Construction_Services_Agreement_2025_Template_ver_3_with_Exhibits.pdf

Construction Services Agreement: [2025_ver.3]

CONSTRUCTION AGREEMENT

THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, (“County” or "Owner") hereby contracts with 1-Company name ("Contractor") of 2-Company Address, a 3- Business Entity type, authorized to do business in the State of Florida, to perform all work ("Work") in connection with 4-Project Name, Invitation to Bid No. 5-Bid # ("Project"), as said Work is set forth in the Plans and Specifications prepared by 6-Engineer’s Name, the Engineer and/or Architect of Record ("Design Professional") and other Contract Documents hereafter specified.

Owner and Contractor, 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 6 hereof, the Legal Advertisement, the Bidding Documents and any duly executed and issued addenda, Change Orders, Work Directive Changes, Field Orders, and amendments relating thereto. All of the foregoing Contract Documents are incorporated by reference and made a part of this Agreement (all of said documents including the Agreement sometimes being referred to herein as the "Contract Documents" and sometimes as the "Agreement" and sometimes as the “Contract”). A copy of the Contract Documents shall be maintained by Contractor at the Project site at all times during the performance of the Work.

B. Owner shall furnish to the Contractor one reproducible set of the Contract Documents and the appropriate number of sets of the Construction Documents, signed and sealed by the Design Professional, as are reasonably necessary for permitting.

Section 2. Scope of Work.

Contractor agrees to 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 Work required by the Contract Documents.

Applicable if Grant Funded.

To the extent the Project is a “public works project,” all iron or steel products used to perform the Work must be produced in the United States, which means that all manufacturing processes, from initial melting through application of coatings, occur in the United States, other than metallurgical processes to refine steel additives. Per Section 255.0993, F.S. Contractor understands that this project is funded in whole or in part by grant monies and agrees to comply with all grant requirements identified in Exhibit I.

Section 3. Contract Amount.

In consideration of the faithful performance by Contractor of the covenants in this Agreement to the full satisfaction and acceptance of Owner, Owner agrees to pay, or cause to be paid, to Contractor the following amount (herein "Contract Amount"), in accordance with the terms of this Agreement: X-Amount of Dollars Described in Words (Dollars in Numbers). The amount of

X-Amount of Allowance described in Words (Allowance amount in numbers) has been allocated as an Owner’s Allowance. Any allowance dollar amount that has been included in the Contractor’s Bid Schedule amount is not a guaranteed portion of the aforementioned Contract Amount but rather is only eligible for reimbursement by the Owner if and subject to whether a specific dollar amount of the allowance is expressly authorized by the Owner and formally agreed upon and memorialized by the Parties in writing (the “Owner’s Allowance”). Any dollar portion of an Owner’s Allowance that is not authorized by the Owner and memorialized by the Parties in writing, via Change Order, shall not be eligible for reimbursement/payment by the Owner as part of a Payment Application submitted by the Contractor.

Section 4. Bonds.

A. If applicable, the Contractor shall provide Performance and Payment Bonds, in the form prescribed in Exhibit B-1 and B-2, in the amount of 100% of the Contract Amount, plus any approved allowance as provided in Section 3, the costs of which are to be paid by Contractor.

The Performance and Payment Bonds shall be underwritten by a surety authorized to do business in the State of Florida and otherwise acceptable to Owner; provided, however, the surety shall meet the requirements of the Department of the Treasury Fiscal Service, “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsurance Companies” circular. This circular may be accessed via the web at https://fiscal.treasury.gov/surety-bonds/list-certified-companies.html. Should the Contract Amount be less than $500,000, the requirements of Section 287.0935, F.S. shall govern the rating and classification of the surety.

B. If the surety for any bond furnished by Contractor is declared bankrupt, becomes insolvent, its right to do business is terminated in the State of Florida, or it ceases to meet the requirements imposed by the Contract Documents, the Contractor shall, within five (5) calendar days thereafter, substitute at its cost and expense another bond and surety, both of which shall be subject to the Owner's approval.

C. The Surety for value received agrees that no change, extension of time, alteration or addition to the terms of the Agreement, the specifications accompanying the Agreement, or to the work to be performed under the Agreement shall in any way affect its obligation on this bond, except as provided herein, and waive notice of any change, extension of time, alteration or addition to the terms of the Agreement or the work performed. The Surety agrees that modifications and changes to the terms and conditions of the Agreement that increase the total amount to be paid the Contractor shall automatically increase the obligation of the Surety on this bond and notice to the Surety is not required for such increased obligation.

Section 5. Contract Time and Liquidated Damages.

