CMAR-Contract-Draft.pdf

CONSTRUCTION MANAGER AT RISK AGREEMENT

THE CITY OF FORT MYERS

And

For the project known as

TBD

Service Agreement-Test

1. WITNESSETH

THIS AGREEMENT, made this day, Wednesday, May 1, 2024, by and between City of Fort Myers, Florida, a municipal corporation in the STATE OF FLORIDA, hereinafter, “City,” and TBD, a Florida Corporation, Licensed to Conduct Business in the State of Florida, hereinafter, “CM.”

W I T N E S S E T H:

WHEREAS, on TBD, the City selected and designated TBD to be the CM for the project Service Agreement-Test Construction Manager At Risk (CMAR); and

WHEREAS, the City and CM are desirous of entering into such a definitive agreement pursuant to which CM will provide construction management services, as set forth herein;

NOW THEREFORE, in consideration of the mutual promises and covenants contained, the parties hereby agree as follows:

The CM accepts the relationship of trust and confidence established between them and the City by this Agreement. He covenants with the City to furnish his best skill and judgment and to cooperate with the Design Professional in furthering the interests of the City. They agree to furnish efficient business administration and superintendence and use their best efforts to complete the Project in the best way and in the most expeditious and economical manner consistent with the interest of the City.

2. Term of Contract

If this is a continuing contract, this Agreement will be in effect for a term of up to > years effective on the date the last party signs it and ends 1) when the term is over 2) is automatically extended with the same terms and conditions until the next contract is executed by the City.

3. ARTICLE 1

3.1. THE CONSTRUCTION TEAM

The Construction Manager, City’s representative, and the Design Professional, called the "Construction Team", shall work jointly during design and through final construction completion and shall be available thereafter should additional services be required. The Design Professional will provide leadership during the Pre-construction Phase with support from the Construction Manager and the Construction Manager shall provide leadership to the Construction Team on all matters relating to construction.

3.2. EXTENT OF AGREEMENT

This Agreement for Service Agreement-Test, between the CITY and the CM supersedes any prior negotiations, representations or agreements. When drawings, specifications and other descriptive documents defining the work to be included under a construction authorization are complete, they shall be identified in the construction authorization issued by the City’s Project Manager.

This Agreement, which comprise the entire agreement between City and CM concerning the Work, consists of 1) the advertised solicitation document Exhibit "A" 2) the Respondents submittal Exhibit "B" and incorporates by reference 3) any addenda (if applicable) 4) Drawings/Plans (if applicable) 5) all Purchase Orders issued pursuant to the Solicitation documents 6) all amendments that may after the date of award be executed by the Contractor and the City 7) Certificates of Insurance 8) any other Solicitation Documents.

In resolving conflicts, errors, and discrepancies between the various Contract Documents, precedence shall be given to the following descending order (if applicable):

• Approved Change Orders, Addendums, or Modifications

• Contract, including Solicitation and Submittal

• Special Conditions

• General Conditions

When drawings, specifications and other descriptive documents defining the work to be included in the guaranteed maximum price (GMP) are complete, an Amendment to the Agreement shall be signed by the CITY and CM, acknowledging the GMP amount and the drawings, specifications and other descriptive documents upon which the GMP is based.

To expedite the preparation of this GMP Amendment by the CITY, the CM shall obtain three (3) sets of signed, sealed and dated drawings, specifications and other documents upon which the GMP is based from the ENGINEER, shall acknowledge on the face of each document of each set that it is the set upon which he based his GMP and shall send one set of the documents to the CITY'S Contracts Administrator along with his GMP proposal, while keeping one set for himself and returning one set to the ENGINEER.

3.3. DEFINITIONS

PROJECT: The Project is the total work to be performed under this Agreement. The Project consists of planning, design, permitting, construction and code inspection for the Service Agreement-Test, necessary to build the component parts of the project.

• CITY: The City of Fort Myers, a municipal corporation in the State of Florida.

• PERMITTING AUTHORITY: As specified by the Engineer and the City.

• CM: TBD

• PROJECT MANAGER: The person employed by the CITY to serve and act on the CITY'S behalf as Contracts Administrator on this project.

• ENGINEER: The professional designated by the City for the design of this project. The person or firm so designated is *Consultant*

• PROJECT DIRECTOR: The person designated by the CITY to provide direct interface with the CONTRACTOR with respect to the CITY'S responsibilities.

• CITY'S REPRESENTATIVES: The Contracts Administrator, the Project Manager, the Project Director, and their superiors or designees.

• ESTIMATE: The CONTRACTOR'S latest estimate of probable project construction cost.

3.4. COMPENSATION

The City shall pay the CM for the performance of the Work pursuant to the negotiated percentage fee and Guaranteed Maximum Price (GMP).

3.5. NOTICES

All notices from the City to the CM shall be deemed duly served if sent electronically:

> TBD

> **address**

> TBD

> **email here**

All notices from the CM to the City shall be deemed duly served if provided electronically to:

CFMpurchasing@cityftmyers.com; and cityclerk@cityftmyers.com; and leg@cityftmyers.com

The CM and the City may change the above mailing address at any time upon giving the other party written notification. All notices under this Agreement must be in writing.

