CMAR_Agreement__revised_10.05.2023.pdf

CONSTRUCTION MANAGER AT RISK CONTRACT

BETWEEN

COLLIER COUNTY, FLORIDA

AND

[CMAR name]

FOR

RFP#[bid number] “[project name]”

DATE

CMAR Agr v2 2022 clean ii 127025798.5

TABLE OF CONTENTS

SECTION 1. CONTRACT DOCUMENTS

SECTION 2. SCOPE OF WORK

SECTION 3. RELATIONSHIP OF PARTIES

SECTION 4. CONTRACT AMOUNT

SECTION 5. COST OF THE WORK

SECTION 6. BONDS

SECTION 7. CONTRACT TIME AND LIQUIDATED DAMAGES

SECTION 8. EXHIBITS INCORPORATED

SECTION 9. NOTICES

SECTION 10. MODIFICATION

SECTION 11. SUCCESSORS AND ASSIGNS

SECTION 12. GOVERNING LAW

SECTION 13. NO WAIVER

SECTION 14. ENTIRE AGREEMENT

SECTION 15. SEVERABILITY

SECTION 16. CONSTRUCTION

SECTION 17. PUBLIC RECORDS

SECTION 18. E-VERIFY

EXHIBIT A GENERAL TERMS AND CONDITIONS........................................................... A-1

1. INTENT OF CONTRACT DOCUMENTS................................................................... A-1

2. INVESTIGATION AND UTILITIES ........................................................................... A-2

3. SCHEDULE................................................................................................................... A-2

4. PROGRESS PAYMENTS............................................................................................. A-3

5. PAYMENTS WITHHELD ............................................................................................ A-4

6. FINAL PAYMENT ....................................................................................................... A-5

7. SUBMITTALS AND SUBSTITUTIONS ..................................................................... A-5

8. PRE-CONSTRUCTION PHASE SERVICES .............................................................. A-7

9. CONSTRUCTION PHASE SERVICES ....................................................................... A-8

10. DAILY REPORTS, RECORD CONTRACT DOCUMENTS AND MEETINGS ..... A-13

11. CONTRACT TIME AND TIME EXTENSIONS ....................................................... A-14

12. CHANGES IN THE WORK ....................................................................................... A-15

13. CLAIMS AND DISPUTES ......................................................................................... A-16 iii

14. OTHER WORK ........................................................................................................... A-17

15. INSURANCE ............................................................................................................... A-18

16. WAIVER OF SUBROGATION.................................................................................. A-18

17. INDEMNIFICATION.................................................................................................. A-18

18. CLEANUP AND PROTECTIONS ............................................................................. A-18

19. ASSIGNMENT............................................................................................................ A-19

20. PERMITS, LICENSES AND TAXES ........................................................................ A-19

21. TERMINATION FOR DEFAULT.............................................................................. A-22

22. TERMINATION FOR CONVENIENCE AND RIGHT OF SUSPENSION ............. A-24

23. COMPLETION............................................................................................................ A-24

24. WARRANTY .............................................................................................................. A-25

25. TESTS AND INSPECTIONS ..................................................................................... A-26

26. DEFECTIVE WORK................................................................................................... A-27

27. SUPERVISION AND CONSTRUCTION MANAGER’S

REPRESENTATIVE ................................................................................................... A-29

28. PROTECTION OF WORK ......................................................................................... A-30

29. EMERGENCIES.......................................................................................................... A-30

30. USE OF PREMISES.................................................................................................... A-31

31. SAFETY ...................................................................................................................... A-31

32. PROJECT MEETINGS ............................................................................................... A-33

33. MATERIAL SAFETY DATA SHEET ....................................................................... A-33

34. AUDITING RIGHTS................................................................................................... A-33

35. COMPLIANCE WITH LAWS.................................................................................... A-34

36. SUBCONTRACTS ...................................................................................................... A-34

37. MARKET ANALYSIS AND SOLICITATION OF BIDS ......................................... A-37

38. PARTNERING ............................................................................................................ A-40

39. SECURING AGREEMENT ........................................................................................ A-40

40. PUBLIC ENTITY CRIMES ........................................................................................ A-40

41. EQUAL EMPLOYMENT OPPORTUNITY/NON-

DISCRIMINATION/MWBE/LDB AND APPRENTICESHIP PROGRAM ............. A-41

42. CHANGED CONDITIONS......................................................................................... A-41 EXHIBIT B SUPPLEMENTAL TERMS AND CONDITIONS .............................................. B-1 EXHIBIT C FORM OF PAYMENT BOND............................................................................. C-1

