar days of receipt of such deliverables.

ARTICLE 6

Schedule

6.1 Construction Manager shall submit its construction cost analysis and any other requirements under this Agreement for each of the pre-construction deliverables referenced in this Agreement to City of Fort Myers and the Consultant within thirty (30) calendar days after each of the referenced documents have been made available to Construction Manager.

6.2 The number of calendar days for performance of the Work under the construction phase of this

Agreement shall be established in the GMP amendment to this Agreement.

6.3 In the event City of Fort Myers desires to accelerate the schedule for any portion of the Work, City of

Fort Myers shall notify Construction Manager in writing. Within seven (7) calendar days after City of Fort Myers’ submission of such notice to Construction Manager, Construction Manager shall give City of Fort Myers a revised GMP for the acceleration which shall become a change order upon acceptance. City of Fort Myers may then direct Construction Manager to increase its staff and require its trade contractors to increase their manpower, or to work such overtime hours as may be necessary to accomplish the required acceleration in accordance with the approved change order. In such event, City of Fort Myers shall reimburse Construction Manager for the costs of such acceleration subject to the GMP. In no event shall Construction Manager be entitled to compensation in excess of the adjusted GMP.

Construction Manager shall require accurate daily records of all costs of the required acceleration and shall secure City of Fort Myers' approval of such records.

6.4 City of Fort Myers shall have the right to occupy, or use, any portion of the Work ahead of Final

Completion.

ARTICLE 7

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Guaranteed Maximum Price

7.1 The "Guaranteed Maximum Price" (also referred to herein as the “GMP”) is the maximum price the

Construction Manager can charge the City of Fort Myers for all Work, which includes the Cost of the Work (as such phrase is defined at Article 9) and for the Construction Manager's Fee (as defined herein). The GMP will be established based on design documents prepared by the Consultant. The GMP is subject to modification for approved changes in the Work which must comply with the Agreement terms, including, but not limited to, the requirements set forth in the Article entitled “Changes in the Work” hereof. As used herein, the GMP in its totality consists of the Cost of the Work (including any taxes legally enacted at the time the GMP is established), plus Construction Manager’s Fee, as either may be amended on the terms set forth in the Article entitled “Changes in the Work.”

7.2 All cost savings belong to and shall be returned to City of Fort Myers upon Final Completion of the Work, or at such earlier time as agreed to by City of Fort Myers and Construction Manager. "Cost savings" are the net difference obtained by deducting from the GMP or adjusted GMP, as applicable, the documented Construction Manager's Fee, the expended portions of Project’s contingency and the actual expenditures representing the Cost of the Work. Liquidated damages, if any, are different from, and are not a part of, this calculation. Project's contingency amount will be agreed upon in the original GMP proposal. Construction Manager’s use of the Project contingency shall be subject to City of Fort Myers’ prior written approval. Those savings which cause the agreed upon contingency to be exceeded will be available for City of Fort Myers' use as soon as reasonably possible. Changes to the GMP funded by these savings are not eligible for additional Construction Manager overhead and profit as outlined in this Agreement.

7.3 The fees specified in this Agreement and any additional fees that may be authorized in the future shall be considered lump sum fees as agreed to by City of Fort Myers.

7.4 Adjustments to the GMP will be made as described in the General Terms and Conditions.

7.5 City of Fort Myers’ prior written approval through City of Fort Myers’ forms shall be required for modification to GMP line items, including transfer or use of Project contingency and any cost savings.

ARTICLE 8

Construction Manager’s Compensation

8.1 In consideration of the performance of the services to be provided by Construction Manager pursuant to this Agreement, City of Fort Myers agrees to pay Construction Manager compensation for its services, identified as pre-construction services, construction services, and the Construction Manager’s Fees, as set forth below:

8.1.1.1 Reserved.

8.1.2 Construction services. Once Construction Manager has commenced construction Work based upon City of Fort Myers’ written Notice To Proceed (with City of Fort Myers’ Purchase Order number identified), Construction Manager shall submit monthly invoices to City of Fort Myers based upon the percentage of the Work completed subject to and on the terms described in the General Terms and Conditions. As required by Section 255.05, Florida Statutes, City of Fort Myers shall not issue Notice to Proceed to Construction Manager until Construction Manager has provided City of Fort Myers with a certified copy of the recorded payment and performance bonds for the Project. Payment for construction services shall be conducted in accordance with Article 15 of the General Terms and Conditions.

