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Agenda 03/11/2008 Item #10H Agenda Item No, 10H March 11, 2008 Page 1 of 22 Executive SUmmary Recommendation to approve Contract 08-5011 to D.N. Higgins, Incorporated; Kyle Construction Corporation; Quality Enterprises, Incorporated; Mitchell and Stark Corporation; and Haskins, Incorporated, in the estimated amount of $2,000,000 for underground contractor services. OBJECTIVE: To obtain Board of County Commissioners, as Ex-officio, the Governing Board of the Collier County Water-Sewer District, approval ofa professional services agreement with D,N. Higgins, Kyle Construction Corporation, Quality Enterprises, Incorporated, Mitchell and Stark Corporation, and Haskins, Incorporated for underground contractor services. CONSIDERATION: On June 6, 2006, as Agenda Item lOB, the Board of County Commissioners (Board) adopted the 2005 Water Master Plan Update that identified a number of projects that will require the services of an underground contractor, Additionally, the Water, Wastewatcr, and Transportation Departments require to have both scheduled and unscheduled work completed by the underground contractors, The types of work include repair of water mains, collection forcemains, and storm sewers, All work will be issued per the requirements outlined in the contract that will be executed with each of the selected firms, A Request for Proposal was advertised on October 29,2007. Notices were sent to eleven firms with seven vendors submitting full packages. All responses were deemed to meet the requirements of the Request for Proposal. The Selection Committee selected the top five ranked fIrms and a contract has been negotiated for each by the Purchasing Department. FISCAL IMPACT: Funding is available in and is consistent with the FY08 Capital Budget approved by the Board on September 20, 2007. The exact funding required will depend upon the number of capital projects that are funded and the number of scheduled and unscheduled maintenance tasks assigned under this contract. The source of funding is the Water User Fee Fund (4l2), Wastewater User Fee Fund (414), Water and Sewer User Fees Fund (408), GROWTH MANAGEMENT IMPACT: This project is consistent with and furthers the goals, objectives, and policies of the Collier County Growth Management Plan. RECOMMENDA nON: That the Board of County Commissioners, Ex-officio, the Governing Board of the Collier County Water-Sewer District: 1. Award Contract 08-5011 to D.N. Higgins, Incorporated, Kyle Construction Corporation, Mitchell and Stark, Incorporated, Quality Enterprises, Incorporated, and Haskins, Corporation in the estimatcd amount of $2,000,000 for underground services. 2. Authorize the Chairman of the Board of County Commissioners to execute the contracts with each selected vendor after approval by the County Attorney's Office. PREPARED BY: Pamela Libby, Water Operations Manager Page I of2 Agenda Item NO.1 OH March 11, 2008 Page 2 of 22 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Meeting Date: 10H Recommendation to approve Contract 08-5011 to D.N. Higgins, Incorporated: Kyle Construction Corporation: Quality Enterprises, Incorporated: Mitchell and Stark Corporation; and Haskins, Incorporated, in the estimated amount of $2,000,000 for underground contractor services. (Pam libby, Operations Manager) 31111200890000 AM Item Number: Item Summary: Prepared By Pamela Libby Water Operations Manager Date Public Utilities Water 2116/20081 :32:06 PM Approved By Pamela Libby Water Operations Manager Date Public Utilities Water 2/1612008 1 :33 PM Approved By Paul Mattausch Water Director Date Public Utilities Water 2/201200810:10 AM Approved By Jack P. Curran Purchasing Agent Date Administrative Services Purchasing 2/22/2008 2:33 PM Approved By Dianna Perryman Contract Specialist Date Administrative Services Purchasing 2/22/2008 3: 23 PM Approved By Thomas Wides Operations Director Date Public Utilities Public Utilities Operations 2125120089:43 AM Approved By G. George Yilmaz WasteWater Director Date Public Utilities WasteWater 2/25/2008 9:50 AM Approved By Steve Carnell Purchasing/General Svcs Director Date Administrative Services Purchasing 2/25120083:16 PM Approved By James W. DeLony Public Utilities Administrator Date Public Utilities Public Utilities Administration 2/26/2008 8:30 AM file://C:\AgendaTest\Export\ 1 02-March%20 11,%202008\ 1 O,%20COUNTY%20MANAGER... 3/5/2008 Page 2 of 2 Agenda Item No, 10H March 11. 2008 Page 3 of 22 Approved By OMS Coordinator Applications Analyst Date Administrative Services Information Technology 2/26/2008 1,15 PM Approved By Susan Usher Senior ManagemenUBudget Analyst Date County Manager's Office Office of Management & Budget 2/29/20084,12 PM Approved By James V. Mudd Board of County Commissioners County Manager Date County Manager's Office 3/3/200812,47 PM file://C:\AgendaTest\Export\1 02-March%20 I J ,%202008\1 O,%20COUNTY%20MANAGER... 