EXHIBIT D FORM OF PERFORMANCE BOND .................................................................. D-1 iv

EXHIBIT E INSURANCE REQUIREMENTS ........................................................................ E-1 EXHIBIT F RELEASE AND AFFIDAVIT ...............................................................................F-1

EXHIBIT G CONSTRUCTION MANAGER APPLICATION FOR PAYMENT ................... G-1

EXHIBIT H CHANGE ORDER ............................................................................................... H-1 EXHIBIT I MASTER PROJECT SCHEDULE MILESTONES ................................................I-1

EXHIBIT J CONSTRUCTION MANAGER’S STAFFING SCHEDULE ........................ J-1

EXHIBIT K GMP AMENDMENT TO AGREEMENT BETWEEN OWNER AND

CONSTRUCTION MANAGER............................................................................. K-1

EXHIBIT L TRUTH-IN-NEGOTIATION CERTIFICATE ..................................................... L-1 EXHIBIT M FINAL PAYMENT CHECKLIST ...................................................................... M-1 EXHIBIT N SCOPE OF WORK ............................................................................................... N-1 EXHIBIT O SCHEDULE OF VALUES ................................................................................... O-1

CONSTRUCTION MANAGER AT RISK AGREEMENT

THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida (“Owner”), hereby contracts with [CMAR name], whose mailing address is 6635 Willow Park Dr., Naples, Florida 34109 (“Construction Manager” or “CMAR”), a Florida corporation, to perform all work (“Work”) in connection with the management and construction of that certain construction of RFP#[bid number] “[project name]" (“Project”), located at [location] said Work being set forth in the plans and specifications being prepared by [EOR], the Architect and/or Engineer of Record (“Design Professional”) and all other Contract Documents hereafter specified.

Owner and Construction Manager, for the consideration herein set forth, agree as follows:

Section 1. Contract Documents

A. The Contract Documents consist of this Agreement, the Exhibits described in Section 8 hereof, and any duly executed and issued addenda, Change Orders, Construction Change Directives, Field Orders, and amendments relating thereto. Further, the term Contract Documents shall include all plans and specifications for the construction of the Project (“Construction Documents”) being prepared by Design Professional, but only after said Construction Documents have been completed by Design Professional and approved in writing by Owner. All of the foregoing Contract Documents are sometimes referred to herein as the “Contract”.

B. Owner shall furnish Construction Manager with one (1) sealed copy and one (1) reproducible set of the Construction Documents. Any additional copies of Construction Documents, required by Construction Manager for execution of the Work, shall be made by Construction Manager from its reproducible set at Construction Manager’s sole cost and expense.

The reproducible set of the Construction Documents shall be returned to Owner upon final acceptance of the Work or termination of the Contract, whichever occurs first. Provided, however, Owner is furnishing Construction Manager a reproducible set of Construction Documents for Construction Manager’s convenience and such furnishing by Owner shall not be deemed to be a waiver by Owner or Design Professional of any copyright, patent or license they may have with respect to the Construction Documents. All such copyrights, patents and licenses hereby being expressly reserved by Owner and Design Professional.

Section 2. Scope of Work

The Work to be provided by Construction Manager pursuant to this Contract shall be performed essentially in two phases, as described in Owner’s request for proposals for the Work (the “RFP”). Those phases being Pre-Construction Phase Services and Construction Phase Services. At the discretion of Owner, those two phases may overlap. Further, the Work shall be performed in accordance with the scope of work attached hereto as Exhibit N and incorporated herein by reference.

A. Pre-Construction Phase Services. Construction Manager shall review and comment upon the Construction Documents being developed by Design Professional. The scope of that review shall include, but not be limited to, reviewing those various documents for value engineering and constructability. As the Construction Documents are developed by Design Professional through the various design phases set forth in the Design Professional Services Agreement between Design Professional and Owner (“Design Agreement”), Construction Manager shall provide Owner with detailed construction cost estimates with respect to those documents. Construction Manager agrees to attend any, and all design and preconstruction conferences and to otherwise assist and cooperate with Design Professional with respect to the design of the Project. Construction Manager shall provide all other services during the Pre- Construction Phase of the Project as set forth in the Contract Documents.

B. Construction Phase Services. After the Construction Documents have been sufficiently completed by Design Professional and approved by Owner for all of the Work (or such portions thereof as may be designated by Owner in writing), and Owner and Construction Manager have agreed in writing upon the guaranteed maximum price to be paid Construction Manager and the Contract Time for the Work (or designated portions thereof) as hereafter provided, Construction Manager shall furnish and pay for all management, supervision, financing, labor, materials, tools, fuel, supplies, utilities, equipment and services of every kind and type necessary to diligently, timely and fully perform and complete in a good and workmanlike manner the construction of the Work (or designated portions thereof) in accordance with all of the terms and conditions of the Contract Documents. Notwithstanding anything herein to the contrary, as and to the extent expressly directed and authorized by Owner in writing, Construction Manager shall commence to construct those portions of the Work designated by Owner even though the guaranteed maximum price and/or Contract Time for the entire Work has not yet been agreed to by the parties, so long as they have agreed in writing upon the compensation to be paid Construction Manager and the performance time for such portion of the Work.