A. Time of Performance.

Time is of the essence in the performance of the Work under this Agreement. The "Commencement Date" shall be established in the written Notice to Proceed to be issued by the Project Manager, as hereinafter defined. Contractor 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 Contractor prior to the Commencement Date shall be at the sole risk of Contractor. Contractor shall achieve Substantial Completion within X- (X-Days in Numbers) calendar days from the Commencement Date (herein "Contract Time"). The date of Substantial Completion of the Work (or designated portions thereof) https://fiscal.treasury.gov/surety-bonds/list-certified-companies.html is the date certified by the Design Professional when construction is sufficiently complete, in accordance with the Contract Documents, so Owner can occupy or utilize the Work (or designated portions thereof) for the use for which it is intended, as more particularly defined herein at Section 16, Defined Terms. Contractor shall achieve Final Completion within X (X-Days in numbers) calendar days after the date the Punch List is delivered to the Contractor. Final Completion shall occur when the Agreement is completed in its entirety, is accepted by the Owner as complete and is so stated by the Owner as completed. As used herein and throughout the Contract Documents, the phrase "Project Manager" refers to the Owner's duly authorized representative and shall mean the Department Administrator or Division Director, as applicable, acting directly or through duly authorized representatives.

B. Liquidated Damages in General.

Owner and Contractor recognize that, since time is of the essence for this Agreement, Owner will suffer financial loss if Contractor fails to achieve Substantial Completion within the time specified above, 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. Should Contractor fail to achieve Substantial Completion within the number of calendar days established herein, Owner shall be entitled to assess, as liquidated damages, but not as a penalty, X Amount of Dollars Described in Words (Dollars in Numbers) for each calendar day thereafter until Substantial Completion is achieved. Further, in the event Substantial Completion is reached, but the Contractor fails to reach Final Completion within the required time period, Owner shall also be entitled to assess, and Contractor shall be liable for all actual damages incurred by Owner as a result of Contractor failing to timely achieve Final Completion. The Project shall be deemed to be substantially completed on the date specified by the Project Manager (or at his/her direction, the Design Professional) as memorialized in the Certificate of Substantial Completion issued pursuant to the terms hereof, and as more particularly defined herein at Section 16, Defined Terms. Contractor hereby expressly waives and relinquishes any right which it may have to seek to characterize the above noted liquidated damages as a penalty, which the parties agree represents a fair and reasonable estimate of the Owner’s actual damages at the time of contracting if Contractor fails to Substantially or Finally Complete the Work within the required time periods.

C. Computation of Time Periods.

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 law of the applicable jurisdiction, 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.

D. Determination of Number of Days of Default.

For all contracts, the Owner will count default days in calendar days.

E. Right of Collection.

The Owner has the right to apply any amounts due Contractor under this Agreement or any other agreement between Owner and Contractor, as payment on such liquidated damages due under this Agreement in Owner’s sole discretion. Notwithstanding anything herein to the contrary, Owner retains its right to liquidated damages due under this Agreement even if Contractor, at Owner’s election and in its sole discretion, is allowed to continue and to finish the Work, or any part of it, after the expiration of the Contract Time including granted time extensions.

F. Completion of Work by Owner.

In the event Contractor defaults on any of its obligations under the Agreement and Owner elects to complete the Work, in whole or in part, through another contractor or its own forces, the Contractor and its surety shall continue to be liable for the liquidated damages under the Agreement until Owner achieves Substantial and Final Completion of the Work, as more particularly defined herein at Section 16, Defined Terms. Owner will not charge liquidated damages for any delay in achieving Substantial or Final Completion as a result of any unreasonable action or delay on the part of the Owner.

G. Final Acceptance by Owner.

The Owner shall consider the Agreement complete when the Contractor has completed in its entirety all of the Work and the Owner has accepted all of the Work and notified the Contractor in writing that the Work is complete. Once the Owner has approved and accepted the Work, Contractor shall be entitled to final payment in accordance with the terms of the Contract Documents.

H. Recovery of Damages Suffered by Third Parties.

Contractor shall be liable to Owner to the extent Owner incurs damages from a third party as a result of Contractor’s failure to fulfill all of its obligations under the Contract Documents. Owner’s recovery of any delay related damages under this Agreement through the liquidated damages does not preclude Owner from recovering from Contractor any other non-delay related damages that may be owed to it arising out of or relating to this Agreement.

Section 6. Exhibits Incorporated.

Exhibits Incorporated: The following documents are expressly agreed upon, attached hereto, and made a part of this Agreement for Solicitation #11-Insert ITB # and Name.