3/5/2008 A G R E E MEN T 08-5011 Agenda Item No, 10H March 11, 2008 Page 4 of 22 for "Annual Contract for Underaround Utilitv Contractina Services" THIS AGREEMENT is made and entered into this day of , 2008, by and between the Board of County Commissioners for Collier County, Florida, a political subdivision of the State of Florida (hereinafter referred to as the "County" or "Owner") and Mitchell & Stark Construction authorized to do business in the State of Florida, whose business address is 6001 Shirley Street, Naples, Florida 34109 (hereinafter referred to as the "Contractor"). WIT N E SSE T H: 1. COMMENCEMENT: The contract shall be for the period of twenty four (24) months. Additionally, by mutual agreement and funding availability, the contract may be renewed for two (2) terms of twenty four (24) months each, In no event, including renewal options, shall the contract exceed six (6) years. The Purchasing/General Services Director 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 eighty (180) days. The Purchasing/General Services Director, or his designee, shall give the Contractor written notice of the County's intention to extend the Agreement term not less than ten (10) days prior to the end of the Agreement term then in effect. 2. STATEMENT OF WORK: The Board of County Commissioners deemed five firms to be pre- qualified and awarded a Contract to each firm, Each awardee will enter into an Agreement to provide complete services for a wide range of minor-to-medium scale future construction, renovation and retrofit projects on an as-needed basis as may be required by the Owner in accordance with the terms and conditions of RFP 08-5011 and the Contractor's proposal made an integral part of this agreement. The execution of this Agreement shall not be a commitment to the Contractor that any work will be awarded to the Contractor. Rather, this Agreement governs the rights and obligation of the Quotation procedure outlined in the next paragraphs and all Work undertaken by Contractor for Owner pursuant to this Agreement and that procedure during the term and any extension of the term of this Agreement. The Owner shall provide a summary of Work to be performed which will afford the Contractor the opportunity to submit a formal quotation for the Work; the Contractor shall respond with the information sought within seven (7) working days. For projects with an estimated cost of Fifty Thousand ($50,000) or less, the Owner shall obtain a proposal from one or more of the five (5) selected firms, negotiate favorable project terms and conditions, and issue a numbered Work Order to initiate the projects, For projects with an estimated cost over Fifty Thousand Dollars ($50,000) and less than Two Hundred Thousand Dollars ($200,000), competitive quotes shall be solicited from all of the contracted firms; the Contractor shall respond with the information and or proposal sought within ten (10) working days, the Owner shall negotiate favorable project terms and conditions, and issue a numbered Work Order to initiate the projects, Division Administrator and County Attorney approval is required at this level. For projects over Two Hundred Thousand Dollars ($200,000) and less than Seven Hundred Fifty Thousand ($750,000), competitive quotations shall be solicited from all of the contracted firms. Page-1- Agenda Item No, 10H March 11, 2008 Staff recommendations will then be submitted to the Board of County CommissionerS'l\!l~a~ii@val after County Attorney and Division Administrator approval. In each Request for Quotation, the Owner reserves the right to specify the period of completion and the collection of liquidated damages in the event of late completion. Work orders shall not be required for emergency work but will be authorized by Purchase Order only. The Forms attached to this Agreement as Exhibits A through D shall not be required for emergency work, The Contractor will be compensated for time and material work, either emergency or scheduled, in accordance with the rate sheet with material and specialty equipment markup. 