Section 3. Relationship of Parties

A. Construction Manager accepts the relationship of trust and confidence established by this Agreement. Construction Manager covenants with Owner to cooperate with Design Professional: to utilize Construction Manager’s best skill, efforts, and judgment in furthering the interest of Owner; to furnish efficient business administration and supervision; to furnish at all times an adequate supply of workers and materials; and to perform the Work in the best way and the most expeditious and economical manner, consistent with the interests of Owner. Further, Construction Manager acknowledges that: (i) it has represented to Owner that it has specific expertise in the planning, management, and construction of projects similar to the nature, character, and components of this Project, and (ii) such representation is a material inducement to Owner to enter into this Contract.

B. Wherever the terms of this Contract refer to some action, consent, or approval

(excluding approvals of Change Orders, Construction Change Directive, or amendments to the

Contract) to be provided by Owner or some notice, report or document is to be provided to Owner, such reference to “Owner” shall mean Owner, Owner’s staff, or Owner’s designee (to the extent such designee has been expressly authorized by Owner in writing), unless otherwise stated herein.

C. Owner may utilize the services of a Program Manager to assist it with the management of the design and construction of the Project. In the event Owner does utilize the services of a Program Manager with respect to this Project, Owner shall notify Construction Manager in writing of such decision and the Program Manager shall be deemed to be an Owner designee as referenced in Paragraph B above. Further, to the extent Construction Manager is required to name Owner as an additional insured under any insurance policy to be maintained by Construction Manager pursuant to the terms of the Contract Documents, Construction Manager shall cause the Program Manager to also be named as an additional insured party under all such policies. The Program Manager shall be Owner’s representative with respect to the Project, with authority to transmit instructions, receive information, and interpret and define Owner’s policies and decisions with respect to the Work. Owner may utilize the services of a Project Manager or any representative designated by Owner from time to time (“Owner’s Representative”) to assist Owner with the management of the design and construction of the Project. In the event Owner does utilize the services of a Project Manager or Owner’s Representative with respect to this Project, Owner shall notify Construction Manager in writing of such decision and the Project Manager or Owner’s Representative, as applicable, shall be deemed to be an Owner designee as referenced in Paragraph B above. Further, to the extent Construction Manager is required to name Owner as an additional insured under any insurance policy to be maintained by Construction Manager pursuant to the terms of the Contract Documents, Construction Manager shall cause the Program Manager or Owner’s Representative, as applicable, to also be named as an additional insured party under all such policies. In the event Owner does utilize the services of a Project Manager, the Project Manager shall be deemed Owner’s Representative with respect to the Project and is designated to do all things necessary to properly administer the terms and conditions of this Agreement on behalf of Owner, including, without limitation, transmitting instructions, receiving and dispensing materials and information relative to the Project, interpreting and defining Owner’s policies and decisions with respect to the Work, and issuing Owner approvals as necessitated during the Project.

The Project Manager or Owner’s Representative, as applicable, will be responsible for the following tasks as related to the Project:

1. Examine reports, sketches, drawings, estimates, proposals, and other documents presented by the Construction Manager, for the purpose of issuance of those approvals necessary to support preparation and submission of invoices by the Construction Manager.

2. Provide instructions, receipt of information, interpretation and definition of

Owner’s policies and decisions with respect to design, construction, materials, and other matters pertinent to the work covered by this Agreement.

3. Provide review and written confirmation of all documents and payment requests.

Notwithstanding anything herein to the contrary, the Project Manager or Owner’s Representative, as applicable, shall be responsible for the review of any Change Orders on behalf of Owner.

Understanding that all Change Orders must be processed in accordance with Collier County Procurement Ordinance in effect at that time. Any Change Orders with a total sum in excess of 10% of the Board approved contract award, and/or as otherwise mandated pursuant to the Procurement Ordinance shall require the review and approval of the Board of County Commissioners of Collier County, Florida.

D. Construction Manager at Risk hereby designates [CMAR PM], as its Project Manager, with full authority to bind and obligate Construction Manager on all matters arising out of or relating to the Work or the Contract Documents. Construction Manager agrees that the Project Manager shall devote whatever time is required to satisfactorily manage the Work and further agrees that the Project Manager shall not be removed or replaced by Construction Manager without Owner’s prior approval, which approval shall not be unreasonably withheld.

