Multi-Contractor_Award_Agreement_2024_ver.1_.pdf

Multi-Contractor Award 2024_ver.1

MULTI-CONTRACTOR AWARD AGREEMENT

for

THIS AGREEMENT, made and entered into on this ______ day of ____________ 20___, by and between_________________________________________________________, authorized to do business in the State of Florida, whose business address is _________________________________________________________________, (the "Contractor") and Collier County, a political subdivision of the State of Florida, (the "County" or “Owner”):

W I T N E S S E T H:

1. AGREEMENT TERM. The Agreement shall be for a ( ____ ) year period, commencing upon the date of Board approval; or on _______________ , and terminating __________ ( ______ ) year(s) from that date or until all outstanding Purchase Order(s) Work Order(s) issued prior to the expiration of the Agreement period have been completed or terminated.

The County may, at its discretion and with the consent of the Contractor, renew the Agreement under all of the terms and conditions contained in this Agreement for _______ ( ) additional _____________( ______ ) year(s) periods. The County shall give the Contractor written notice of the County’s intention to renew the Agreement term prior to the end of the Agreement term then in effect.

The County Manager, or his designee, may, at his discretion, extend the Agreement under all of the terms and conditions contained in this Agreement for up to one hundred and eighty (180) days. The County Manager, or his designee, shall give the Contractor written notice of the County's intention to extend the Agreement term prior to the end of the Agreement term then in effect.

2. COMMENCEMENT OF SERVICES. The Contractor shall commence the work upon issuance of a Purchase Order Notice to Proceed.

3. STATEMENT OF WORK. The Contractor shall provide services in accordance with the terms and conditions of Request for Proposal (RFP) Invitation to Bid (ITB) Other:_______________________________________________ ( ______ ) # , including all Attachment(s), Exhibit(s) and Addenda and the Contractor's proposal referred to herein and made an integral part of this Agreement.

The Contractor shall also provide services in accordance with Exhibit A – Scope of

Services attached hereto.

3.1 This Agreement contains the entire understanding between the parties and any modifications to this Agreement shall be mutually agreed upon in writing by the Parties, in compliance with the County’s Procurement Ordinance, as amended, and Procurement Procedures in effect at the time such services are authorized.

3.2 The execution of this Agreement shall not be a commitment to the Contractor to order any minimum or maximum amount. The County shall order items/services as required but makes no guarantee as to the quantity, number, type or distribution of items/services that will be ordered or required by this Agreement.

3.3 The procedure for obtaining Work under this Agreement is outlined in Exhibit A – Scope of Services attached hereto.

The procedure for obtaining Work under this Agreement is outlined in Other Exhibit/Attachment: ______________________________________________________.

3.4 The County reserves the right to specify in each Request for Quotations: the period of completion; collection of liquidated damages in the event of late completion; and the Price Methodology selected in 4.1.

4. THE AGREEMENT SUM.

The County shall pay the Contractor for the performance of this Agreement based on

Exhibit B- Fee Schedule, attached hereto and the price methodology as defined in Section

4.1. Payment will be made upon receipt of a proper invoice and upon approval by the County’s Contract Administrative Agent/Project Manager, and in compliance with Chapter 218, Fla.

Stats., otherwise known as the “Local Government Prompt Payment Act”.

The County shall pay the Contractor for the performance of this Agreement based on Work performed pursuant to the quoted price offered by the Contractor in response to a specific Request for Quotations and pursuant to the Price Methodology in Section 4.1. Contractor’s quoted prices shall be based on Exhibit B- Fee Schedule. Payment will be made upon receipt of a proper invoice and upon approval by the County’s Contract Administrative Agent/Project Manager, and in compliance with Chapter 218, Fla. Stats., otherwise known as the “Local Government Prompt Payment Act”.

The County shall pay the Contractor for the performance of this Agreement an estimated maximum amount of ______________________________________($_____________), per County fiscal year, based on Work performed pursuant to the quoted price offered by the Contractor in response to a specific Request for Quotations and the Price Methodology as defined in Section 4.1. Contractor’s quoted prices shall be based on Exhibit B- Fee Schedule. Payment will be made upon receipt of a proper invoice and upon approval by the County’s Contract Administrative Agent/Project Manager, and in compliance with Chapter 218, Fla. Stats., otherwise known as the “Local Government Prompt Payment Act”.