3.6. NO PARTNERSHIP

Nothing shall create or be construed as creating a partnership between the City and the CM or to constitute the CM as an agent of the City. CM is and shall remain an independent contractor, which term is generally understood and may be dictated by law.

3.7. NO IMPROPER USE

The CM will not use or permit any person to use in any manner whatsoever, city facilities for any improper, immoral, or offensive purpose, or for any purpose in violation of federal, state, county or municipal ordinance. In the event of such violation by the CM or if the City or its authorized representative shall deem any conduct on the part of the CM to be objectionable or improper, the City shall have the right to suspend the Contract of the CM. Should the CM fail to correct any such violation, conduct, or practice to the satisfaction of the City within twenty-four (24) hours after receiving notice of such violation, conduct, or practice, such suspension will continue until the violation is cured. The CM further agrees not to commence operation during the suspension period until the violation has been corrected to the satisfaction of the City.

3.8. SUBSTITUTIONS

Any substitution of products/materials from the specifications shall be approved in writing in advance by the City.

mailto:CFMpurchasing@cityftmyers.com mailto:cityclerk@cityftmyers.com mailto:leg@cityftmyers.com

3.9. CONTRACT TIME AND TIME EXTENSIONS

Time is of the essence in the performance of any Work under this Agreement and CM shall diligently pursue the completion of the Work and coordinate the work being done on the Project by its subcontractors, as well as coordinating its work with all work of others at the Project Site, so that its Work or the work of others shall not be delayed or impaired by any act or omission by CM. CM shall be solely responsible for all construction means, methods, techniques, sequences, and procedures as well as coordination of all portions of the Work under the Contract Documents, and the coordination of City’s supplies and equipment and CM’s.

Should CM be obstructed or delayed in the execution of or completion of the Work as a result of unforeseeable causes beyond the control of CM, and not due to its fault or neglect, including but not restricted to acts of God or of the public enemy, acts of Government, fires, floods, epidemics, quarantine regulation, strikes or lockouts, CM shall notify the City in writing within forty-eight (48) hours after the commencement of such delay, stating the cause, or be deemed to have waived any right which CM may have had to request a time extension.

No interruption, interference, inefficiency, suspension or delay in the commencement or progress of the Work from any cause whatever, including those for which City may be responsible, in whole or in part, shall relieve CM of his duty to perform or give rise to any right to damages or additional compensation from City. CM expressly acknowledges and agrees that it shall receive no damages for delay. CM’s sole remedy, if any, against City will be the right to seek an extension to the Contract Time. This paragraph shall expressly apply to claims for early completion, as well as to claims based on late completion.

3.10. COMPLIANCE WITH LAWS

CM agrees to comply, at its own expense, with all federal, state and local laws, codes, statutes, ordinances, administrative rules, regulations and requirements applicable to the Project, including but not limited to those dealing with taxation, workers’ compensation, equal employment and safety (including, but not limited to, the Trench Safety Act, Chapter 553, Florida Statutes). If CM observes that the Contract Documents are at variance therewith, it shall promptly notify City in writing.

3.11. CLEAN UP

CM agrees to keep the Project site clean at all times of debris, rubbish and waste materials arising out of the Work. At the completion of the Work, CM shall remove all debris, rubbish and waste materials from and about the Project Site, as well as all tools, appliances, construction equipment and machinery and surplus materials, and shall leave the Project site clean and ready for occupancy by the City.

3.12. ASSIGNMENT

CM shall not assign this Agreement or any part without the prior consent in writing of City. If CM does, with approval, assign this Agreement or any part it shall require that its assignee be bound to it and to assume toward CM all of the obligations and responsibilities that CM has assumed toward the City.

3.13. EMPLOYEES

The CM shall employ people to work at the City’s facilities who are neat, clean, well-groomed and courteous. All employees must be confirmed under E-Verify.

3.14. TESTS AND INSPECTIONS

If the Contract Documents or any codes, laws, ordinances, rules or regulations of any public authority having jurisdiction over the Project requests any portion of the Work to be specifically inspected, tested or approved, CM shall assume full responsibility therefore, pay all costs in connection therewith and furnish to the City the requested certificates of inspection, testing or approval. All inspections, tests or approvals shall be performed in a manner and by organizations acceptable to the City.

3.15. PROTECTION OF WORK

CM shall fully protect the Work from loss or damage during construction and shall bear the cost of any such loss or damage until final payment has been made. If CM or anyone for whom CM is legally liable is responsible for any loss or damage to the work, or other work or materials of City. CM shall be charged with the same, and any monies necessary to replace such loss or damage shall be deducted from any amounts due CM.

CM shall not load nor permit any part of any structure to be loaded in any manner that will endanger the integrity of the structure.

CM shall not disturb any benchmark established by the City with respect to the Project. If CM, or its subcontractors, agents or anyone, for whom CM is legally liable, disturbs the City’s benchmarks, CM shall immediately notify City. The City shall re-establish the benchmarks and CM shall be liable for all costs incurred by City associated therewith.

3.16. EMERGENCIES

In the event of any emergency affecting the safety or protection of persons or the Work or property at the Project site or adjacent, CM, without special instruction or authorization from City is obligated to act to prevent threatened damage, injury or loss. CM shall give the City written notice within forty-eight (48) hours after the occurrence of the emergency, if CM believes they are significant changes in the Work or variations from the Contract Documents have been caused thereby.