Section 4. Contract Amount

In consideration of the full and faithful performance by Construction Manager of the covenants in this Contract, Owner agrees to pay, or cause to be paid, to Construction Manager the following amounts (herein “Contract Amount”), in accordance with the terms of this Contract:

(ii) Pre-Construction Phase Services. For all Pre-Construction Phase Services, including, but not limited to, providing value engineering services, reviewing Construction Documents for constructability, assisting and meeting with Design Professional during the various design phases, and preparing cost estimates, Construction Manager shall receive the fixed amount of [PC Lump Sum] ($___) as the total lump sum compensation for its services. Monthly installment payment of the total lump sum compensation shall be based upon the percent completion of the designated portion of the Pre-Construction Services for each particular month and Owner’s receipt of Construction Manager’s written invoice for such payment, said invoice to be in a form reasonably acceptable to Owner. Any remaining final invoice for completed Pre-Construction Services shall be submitted: (i) before the GMP Amendment is executed for the entire Work, or the parties fail to reach agreement on the GMP Amendment and Owner elects to terminate this Contract as provided in section 4.B hereafter, whichever occurs first.

A. Construction Phase. With respect to the Construction Phase Services to be provided by Construction Manager hereunder, Owner shall reimburse Construction Manager for the Cost of the Work (as that term is defined hereafter) and pay Construction Manager a fixed Construction Management Fee of [CMAR percentage] percent (____ %) of the estimated Cost of the Work, as that estimate is established at the time the GMP is initially set by the parties, and as may be adjusted in accordance with the Contract Documents. The Construction Management Fee shall be Construction Manager’s total compensation for all overhead not reimbursable as Cost of the Work under Section 5.A. below, as well as Construction Manager’s total profit for Construction Phase Services. Construction Manager agrees to provide Owner with a guaranteed maximum price proposal for the total sum of the Construction Management Fee plus the Cost of the Work within 60 days after the

Construction Documents are 100% completed by the Design Professional and approved in writing by Owner. The guaranteed maximum price proposal shall be based upon the previous cost estimates provided by Construction Manager as required hereunder. Further, the proposal shall be broken down into the categories and level of detail required by Owner. Construction Manager agrees that all of its books, records and files, with respect to its development of the guaranteed maximum price proposal, shall be open to Owner for review and copying. The final guaranteed maximum price shall be mutually agreed upon by Owner and Construction Manager and shall be set forth in the GMP Amendment (“GMP”). The form for GMP Amendment is attached hereto as Exhibit K. Construction Manager shall provide a detailed breakdown acceptable to Owner of its guaranteed maximum price proposal, as well as for the GMP. For each line item in the GMP, Construction Manager shall develop and maintain a written report which identifies and explains all variances and deviations from the bid amount originally submitted for that line item, to the final line item price incorporated into the GMP. Construction Manager guarantees that in no event shall the Construction Management Fee and the total Cost of the Work exceed the GMP, except as the GMP may be adjusted pursuant to the terms herein for Change Orders and Construction Change Directives. In the event Construction Manager and Owner fail to reach an agreement on the GMP, Owner may elect to terminate this Contract. In the event of any such termination, Construction Manager shall be entitled to receive that portion of the Contract Amount attributable to the Pre- Construction Phase Services earned through the date of termination plus that portion of any earned compensation associated with any Construction Phase Services provided, to the extent such services were expressly approved in advance and in writing by Owner; but Construction Manager shall not be entitled to any further or additional compensation from Owner, including but not limited to damages or lost profits on portions of the Work not performed.

Section 5. Cost of the Work

A. Costs to be Reimbursed. The term Cost of the Work shall mean all costs necessarily and reasonably incurred by Construction Manager in the proper performance of the Construction Phase Services portion of the Work. Such costs shall be at rates not higher than the standard paid at the place of the Project except with the prior written consent of Owner only after Construction Manager has provided sufficient support in writing that exceptional circumstances exist, which justify the payment of rates higher than the standard. The Cost of the Work shall include only those items set forth below in this subsection A:

1. Labor Costs.

a. Wages of construction workers directly employed by Construction

Manager to perform the construction of the Work at the Project site or, with Owner’s written agreement, at off-site workshops. Costs to be reimbursed will be the actual wages paid to the individuals performing the work.

b. Wages or salaries of Construction Manager’s supervisory and administrative personnel who are stationed at the Project site with Owner’s written agreement.

c. Wages and salaries of Construction Manager’s supervisory and administrative personnel engaged at factories, workshops or on the road in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work and only with Owner’s written agreement as in subsection A.1.b above.