4.1 Price Methodology (as selected below):

Lump Sum (Fixed Price): A firm fixed total price offering for a project; the risks are transferred from the County to the contractor; and, as a business practice there are no hourly or material invoices presented, rather, the contractor must perform to the satisfaction of the County’s project manager before payment for the fixed price contract is authorized.

Time and Materials: The County agrees to pay the contractor for the amount of labor time spent by the contractor's employees and subcontractors to perform the work (number of hours times hourly rate), and for materials and equipment used in the project (cost of materials plus the contractor's markup). This methodology is generally used in projects in which it is not possible to accurately estimate the size of the project, or when it is expected that the project requirements would most likely change. As a general business practice, these contracts include back-up documentation of costs; invoices would include number of hours worked and billing rate by position (and company (or subcontractor) timekeeping or payroll records), material or equipment invoices, and other reimbursable documentation for the project.

Unit Price: The County agrees to pay a firm total fixed price (inclusive of all costs, including labor, materials, equipment, overhead, etc.) for a repetitive product or service delivered (i.e.

installation price per ton, delivery price per package or carton, etc.). The invoice must identify the unit price and the number of units received (no contractor inventory or cost verification).

4.2 Any County agency may obtain services under this Agreement, provided sufficient funds are included in their budget(s).

4.3 Payments will be made for services furnished, delivered, and accepted, upon receipt and approval of invoices submitted on the date of services or within six (6) months after completion of the Agreement. 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.

4.4 The County, or any duly authorized agents or representatives of the County, shall have the right to conduct an audit of Contractor’s books and records to verify the accuracy of the Contractor’s claim with respect to Contractor’s costs associated with any Payment Application, Change Order, or Work Directive Change.

4.5 Travel and Reimbursable Expenses: Travel and Reimbursable Expenses must be approved in advance in writing by the County. Travel expenses shall be reimbursed as per Section 112.061 Fla. Stats.

Reimbursements shall be at the following rates:

Mileage $0.44.5 per mile

Breakfast $6.00

Lunch $11.00

Dinner $19.00

Airfare Actual ticket cost limited to tourist or coach class fare

Rental car Actual rental cost limited to compact or standard-size vehicles

Lodging Actual cost of lodging at single occupancy rate with a cap of no more than $150.00 per night

Parking Actual cost of parking

Taxi or Airport Limousine Actual cost of either taxi or airport limousine

Reimbursable items other than travel expenses shall be limited to the following: telephone long-distance charges, fax charges, photocopying charges and postage. Reimbursable items will be paid only after Contractor has provided all receipts. Contractor shall be responsible for all other costs and expenses associated with activities and solicitations undertaken pursuant to this Agreement.

5. SALES TAX. Contractor shall pay all sales, consumer, use and other similar taxes associated with the Work or portions thereof, which are applicable during the performance of the Work.

Collier County, Florida as a political subdivision of the State of Florida, is exempt from the payment of Florida sales tax to its vendors under Chapter 212, Florida Statutes, Certificate of Exemption # 85-8015966531C.

6. NOTICES. All notices from the County to the Contractor shall be deemed duly served if mailed or emailed to the Contractor at the following:

Company Name: ______________________________________________ Address: ______________________________________________

Authorized Agent: ______________________________________________ Attention Name & Title: ______________________________________________ Telephone: ______________________________________________ E-Mail(s): ______________________________________________

All Notices from the Contractor to the County shall be deemed duly served if mailed or emailed to the County to:

Board of County Commissioners for Collier County, Florida

Division Director: ______________________________________________ Division Name: ______________________________________________

Address: ______________________________________________

Administrative Agent/PM: ______________________________________________ Telephone: ______________________________________________ E-Mail(s): ______________________________________________

The Contractor and the County 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.

7. NO PARTNERSHIP. Nothing herein contained shall create or be construed as creating a partnership between the County and the Contractor or to constitute the Contractor as an agent of the County.

8. PERMITS: LICENSES: TAXES. In compliance with Section 218.80, F.S., all permits necessary for the prosecution of the Work shall be obtained by the Contractor. The County will not be obligated to pay for any permits obtained by Subcontractors.

Payment for all such permits issued by the County shall be processed internally by the County.

All non-County permits necessary for the prosecution of the Work shall be procured and paid for by the Contractor. The Contractor shall also be solely responsible for payment of any and all taxes levied on the Contractor. In addition, the Contractor shall comply with all rules, regulations and laws of Collier County, the State of Florida, or the U. S. Government now in force or hereafter adopted. The Contractor agrees to comply with all laws governing the responsibility of an employer with respect to persons employed by the Contractor.