3. EMERGENCY WORK: Contractors under this Agreement will be on an on-call rotation schedule for emergency underground utility contracting services, The on-call Contractor shall be required to have a cell phone number, along with a home number, to the County so that the County will be able to contact the Contractor when needed, This schedule will be rotated on a one (1) week basis, In the event that a Contractor cannot be on-call as scheduled, it will be rotated to the next scheduled Contractor, and the schedule will continue with each Contractor having no more than two (2) weeks in a row on-call. 4. THE CONTRACT SUM: The Owner shall pay the Contractor for the performance of the Work pursuant to the quoted price offered by the Contractor in his response to a specific Request for Quotation. Any County agency may utilize the service offered under this contract, provided sufficient funds are included in their budget(s). 5. NOTICES: All notices from the County to the Contractor shall be deemed duly served if maiied by registered or certified mail to the Contractor at the following address: Mitchell & Stark Construction Brian Penner, CEO 6001 Shirley Street Naples, Florida 34109 Phone: 239-597-2165 Fax: 239-566-7865 All notices from the Contractor to the County shall be deemed duly served if mailed by registered or certified mail to the County at the following address: Collier County Government Complex Attn: Purchasing/General Services Director Purchasing Department 3301 East Tamiami Trail Purchasing Building G Naples, Florida 34112 239-252-8407 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 Service Agreement must be in writing. Page -2- Agenda Item No, 10H March 11, 2008 Page 6 of 22 6. 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. 7. PERMITS: LICENSES: TAXES: In compliance with Section 218.80, Florida Statutes, all permits necessary for the prosecution of the Work shall be obtained by the Contractor. Payment for all such permits issued by the County shall be processed internally by the County. Contractor is not responsible for paying for permits issued by Collier County, but is responsible for acquiring all permits. Owner may require the Contractor to deliver internal budget transfer documents to applicable Collier county agencies when the Contractor is acquiring permits. All permits, fees and licenses necessary for the prosecution of the Work which are not issued by Collier County shall be acquired and paid for by the Contractor. 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, 8. 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 Contract 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, 9. TERMINATION: Should the Contractor be found to have failed to perform his services in a manner satisfactory to the County and requirements of this Agreement, the County may terminate said Agreement immediately for cause; further the County may terminate this Agreement for convenience with a seven (7) day written notice. The County shall be sole judge of non- performance. 10. NO DISCRIMINATION: The Contractor agrees that there shall be no discrimination as to race, sex, color, creed or national origin, 11. INSURANCE: The Contractor shall provide insurance as follows: A. Commercial General Liabilitv: Coverage shall have minimum limits of $2,000,000 Per Occurrence, Combined Single Limit for Bodily Injury Liability and Property Damage Liability. This shall include Premises and Operations; Independent contractors; Products and Completed Operations and Contractual Liability. B. Business Auto Liabilitv: Coverage shall have minimum limits of $1,000,000 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. Page -3- Agenda Item NO.1 OH March 11, 2008 C. Workers' Compensation: Insurance covering all employees meeting Statut6llyellimitl; in compliance with the applicable state and federal laws. The coverage must include Employers' Liability with a minimum limit of $500,000 for each accident. Special Requirements: Collier County Board of County Commissioners shall be listed as the Certificate Holder and included as an Additional Insured on the Comprehensive General Liability. Current, valid insurance policies meeting the requirement herein identified shall be maintained by Contractor during the duration of this Agreement. Renewal certificates shall be sent to the County 30 days prior to any expiration date, There shall be a thirty (30) day notification to the County in the event of cancellation or modification of any stipulated insurance coverage. Contractor shall insure that all subcontractors comply with the same insurance requirements that he is required to meet. The same Contractor shall provide County with certificates of insurance meeting the required insurance provisions. 12, INDEMNIFICATION: To the maximum extent permitted by Florida law, the ContractorNendor/Consultant shall 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, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the ContractorNendor/Consultant or anyone employed or utilized by the ContractorNendor/Consultant 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.BONDS. A. The Owner shall use its discretion for bonding where a project may be in excess of fifty thousand dollars ($50,000) but completed in less than sixty (60) days. 