If the City determines that a change in the Contract Documents is required because of the action taken in response to an emergency, a Change Order shall be issued to document the consequences of the changes or variations.

If CM fails to provide the forty-eight (48) hour written notice noted above, the CM shall be deemed to have waived any right it otherwise may have had to seek an adjustment to the Contract Amount or an extension to the Contract Time.

3.17. LIQUIDATED DAMAGES

The “commencement date” shall be established in the Notice to Proceed to be issued by the City. CM shall commence the work within five (5) calendar days from the Commencement Date. No Work shall be performed at the Project site prior to the commencement date. Any Work performed by CM prior to the commencement Date shall be at the sole risk of CM.

The Work shall be substantially completed within the time agreed upon by the City and CM. The Work shall reach final completion and be ready for final acceptance by the City within the time specified.

The City and CM recognize that since time is of the essence for any work under this Agreement, the City will suffer financial loss if the Work is not substantially completed with the time specified. Should CM fail to substantially complete the Work within the specified time period, City shall be entitled to assess as liquidated damages but not as a penalty, an amount specified for each calendar day until substantial completion is achieved.

The Project shall be deemed to be substantially completed on the date the City issues a Certificate of Substantial Completion pursuant to the terms of the agreement. CM hereby expressly waives and relinquishes any right which it may have to seek characterized the above noted liquidated damages as a penalty, which the parties agree represents a fair and reasonable estimate of the City’s actual damages at the time of contracting if CM fails to substantially complete the Work in a timely manner.

3.18. CONTRACT ADMINISTRATION

This agreement shall be administered on behalf of the City by Kirk Zimmerman.

3.19. APPROPRIATION

It is further understood and agreed, by and between the parties herein that this Agreement is subject to appropriation by the City annually or otherwise.

3.20. PERSONNEL

QUALIFIED PERSONNEL

The CM agrees that any Work to be performed under Florida Statutes, requires a license, certificate of authorization or other form of legal entitlement to engage in such Work, to employ and/or retain only qualified personnel to be in responsible charge of all Work to be provided pursuant to this Agreement.

CM'S PROJECT MANAGER

The CM agrees to employ and designate, in writing, a qualified and, if required by law, a licensed professional to serve as the CM's Project Manager. The CM's Project Manager shall be authorized and responsible to act on behalf of the CM with respect to directing, coordinating and administering all aspects of the work to be provided and performed under this Agreement and Amendment(s). The CM's Project Manager shall have the full authority to bind and obligate the CM on any matter arising under this Agreement and its Amendment(s) unless substitute arrangements have been furnished to the City in writing. The CM agrees that the Project Manager shall devote whatever time is required to satisfactorily direct, supervise, and manage the work provided and performed by the CM throughout this Agreement. The person selected by the CM to serve, as the Project Manager shall be subject to the prior approval and acceptance of the City.

REMOVAL OF PERSONNEL

The CM agrees, within thirty (30) calendar days of receipt of a written request from the City, to promptly remove and replace the CM's Project Manager, or any other personnel employed or retained by the CM, or personnel of the subcontractor’s engaged by the CM to provide and/or perform services and/or work pursuant to the requirements of this Agreement, who the CITY shall request, in writing, be removed, which request may be made by the City with or without cause. However, nothing herein shall interfere with the CM's right to terminate its employees or employees' right to terminate their employment with the CM.

This Agreement shall in all aspects be interpreted, construed, and enforced pursuant to the Laws and Administrative Rules of the State of Florida. Venue shall be in Lee County.

4. ARTICLE 2 CONTRACTOR'S SERVICES

The services which the Contractor shall include, but not limited to, those described or specified. The services described or specified shall not be deemed to constitute a comprehensive specification having the effect of excluding services not specifically mentioned.

5. ARTICLE 3 CITY'S RESPONSIBILITIES

5.1. CITY'S INFORMATION

The CITY shall provide full information regarding his requirements for the project.

5.2. CITY'S REPRESENTATIVE

The CITY shall designate a representative who shall be fully acquainted with the project and shall define the lines of CITY authority to approve Project Construction Budgets, and changes in Project. He shall render decisions promptly and furnish information expeditiously.

5.3. ENGINEER'S AGREEMENT

The CITY shall retain an ENGINEER for design and to prepare construction documents for the project. The ENGINEER'S services, duties and responsibilities are described in the Agreement between the CITY and the ENGINEER, a copy of which will be furnished to the CONTRACTOR. The Agreement between the CITY and the ENGINEER shall not be modified without written notification to the

CONTRACTOR.

5.4. SITE SURVEY AND REPORTS

The CITY shall provide for the furnishing for the site of the project all surveys describing the physical characteristics, soil reports, and subsurface investigations, legal limitations, utility locations, and a legal description.

5.5. APPROVALS AND EASEMENTS

The CITY shall pay for necessary approvals, easements, assessments and charges required for the construction, use or utilization of permanent structures or for permanent changes in existing facilities.

5.6. LEGAL SERVICES

The CITY shall furnish such legal services as may be necessary for providing the items set forth in section "Approvals and Easements" and such auditing services as may be required.