9. NO IMPROPER USE. The Contractor will not use, nor suffer or permit any person to use in any manner whatsoever, County facilities for any improper, immoral or offensive purpose, or for any purpose in violation of any federal, state, county or municipal ordinance, rule, order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. In the event of such violation by the Contractor or if the County or its authorized representative shall deem any conduct on the part of the Contractor to be objectionable or improper, the County shall have the right to suspend the Agreement of the Contractor. Should the Contractor fail to correct any such violation, conduct, or practice to the satisfaction of the County within twenty-four (24) hours after receiving notice of such violation, conduct, or practice, such suspension to continue until the violation is cured. The Contractor further agrees not to commence operation during the suspension period until the violation has been corrected to the satisfaction of the County.

10. TERMINATION. Should the Contractor be found to have failed to perform his services in a manner satisfactory to the County as per this Agreement, the County may terminate said Agreement for cause; further the County may terminate this Agreement for convenience with a thirty (30) day written notice. The County shall be the sole judge of non-performance.

In the event that the County terminates this Agreement, Contractor’s recovery against the County shall be limited to that portion of the Agreement Amount earned through the date of termination. The Contractor shall not be entitled to any other or further recovery against the County, including, but not limited to, any damages or any anticipated profit on portions of the services not performed.

11. NO DISCRIMINATION. The Contractor agrees that there shall be no discrimination as to race, sex, color, creed or national origin or any other class protected by federal or Florida law.

12. INSURANCE. The Contractor shall provide insurance as follows:

A. Commercial General Liability: Coverage shall have minimum limits of $_____________ Per Occurrence, $_____________ aggregate for Bodily Injury Liability and Property Damage Liability. The General Aggregate Limit shall be endorsed to apply per project.

This shall include Premises and Operations; Independent Contractors; Products and Completed Operations and Contractual Liability.

B. Business Auto Liability: Coverage shall have minimum limits of $_____________ Per Occurrence, Combined Single Limit for Bodily Injury Liability and Property Damage Liability.

This shall include: Owned Vehicles, Hired and Non-Owned Vehicles and Employee Non- Ownership.

C. Workers' Compensation: Insurance covering all employees meeting Statutory Limits in compliance with the applicable state and federal laws.

The coverage must include Employers' Liability with a minimum limit of $_____________ for each accident.

D. Professional Liability: Shall be maintained by the Contractor to ensure its legal liability for claims arising out of the performance of professional services under this Agreement.

Contractor waives its right of recovery against County as to any claims under this insurance.

Such insurance shall have limits of not less than $____________each claim and aggregate.

E. Cyber Liability: Coverage shall have minimum limits of $_____________ per claim.

F. : Coverage shall have minimum limits of $_____________per claim/occurrence.

G. : Coverage shall have minimum limits of $_____________per claim/occurrence.

H. : Coverage shall have minimum limits of $_____________per claim/occurrence.

Special Requirements: Collier County Board of County Commissioners, OR, Board of County Commissioners in Collier County, OR, Collier County Government shall be listed as the Certificate Holder and included as an “Additional Insured" on the Insurance Certificate for Commercial General Liability where required. This insurance shall be primary and non-contributory with respect to any other insurance maintained by, or available for the benefit of, the Additional Insured and the Contractor’s policy shall be endorsed accordingly.

Current, valid insurance policies meeting the requirement herein identified shall be maintained by Contractor during the duration of this Agreement. The Contractor shall provide County with certificates of insurance meeting the required insurance provisions. Renewal certificates shall be sent to the County thirty (30) days prior to any expiration date. Coverage afforded under the policies will not be canceled or allowed to expire until the greater of: thirty (30) days prior written notice, or in accordance with policy provisions. Contractor shall also notify County, in a like manner, within twenty-four (24) hours after receipt, of any notices of expiration, cancellation, non-renewal or material change in coverage or limits received by Contractor from its insurer, and nothing contained herein shall relieve Contractor of this requirement to provide notice.

Contractor shall ensure that all subcontractors comply with the same insurance requirements that the Contractor is required to meet.

13. INDEMNIFICATION. To the maximum extent permitted by Florida law, the Contractor shall defend, indemnify and hold harmless Collier County, its officers and employees from any and all liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys’ fees and paralegals’ fees, whether resulting from any claimed breach of this Agreement by Contractor, any statutory or regulatory violations, or from personal injury, property damage, direct or consequential damages, or economic loss, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Contractor or anyone employed or utilized by the Contractor in the performance of this Agreement. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified party or person described in this paragraph.