Exhibit A-1: Contractor’s Bid Schedule Exhibit A-2: Contractor’s Bid Submittal Forms and Addendums Exhibit A-3: Contractor’s List of Key Personnel Assigned to the Project Exhibit B-1: Payment Bond Form Not Applicable

Exhibit B-2: Performance Bond Form Not Applicable Exhibit B-3: Insurance Requirements

Exhibit C: Release and Affidavit Form Exhibit D-1: Contractor Application for Payment Form

Exhibit D-2: Schedule of Values Exhibit D-3: Stored Materials Record Exhibit E-1: Change Order Form Exhibit E-2 Work Directive Form Exhibit F-1: Certificate of Substantial Completion Form Exhibit F-2: Certificate of Final Completion

Exhibit F-3: Punch List Form Exhibit G-1: Final Payment Checklist Exhibit G-2: Warranty Exhibit H: General Terms and Conditions

Exhibit I-1: Supplemental Terms and Conditions Applicable Not Applicable Exhibit I-2: Affidavit Regarding Labor and Services

The following documents are expressly agreed to be incorporated by reference and made a part of this Agreement for Solicitation 12-Insert ITB # and Name. The complete contract documents, including Addendum with attachments, are available on the County’s on-line bidding system, which the parties agree comprise the final integrated agreement executed by the parties.

Sections corresponding to any checked box ( ) expressly apply to the terms of this Agreement and are available through the County’s on-line bidding.

Exhibit J: Technical Specifications Exhibit K: Permits Exhibit L: Standard Details Exhibit M: Plans and Specifications prepared by: 13-Engineer’s Name

Exhibit N: Environmental Health and Safety Requirements for Construction Projects

Section 7. Notices

A. All notices required or made pursuant to this Agreement by the Contractor to the Owner shall be deemed duly served if delivered by U.S. Mail or E-mail, addressed to the following:

Collier County Board of County Commissioners, FL c/o [Division Name]

[Address] [Address]

Attn: [Project Manager, Title] Phone: [Number]

Email: [Email]

B. All notices required or made pursuant to this Agreement by Owner to Contractor shall be made in writing and shall be deemed duly served if delivered by U.S. Mail, or E-mail, addressed to the following:

[Contractor Name]

[Address] [Address]

Attn: [Point of Contact, Title] Phone: [Number]

Email: [email]

C. 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 8. PUBLIC ENTITY CRIMES.

8.1 By its execution of this Contract, Construction Contractor acknowledges that it has been informed by Owner of the terms of Section 287.133(2)(a), F.S. which reads as follows:

"A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list."

Section 9. Modification.

No modification or change to the Agreement 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 10. Successors and Assigns.

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

Section 11. Governing Law.

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

Section 12. No Waiver.

The failure of the Owner to enforce at any time or for any period of time any one or more of the provisions of the Agreement 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 13. Entire Agreement.

Each of the parties hereto agrees and represents that the Agreement 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 Agreement.

Section 14. Severability.

Should any provision of the Agreement 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 15. Change Order Authorization.

The Project Manager shall have the authority on behalf of the Owner to execute all Change Orders and Work Directive Changes to the Agreement to the extent that authority is provided for under the Owner’s Procurement Ordinance, as amended, and the terms of the Contract Documents.

Section 16. Construction.

(i) Any doubtful or ambiguous language contained in this Agreement shall not be construed against the party who physically prepared this Agreement. The rule sometimes referred to as "fortius contra proferentum" (pursuant to which ambiguities in a contractual term which appears on its face to have been inserted for the benefit of one of the parties shall be construed against the benefited party) shall not be applied to the construction of this Agreement.

(ii) Defined Terms: The following Defined Terms used in the Agreement shall be understood to be defined as expressly set forth below. Other terms referenced in the Agreement shall be understood as they may separately be defined herein or if not so defined shall be understood consistent with their natural and ordinary meaning.

(a) “Application for Payment” shall mean the form provided by the Owner that is to be used by the Contractor in requesting a progress or final payment and which is to include such supporting documentation as is required by the Contract Documents.

(b) “Construction Project” shall mean a Project, funded by Owner funds that involves the process of building, altering, repairing, improving, or demolishing any public structure or building, or other public improvements of any kind to any real property owned or under the control of the Owner, which Work is being performed under a Construction Contract.

(c) “Construction Services” shall mean all labor and materials to be provided by Contractor in connection with the construction, alteration, repair, demolition, reconstruction, or any other improvements to real property. Construction Services also means Work.

(d) “Contract” or “Contract Documents” shall refer to those documents described in Section 1, subsection A of the Agreement.

(e) “Defective” shall mean an adjective which, when modifying the Work, refers to Work that is unsatisfactory, faulty, deficient or otherwise does not conform to the Contract Documents.

(f) “Department” shall mean the Department or Division initiating and managing the Project on behalf of the Owner.

(g) “Director” shall mean the Director or Administrator of the Department or Division initiating and managing the Project on behalf of the Owner.