2. Subcontract Costs. Payments made by Construction Manager to subcontractors and for professional consulting services in accordance with the requirements of the applicable written subcontracts.

3. Cost of Materials and Equipment Incorporated into the Completed

Construction.

a. Costs, including transportation, of materials and equipment incorporated or to be incorporated in the completed construction.

b. Costs of materials described in subsection A.3.a, above, in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall be handed over to Owner at the completion of the Work or, at Owner’s option, shall be sold by Construction Manager; amounts realized, if any, from such sales, shall be credited to Owner as a deduction from the Costs of the Work.

4. Costs of other materials and equipment, temporary facilities, and related items.

a. Costs, including transportation, installation, maintenance, dismantling and removal, of materials, supplies, temporary facilities (including project field offices, furniture and fixtures), temporary utilities, machinery, equipment, and hand tools not customarily owned by the construction workers, which are provided by Construction Manager at the Project site and fully consumed in the performance of the Work; and costs less salvage value on such items if not fully consumed, whether sold to others or retained by Construction Manager.

b. Rental charges, at standard industry rates for the area, for temporary facilities, machinery, equipment, and hand tools not customarily owned by the construction workers, which are provided by Construction Manager at the Project site, whether rented from Construction Manager or others, and costs of transportation, installation, minor repairs and replacements, dismantling and removal thereof. Rates and quantities of all equipment rented, whether from Construction Manager or others, shall be subject to Owner’s prior written approval.

c. Cost of removal and proper disposal of debris from the Project site.

d. Costs of postage and parcel delivery charges, internet and telephone service at the Project site, and reasonable petty cash expenses of the Project site office.

e. That portion of the reasonable travel and subsistence expenses of

Construction Manager’s personnel, assigned to the Project site, incurred while traveling outside of the Collier County area in discharge of duties connected with the Work, provided all of such expenses and charges shall be subject to the prior written approval of Owner and Section 112.061 of the Florida Statutes governing payments by the State for travel expenses.

5. Miscellaneous Costs.

a. That portion of any separate premiums for (i) bonds directly attributable to this Contract and (ii) any additional insurance coverages which are purchased by Construction Manager, with Owner’s prior written approval, beyond the level of coverage specified herein.

b. Sales, use or similar taxes imposed by a governmental authority which are related to the Work and for which Construction Manager is liable.

c. Fees and assessments for the building permit and for other permits, licenses and inspections for which Construction Manager is required by the Contract Documents to pay.

d. Fees of testing laboratories for tests required by the Contract

Documents, except those related to defective or nonconforming Work for which reimbursement is excluded pursuant to the terms of this Contract.

e. Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents.

f. Deposits lost for causes other than Construction Manager’s fault or negligence.

g. Legal, mediation and arbitration costs, other than those arising from disputes between Owner and Construction Manager, reasonably incurred by Construction Manager in performance of the Work and with Owner’s prior written consent, said consent to be given or denied in Owner’s sole discretion.

h. Costs reasonably incurred in repairing or correcting damage or nonconforming Work executed by Construction Manager, or its subcontractors or suppliers, provided that such damage or nonconforming Work was not caused by (i) the negligence or failure to fulfill a specific responsibility of Construction Manager to Owner set forth in the Contract Documents, or (ii) Construction Manager’s foremen, engineers, superintendents or other supervisory, administrative or managerial personnel, or (iii) the failure of Construction Manager’s personnel to supervise adequately those portions of the Work to be performed by Construction Manager’s subcontractors or suppliers, and only to the extent that the cost of repair or correction is not recoverable by Construction Manager from (i) insurance or bonds, (ii) any of the subcontractors or suppliers, or (iii) some other appropriate source.

6. Other Costs. Other costs incurred in performance of the Work if and to the extent approved in advance in writing by Owner.

B. Costs Not To Be Reimbursed. The Cost of the Work shall not include the following items:

1. Salaries and other compensation of Construction Manager’s personnel stationed at Construction Manager’s principal office or offices other than the Project site office.

2. Expenses of Construction Manager’s principal office and offices other than the Project site office.

3. Overhead and general expenses, except as may be expressly included in subsection A above.

4. Construction Manager’s capital expenses, including interest on

Construction Manager’s capital employed for the Work.

5. Rental costs of machinery and equipment, except as specifically provided in subsection A.4.b above.

6. Except as expressly provided in subsection A.5.h. above, costs due to the fault or negligence of Construction Manager, subcontractors, anyone directly or indirectly employed by any of them, or for whose acts any of them may be liable, including, but not limited to, costs for the correction of damaged, defective, or nonconforming Work, disposal and replacement of materials and equipment incorrectly ordered or supplied, and making good damage to property not forming part of the Work.