This section does not pertain to any incident arising from the sole negligence of Collier County.

13.1 The duty to defend under this Article 13 is independent and separate from the duty to indemnify, and the duty to defend exists regardless of any ultimate liability of the Contractor, County and any indemnified party. The duty to defend arises immediately upon presentation of a claim by any party and written notice of such claim being provided to Contractor.

Contractor’s obligation to indemnify and defend under this Article 13 will survive the expiration or earlier termination of this Agreement until it is determined by final judgment that an action against the County or an indemnified party for the matter indemnified hereunder is fully and finally barred by the applicable statute of limitations.

14. AGREEMENT ADMINISTRATION. This Agreement shall be administered on behalf of the County by the ___________________________________________________________.

15. CONFLICT OF INTEREST. Contractor represents that it presently has no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of services required hereunder. Contractor further represents that no persons having any such interest shall be employed to perform those services.

16. COMPONENT PARTS OF THIS AGREEMENT. This Agreement consists of the following component parts, all of which are as fully a part of the Agreement as if herein set out verbatim:

Contractor's Proposal, Insurance Certificate(s), Exhibit A Scope of Services, Exhibit B Fee Schedule, RFP/ ITB/ Other_______________________________ #____________, including Exhibits, Attachments and Addenda/Addendum, subsequent quotes and corresponding contract documents, Exhibit B-1 Public Payment Bond, Exhibit B-2 Public Performance Bond, Exhibit C Release and Affidavit Form, Exhibit D-1 Application for Payment Form, Exhibit D-2 Schedule of Values Form Exhibit D-3 Stored Materials Record Form Exhibit D-4 Cash Flow Projection Form Exhibit E-1 Change Order

Exhibit E-2 Work Directive Exhibit F-1 Certificate of Substantial Completion Exhibit F-2 Certificate of Final Completion Exhibit F-3 Punch List Form Exhibit G-1 Final Payment Checklist Exhibit G-2 - Warranty, and Other Exhibit H/Attachment:

17. APPLICABILITY. Only the sections corresponding to any checked box ( ) will apply to this

Agreement.

18. SUBJECT TO APPROPRIATION. It is further understood and agreed by and between the parties herein that this Agreement is subject to appropriation by the Board of County Commissioners.

19. PROHIBITION OF GIFTS TO COUNTY EMPLOYEES. No organization or individual shall offer or give, either directly or indirectly, any favor, gift, loan, fee, service or other item of value to any County employee, as set forth in Chapter 112, Part III, Florida Statutes, Collier County Ethics Ordinance No. 2004-05, as amended, and County Administrative Procedure 5311.

Violation of this provision may result in one or more of the following consequences: a.

Prohibition by the individual, firm, and/or any employee of the firm from contact with County staff for a specified period of time; b. Prohibition by the individual and/or firm from doing business with the County for a specified period of time, including but not limited to: submitting bids, RFP, and/or quotes; and, c. immediate termination of any Agreement held by the individual and/or firm for cause.

20. COMPLIANCE WITH LAWS. By executing and entering into this Agreement, the Contractor is formally acknowledging without exception or stipulation that it agrees to comply, at its own expense, with all federal, state and local laws, codes, statutes, ordinances, rules, regulations and requirements applicable to this Agreement, including but not limited to those dealing with the Immigration Reform and Control Act of 1986 as located at 8 U.S.C. 1324, et seq. and regulations relating thereto, as either may be amended, as well as the requirements set forth in Florida Statute, §448.095; taxation, workers’ compensation, equal employment and safety including, but not limited to, the Trench Safety Act, Chapter 553, Florida Statutes, and the Florida Public Records Law Chapter 119, if applicable, including specifically those contractual requirements at F.S. § 119.0701(2)(a)-(b) as stated as follows:

IT IS THE CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS

CONTRACT. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION

OF CHAPTER 119, FLORIDA STATUTES, IT SHOULD CONTACT THE CUSTODIAN OF

PUBLIC RECORDS AT:

Communications, Government and Public Affairs Division 3299 Tamiami Trail East, Suite 102

Naples, FL 34112-5746 Telephone: (239) 252-8999

Email: PublicRecordRequest@colliercountyfl.gov

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

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

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

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

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

If Contractor observes that the Contract Documents are at variance therewith, it shall promptly notify the County in writing. Failure by the Contractor to comply with the laws referenced herein mailto:PublicRecordRequest@colliercountyfl.gov shall constitute a breach of this Agreement and the County shall have the discretion to unilaterally terminate this Agreement immediately.