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 in excess of fifty thousand dollars ($50,000). The bonds shall be furnished using the forms prescribed in Exhibit "A". C. 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 another bond and surety, both of which shall be subject to the Owner's approval. 14. PAYMENTS. Generally, the Contractor will be paid upon completion; however, for Work in excess of thirty (30) days, the Contractor may indicate on his response to the Request for Quotation his wish to receive Progress Payments. Before any payment will be made, Contractor must provide Owner with a fully executed Release and Affidavit in the form attached hereto as Exhibit "B" as a condition precedent to release of each progress payment. All applications fOI Page -4- Agenda Item No. 10H March 11, 2008 payment, whether for full payment or a progress payment shall be in writing, and inPsgtl~ahlially the form attached hereto as Exhibit "C". 15.PAYMENTS WITHHELD. Owner may decline to approve any Application for Payment, or portions thereof, because of defective or incomplete work, outstanding punchlist items, subsequently discovered evidence or subsequent inspections. The Owner 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 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. 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. 16. SUBMITTALS AND SUBSTITUTIONS. Any substitution of products/materials from specifications shall be approved in writing by Owner in advance, 17. 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, Page -5- Agenda Item NO.1 OH March 11, 2008 Page 9 of 22 18,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 0, 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, and Owner shall not be liable to the Contractor for any increased compensation without such written order, No office, employee or agent of Owner is authorized to direct any extra or changed work orally, A Change Order in the form attached as Exhibit "0" 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, 19. COMPLIANCE WITH LAWS, Contractor agrees to comply, at its own expense, with all federal, state and local laws, codes, statutes, ordinances, rules, regulations and requirements applicable to the Project, including but not limited to those dealing with taxation, workers' compensation, equal employment and safety (including, but not limited to, the Trench Safety Act, Chapter 553, Florida Statutes). If Contractor observes that the Contract Documents are at variance therewith, it shall promptly notify Owner in writing, 20. 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 and ready for occupancy by Owner. 21,ASSIGNMENT. Contractor shall not assign this Agreement or any part thereof, without the prior consent in writing of Owner. If Contractor does, with approval, assign this Agreement or any part thereof, it shall require that its assignee be bound to it and to assume toward Contractor all of the obligations and responsibilities that Contractor has assumed toward Owner, 22. WARRANTY, Contractor shall obtain and assign to Owner all express warranties given to Contractor or any subcontractors by any materialmen supplying materials, equipment or fixtures to be incorporated into the Project. Contractor warrants to Owner that any materials and equipment furnished under the Contract Documents shall be new unless otherwise specified, and that all Work shall be of good quality, free from all defects and in conformance with the Contract Documents. Contractor further warrants to Owner that all materials and equipment furnished under the Contract Documents shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturers, fabricators, suppliers or processors except as otherwise provided for in the Contract Documents. If, within one (1) year after final completion, any Work is found to be defective or not in conformance with the Contract Documents, Contractor shall correct it promptly after receipt of written notice from Owner. Contractor shall also be responsible for and pay for replacement or repair of adjacent materials or Work which may be damaged as a result of such replacement 0. Page -6- Agenda Item No, 10H March 11, 2008 repair. These warranties are in addition to those implied warranties to which Ownel'~9Ee1iti~as a matter of law. ; 23. EMPLOYEES. The Contractor shall employ people to work at the Owner's facilities who are neat, clean, well groomed and courteous. 24. 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 Owner 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 Owner. 25. 