5.7. DRAWINGS AND SPECIFICATIONS

The CONTRACTOR will be furnished a reproducible set of all copies of Drawings and Specifications reasonably necessary and ready for printing.

5.8. COST OF SURVEYS & REPORTS

The services, information, surveys and reports required by the above paragraphs shall be furnished with reasonable promptness in accordance with the approved schedule at the CITY'S expense, and the CONTRACTOR shall be entitled to rely upon the accuracy and completeness.

5.9. FUNDING

The CITY shall furnish in accordance with the established schedule, reasonable evidence satisfactory to the CONTRACTOR that sufficient funds will be available and committed for the cost of each part of the Project. The CONTRACTOR shall not commence any work, unless authorized in writing by the CITY.

5.10. LINES OF COMMUNICATION

The CITY and ENGINEER shall communicate with the subcontractors or suppliers only through the CONTRACTOR while such method of communication is effective in maintaining project schedules and quality.

5.11. LINES OF AUTHORITY

The CITY shall establish and maintain lines of authority for his personnel and shall provide this definition to the CONTRACTOR and all other affected parties.

5.12. PERMITTING & CODE INSPECTIONS

The CITY recognizes and coordinates with the various Permitting Authorities and expects the CONTRACTOR to do the same.

6. ARTICLE 4 PERMITTING AND INSPECTION

Before Construction can begin, it is necessary by statute for the CONTRACTOR to obtain Various Permits. In addition, construction will be inspected for code compliance by inspectors working for the various Permitting Authorities. The permitting and code inspection requirements shall be as described in Articles "Various Permits" through "Code Inspections" hereinafter.

6.1. VARIOUS PERMITS

The CONTRACTOR shall provide the following information to the various Permitting Authorities and obtain approval from the Permitting Authority prior to beginning construction:

A. Five (5) sets of documents, signed, sealed and dated by the ENGINEER, with all addenda enclosed with each set. These documents may be sent to the various Permitting Authorities prior to sending the various Permit Applications addressed in "Various Permits" hereinafter.

6.2. CODE INSPECTIONS

All projects require detailed code compliance inspections during construction in disciplines determined by the various Permitting Authorities. These disciplines normally include, but are not necessarily limited to, structural, mechanical, civil, environmental, electrical, utilities, drainage and general engineering.

Inspection personnel will be provided by the various Permitting Authorities. Names, addresses, and phone numbers of the inspectors will be provided to the CONTRACTOR by the various Permitting Authorities.

The CONTRACTOR shall notify the appropriate inspector(s), no less than 24 hours in advance that the work is ready for inspection and before the work is covered up. Work not inspected and approved prior to cover-up shall be uncovered for inspection when directed by the various Permitting Authorities. All costs for uncovering and reconstruction shall be borne by the CONTRACTOR.

All inspections shall be made for conformance with the applicable codes. Cost for all re-inspections of work found defective and subsequently repaired shall be borne by the CONTRACTOR.

7. ARTICLE 5 SUBCONTRACTS

7.1. DEFINITION

A subcontractor is a person or organization who has a direct contract with the CONTRACTOR to perform any of the work at the site. Nothing contained in the Contract Document shall create any contractual relation between the CITY or ENGINEER and any subcontractor.

7.2. PROPOSALS

Subject to section Cost of the Project and, in accordance with "Solicitation of Bids", the CONTRACTOR shall request and receive proposals from subcontractors and suppliers and will award those contracts to the qualified low bidder after he has reviewed each proposal and is satisfied that the subcontractor is qualified to perform the work.

7.3. REQUIRED SUBCONTRACTORS' QUALIFICATIONS AND SUBCONTRACT CONDITIONS

A. Subcontract Relations - By an appropriate written agreement, the CONTRACTOR shall require each subcontractor to the extent of the work to be performed by the subcontractor, to be bound to the CONTRACTOR by the terms of the Contract Documents, and to assume toward the CONTRACTOR all the obligations and responsibilities which the CONTRACTOR by these Documents, assumes toward the CITY and the ENGINEER.

Said agreements shall preserve and protect the rights of the CITY and ENGINEER under the Contract Documents with respect to the Work to be performed by the subcontractor so that the subcontracting will not prejudice such rights. Where appropriate, the CONTRACTOR shall require each subcontractor to enter into similar agreements with his sub-contractor.

The CONTRACTOR shall make available to each proposed Subcontractor, prior to the execution of the Subcontract, copies of the Contract Documents to which the Subcontractor will be bound by this section "Required Subcontractors' Qualifications and Subcontract Conditions" and identify to the Subcontractor any terms and conditions of the proposed Subcontract which may be at variance with the Contract Documents. Each Subcontractor shall similarly make copies of such Documents available to his Sub-subcontractors.

1. On all subcontracts where the bid exceeds $50,000, the subcontractor must provide a 100% performance bond and a 100% labor and material payment bond from a surety company authorized to do business in the State of Florida by the Department of Insurance. If the CONTRACTOR wishes to award subcontracts to contractors unable to supply this bonding, he may request special authorization to do so. Upon providing justifiable background information, such authorization shall not be withheld unreasonably.