(h) “Final Acceptance” shall mean acceptance of the Work by the Owner as evidenced by the signature of the Project Manager or Design Professional upon the Certificate of Final Completion form, Exhibit F-2. Final Acceptance shall be deemed to have taken place only if and when such signature is affixed to such certificate. The Certificate of Final Completion shall be signed only after the Project Manager has assurance by tests, inspection, or otherwise that all of the provisions of the Contract Documents have been carried out, including completion of the Punch List form, Exhibit F-3.

(i) “Professional” or “Design Professional” shall mean the professional architectural/engineering firm designated to perform the design, Construction Engineering and Inspection (“CEI”) services, by an existing agreement, or resident in-house Owner engineering services for the Work. At times, Owner staff may perform the design for the Work in-house and shall be considered the Professional in relation to the Work or a particular portion of the Work.

(j) “Project” shall mean the total construction, of which the Work to be provided under the Contract Documents may be the whole or a part as indicated elsewhere in the Contract Documents.

(k) “Project Manager” shall mean an individual employed by the Owner and assigned to manage and administer the Project which is the subject of the Contract Documents.

(l) “Proper Invoice” shall mean an invoice that conforms with all statutory requirements and all requirements specified in the Contract Documents.

(m) “Punch List” shall mean the approved list of incomplete and/or deficient Work that shall be completed by the Owner and Contractor after Substantial Completion but before the Final Acceptance can be certified by the Project Manager. The Punch List enumerates the items required to render complete, satisfactory and acceptable all Work by the Contractor. The Punch List is developed by the Contractor, Owner and Professional (if any) in accordance with the provisions of the Contract and within the time frames required therein. The Punch List essentially includes items of a minor nature; major items must be completed before Substantial Completion and cannot be considered to be Punch List work.

(n) “Schedule of Values” shall mean a schedule showing all activities of the Work subdivided into component parts in sufficient detail to serve as the basis for measuring quantities in place and/or calculating amounts for progress payments during construction. The Schedule of Values shall be satisfactory in form and substance to the Project Manager.

(o) “Substantial Completion” shall mean the status of completion of the Work which, in the opinion of the Project Manager as evidenced by a definitive Certificate of Substantial Completion, is complete in accordance with the Contract Documents, except for minor outstanding items listed on the Punch List. Substantial Completion includes, but is not limited to, the following occurring: (1) the Work can be safely utilized for the purposes for which it was intended; (2) all regulatory agency requirements are satisfied, including occupancy permits, operating certificates and similar releases, (3) all operational testing has successfully occurred; (4) all required training has successfully occurred; (5) all close-out documents (such as as-built drawings, certifications, warranties, guaranties, test reports, test logs, operational manuals, etc.) have been provided by the Contractor and accepted by the Owner, and permit acceptance by permitting agencies, if applicable, see Exhibit F-1.

(p) “Work” shall mean the Work to be performed under this Agreement and shall consist of furnishing all tools, equipment, materials, supplies, and manufactured articles and for furnishing all transportation and services, including fuel, power, water, and essential communications, and for the performance of all labor, work, or other operations required for the fulfillment of the Agreement in strict accordance with the Specifications, schedules, Drawings, and other Contract Documents as herein defined, all of which are made a part hereof, and including such detailed sketches as may be furnished by the Professional from time to time during construction in explanation of said Contract Documents. The Work shall be complete, and all work, materials, and services not expressly shown or called for in the Contract Documents, which may be necessary for the complete and proper construction of the Work in good faith, shall be performed, furnished, and installed by the Contractor as though originally so specified or shown, at no increase in cost to the Owner.

(q) “Written Directive” shall mean a written directive and also referred to as work directive, as required by in Exhibit H, Section 10.1, in the form that appears in Exhibit E-2 that is issued to a Contractor from Owner in instances where the parties cannot agree on price and/or costs associated with work arising from differing, unforeseen or emergency site conditions and the work in question is part of the “critical path” of the contract schedule. A written directive should ultimately be followed up with an agreed upon Change Order. A verbal Work Directive may only be issued in extraordinary emergencies when necessary to protect and promote the public interest, which shall be followed up with a written Work Directive within five (5) business days.

Section 17. Order of Precedence

In the event of any conflict between or among the terms of any of the Contract Documents, the terms of the Construction Agreement and the General Terms and Conditions shall take precedence over the terms of all other Contract Documents, except the terms of any Supplemental Conditions shall take precedence over the Construction Agreement and the General Terms and Conditions. To the extent any conflict in the terms of the Contract Documents including the Owner’s Board approved Executive Summary cannot be resolved by application of the Supplemental Conditions, if any, or the Construction Agreement and the General Terms and Conditions, the conflict shall be resolved by imposing the more strict or costly obligation under the Contract Documents upon the Contractor at Owner’s discretion.

Remainder of the page is left blank intentionally.

IN WITNESS WHEREOF, the parties have executed this Agreement on the date(s) indicated below.