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 Owner or Owner'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 Owner with respect to the Project. If Contractor, or its subcontractors, agents or anyone, for whom Contractor is legally liable, disturbs the Owner's benchmarks, Contractor shall immediately notify Owner. The Owner shall re-establish the benchmarks and Contractor shall be liable for all costs incurred by Owner associated therewith. 26, 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 threatened damage, injury or loss. Contractor shall give the Owner written notice within forty-eight (48) hours after the occurrence of the emergency, if Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby, If the Owner determines that a change in the Contract Documents is required because of the action taken in response to an emergency, a Change Order shall be issued to document the consequences of the changes or variations, If Contractor fails to provide the forty-eight (48) hour written notice noted above, the Contractor shall be deemed to have waived any right it otherwise may have had to seek an adjustment to the Contract Amount or an extension to the Contract Time. 27, COMPLETION. When the entire Work (or any portion thereof designated in writing by Owner) is ready for its intended use, Contractor shall notify Owner in writing that the entire Work (or such designated portion) is substantially complete and request that Owner issue a Certificate of Completion (substantial or final Certificate of Completion), Within a reasonable time thereafter, Owner and Contractor shall make an inspection of the Work (or designated portion thereof) to Page-7- Agenda Item No, 10H March 11, 2008 determine the status of completion. If Owner does not consider the Work (or desi~d1pl:1r.tibn) substantially complete, the Owner shall notify Contractor in writing giving the reasons therefor. If Owner considers the Work (or designated portion) substantially complete, Owner shall preparE. and deliver to Contractor a Certificate of Completion (substantial or final Certificate of Completion) which shall fix the date of Substantial Completion for the entire Work (or designated portion thereof) and include a tentative punchlist of items to be completed or corrected by Contractor before final payment. Owner shall have the right to exclude Contractor from the Work and Project site (or designated portion thereof) after the date of Substantial Completion, but Owner shall allow Contractor reasonable access to complete or correct items on the tentative punchlist. Upon receipt of written certification by Contractor that the Work is completed in accordance with the Contract Documents and is ready for final inspection and acceptance, and upon receipt of a final Application for Payment, Owner will make such inspection and, if Owner finds the Work acceptable and fully performed under the Contract Documents, he shall promptly issue a final Certificate for Payment, recommending that on the basis of his observations and inspections, and the Contractor's certification that the Work has been completed in accordance with the terms and conditions of the Contract Documents, that the entire balance found to be due Contractor is due and payable. Final payment shall not become due and payable until Contractor submits: (1) The Release and Affidavit in the form attached as Exhibit "B", (2) Consent of Surety (if applicable) to final payment. (3) If required by Owner, other data establishing payment or satisfaction of all obligations, such as receipt, releases and waivers of liens, arising out of the Contract Documents, to the extent and in such form as may be designated by Owner. Owner reserves the right to inspect the Work and make an independent determination as to the Works acceptability. Unless and until the Owner is completely satisfied, the final payment shall not become due and payable, 28, 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, The date of substantial completion of the Work (or designated portions thereof) is the date certified by the Owner 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, The Work shall reach final completion and be ready for final acceptance by Owner within the time specified in the Request for Quotation, 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 for each calendar da) thereafter until substantial completion is achieved. Page -8- Agenda Item No. 10H March 11, 2008 Page 12 of 22 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 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. 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, 29, CONTRACT ADMINISTRATION. This Agreement shall be administered on behalf of the County by the Public Utilities Engineering Department. 