21. OFFER EXTENDED TO OTHER GOVERNMENTAL ENTITIES. Collier County encourages and agrees to the successful Contractor extending the pricing, terms and conditions of this solicitation or resultant Agreement to other governmental entities at the discretion of the successful Contractor.

22. BONDS.

A. When a construction project is in excess of $200,000, the Contractor(s) shall be required to provide Payment and Performance Bonds.

B. When required by Owner, the Contractor shall furnish a Performance and/or Payment Bond prior to commencing performance, for the full amount of the Work, which shall act as a security guaranteeing the performance of the Contractor’s work and the payment by the Contractor to any other party(ies) providing labor and/or materials in connection with each construction or renovation project performed by the Contractor. The bonds shall be furnished using the forms prescribed in Exhibit “B-1” and Exhibit “B-2”.

C. If the surety for any bond furnished by Contractor is declared bankrupt, becomes insolvent, its right to do business in the State of Florida, terminates or it ceases to meet the requirements imposed by the Contract Documents, the Contractor shall, within five

(5) calendar days thereafter, substitute another bond and surety, both of which shall be subject to the Owner’s approval.

23. LIQUIDATED DAMAGES. The “Commencement Date” shall be established in the Notice to

Proceed to be issued by the Owner. 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.

The Work shall be substantially completed within the time specified in the Request for Quotation/Scope of Work. 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 Exhibit F-3 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, Exhibit F-1.

Owner and Contractor recognize that since time is of the essence for any work under this Agreement, Owner will suffer financial loss if the Work is not substantially completed within the time specified in the Request for Quotation. Should Contractor fail to substantially complete the Work within the specified time period, Owner shall be entitled to assess as liquidated damages, but not as a penalty, the amount specified in the Request for Quotation/Scope of Work for each calendar day thereafter until substantial completion is achieved.

The Project shall be deemed to be substantially completed on the date the Owner issues a Certificate of Substantial Completion pursuant to the terms hereof. 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 complete the Work in a timely manner.

The Work shall reach Final Completion and be ready for final acceptance by Owner as established in the Request for Quotation. 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. 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.

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

24. PAYMENTS. Generally, the Contractor will be paid upon completion; however, for Work in excess of thirty (30) days, the Contractor may request to receive Progress Payments.

Subsequent to the first payment, Contractor must provide Owner with a fully executed Release and Affidavit in the form attached hereto as Exhibit C as a condition precedent to release of each progress payment. All applications for payment, whether for full payment or a progress payment shall be in writing, and in substantially the form attached hereto as Exhibit D-1. The process for submitting applications for Progress Payments is set forth below:

24.1 Progress Payments: At least ten (10) days prior to submitting a monthly Application for Payment, the Contractor shall submit to the Project Manager a final schedule of values and “cash flow projection” that establishes the projected date for the construction/installation for all activities of the Work shown on the accepted schedule, including quantities and unit prices totaling to the Contract Price. 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 Exhibit D-2. 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-1 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.

24.2 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.

24.3 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.

24.4 The cash flow projection shall be a fixed monthly projection of the value of Work in place. If the actual cash flow (represented by the Application for Payment) for any month is less than eighty-five percent (85%) of the projected amount for that month (as established by the Contractor in the cash flow projection form it submits), then the Contractor may be barred from bidding other County projects until the value of Work in place is corrected and within ninety-five (95%) of the projected value. (See attached Exhibit D-4, Cash Flow Projection form).

24.5 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.

24.6 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.

24.7 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, Florida Statutes.

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, Florida Statutes. Any reduction in retainage below the maximum amount set forth in Section 255.078, Florida Statutes 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 Florida Statute 255.078. Any interest earned on retainage shall accrue to the benefit of the Owner.

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

24.9 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.

24.10 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. Accordingly, prior to submitting its first monthly Application for Payment, Contractor shall prepare and submit for Project Manager's review and approval, a detailed Cash Flow Projection, which shall be updated as necessary and approved by Owner to reflect approved adjustments to the Contract Amount and Contract Time. No voluntary acceleration or early completion of the Work shall modify the time of payments to Contractor as set forth in Exhibit D-4, Cash Flow Projection.

24.11 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.

24.12 Payments will be made for services furnished, delivered, and accepted, upon receipt and approval of invoices submitted on the date of services or within six (6) months after completion of contract. 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.

24.13 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.