2. Subcontract bidders must submit a completed experience questionnaire and financial statement on the form entitled "CONTRACTOR'S Qualification Statement" AIA Document A305, incorporated herein by reference, or other form as may be approved by CITY. The subcontractors’ financial condition must demonstrate that adequate fixed and liquid assets and equipment are available to properly perform the subcontract.

3. Workforce - The subcontractor must agree to perform no less than 15% of the project construction work utilizing its own employees.

4. Subcontractor experience - The subcontractor must have successfully completed no less than two projects of similar size and complexity within the last five years.

5. Supervision - The subcontractor must agree to provide field (on-site) supervision through a named superintendent for each trade (general concrete forming and placement, bridge construction, mechanical, plumbing, electrical and paving) included in the subcontract. In addition, the subcontractor shall assign and name a qualified employee for scheduling direction for its work. The supervisory employees of the subcontractor (including field superintendent, foreman and schedulers at all levels) must have been employed in a supervisory (leadership) capacity of substantially equivalent level on a similar project for at least two years within the last five years. The subcontractor shall include a resume of experience for each employee identified by him to supervise and schedule his work.

6. All subcontracts shall provide:

a. LIMITATION OF REMEDY - NO DAMAGES FOR DELAY That the subcontractor's exclusive remedy for delays in the performance of the contract caused by events beyond its control, including delays claimed to be caused by the CITY or ENGINEER or attributable to the CITY or ENGINEER and including claims based on breach of contract or negligence, shall be an extension of its contract time.

In the event of a change in the work the subcontractor's claim for adjustments in the contract sum are limited exclusively to its actual costs for such changes plus no more than 15% for overhead and profit and bond costs.

The subcontract shall require the subcontractor expressly agree that the foregoing constitute its sole and exclusive remedies for delays and changes in the work and thus eliminate any other remedies for claim for increase in the contract price, damages, losses or additional compensation.

b. All subcontracts shall require that any claims by subcontractor for delay or additional cost must be submitted to CONTRACTOR within the time and in the manner in which the CONTRACTOR must submit such claims to the CITY, and that failure to comply with the conditions for giving notice and submitting claims shall result in the waiver of such claims.

c. All subcontracts shall provide that the CITY reserves the right to require CONTRACTOR to assign some or all of its subcontracts or portions directly to CITY.

7.4. RESPONSIBILITIES FOR ACTS AND OMISSIONS

The CONTRACTOR shall be responsible to the CITY for the acts and omissions of his employees and agents and his subcontractors, their agents and employees, and all other persons performing any of the work or supplying materials under a contract to the CONTRACTOR.

7.5. SUBCONTRACTS TO BE PROVIDED

The CONTRACTOR shall include a copy of each subcontract, including the general supplementary conditions, in the project manual.

8. ARTICLE 6 SCHEDULE, TIME OF COMMENCEMENT AND SUBSTANTIAL COMPLETION

A. At the time a Guaranteed Maximum Price (GMP) is established, as provided for in Article "Guaranteed Maximum Price for Construction", a project substantial completion date, a project final completion date and an CITY Occupancy date for completion of the project in accordance with the master project schedule, shall also be established by the Construction Team. The CONTRACTOR agrees to complete the construction in accordance with the agreed upon substantial completion date, and final completion date. The CONTRACTOR acknowledges that failure to complete the project within the construction time set forth in the approved schedule will result in substantial damages to the CITY.

B. The date of final completion shall occur as described in section "Warranty" hereinabove. Warranties called for by this Agreement or by the Drawings and Specifications shall commence on the Date of Final Completion of the project.

9. ARTICLE 7 GUARANTEED MAXIMUM PRICEFOR CONSTRUCTION

A. When the Design Development Documents are sufficiently complete to establish the scope of work for the project or any portion as generally defined by a design document listing to be provided by the ENGINEER and CONTRACTOR upon execution of this Agreement, which is to be used only as a guide in developing the specifications and plan data necessary to establish a Guaranteed Maximum Price, or at such time thereafter designated by the CITY, the CONTRACTOR will establish and submit in writing to the CITY for his approval a Guaranteed Maximum Price, guaranteeing the maximum price to the CITY, for the construction cost of the project or designated part. Such Guaranteed Maximum Price will be subject to modification for changes in the project as provided in "Change in the Project".

However, the actual price paid for the work by the CITY shall be the actual cost of all work subcontracts, supply contracts, direct labor costs, direct supervision costs, and direct job costs as defined under section "Cost of the Project", plus the CONTRACTOR'S fees or the GMP, whichever is less when the work is complete.

B. The GMP will only include those taxes in the cost of the project which are legally enacted at the time the GMP is established.

C. When the project is bid and 100% of the Trade Contracts have been executed, the contingency within the GMP shall be decreased in proportion to the percent of the work completed. In other words, if 10% of the work has been completed and the CITY requests that the contingency within the GMP be adjusted, then 10% of the contingency within the GMP will be removed from the GMP by change order.