30.COMPONENT PARTS OF THIS CONTRACT. This Contract consists of the attached or referenced component parts, all of which are as fully a part of the Agreement as if herein set out verbatim, including: Contractor's Proposal, Insurance Certificate, Request for Proposal No. 08- 5011, any addenda, Exhibits A, B, C and D, any Quotation/Work Order made or issued pursuant to this Agreement, and any related plans or specifications for any such Quotations or Work Orders. 31.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. 32. 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, 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 slaff 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 contract held by the individual and/or firm for cause. 33. IMMIGRATION LAW COMPLIANCE: By executing and entering into this agreement, the Contractor is formally acknowledging without exception or stipulation that it is fully responsible for complying with the provisions of the Immigration Reform and Control Act of 1986 as located at 8 U.S.C, 1324, et seq. and regulations relating thereto, as either may be amended. Failure by the Contractor to comply with the laws referenced herein shall constitute a breach of this agreement and the County shall have the discretion to unilaterally terminate this agreement immediately. 34. VENUE: Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. Page -9- Agenda Item NO.1 OH March 11, 2008 35. OFFER EXTENDED TO OTHER GOVERNMENTAL ENTITIES: Collier County erRmr~QS28nd agrees to the successful proposer extending the pricing, terms and conditions of this solicitation or resultant contract to other governmental entities at the discretion of the successful proposer. IN WITNESS WHEREOF, the Contractor and the County, have each, respectively, by an authorized person or agent, hereunder set their hands and seals on the date and year first above written. ATTEST: Dwight E. Brock, Clerk of Courts BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA By: By: , Chairman Dated: (Seal) Mitchell & Stark Construction Contractor By: First Witness Signature Type/Print Witness Name Typed Signature Second Witness Title Type/Print Witness Name Approved as to form and legal sufficiency: Robert N. Zachary Assistant County Attorney Page -10- EXHIBIT A PUBLIC PAYMENT BOND Agenda Item NO.1 OH March 11, 2008 Page 14 of 22 Bond No, Contract No. 08-5011 KNOW ALL ME BY THESE PRESENTS: That are held and firmly bound to Oblige in the sum of ($ ) for the payment whereof we bind ourselves, our heirs, executors, personal representatives, successors and assigns, jointly and severally. , as , as Surety, located at_ (Business Address) as Principal, and WHEREAS, Principal has entered into a contract dated as of the ,200_, with Oblige for day of in accordance with drawings and specifications, which contract is incorporated by reference and made a part hereof, and is referred to as the Contract. THE CONDITION OF THIS BOND is that if Principal: Promptly makes payment to all claimants as defined in Section 255,05(1), Florida Statutes, supplying Principal with labor, materials or supplies, used directly or indirectly by Principal in the prosecution of the work provided for in the contract, then this bond is void; otherwise it remains in full force. Any changes in or under the Contract and compliance or noncompliance with any formalities connected with the Contract or the changes do not affect sureties obligation under this Bond, The provisions of this bond are subject to the time limitations of Section 255,0592. In no event will the Surety be liable in the aggregate to claimants for more than the penal sum of this Payment Bond, regardless of the number of suits that may be filed by claimants. IN WITNESS WHEREOF, the above parties have executed this instrument this day of 200_, the name of under-signed representative, pursuant to authority of its governing body. Page-11- Signed, sealed and delivered in the presence of: Agenda Item No, 10H March 11. 2008 Page 15 of 22 PRINCIPAL: By: Name: Its: Witnesses as to Principal The foregoing instrument was acknowledged before me this of ,U cl corporation, on behalf of the corporation, He/she is personally as identification and did (did STATE OF COUNTY OF ,a known to me OR has produced not) take an oath, My Commission Expires: (AFFIX OFFICIAL SEAL) ATTEST: Witness as to Surety 200_, by _ (Signature of Notary) Name: (Legibly Printed) Notary Public, State of Commission No,: SURETY: (Printed Name) (Business Address) (Authorized Signature) (Printed Name) OR Page -12- Agenda Item No, 10H March 11, 2008 Paqe 16 of 22 As Attorney in Fact (Attach Power of Attorney) Witnesses (Business Address) (Printed Name) (Telephone