25. PAYMENTS WITHHELD. Owner may decline to approve any application for payment, or portions thereof, because of defective or incomplete work, outstanding punch list items, subsequently discovered evidence or subsequent inspections that reveal non-compliance with the Contract Documents. The Owner may nullify the whole or any part of any approval for payment previously issued and Owner may withhold any payments otherwise due to 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 failed or reasonable evidence indicating probable fling 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 the Contractor.

If any conditions described above are not remedied or removed, Owner may, after three (3) days written notice, rectify the same at Contractor’s expense. Owner also may offset against any sums due Contractor the amount of any liquidated or unliquidated obligations of Contractor to Owner, whether relating to or arising out of this Agreement or any other Agreement between Contractor and Owner. 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 Contractor for services performed or for materials delivered in association with a contract.

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.

26. SUBMITTALS AND SUBSTITUTIONS. Any substitution of products/materials from specifications shall be approved in writing by Owner in advance. No substitute will be ordered, installed or utilized without the Project Manager's prior written acceptance which shall be evidenced by a Change Order, a Work Directive Change, a Field Order or an approved Shop Drawing. The Owner may require Contractor to furnish at Contractor's expense a special performance guarantee or other surety with respect to any substitute. The Project Manager will record time required by the Project Manager and the Project Manager's consultants in evaluating substitutions proposed by Contractor and making changes in the Contract Documents occasioned thereby. Whether or not the Owner accepts a proposed substitute, Contractor shall reimburse Owner for the charges of the Design Professional and the Design Professional's consultants for evaluating each proposed substitute. 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.

27. CONTRACT TIME AND TIME EXTENSIONS.

A. Time is of the essence in the performance of any Work under this Agreement and Contractor shall diligently pursue the completion of the Work and coordinate the Work being done on the Project by its subcontractors and materialmen, 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 Contractor.

Contractor 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 Owner’s supplies and contractors.

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

C. No interruption, interference, inefficiency, suspension or delay in the commencement or progress of the Work from any cause whatever, including those for which Owner may be responsible, in whole or in part, shall relieve Contractor of his duty to perform or give rise to any right to damages or additional compensation from Owner. Contractor expressly acknowledges and agrees that it shall receive no damages for delay.

Contractor’s sole remedy, if any, against Owner will be the right to seek an extension to the Contract Time; provided, however, the granting of any such time extension shall not be a condition precedent to the aforementioned “No Damage for Delay” provision. This paragraph shall expressly apply to claims for early completion, as well as to claims based on late completion.

28. CHANGES IN THE WORK. Owner shall have the right at any time during the progress of the Work to increase or decrease the Work. Promptly after being notified of a change, Contractor shall submit an itemized estimate of any cost or time increases or savings it foresees as a result of the change. Except in an emergency endangering life or property, or as expressly set forth herein, no addition or changes to the Work shall be made except upon written order of Owner in the form of a Work Directive, Exhibit E-2, and Owner shall not be liable to the Contractor for any increased compensation without such written order. No officer, employee or agent of Owner is authorized to direct any extra or changed work orally. Any alleged changes must be approved by Owner in writing prior to starting such items. Owner will not be responsible for the costs of any changes commenced without Owner’s express prior written approval. Failure to obtain such prior written approval for any changes will be deemed:

(i) a waiver of any claim by Contractor for such items and (ii) an admission by Contractor that such items are in fact not a change but rather are part of the Work required of Contractor hereunder.

A Change Order in the form attached as Exhibit “E-1” to this Agreement, shall be issued and executed promptly after an Agreement is reached between Contractor and Owner concerning the requested changes. Contractor shall promptly perform changes authorized by duly executed Change Orders. The Contract Amount and Contract Time shall be adjusted in the Change Order in the manner as Owner and Contractor shall mutually agree.

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 Subsidiary of the Company holds any ownership interest, directly or indirectly.

29. CLEAN UP. Contractor 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, Contractor 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.

30. STANDARDS OF CONDUCT: PROJECT MANAGER, SUPERVISOR, EMPLOYEES. The

Contractor shall employ people to work on County projects who are neat, clean, well-groomed and courteous. Subject to the American with Disabilities Act, Contractor shall supply competent employees who are physically capable of performing their employment duties. The County may require the Contractor to remove an employee it deems careless, incompetent, insubordinate or otherwise objectionable and whose continued employment on Collier County projects is not in the best interest of the County.

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

32. PROTECTION OF WORK.

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

B. Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it.

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

33. 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 thereto, Contractor, without special instruction or authorization from Owner is obligated to act to prevent…