CONTRACTOR:

TWO WITNESSES: 15-[Contractor Name]

FIRST WITNESS

_____________________________ By: _____________________________ Print Name ______________________________ Print Name and Title

SECOND WITNESS

______________________________ Date:

Print Name

ATTEST: OWNER:

Crystal K. Kinzel, Clerk of Courts BOARD OF COUNTY COMMISSIONERS & Comptroller OF COLLIER COUNTY FLORIDA

BY: BY:

____________________, Chairman

Date: ______

Approved as to Form and Legality:

______________County Attorney

Print Name

EXHIBIT A-1: CONTRACTOR’S BID SCHEDULE

(FOLLOWING THIS PAGE)

EXHIBIT A-2: CONTRACTOR’S BID SUBMITTAL FORMS AND ADDENDUM

(FOLLOWING THIS PAGE)

EXHIBIT A-3: CONTRACTOR’S KEY PERSONNEL ASSIGNED TO THE PROJECT

Name Personnel Category

[ ] Construction Superintendent

[ ] Project Manager

EXHIBIT B-1: PUBLIC PAYMENT BOND

(Following This Page)

EXHIBIT B-2: PUBLIC PERFORMANCE BOND

EXHIBIT B-3: INSURANCE REQUIREMENTS

EXHIBIT C

RELEASE AND AFFIDAVIT FORM

(Template Form Following This Page)

EXHIBIT D-1

CONTRACTOR APPLICATION FOR PAYMENT FORM

EXHIBIT D-2

SCHEDULE OF VALUES

EXHIBIT D-3

STORED MATERIALS

EXHIBIT E-1: CHANGE ORDER

EXHIBIT E-2:

WORK DIRECTIVE FORM

EXHIBIT F-1

CERTIFICATE OF SUBSTANTIAL COMPLETION FORM

EXHIBIT F-2

CERTIFICATE OF FINAL COMPLETION FORM

EXHIBIT F-3

PUNCH LIST FORM

EXHIBIT G-1

FINAL PAYMENT CHECKLIST

EXHIBIT G-2

WARRANTY

EXHIBIT H: GENERAL TERMS AND CONDITIONS

1. INTENT OF CONTRACT DOCUMENTS.

1.1 It is the intent of the Contract Documents to describe a functionally complete Project (or portion thereof) to be constructed in accordance with the Contract Documents. Any work, materials or equipment that may reasonably be inferred from the Contract Documents as being required to produce the intended result shall be supplied whether or not specifically called for. When words which have a well-known technical or trade meaning are used to describe work, materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals or codes of any technical society, organization, or association or to the laws or regulations of any governmental authority having jurisdiction over the Project, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code, law or regulation in effect at the time the Work is performed, except as may be otherwise specifically stated herein.

1.2 If before or during the performance of the Work Contractor discovers a conflict, error or discrepancy in the Contract Documents, Contractor immediately shall report same to the Project Manager in writing and before proceeding with the Work affected thereby shall obtain a written interpretation or clarification from the Project Manager; said interpretation or clarification from the Project Manager may require Contractor to consult directly with Design Professional or some other third party, as directed by Project Manager. Contractor shall take field measurements and verify field conditions and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents before commencing any portion of the Work.

1.3 Drawings are intended to show general arrangements, design and extent of Work and are not intended to serve as shop drawings. Specifications are separated into divisions for convenience of reference only and shall not be interpreted as establishing divisions for the Work, trades, subcontracts, or extent of any part of the Work. In the event of a discrepancy between or among the drawings, specifications or other Contract Document provisions, Contractor shall be required to comply with the provision which is the more restrictive or stringent requirement upon the Contractor, as determined by the Project Manager. Unless otherwise specifically mentioned, all anchors, bolts, screws, fittings, fillers, hardware, accessories, trim and other parts required in connection with any portion of the Work to make a complete, serviceable, finished and first quality installation shall be furnished and installed as part of the Work, whether or not called for by the Contract Documents.

2. INVESTIGATION AND UTILITIES.

2.1 Subject to Section 2.3 below, Contractor shall have the sole responsibility of satisfying itself concerning the nature and location of the Work and the general and local conditions, and particularly, but without limitation, with respect to the following: those affecting transportation, access, disposal, handling and storage of materials; availability and quality of labor; water and electric power;

availability and condition of roads; work area; living facilities; climatic conditions and seasons;

physical conditions at the work-site and the project area as a whole; topography and ground surface conditions; nature and quantity of the surface materials to be encountered; subsurface conditions;

equipment and facilities needed preliminary to and during performance of the Work; and all other costs associated with such performance. The failure of Contractor to acquaint itself with any applicable conditions shall not relieve Contractor from any of its responsibilities to perform under the Contract Documents, nor shall it be considered the basis for any claim for additional time or compensation.