7. Any costs not specifically and expressly described in subsection A above.

8. Costs which would cause the GMP to be exceeded (as the GMP may be adjusted pursuant to the terms herein for Change Order and Construction Change Directive).

C. Discounts, Rebates and Refunds.

1. Cash discounts obtained on payments made by Construction Manager shall accrue to Owner if (i) before making the payment, Construction Manager included them in an application for payment and received payment therefor from Owner, or (ii) Owner has deposited funds with Construction Manager with which to make payments; otherwise, cash discounts shall accrue to Construction Manager. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to Owner, and Construction Manager shall make provisions so that they can be secured.

2. Amounts which accrued to Owner in accordance with the provisions of subsection C.1. above shall be credited to Owner as a deduction from the Cost of the Work.

Section 6. Bonds

A. Within ten (10) business days after the GMP is agreed to by Owner and

Construction Manager, Construction Manager shall provide Owner with Performance and Payment Bonds, in the form prescribed in Exhibits C and D, in the amount of 100% of the total sum of the GMP, the costs of which are to be paid by Construction Manager. The Performance and Payment Bonds must comply with the following provisions and must be otherwise acceptable to Owner:

1. The Bonds must be underwritten by a surety company which has a currently valid Certificate of Authority issued by the State of Florida, Department of Insurance, authorizing it to write surety bonds in the State of Florida.

2. The surety company shall have currently valid Certificate of Authority issued by the United States Department of Treasury under Sections 9304 to 9308 of Title 31 of the United States Code.

3. The surety company shall be in full compliance with the provisions of the

Florida Insurance Code.

4. The surety company shall have at least twice the minimum surplus and capital required by the Florida Insurance Code at the time the invitation to bid is issued.

5. The Bonds must be fully performable in Florida, with service and venue in

Collier County, Florida.

6. If the GMP exceeds $500,000.00, the surety company shall also comply with the following provisions:

a. The surety company shall have at least the following minimum ratings in the latest issue of Best’s Key Rating Guide:

CONTRACT

POLICYHOLDER’S

RATING

REQUIRED

FINANCIAL

RATING

$ 500,000 to 1,000,000 A CLASS IV

1,000,000 to 2,500,000 A CLASS V 2,500,000 to 5,000,000 A CLASS VI 5,000,000 to 10,000,000 A CLASS VII

10,000,000 to 25,000,000 A CLASS VIII 25,000,000 to 50,000,000 A CLASS IX 50,000,000 to 75,000,000 A CLASS X

b. The surety company shall not expose itself to any loss on any one risk in an amount exceeding ten (10) percent of its surplus to policyholders, provided:

(1) Any risk or portion of any risk being reinsured shall be deducted in determining the limitation of the risk as prescribed in this section. These minimum requirements shall apply to the reinsuring carrier providing authorization or approval by the State of Florida, Department of Insurance to do business in this state have been met.

(2) In the case of a surety insurance company, in addition to the deduction for reinsurance, the amount assumed by any co-surety, the value of any surety deposited, pledged or held subject to the consent of the surety and for the protection of the surety shall be deducted.

B. If the surety for any bond furnished by Construction Manager 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, Construction Manager shall, within five (5) calendar days thereafter, substitute another bond and surety, both of which shall be subject to the minimum requirements noted above and Owner’s approval.

C. In accordance with the requirements of Section 255.05(1)(a), Florida Statutes, Construction Manager shall record within 5 days in the Public Records of Collier County, Florida, a copy of the Performance and Payment Bonds. Construction Manager shall deliver within 10 days to Owner evidence, reasonably acceptable to Owner, of the recording of said Bonds. The delivery of such evidence is a condition precedent to Owner’s obligation to make any progress payments to Construction Manager hereunder.

Section 7. Contract Time and Liquidated Damages

A. Time is of the essence in the performance of the Work under this Contract. The “Pre-Construction Commencement Date” shall be established in a Notice to Proceed to be issued by Owner. Construction Manager shall commence the Pre-Construction Phase Services portion of the Work within five (5) calendar days after the Pre-Construction Phase Commencement Date.

Any Work performed by Construction Manager prior to the Pre-Construction Phase Commencement Date shall be at the sole risk of Construction Manager. The “Construction Phase Commencement Date” shall be established in the GMP Amendment. Construction Manager shall commence the Construction Phase Services portion of the Work within five (5) calendar days after the Construction Phase Commencement Date, which shall be established in a Construction Phase Commencement Notice to Proceed to be issued by Owner. No portion of the Work, with respect to the Construction Phase Services to be provided hereunder, shall be performed prior to the Construction Phase Commencement Notice to Proceed, unless expressly approved in advance by Owner in writing. The total period of time beginning with the Construction Phase Commencement Date and ending on the date of Substantial Completion of the Work is referred to hereafter as the “Contract Time”. The Contract Time is set forth with more specificity in Paragraph B below.