Number) STATE OF COUNTY OF The foregoing instrument was acknowledged before me this _ day of 200_, by ,as of , Surety, on behalf of Surety, He/She is personally known to me OR has produced as identification and who did (did not) take an oath, My Commission Expires: (Signature of Notary) Name: (Legibly Printed) (AFFIX OFFICIAL SEAL) Notary Public, State of Commission No,: Page-13- EXHIBIT A-1 PUBLIC PERFORMANCE BOND Agenda Item No, 10H March 11, 2008 Page 17 of 22 Bond No, Contract No, 08-5011 KNOW ALL MEN BY THESE PRESENTS: That , as Principal, and , as Surety, located at (Business Address) are held and firmly bound to , as Oblige in the sum of ($ ) for the payment whereof we bond ourselves, our heirs, executors, personal representatives, successors and assigns, jointly and severally, WHEREAS, Principal has entered into a contract dated as of the _ day of 200_, with Oblige for in accordance with drawings and specifications, which contractor is incorporated by reference and made a pat hereof, and is referred to as the Contract. THE CONDITION OF THIS BOND is that if Principal: 1, Performs the Contract at the times and in the manner prescribed in the Contract, and 2, Pays Oblige any and all losses, damages, costs and attorneys' fees that Oblige sustains because 0' any default by Principal under the Contract, including, but not limited to, all delay damages, whether liquidated or actual, incurred by Oblige; and 3, Performs the guarantee of all work and materials furnished under the Contract for the time specified in the Contract, then this bond is void; otherwise it remains in full force, Any changes in or under the Contract and compliance or noncompliance with any formalities connected with the Contract or the changes do not affect Sureties obligation under this bond, The Surety, for value received, hereby stipulates and agrees that no changes, extensions of time, alterations or additions to the terms of the Contract or other work to be performed hereunder, or the specifications referred to therein shall in anywise affect its obligations under this bond, and it does hereby waive notice of any such changes, extensions of time, alternations or additions to the terms of the Contract or to work or to the specifications, Page-14- Agenda Item No, 10H March 11, 2008 This instrument shall be construed in all respects as a common law bond. It is expreS5l~EUtftjetS'lOod that the time provisions and statute of limitations under Section 255,05, Florida Statutes, shall not apply to this bond. In no event will the Surety be liable in the aggregate to Oblige for more than the penal sum of this Performance bond regardless of the number of suits that may be filed by Oblige, IN WITNESS WHEREOF, the above parties have executed this instrument this _ day of 200_, the name of each party being affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body, Signed, sealed and delivered in the presence of : PRINCIPAL: Witnesses as to Principal By: Name: Its: STATE OF COUNTY OF The foregoing instrument was acknowledged before me this _ day of 200_, by ,as of , a corporation, on behalf of the corporation, He/She is personally known to me OR has prOduced as identification and did (did not) take an oath. \ My Commission Expires: (Signature of Notary) Name: (legibly Printed) (AFFIX OFFICIAL SEAL) Notary Public, State of Commission No,: Page -15- ATTEST: SURETY: Agenda Item No, 10H March 11, 2008 Page 19 of 22 (Printed Name) (Business Address) (Authorized Signature) Witness as to Surety (Printed Name) OR As Attorney in Fact (Attach Power of Attorney) Witnesses (Business Address) (Printed Name) (Teiephone Number) STATE OF COUNTY OF The foregoing instrument was acknowledged before me this _ day of 200_, by ,as of , Surety, on behalf of Surety, He/She is personally known to me OR has produced as identification and who did (did not) take an oath. My Commission Expires: (Signature of Notary) Name: (Legibiy Printed) (AFFIX OFFICIAL SEAL) Notary Public, State of Commission No,: Page-16- EXHIBIT B RELEASE AND AFFIDAVIT FORM Agenda Item No. 10H March 11, 2008 Page 20 of 22 COUNTY OF COLLIER ) STATE OF FLORIDA ) Before me, the undersigned authority, personally appeared who after being duly sworn, deposes and says: (1) In accordance with the Contract Documents and in consideration of $ paid, ("Contractor") releases and waives for itself and it's subcontractors, material-men, successors and assigns, all claims demands, damages, costs and expenses, whether in contract or in tort, against the Board of County Commissioners of Collier County, Florida, relating in any way to the performance of the Agreement between Contractor and Owner, dated 200_ for the period from to (2) Contractor certifies for