2.2 Contractor shall locate all existing roadways, railways, drainage facilities and utility services above, upon, or under the Project site, said roadways, railways, drainage facilities and utilities being referred to in this Sub-Section 2.2 as the "Utilities". Contractor shall contact the owners of all Utilities to determine the necessity for relocating or temporarily interrupting any Utilities during the construction of the Project. Contractor shall schedule and coordinate its Work around any such relocation or temporary service interruption. Contractor shall be responsible for properly shoring, supporting, and protecting all Utilities at all times during the course of the Work. The Contractor is responsible for coordinating all other utility work so as to not interfere with the prosecution of the Work (except those utilities to be coordinated by the Owner as may be expressly described elsewhere in the Contract Documents).

2.3 Notwithstanding anything in the Contract Documents to the contrary, if conditions are encountered at the Project site which are (i) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (ii) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, and which reasonably should not have been discovered by Contractor as part of its scope of site investigative services required pursuant to the terms of the Contract Documents, then Contractor shall provide Owner with prompt written notice thereof before conditions are disturbed and in no event later than three (3) calendar days after first observance of such conditions.

Owner and Design Professional shall promptly investigate such conditions and, if they differ materially and cause an increase or decrease in Contractor’s cost of, or time required for, performance of any part of the Work, Owner will acknowledge and agree to an equitable adjustment to Contractor’s compensation or time for performance, or both, for such Work. If Owner determines that the conditions at the site are not materially different from those indicated in the Contract Documents or not of an unusual nature or should have been discovered by Contractor as part of its investigative services, and that no change in the terms of the Agreement is justified, Owner shall so notify Contractor in writing, stating its reasons. Claims by Contractor in opposition to such determination by Owner must be made within seven (7) calendar days after Contractor’s receipt of Owner’s written determination notice. If Owner and Contractor cannot agree on an adjustment to Contractor’s cost or time of performance, the dispute resolution procedure set forth in the Contract Documents shall be complied with by the parties.

3. SCHEDULE.

3.1 The Contractor, within ten (10) calendar days after the Board’s award of the Agreement, shall prepare and submit to Project Manager, for their review and approval, a progress schedule for the Project (herein "Progress Schedule"). The Progress Schedule shall relate to all Work required by the Contract Documents and shall utilize the Critical Path method of scheduling and shall provide for expeditious and practicable execution of the Work within the Contract Time. The Progress Schedule shall indicate the dates for starting and completing the various stages of the Work.

3.2 The Progress Schedule shall be updated monthly by the Contractor. All monthly updates to the Progress Schedule shall be subject to the Project Manager's review and approval. Contractor shall submit the updates to the Progress Schedule with its monthly Applications for Payment noted below. The Project Manager's review and approval of the submitted Progress Schedule updates shall be a condition precedent to the Owner's obligation to pay Contractor.

3.3 All work under this Agreement shall be performed in accordance with the requirements of all Collier County Noise Ordinances then in effect. Unless otherwise specified, work will generally be limited to the hours of 7 a.m. to 7 p.m., Monday through Saturday. No work shall be performed outside the specified hours without the prior approval of the Project Manager.

4. PROGRESS PAYMENTS.

4.1 At least ten (10) days prior to submitting the monthly Application for Payment, the Contractor shall submit to the Project Manager a final Schedule of Values. The Schedule of Values shall be satisfactory in form and substance to the Project Manager and shall subdivide the Work into component parts in sufficient detail to serve as the basis for measuring quantities in place and calculating amounts for the Contractor’s monthly progress payments during construction. Further, it shall include the list of its Subcontractors and materialmen submitted with its Bid showing the work and materials involved and the dollar amount of each subcontract and purchase order. Contractor acknowledges and agrees that any modifications to the list of Subcontractors submitted with Contractor’s Bid and any subsequently identified Subcontractors are subject to Owner’s prior written approval.

Unsupported or unreasonable allocation of the Contract Price to any one activity shall be justification for rejection of the Schedule of Values. The Contractor shall not submit an unbalanced Schedule of Values which provides for overpayment to the Contractor on activities that would be performed first.

The Schedule of Values shall be revised and resubmitted until acceptable to the Project Manager.

Once the schedule has been accepted by the Project Manager, the Owner reserves the right (at its option) throughout the Contract to require that the Contractor honor a particular price contained in the Schedule of Values, if the activity pertaining to it is being deleted or modified. Upon approval of the Schedule of Values by the Project Manager, it shall be incorporated into the form of Application for Payment attached to the Agreement as Exhibit D and shall be used as the basis for the Contractor’s monthly Applications for Payment. The schedule shall be updated and submitted each month along with a completed copy of the Application for Payment form signed by the Contractor’s authorized representative.