D. At the time of submission of a Guaranteed Maximum Price, the CONTRACTOR will verify the time schedule for activities and work which were adopted by the Construction Team and used to determine the CONTRACTOR'S cost of work. In addition to the cost of work, a GMP will include an agreed upon sum as the construction contingency which is included for the purpose of defraying the expenses due to unforeseen circumstances relating to construction. The CONTRACTOR will be required to furnish documentation evidencing expenditures charged to this contingency prior to the release of funds by the CITY. Documentation for use of the Contingency shall be determined by the Construction Team, included in the Project Manual and displayed monthly in the PMIS. The ENGINEER shall verify the actual costs. If bids are received below the applicable line items in the GMP, the surplus will be added to the contingency."

If bids are received above the applicable line item in the GMP the deficiency will be taken from the contingency, however such events shall not be cause to increase the GMP.

If bids are not received for a portion of the work at or below the applicable line item amount in the GMP, the CONTRACTOR reserves the right to perform that portion of the work or negotiate for its performance for the specified line item lump sum amount or less.

10. ARTICLE 8 CONTRACTOR'S FEE

A. In consideration of the performance of the contract, the CITY agrees to pay the CONTRACTOR as compensation for his services, fees as set forth in "Construction Phase Fee" and "Overhead and Profit for Construction Phase".

B. Construction Phase Fee - Prior to commencement of the Construction Phase, the CITY will direct the CONTRACTOR in writing to proceed into the Construction Phase.

The CONTRACTOR'S compensation for work or services performed during the Construction Phase shall be a fee of five and one half Percent (5.5%) of the COST OF THE PROJECT as defined in section "Cost of the Project". (However, the CITY retains the right to review the need and effectiveness of any employee or employees assigned by the CONTRACTOR, should the Project Director question the need for the employee or employees).

The Construction Phase Fee shall be paid in seven (7) monthly payments the amount of which to be determined after acceptance of the Guaranteed Maximum Price (GMP). The first monthly payment shall become due thirty days following the issuance of the first Construction Authorization by the Project Director and the final monthly payment shall be paid only when construction of the project is finally completed and occupancy of the project accepted by the CITY. If construction is authorized only for a part of the project, the fee paid shall be proportionate to the amount of work authorized by the CITY.

1. Adjustments in Fee - For changes in the project as provided in section "Change in the Project", the construction phase fee shall be adjusted as follows:

a. The CONTRACTOR shall be paid an additional fee subject to negotiation if the CONTRACTOR is placed in charge of reconstruction of an insured or uninsured loss excluding any condition that may have been caused from negligent acts by the

CONTRACTOR.

b. Should the duration of the construction stipulated herein for Final Completion extend beyond Seven (7) months after the Notice-To-Proceed, receipt of final drawings and specifications, or receipt of all necessary permits, whichever is later, due to no fault of the CONTRACTOR, the CONTRACTOR'S Additional Construction Phase Fee will be (Cost of Liquidated Damages shall be (Determined upon the receipt of the GMP and be included in the amendment for the Construction Phase) _ per working day, for each day or portion. The CONTRACTOR'S staff during such time extensions will be reduced to that shown in Exhibit C.

c. The CONTRACTOR will not be due any additional Overhead and Profit on increases in the Guaranteed Maximum Price (GMP) that does not exceed $10,000. Should the GMP be increased by more than $10,000. under the terms of Article "Change in the Project" hereinafter due to no fault of the CONTRACTOR, the CONTRACTOR'S additional Overhead and Profit for the Construction Phase will be (Determined upon the receipt of the GMP and be included in the amendment for the Construction Phase) of that portion of the accumulative increases in the GMP that exceed the GMP by more than $10,000.

d. CONTRACTOR'S Exclusive Remedy: In the event the construction Substantial or Final Completion date is extended, regardless of whether delay is caused by any act or neglect of the CITY or the ENGINEER, or is attributable to the CITY or the ENGINEER, the CONTRACTOR'S sole and exclusive remedy is an extension of the construction completion date and payment of additional Construction Phase fees and Overhead and Profit for Construction Phase as provided above.

2. Costs and Expenses Included in Fee - The following are included in the CONTRACTOR'S fee for services during the Construction Phase:

a. Salaries or other compensation of the CONTRACTOR'S employees at his principal office and branch offices.

The CONTRACTOR'S personnel to be assigned during the construction phase, their duties and responsibilities to this project and the duration of their assignments shall be submitted prior to commencement of the contract.

b. General operating expenses related to this project of the CONTRACTOR'S principal and branch offices.

c. The costs of all data processing staff.

d. The CONTRACTOR’S personnel to be assigned to the site during the Construction Phase and the duration of their assignment. ((Determined upon the receipt of the GMP and be included in the amendment for the Construction Phase)

e. General operating expenses incurred in the management and supervision of the project, except as expressly provided for elsewhere.

f. Those services set forth in section "Job Meetings".

g. Job office supplies - includes paper, pencils, paper clips, file folders, staples, etc., and janitorial supplies (blue printing after GMP not included).

C. Overhead And Profit For Construction Phase - For overhead, profit and general expenses of any kind, except as may be expressly included in Article "Cost of the Project", for services provided during and related to the construction phase, the fee shall be Five and one half Percent (5.5%) of the COST OF THE PROJECT as defined in Article "Cost of the Project" and shall be paid proportionally to the ratio of the cost of the work in place, excluding stored materials and less retainage (see section "Monthly Statements"), as it bears on the latest estimate of the total construction cost or to the GMP or to the CITY'S Construction Budget, whichever is less. The balance of the fee shall be paid when construction of the project is finally completed and occupancy of the project accepted by the CITY. If construction is authorized only for a part of the project, the fee paid shall be proportionate to the amount of work authorized by the CITY. The CONTRACTOR'S exclusive remedy for any adjustments in the Overhead and Profit for construction phase fee is provided in section "Construction Phase Fee".