8.1.3. Construction Manager’s Fee. Notwithstanding anything in this agreement to the contrary, Construction Manager’s Fee shall be based solely on a percentage of the Cost of the Work, mutually agreed upon by the parties, and the calculation shall not include Construction Manager’s Fee itself. Included in the “Construction Manager's Fee” are the following:

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Salaries and other compensation of Construction Manager’s personnel stationed at the Construction Manager’s principal and branch offices other than the field office.

Expenses of Construction Manager’s principal and branch offices other than the field office.

Any part of Construction Manager's capital expenses, including interest on the Construction

Manager’s capital employed for the Work.

Overhead and profit, or general expenses of any kind, except as may be expressly included in the provision entitled “Cost of the Work”. Overhead and profit percentages shall be broken down separately in the GMP provided by Construction Manager

The cost of estimating services which may be required during construction phase in locations other than the Project site.

Minor expenses such as long-distance telephone calls, telephone and cellular communication service, postage, office supplies, courier or overnight delivery costs, and similar items incurred at the home and branch offices.

Cost of equipment such as typewriters, cameras, radios, computers, pagers, cellular communication devices, copiers, facsimile equipment, dictating units, trailers, vehicles and furniture purchased or rented by Construction Manager at the home or branch offices.

All costs incurred during the warranty period after construction.

Any cost not specifically and expressly described in Article 9 entitled “Cost of the Work”.

8.1.3.1. Adjustments in Construction Manager’s Fee will be made as follows:

Adjustments due to Changes in the Work shall be made as described in the General Terms and Conditions.

For delays in Work caused solely by the City of Fort Myers, Construction Manager shall be entitled to an additional fee to compensate Construction Manager. The amount shall be calculated at a daily rate derived by dividing the basic fee (excluding profit) established in the accepted GMP proposal by the Contract Time established in the GMP amendment to this Agreement.

8.1.3.2. Construction Manager’s fee shall be invoiced on a monthly basis by the Construction Manager based upon the percentage of work completed and per Article 15 of the General Terms and Conditions.

ARTICLE 9

Cost of the Work

9.1 The term “Cost of the Work” shall mean costs, including construction general conditions costs, incurred in the Work as described and defined below, and paid or incurred by Construction Manager, less any reimbursement for scrap value and cash or trade discounts, subject to this Agreement. The Cost of the Work shall include only the items set forth in this provision.

9.1.1 City of Fort Myers agrees to pay Construction Manager for the Cost of the Work pursuant to the terms of this Agreement through completion of the Work. Such payment shall be in addition to Construction Manager’s Fee as stipulated in this Agreement and the Construction Contract

9.2 Cost of the Work is limited to actual expenditure for the following cost items:

9.2.1 Subject to prior written approval by City of Fort Myers, wages paid for labor in the direct employ of Construction Manager and engaged in the performance of the Work under this Agreement; to cover fringe benefits, a “Multiplier” >____ times the wages will be considered a reimbursable cost and will be used for billing purposes only. The Multiplier shall be defined as the employer’s net actual cost of payroll taxes and net actual cost of employee’s worker’s compensation insurance, taking into consideration adjustments for experience modifiers, premium discounts, dividends, rebates, expense constants, assigned risk pool costs, net cost reductions due to policies with deductibles for self-insured losses, assigned risk rebates, and other variables.

Construction Manager shall reduce its standard payroll tax percentages to properly reflect the effective cost

April 2025 Version Page 12 of 19 reduction due to the estimated impact of the annual maximum wages subject to payroll taxes. The percentage used for the Multiplier may be examined at the conclusion of the Project and an adjustment will be made for any overstated costs included in the billed Multiplier. Employee bonuses, holidays, vacation and/or sick leave benefits, life insurance policies, vehicle allowances, or other similar perks and/or benefits paid to Construction Manager’s employees shall not be considered reimbursable labor or labor burden costs and will be deemed to be included as part of Construction Manager’s lump sum fee.

9.2.1.1 Daily hours worked by Construction Manager’s employees for performance of the Work shall be provided to City of Fort Myers on a monthly basis with the pay application in the form of a timecard report signed by the employee.

9.2.1.2 No Construction Manager personnel stationed at Construction Manager’s home or branch offices shall be charged to the Cost of the Work unless City of Fort Myers approves such charges in advance in writing.

9.2.1.3 Overtime wages paid to Construction Manager’s employees will be reimbursed at the actual rate of overtime pay paid to the individual, provided such overtime wages have been pre-approved by City of Fort Myers in writing. No time charges for overtime hours worked on the Project will be allowed if the individual is not actually paid for the overtime worked.

9.2.2 The cost of all materials, supplies and equipment incorporated in the Work or stored on site, including cost of transportation and storage thereof shall be included in the Cost of the Work. At City of Fort Myers’ sole discretion, City of Fort Myers may agree in writing to make payment for materials, supplies and/or equipment stored off-site and bonded.