4.2 The first Application for Payment shall be submitted no earlier than thirty (30) days after the Commencement Date, and monthly thereafter, but not more often than once a month or prior to substantial completion being met. Notwithstanding anything herein to the contrary, if approved by Owner in its sole discretion, Contractor may submit its invoice for any required Payment and Performance Bonds prior to the first Application of Payment provided that Contractor has furnished Owner certified copies of the receipts evidencing the premium paid by Contractor for the bonds.

4.3 Unless expressly approved by Owner in advance and in writing, said approval at Owner’s sole discretion, Owner is not required to make any payment for materials or equipment that have not been incorporated into the Project. If payment is requested on the basis of materials and equipment not incorporated into the Project, but delivered and suitably stored at the site or at another location agreed to by the Owner in writing, the Application for Payment shall also be accompanied by a bill of sale, invoice or other documentation warranting that the Owner has received the materials and equipment free and clear of all liens, charges, security interests and encumbrances, together with evidence that the materials and equipment are covered by appropriate property insurance and other arrangements to protect Owner's interest therein, all of which shall be subject to the Owner's satisfaction. Thereafter, with each Application for Payment, Contractor also shall complete and submit to Owner as part of its Application for Payment, the Stored Materials Record form attached hereto and made a part hereof as Exhibit D-3.

4.4 Contractor shall submit its monthly Application for Payment to the Project Manager or his or her designee, as directed by Owner (which designee may include the Design Professional). Within twenty (20) business days after the date of each Application for Payment is stamped as received, and within the timeframes set forth in Section 218.735 F.S., the Project Manager, or Design Professional, shall either: (1) Indicate its approval of the requested payment; (2) indicate its approval of only a portion of the requested payment, stating in writing its reasons therefor; or (3) return the Application for Payment to the Contractor indicating, in writing, the reason for refusing to approve payment. Payments of proper invoices shall be processed in accordance with Section 218.735, F.S.

and the terms of the Contract Documents.

4.5 In the event of a total denial by Owner and return of the Application for Payment by the Project Manager, the Contractor may make the necessary corrections and re-submit the Application for Payment. The Owner shall, within ten (10) business days after the Application for Payment is stamped and received and after Project Manager approval of an Application for Payment, pay the Contractor the amounts so approved.

4.6 Owner shall withhold retainage on the gross amount of each monthly progress payment in the amount of five percent (5%), as permitted by Section 255.078, F.S. The foregoing does not prohibit Owner from withholding retainage at a rate less than five percent (5%) of each monthly progress payment as otherwise allowable under Section 255.078, F.S.. Any reduction in retainage below the maximum amount set forth in Section 255.078, F.S. shall be at the sole discretion of the Owner. Such retainage shall be accumulated and not released to Contractor until final payment is due unless otherwise agreed to by the Owner in accordance with Section 255.078, F.S. or otherwise required pursuant to Section 218.735(7), F.S. Any interest earned on retainage shall accrue to the benefit of the Owner. Pursuant to Section 218.735(8)(f), if the total cost of the construction services is $200,000 or less, then the 5% retainage requirement does not apply.

4.7 Monthly payments to Contractor shall in no way imply approval or acceptance of Contractor's Work.

4.8 Each Application for Payment, subsequent to the first pay application, shall be accompanied by a Release and Affidavit, in the form attached as Exhibit C, acknowledging Contractor’s receipt of payment in full for all materials, labor, equipment and other bills that are then due and payable by Owner with respect to the current Application for Payment. Further, to the extent directed by Owner and in Owner’s sole discretion, Contractor shall also submit a Release and Affidavit from each Subcontractor, sub-subcontractor, or supplier in the form attached as Exhibit C acknowledging that each Subcontractor, sub-subcontractor, or supplier has been paid in full through the previous month’s Application for Payment. The Owner shall not be required to make payment until and unless these affidavits are furnished by Contractor.

4.9 Contractor agrees and understands that funding limitations exist and that the expenditure of funds must be spread over the duration of the Project at regular intervals based on the Contract Amount and Progress Schedule.

4.10 Notwithstanding anything in the Contract Documents to the contrary, Contractor acknowledges and agrees that in the event of a dispute concerning payments for Work performed under this Agreement, Contractor shall continue to perform the Work required of it under this Agreement pending resolution of the dispute provided that Owner continues to pay Contractor all amounts that Owner does not dispute are due and payable.

4.11 Payments will be made for services furnished, delivered, and accepted, upon receipt and approval of invoices submitted on the date of services or prior to final completion. Any untimely submission of invoices beyond the specified deadline period is subject to non-payment under the legal doctrine of “laches” as untimely submitted. Time shall be deemed of the essence with respect to the timely submission of invoices under this agreement.