itself and its subcontractors, material-men, successors and assigns, that all charges for labor, materials, supplies, lands, licenses and other expenses for which Owner might be sued or for which a lien or a demand against any payment bond might be filed, have been fully satisfied and paid, (3) Contractor agrees to indemnify, defend and save harmless Owner from all demands or suits, actions, claims of liens or other charges filed or asserted against the Owner arising out of the performance by Contractor of the Work covered by this Release and Affidavit. (4) This Release and Affidavit is given in connection with Contractor's [monthlylfinalj Application for Payment No._ CONTRACTOR BY: ITS: President DATE: Witnesses [Corporate Seal] STATE OF COUNTY OF The foregoing instrument was acknowledged before me this _ day of 200_, by , as of , a corporation, on behalf of the corporation. personally known to me or has produced identification and did (did not) take an oath. He/she is as My Commission Expires: (Signature of Notary) NAME: (Legibly Printed) (AFFIX OFFICIAL SEAL) Notary Public, State of Commissioner No.: Page -17- EXHIBIT C FORM OF CONTRACT APPLICATION FOR PAYMENT Agenda Item NO.1 OH March 11. 2008 Page 21 of 22 (County Project Manager) RFP No, 08-5011 (County Department) Project No, Collier County Board of County Commissioners (the OWNER) Application Date FROM: (Contractor's Representative) (Contractor's Name) (Contractor's Address) Payment Application No. for Work accomplished through the Date: RE: (Project Name) Original Contract Time: Revised Contract Time: % Original Contract Amount: $ Total Change Orders to Date $ Revised Contract Amount $ Total value of Work Completed and stored to Date $ Less Retainage $ Total earned Less Retainage $ Less previous payment (s) $ Percent Work completed to Date: Percent Contract Time completed to Date % AMOUNT DUE THIS APPLICATION: $ ATTACH SCHEDULE OF VALUES AND ACCOMPANYING DOCUMENTATION TO THIS APPLICATION CONTRACTOR'S CERTIFICATION: The undersigned CONTRACTOR certifies that: (1) all previous progres< payments received from OWNER on account of Work done under the Contract referred to above have been applied to discharge in full all obligations of CONTRACTOR incurred in connection with Work covered by prior Applications for Payment numbered 1 through _ inclusive; (2) title to all materials and equipment incorporated in said Work or otherwise listed in or covered by this Application for Payment will pass to OWNER at time of payment free and clear of all liens, claims, security interests and encumbrances (except such as covered by Bond acceptable to OWNER); (3) all amounts have been paid for work which previous payments were issued and received from the OWNER and that current payment is now due; (4) and CONTRACTOR agrees that all overruns as shown on the monthly estimate summary shall, in fact, be added to the revised contract and shall be incorporated into a future Change Order: By CONTRACTOR: (Contractor's Name) (Signature) DATE: (Type Name & Title) (shall be signed by a duly authorized representative of CONTRACTOR) Payment to the CONTRACTOR for the above AMOUNT DUE THIS APPLICATION is recommended: By Design Professional: (DP's Name) (Signature) DATE: (Type Name & Title) Payment to the CONTRACTOR for the above AMOUNT DUE THIS APPLICATION is approved: By OWNER'S Project Manager: (Signature) DATE: (Type Name and Title) Page-18- EXHIBIT D CHANGE ORDER Agenda Item No, 10H March 11, 2008 Page 22 of 22 CHANGE ORDER NO, CONTRACT NO, 08-5011 TO: DATE: PROJECT NAME: PROJECT NO,: Under our AGREEMENT dated ,200_. You hereby are authorized and directed to make the following change(s) in accordance with terms and conditions of the Agreement: FOR THE (Additive) (Deductive) Sum of: $ ($ Original Agreement Amount $ Sum of Previous Changes $ This Change Order (Add) (Deduct) $ Present Agreement Amount $ The time for completion shall be (increased/decreased) by calendar days due to this Change Order, Accordingly, the Contracl Time is now ~) calendar days. The substantial completion date is and the final completion date is . Your acceptance of this Change Order shall constitute a modification to our Agreement and will be performed SUbject to all the same terms and conditions as contained in our Agreement indicated above, as fully as if the same were repeated in this acceptance. The adjustment, if any, to the Agreement shall constitute a full and final settlement of any and all claims of the Contractor arising out of or related to the change set forth herein, including claims for impact and delay costs. Accepted: ,200_ CONTRACTOR: OWNER: BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA By: By: DESIGN PROFESSIONAL: By: Page-19-