B. Because the Work is to be completed in two phases, the timely completion of the first phase is critical to the timely completion of the second phase and, therefore, completion of the entire Project. Accordingly, Construction Manager agrees to provide the Pre-Construction Phase Services in accordance with the design schedule established pursuant to the terms of the Design Agreement. With respect to the Construction Phase Services, the GMP Amendment shall include the date that portion of the Work associated with the Construction Phase Services must be substantially completed by Construction Manager. That Substantial Completion date shall be established in terms of calendar days after the Construction Phase Commencement Date. In the event Construction Manager and Owner fail to reach an agreement on the Contract Time and the Substantial Completion date, Owner may elect to terminate this Contract. In the event of any such termination, Construction Manager shall be entitled to receive that portion of the Contract Amount attributable to the Pre-Construction Phase Services earned to the date of termination plus that portion of any earned compensation associated with any Construction Phase Services provided, to the extent such services were expressly approved in advance and in writing by Owner; but Construction Manager shall not be entitled to any further or additional compensation from Owner, including but not limited to damages or lost profits on portions of the Work not performed.

Substantial Completion of the Work shall be achieved when the Work has been completed to the point where Owner can occupy or utilize the Work for its intended purpose. Design Professional shall certify the date Substantial Completion of the Work is achieved. If Owner has designated portions of the Work to be turned over to Owner prior to Substantial Completion of the entire Work, Design Professional shall certify the date as to when Substantial Completion of such designated portions of the Work have been achieved. The entire Work shall be fully completed and ready for final acceptance by Owner within sixty (60) calendar days after the Substantial Completion date, or within sixty (60) calendar days after Construction Manager’s receipt of the punch list, whichever date occurs last.

C. Owner and Construction Manager recognize that, since time is of the essence for this Contract, Owner will suffer financial loss if the Work associated with the Construction

Phase is not substantially completed within the time specified in the GMP Amendment, as said time may be adjusted as provided for herein. In such event, the total amount of Owner’s damages, will be difficult, if not impossible, to definitely ascertain and quantify, because this is a public construction project that will, when completed, benefit the public and enhance the delivery of valuable services to the public, in Collier County, Florida. It is hereby agreed that it is appropriate and fair that Owner receive liquidated damages from Construction Manager, if Construction Manager fails to achieve Substantial Completion of the Work within the required Contract Time.

Should Construction Manager fail to substantially complete the Work within the required time period, Owner shall be entitled to assess, as liquidated damages, but not as a penalty, that sum specified in the GMP Amendment for each calendar day thereafter until Substantial Completion is achieved. Construction Manager 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 Owner’s actual damages at the time of contracting if Construction Manager fails to substantially complete the Work in a timely manner.

D. When any period of time is referenced by days herein, it shall be computed to exclude the first day and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the laws of Florida, such day shall be omitted from the computation, and the last day shall become the next succeeding day which is not a Saturday, Sunday or legal holiday. The term “business day” as used herein shall mean all days of the week excluding Saturdays, Sundays and all legal holidays observed by Owner.

Section 8. Exhibits Incorporated

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

Exhibit A: General Terms and Conditions Exhibit B: Supplemental Terms and Conditions Exhibit C: Form of Payment Bond Exhibit D: Form of Performance Bond Exhibit E: Insurance Requirements Exhibit F: Form of Release and Affidavit Exhibit G: Form of Construction Manager Application for Payment Exhibit H: Form of Change Order Exhibit I: Master Project Schedule Milestones Exhibit J: Construction Manager’s Staffing Schedule Exhibit K: GMP Amendment to Agreement Between Owner and Construction

Manager Exhibit L: Truth-In-Negotiation Certificate Exhibit M: Final Payment Checklist Exhibit N: Scope of Work Exhibit O: Schedule of Values

Section 9. Notices

A. All notices required or made pursuant to this Contract by Construction Manager to Owner shall be in writing and may be given either (i) by mailing same by United States mail with proper postage affixed thereto, certified, return receipt requested, or (ii) by sending same by Federal Express, UPS or other nationally recognized mail or package delivery service, or (iii) by hand delivery to the appropriate address as herein provided. Notices required hereunder shall be directed to the following address:

COLLIER COUNTY

__ Division

Naples, Florida

ATTENTION:

Email and Phone:

B. All notices required or made pursuant to this Contract by Owner to Construction

Manager shall be made in writing and may be given either (i) by mailing same by United States mail with proper postage affixed thereto, certified, return receipt requested, or (ii) by sending same by Federal Express, UPS or other nationally recognized mail or package delivery service, or (iii) by hand delivery to the appropriate address as herein provided. Notices required hereunder shall be directed to the following address:

[CMAR name] [CMAR address] ATTENTION: [CMAR Notice] Email and Phone:

Either party may change its above noted address by giving written notice to the other party in accordance with the requirements of this Section.