4.12 The Owner may, at its discretion, use VISA/MASTER card credit network as a payment vehicle for goods and/or services purchased as a part of this contract. The Owner may not accept any additional surcharges (credit card transaction fees) as a result of using the Owner’s credit card for transactions relating to this agreement.

5. PAYMENTS WITHHELD.

5.1 The Project Manager may decline to approve any Application for Payment, or portions thereof, because of subsequently discovered evidence or subsequent inspections that reveal non-compliance with the Contract Documents. The Project Manager may nullify the whole or any part of any approval for payment previously issued and Owner may withhold any payments otherwise due Contractor under this Agreement or any other agreement between Owner and Contractor, to such extent as may be necessary in the Owner's opinion to protect it from loss because of:

(a) Defective Work not remedied; (b) third party claims filed or reasonable evidence indicating probable filing of such claims; (c) failure of Contractor to make payment properly to subcontractors or for labor, materials or equipment; (d) reasonable doubt that the Work can be completed for the unpaid balance of the Contract Amount; (e) reasonable indication that the Work will not be completed within the Contract Time; (f) unsatisfactory prosecution of the Work by the Contractor; or (g) any other material breach of the Contract Documents by Contractor.

5.2 If any conditions described in 5.1. are not remedied or removed, Owner may, after three (3) days written notice, rectify the same at Contractor's expense. Provided however, in the event of an emergency, Owner shall not be required to provide Contractor any written notice prior to rectifying the situation at Contractor’s expense. Owner also may offset against any sums due Contractor the amount of any liquidated or non-liquidated obligations of Contractor to Owner, whether relating to or arising out of this Agreement or any other agreement between Contractor and Owner.

5.3 In instances where the Contractor may owe debts (including, but not limited to taxes or other fees) to Collier County and the contractor has not satisfied nor made arrangement to satisfy these debts, the County reserves the right to off-set the amount owed to the County by applying the amount owed to the vendor or contractor for services performed of for materials delivered in association with a contract.

5.4 If a subcontractor is a related entity to the Contractor, then the Contractor shall not mark-up the subcontractor’s fees. A related entity shall be defined as any Parent or Subsidiary of the Company and any business, corporation, partnership, limited liability company or other entity in which the Company or a Parent or a Subsidiary of the Company holds any ownership interest, directly or indirectly.

6. FINAL PAYMENT.

6.1 Owner shall make Final Payment to Contractor in accordance with Section 218.735, F.S. and the terms of the Contract Documents after the Work is finally inspected and accepted by Project Manager as set forth with Section 20.1 herein, provided that Contractor first, and as an explicit condition precedent to the accrual of Contractor's right to Final Payment, shall have furnished Owner with a properly executed and notarized copy of the Release and Affidavit form attached as Exhibit C, as well as, a duly executed copy of the Surety’s consent to Final Payment and such other documentation that may be required by the Contract Documents and the Owner. Prior to release of Final Payment, the Contractor's Representative and the Project Manager shall jointly complete the Final Acceptance and Final Payment Checklist, a representative copy of which is attached to this Agreement as Exhibit G.

6.2 Contractor's acceptance of final payment shall constitute a full waiver of any and all claims by Contractor against Owner arising out of this Agreement or otherwise relating to the Project, except those previously made in writing in accordance with the requirements of the Contract Documents and identified by Contractor as unsettled in its final Application for Payment. Neither the acceptance of the Work nor payment by Owner shall be deemed to be a waiver of Owner's right to enforce any obligations of Contractor hereunder or to the recovery of damages for defective Work not discovered by the Design Professional or Project Manager at the time of final inspection.

7. SUBMITTALS AND SUBSTITUTIONS.

7.1 Contractor shall carefully examine the Contract Documents for all requirements for approval of materials to be submitted such as shop drawings, data, test results, schedules and samples.

Contractor shall submit all such materials at its own expense and in such form as required by the Contract Documents in sufficient time to prevent any delay in the delivery of such materials and the installation thereof.

7.2 Whenever materials or equipment are specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular supplier, the naming of the item is intended to establish the type, function and quality required. Unless the name is followed by words indicating that no substitution is permitted, materials or equipment of other suppliers may be accepted by Owner if sufficient information is submitted by Contractor to allow the Owner to determine that the material or equipment proposed is equivalent or equal to that named. Requests for review of substitute items of material and equipment will not be accepted by Owner from anyone other than Contractor and all such requests must be submitted by Contractor to Project Manager within thirty (30) calendar days after Notice to Proceed is received by Contractor, unless otherwise mutually agreed in writing by Owner and Contractor.

7.3 If Contractor wishes to furnish or use a substitute item of material or equipment, Contractor shall make application to the Project Manager for acceptance thereof, certifying that the proposed substitute shall adequately perform the functions and achieve the results called for by the general design, be similar and of equal substance to that specified and be suited to the same use as that specified.