11. ARTICLE 9 COST OF THE PROJECT

11.1. DEFINITION

The term Cost of the Project shall mean costs necessarily incurred in the Project during the Construction Phase for Construction services and paid by the CONTRACTOR which are not included in the construction phase fee. Such costs shall include the items set forth below in this Article.

The CITY agrees to pay the CONTRACTOR for the Cost of the Project as defined in section "Cost of the Project". Such payment shall be in addition to the CONTRACTOR'S fees stipulated in section "Contractor's Fee".

11.2. DIRECT COST ITEMS

A. Prior to the approval of the GMP (Pre-Construction Phase) wages paid for labor in the direct employ of the CONTRACTOR in the performance of his work under Agreement, times a multiple of 2.5 to cover fringe benefits. Additional all reimbursable cost, including sub-consultants, shall be paid at a cost times a multiplier of .005 to cover overhead and profit.

B. After approval of the GMP (Construction Phase) wages paid for labor in the direct employ of the CONTRACTOR in the performance of his work under Agreement, times a multiplier of 1.57 to cover fringe benefits plus the CM fee of 5.5% to cover overhead and profit.

C. Cost of all materials, supplies and equipment incorporated in the Project, including costs of transportation and storage.

D. Payments due to subcontractors from the CONTRACTOR or made by the CONTRACTOR to subcontractors for their work performed pursuant to contract under this Agreement.

E. Cost including transportation and maintenance of all materials, supplies, equipment, temporary facilities and hand tools not owned by the workmen, which are employed or consumed in the performance of the work, cost on such items used but not consumed which may be turned over to the CITY at the end of the project and cost less salvage value on such items used but not consumed which remain the property of the CONTRACTOR. For those items to be turned over to the CITY at the end of the project, Article "Job-Site Facilities" shall apply.

F. Rental charges on all necessary machinery and equipment, exclusive of hand tools used at the site of the Project, whether rented from the CONTRACTOR or other, including installation, repairs and replacements, dismantling, removal, costs of lubrication, transportation and delivery costs, which are used in the support of a sub-contractor or the CONTRACTOR'S own forces in the performance of the work, at rental charges consistent with those prevailing in the area.

G. Cost of the premiums for all insurance and cost of premiums for all bonds, which the CONTRACTOR is required to procure by this Agreement specifically for the construction project. This includes any sub-contractor bonds the CONTRACTOR deems appropriate.

H. Sales, use, gross receipts or similar taxes related to allowable direct costs of the Project imposed by any governmental authority, and for which the CONTRACTOR is liable.

I. The cost of corrective work subject, however, to the GMP and except for any corrective work made necessary because of defective workmanship or other causes contributed to by the CONTRACTOR or his subcontractors or suppliers.

No costs shall be paid by the CITY to the CONTRACTOR for any expenses made necessary to correct defective workmanship or to correct any work not in conformance with the Plans and Specifications or to correct any deficiency or damage caused by negligent acts by the

J. Costs for trash and debris control and removal from the site.

K. Cost incurred due to an emergency affecting the safety of persons and property.

L. Legal costs reasonably and properly resulting from execution of the Project for the CITY, including handling claims for changes by Subcontractors and Vendors, subject to the following limitations:

1. The CITY approved incurring such costs in advance, which approval shall not be unreasonably denied; and

2. The legal costs were not incurred as result of the CONTRACTOR'S own negligence or default.

This paragraph does not provide for payment of legal costs incurred in preparing or asserting claim or requests, by CONTRACTOR itself, for change orders or in enforcing the obligations of this contract.

M. All costs directly incurred in the performance of the Project for the benefit of the Project and not included in the CONTRACTOR'S fees as set forth in Article "Contractor's Fee".

N. If requested by the CITY, the CONTRACTOR will perform all or a portion of the General Conditions Work for the cost of the work.

O. If approved by the CITY, the CONTRACTOR, when qualified, may perform all or a portion of the work for any item listed on the estimate or GMP breakdown where it is deemed advantageous due to schedule or economic benefit for the direct cost of the work.

P. Transportation outside of Lee County for those personnel employed directly for the project, not including relocation expenses. Such transportation must be approved in advance by the CITY.

Q. Costs of all reproductions used for bidding or information purposes required by the project to directly benefit the project (after submittal of GMP).

R. Costs for watchman and security services for the project.

S. Costs for efficient logistical control of the site, including horizontal and vertical transportation of materials and personnel. Also, costs for adequate storage and parking space.

T. Costs for such temporary facilities during construction, as approved by the CITY, including temporary water, heat, power, sanitary facilities, telephones, radios and computers with software, misc. equipment such as phones, copier, fax, cabinets etc. The equipment costs shall be prorated by dividing the cost of the product by the life expectancy and billed on a monthly basis.