Section 10. Modification

No modification or amendment to the Contract shall be valid or binding upon the parties unless in writing and executed by the party or parties intended to be bound by it.

Section 11. Successors and Assigns

Subject to other provisions hereof, the Contract shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to the Contract.

Section 12. Governing Law

The Contract shall be interpreted under and its performance governed by the laws of the State of Florida.

Section 13. No Waiver

The failure of Owner to enforce at any time or for any period of time any one or more of the provisions of the Contract shall not be construed to be and shall not be a waiver of any such provision or provisions or of its right thereafter to enforce each and every such provision.

Section 14. Entire Agreement

Each of the parties hereto agrees and represents that the Contract comprises the full and entire agreement between the parties affecting the Work contemplated, and no other agreement or understanding of any nature concerning the same has been entered into or will be recognized, and that all negotiations, acts, work performed, or payments made prior to the execution hereof shall be deemed merged in, integrated, and superseded by the Contract.

Section 15. Severability

Should any provision of the Contract be determined by a court to be unenforceable, such a determination shall not affect the validity or enforceability of any other section or part thereof.

Section 16. Construction

Unless the context of this Contract otherwise clearly requires, references to the plural include the singular, references to the singular include the plural. The term “including” is not limiting, and the terms “hereof”, “herein”, “hereunder”, and similar terms in this Contract refer to this Contract as a whole and not to any particular provision of this Contract, unless stated otherwise. Additionally, the parties hereto acknowledge that they have carefully reviewed this Contract and have had the opportunity to be advised by counsel of their choosing with respect thereto, and that they understand its contents and agree that this Contract shall not be construed more strongly against any party hereto, regardless of who is responsible for its preparation.

Section 17. Public Records

Construction Manager shall keep all records and supporting documentation, which concern or relate to the Work hereunder for a minimum of five (5) years from the date of termination of this Contract or the date the Project is completed or such longer period as may be required by law, whichever is later, pursuant to Florida Public Records Law Chapter 119 and comply with specifically those contractual requirements in 119.0701(2)(a)-(b) as follows:

IT IS THE CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS

RELATING TO THIS CONTRACT. IF THE CONSTRUCTION MANAGER

HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119,

FLORIDA STATUTES, TO THE CONSTRUCTION MANAGER’S DUTY

TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, IT

SHOULD CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT:

Communications, Government and Public Affairs Division

3299 Tamiami Trail East, Suite 102 Naples, FL 34112-5746

Telephone: (239) 252-8999 Email: PublicRecordRequest@colliercountyfl.gov

The Construction Manager must specifically comply with the Florida Public Records Law to:

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 refuses to allow public access to all documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida Statutes, and made or received by the Construction Manager in conjunction with this Contract, then the Owner may, without prejudice to any right or remedy and after giving the Construction Manager seven (7) days written notice, during which period Construction Manager still fails to allow access, terminate the employment of the Construction Manager and take possession of the site and of all materials, mailto:PublicRecordRequest@colliercountyfl.gov equipment, tools, construction equipment and machinery thereon, owned by the Construction Manager, and may finish the Project by whatever method it may deem expedient. In such case, the Construction Manager shall not be entitled to receive any further payment until the Project is finished nor shall it be relieved from its continuing obligations hereunder.

Section 18. E-Verify

The Owner shall consider Construction Manager’s employment of unauthorized aliens a violation of section 274A(e) of the Immigration and Nationalization Act, as may be amended. Such violation shall be cause for unilateral cancellation of this Contract.

Immigration and E-Verify: By executing and entering into this Contract, the Construction

Manager is formally acknowledging without exception or stipulation that it is fully responsible for complying with the provisions of the Immigration Reform and Control Act of 1986 as located at 8 U.S.C. 1324, et seq. and regulations relating thereto, as either may be amended. Failure by the Construction Manager to comply with the laws referenced herein shall constitute a breach of this Contract and the Owner shall have the discretion to unilaterally terminate this Contract immediately.

Statutes and executive orders require employers to abide by the immigration laws of the

United States and to employ only individuals who are eligible to work in the United States including the requirements set forth in Florida Statute, §448.095.

The Employment Eligibility Verification System (E-Verify) operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA), provides an Internet-based means of verifying employment eligibility of workers in the United States; it is not a substitute for any other employment eligibility verification requirements.