9.2.3 The aggregate net cost directly paid by Construction Manager to trade contractors pursuant to written subcontracts to perform the Work, not to exceed the amounts set forth in the GMP for such Work.

9.2.4 Cost of the premiums for insurance and bonds required under this Agreement. All premiums for any insurance and bonds required for the Project shall reflect the net actual costs to Construction Manager after taking into consideration cost adjustments due to experience modifiers, premium discounts, policy dividends, retrospective rating plan premium adjustments, assigned risk pool rebates, refunds, etc. Construction Manager’s actual cost for insurance and bonds directly attributable to this Agreement shall be considered to be included within the GMP (but shall not be included in the amount for purposes of calculating the Construction Manager’s Fee), and shall be charged at the actual rate paid by Construction Manager, provided that such rate shall not exceed the amount allocated to these expenses in the GMP. With each pay application, Construction Manager shall provide to City of Fort Myers any and all documentation evidencing net actual costs for insurance and bonds for the Project to Construction Manager.

9.2.5 Sales, use, gross receipt, or similar taxes related to the Work imposed by any governmental authority and paid by Construction Manager and directly related to the Work.

9.2.6 Any fees and assessments for permits not obtained by the City of Fort Myers which Construction Manager is required by this Agreement to pay, including cost of deposits lost for causes other than the fault or negligent act of Construction Manager, and/or its consultants, subcontractors, vendors and suppliers. City of Fort Myers shall pay all fees and assessments associated with building permits issued by the City of Fort Myers.

9.2.7 Cost of removal and disposal of all debris from the site, including clean-up and trash removal.

9.2.8 Cost incurred due to an emergency affecting the safety of persons and/or property not caused by the fault of Construction Manager, its consultants, subcontractors, material men and suppliers.

9.2.9 Cost to Construction Manager of temporary electric power, lighting, water and heat required for the performance of the Work or required to protect the Work from weather damage where applicable.

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9.2.10 Cost to Construction Manager of temporary safety-related protection including barricades and safety equipment, temporary roads and parking, dust control, pest control, installation and operation of temporary hoists, scaffolds, ladders and runways, and temporary project signs pursuant to the Construction Contract.

9.2.11 Cost of watchmen or similar security services, if preapproved by City of Fort Myers in writing.

9.2.12 Cost of surveys, measurements and layout work reasonably required for the execution of the Work or the requirements of the Agreement.

9.2.13 Cost of preparation of shop drawings, computer generated coordination plans, photographs, or as-built documents not included in trade contracts.

9.2.14 No travel costs shall be paid unless such costs are pre-approved by City of Fort Myers in writing and such approved costs, if any, shall be subject to the requirements and limits set forth in Florida Statutes, Section

112.061. If Construction Manager desires to submit a claim related to automobile costs, it must submit a claim for either:

(a) Automobile allowance, or

(b) Fuel Costs, but not both.

9.2.15 Cost of reproduction of the Construction Documents other than those required to be provided by Construction Manager under this Agreement. Reproduction costs shall be the actual costs of reproduction.

Documentation evidencing actual costs must be provided to City of Fort Myers with monthly pay application.

9.2.16 Costs, including transportation and maintenance, of materials, supplies, equipment, temporary facilities and hand tools not customarily owned by workmen that are provided by Construction Manager at the site and fully consumed in the performance of the Work. At the end of the Project, any such items which are used but not consumed will be turned over to City of Fort Myers, or, at City of Fort Myers’ option, will be credited to City of Fort Myers at their fair market value at such time.

9.2.17 Rental charges for all necessary machinery, equipment and hand tools used in the performance of the Work, and not customarily owned by construction workers. Each piece of equipment to be rented shall have hourly, daily, weekly and monthly rates submitted to and approved by City of Fort Myers in writing in advance before equipment rental charges will be considered reimbursable. Rental charges shall not exceed the purchase price of the machinery, equipment or tools.

9.2.18 Reasonable costs associated with setting up and demobilizing tool sheds, Project field offices, temporary fences, temporary roads, and temporary fire protection. Charges related to damaged and/or lost temporary fencing and related items will be the responsibility of Construction Manager.

9.2.19 Any data processing costs directly related to the Work performed at the project site, including any hardware, software or CADD costs, if and to the extent pre-approved by City of Fort Myers in writing.

9.2.20 Expenses incurred in accordance with Construction Manager’s standard personnel policy for relocation and temporary living allowance of personnel required for the Work, if and to the extent pre- approved by City of Fort Myers in writing.