U. Costs for any job site items not referenced herein, not normally provided by the subcontractors, which will be provided by the CONTRACTOR as required to complete the work.

12. ARTICLE 10 CHANGE IN THE PROJECT

12.1. CHANGE ORDERS

The CITY, without invalidating this Agreement, may order Changes in the Project within the general scope of this Agreement consisting of additions, deletions or other revisions, the GMP, and the

Construction Completion Date, being adjusted accordingly. All changes in the Project not covered by an authorized contingency shall be authorized by Change Order signed by the CITY before the change is implemented. Change Orders in excess of the City Council approved budget may only be authorized by the City Council.

A. A Change Order is a written order to the CONTRACTOR signed by the CITY issued after the execution of this Agreement, authorizing a Change in the Project, the CONTRACTOR'S fee, or the Construction Completion date. Each adjustment in the GMP resulting from a change order shall clearly separate the amount attributable to the Cost of the Project.

B. The increase or decrease in the Guaranteed Maximum Price resulting from a change in the Project shall be determined in one or more of the following ways:

1. by mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation by the ENGINEER and CITY;

2. by unit prices stated in the Agreement or subsequently agreed upon;

3. by cost as defined in Article "Cost of the Project" and a mutually acceptable fixed or percentage fee; or

4. by the method provided in Subparagraph 3 of section "Change Orders" in Article "Change in the Project".

C. If none of the methods set forth in Clause 2 in section "Change Orders" in Article "Change in the Project" is agreed upon, the CONTRACTOR, provided he receives a written order signed by the CITY, shall promptly proceed with the Work involved. The cost of such Work shall then be determined on the basis of the reasonable expenditures and savings of those performing the Work attributed to the change. However, in the event a Change Order is issued under these conditions, the ENGINEER will establish an estimated cost of the work and the CONTRACTOR shall not perform any work whose cost exceeds that estimate without prior written approval by the CITY. In such case, and also under Article "Change in the Project" above, the CONTRACTOR shall keep and present, in such form as the CITY may prescribe, an itemized accounting together with appropriate supporting data of the increase in the Cost of the Project as outlined in Article "Cost of the Project". The amount of decrease in the Guaranteed Maximum Price to be allowed by the CONTRACTOR to the CITY for any deletion or change which results in a net decrease in cost will be the amount of the actual net decrease.

D. If unit prices are stated in the Agreement or subsequently agreed upon, and if the quantities originally contemplated are so changed in a proposed Change Order that application of the agreed unit prices to the quantities of Work proposed will cause substantial inequity to the CITY or the CONTRACTOR, the applicable unit prices and Guaranteed Maximum Price shall be equitably adjusted.

E. Should concealed conditions encountered in the performance of the Work below the surface of the ground or should concealed or unknown conditions in an existing structure be at variance with the conditions indicated by the Drawings, Specifications, or CITY furnished information or should unknown physical conditions below the surface of the ground or should concealed or unknown conditions in an existing structure of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement, be encountered, the Guaranteed Maximum Price and the Construction Completion date shall be equitably adjusted by Change Order upon a request for Change Order in accordance with Article "Claims for Additional Cost or Time".

12.2. CLAIMS FOR ADDITIONAL COST OR TIME

All claims for additional cost or time shall be made by request for a change order submitted as provided in Article "Notice of Claim: Waiver of Remedies; No Damages for Delay".

If the CONTRACTOR is delayed at any time in the progress of the work by any act or neglect of the CITY or the ENGINEER or of any employee of either or by any separate CONTRACTOR employed by the CITY or by any changes ordered in the work by labor disputes, fire, or unusual delay in transportation, unavoidable casualties or any causes beyond the CONTRACTOR'S control or by delay authorized by the City pending resolution of disputes, and such delay extends the completion date, the Substantial Completion shall be extended by Change Order for such reasonable time as the Construction Team may determine.

Only delays which are determined to extend the critical path for the schedule for constructing the project will result in a time extension. Neither the CITY nor the CONTRACTOR shall be considered to own the schedule float time.

12.3. MINOR CHANGES IN THE PROJECT

The CITY will have authority to order minor changes in the Project not involving an adjustment in the Guaranteed Maximum Price or an extension of the Construction Completion Date and not inconsistent with the intent of the Drawings and Specifications. Such changes shall be effected by written order. Documentation of changes shall be determined by the Construction Team, included in the Project Manual and displayed monthly in the PMIS. Changes shall be approved by the Project Director and the

ENGINEER.

12.4. EMERGENCIES

In any emergency affecting the safety of persons or property, the CONTRACTOR shall act at his discretion, to prevent threatened damage, injury or loss. Any increase in the Guaranteed Maximum Price or extension of time claimed by the CONTRACTOR on account of emergency work shall be determined as provided in Article "Change in the Project".

13. ARTICLE 11 DISCOUNTS AND PENALTIES

All discounts for prompt payment shall accrue to the CITY to the extent the Cost of the project is paid directly by the CITY or from a fund made available by the CITY to the CONTRACTOR for such payments. To the extent the Cost of the Project is paid with funds of the CONTRACTOR, all cash discounts shall accrue to the CONTRACTOR. All trade discounts, rebates and refunds, and all returns from sale of surplus materials and equipment, shall be credited to the Cost of the Project.