9.2.21 Construction Manager shall (a) pay all royalties and license fees associated with the Work that are not the result of a particular design, process or product specifically required by the Construction Documents, and

(b) be responsible for all infringements of such patent rights.

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9.2.22 Other expenses or charges properly incurred and paid in the performance of the Work, if and to the extent pre-approved by City of Fort Myers in writing.

ARTICLE 10

Changes in the Work

10.1 City of Fort Myers, without invalidating this Agreement, may order changes in the Work within the general scope of this Agreement consisting of additions, deletions, or other revisions. All changes in the Work must be authorized as described in the Construction Contract. Except in cases of emergency endangering life or property, Construction Manager shall not allow any Changes in the Work unless each such change has been pre-approved in writing by City of Fort Myers.

ARTICLE 11

Discounts

11.1 All quantity discounts shall accrue to City of Fort Myers. All trade discounts, rebates and refunds, including without limitation, rebates and refunds associated with insurance and payment and performance bonds, and all returns from the sale of surplus materials and equipment shall be credited to City of Fort Myers. Any surplus items remaining at Project completion shall be returned to or credited to City of Fort Myers at their fair market value at such time.

ARTICLE 12

Notices

All notices required shall be in writing, mailed by registered or certified mail to the below addresses:

>Vendor’s information

City Clerk P.O. Box 2217 Fort Myers, FL 33902-2217 Phone: 239-321-7035

City Manager 2200 Second Street Fort Myers, FL 33901

City Attorney 2200 Second Street Fort Myers, FL 33901

City Engineer 2200 Second Street Fort Myers, FL 33901

All notices will be deemed duly served three (3) business days after the certified or registered mail is sent.

The Construction Manager and City of Fort Myers may change the above mailing address at any time upon giving the other party written notification. All other notices under this Agreement must be in writing and may be delivered via an electronics mail to the applicable address as otherwise designated by the parties in

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ARTICLE 13

E-Verify During the term of this Contract, the Construction Manager shall fully comply with Florida Statute Sec.

448.095, which includes but is not limited to, registering with and utilizing the U.S. Department of Homeland Security’s E-Verify system to verify the work authorization status of all new employees and requiring an affidavit from any Subcontractor/Subconsultants stating that the Subcontractor/Subconsultants uses and shall continue to use the E-Verify System to verify the work authorization status of all newly hired employees stating that the Subcontractor/Subconsultants uses and shall continue to use the E-Verify System to verify the work authorization status of all newly hired employees and does not employ, contract with or subcontract with an unauthorized alien.

ARTICLE 14

Florida Public Records Law The parties acknowledge and agree that all provisions of the Florida Public Records Law, Chapter 119, are and shall be binding and enforced at all times with regard to all actions and activities under this Agreement. Construction Manager recognizes that in contracting with the City, it has the burden of complying with the Florida Public Records Laws, Chapter 119, for any documents in its possession. Nothing in this Agreement shall prohibit or restrict or create any liability on the City for complying in good faith with the Florida Public Records Law, Chapter 119 of the Florida Statutes:

To the extent that Construction Manager may meet the definition of a “Contractor” as defined by Section 119.0701, Florida Statutes, it will:

1. Keep and maintain public records required by the public agency to perform the service.

2. Upon request from the public agency’s custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law.

3. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Construction Manager does not transfer the records to the public agency.

4. Upon completion of the contract, transfer, at no cost, to the public agency all public records in possession of the Construction Manager or keep and maintain public records required by the public agency to perform the service. If the Construction Manager transfers all public records to the public agency upon completion of the contract, the Construction Manager shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Construction Manager keeps and maintains public records upon completion of the contract, the Construction Manager shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the public agency, upon request from the public agency’s custodian of public records, in a format that is compatible with the information technology systems of the public agency.

If the Construction Manager has questions regarding the application of Chapter 119, Florida Statutes, to the Supplier title's duty to provide public records relating to this contract, contact the City's Custodian of Public Records at c/o City Clerk, (239) 321-7042, jgravitt@fortmyers.gov 2200 Second Street., Fort Myers, FL 33901.

https://www.flsenate.gov/Laws/Statutes/2020/119.01 https://www.flsenate.gov/Laws/Statutes/2020/119.01 https://www.flsenate.gov/Laws/Statutes/2020/119.01 https://www.flsenate.gov/Laws/Statutes/2020/119.01 mailto:jgravitt@cityftmyers.com

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ARTICLE 15

Indemnification

To the extent provided by law, Construction Manager shall indemnify and hold harmless the City and the State of Florida, Department of Transportation, including the City’s and Department's officers and employees, from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of Construction Manager and persons employed or utilized by the…