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Agenda 03/26/2024 Item #11D (DesignBuild of Northeast Service Area Interim Wastewater Treatment Plant Storage Tanks and Associated Pipelines)03/26/2024 EXECUTIVE SUMMARY Recommendation to approve Change Order No. 15 in the amount of $4,820,600.00, under Agreement No. 18- 7474 pertaining to the "Design -Build of Northeast Service Area Interim Wastewater Treatment Plant, Storage Tanks and Associated Pipelines," with Mitchell & Stark Construction Co., Inc., add 550 days to the contract, waive liquidated damages of $1,790,000, and have the Chairman sign the attached Change Order. OBJECTIVE: To complete the design and construction of the Potable Water, Irrigation Quality Water, Wastewater, and fiber optic transmission mains north and eastward along Immokalee Road approximately 2,600 feet to connect existing utility infrastructure at the intersection of Everglades Boulevard and Immokalee Road to the Brightshore Point of Connection (the "POC") utility site. CONSIDERATIONS: The Board awarded Design Build Agreement No. 18-7474 (the "Agreement") in the amount of $77,653,700 to Mitchell & Stark on March 12, 2019 (Agenda Item 11.13) to install the initial phases of construction of the Northeast Utility Facilities. More than 40 miles of pipelines have been constructed under the Agreement to date. The work under the project as originally approved by the Board is generally complete as modified by approved Change Order Nos. 1 through 13. Change Order No. 14 was processed and subsequently voided as there was not enough funds remaining in the project allowance; therefore, that change order is not valid. Change Order No. 15 is the subject of this executive summary. A summary of the change orders is provided in table format herein: Contract #18-7474 Change Order/Amendment Summary CO# AMD# COST TIME Description aistification Additive(+) Deductive() Days New Added Amount 1 DMPof Segment 1Rpe ($712,038.98) 0 1,000 Sal es TaxSavings 2 DMPof Segment 3Pipe ($3,560,265.85) 0 1,000 SalesTaxSavings 3 DMPof Segment 4APipe ($1,769,881.61) 0 1,000 SalesTaxSavings 4 DMPofEvoquaVVVVTP ($2,569,881.14) 0 1,000 SalesTaxSavings 5 DMPof Segment 4BPipe ($566,934.52) 0 1,000 Sal es Tax Savings 6 DMPof Effluent Filters ($413,373.68) 0 1,000 SalesTaxSavings 7 DMPof Pump Skids&Blowers ($1,211,448.49) 0 1,000 Sal es Tax Savings 8 Cancel BlowerDMP $137,942.49 0 1,000 Iequiredfast delivery 9 ChangetolQVWVTP ($1,692,905) 90 1,090 Value Engineering 10 Change toPLCs ($20,626.57) 120 1,210 Value Engineering 11 Landscape Buffer $724,280.95 186 1,396 Fasultofcompetitive bids Useof allowance and increase Changes dueto DCA 12 in theproject amount for $10,058,017.11 345 1,741 Segment 5 pi pe sizei ncrease negotiations 13 DMPof Segment 5Rpe ($8,630,882.01) 0 1,741 SalesTaxSavings 14 Voided Voided 15 Installation of utilities to $4,820,600.00 550 2,291 Changesdueto DCA Brightshoreper DCA negotiations. On December 13, 2022 (Agenda Item 11.C), the Board approved a Developer Contribution Agreement (the Packet Pg. 524 03/26/2024 "DCA") between Hogan Farms, LLC, (the "Landowner") and the Collier County Water Sewer District ("CCWSD") to exclusively provide potable water, wastewater, and irrigation quality water services within the Brightshore SRA development at the POC identified in the DCA. To accomplish this, the CCWSD will need to directionally drill its potable water, Irrigation Quality Water, Wastewater, and fiber optic transmission mains to the site approximately 2,600 feet eastward and north of Immokalee Road. This change order includes the estimated cost of design, environmental permitting, and construction of $4,820,600.00 and is an integral part of the Northeast Regional Utility Program, a Strategic Plan Board Priority. Exhibit H, General Terms and Conditions, of the Agreement, which allows the County to increase the construction work states in part: • Sections 12.1: 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, 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. Section 12.4: 4 In the event a requested change results in an increase to the Contract Amount, the amount of the increase shall be limited to the Contractor's reasonable direct labor and material costs and reasonable actual equipment costs as a result of the change (including allowance for labor burden costs) plus a maximum ten percent (1001o) markup for all overhead and profit. In the event such change [of] Work is performed by a Subcontractor, a maximum ten percent (10%) markup for all overhead and profit for all Subcontractors' and sub -consultants' direct labor and material costs and actual equipment costs shall be permitted, with a maximum five percent (501o) markup thereon by the Contractor for all of its overhead and profit, for a total maximum markup of fifteen percent (15%). All compensation due Contractor and any Subcontractor or sub -contractor for field and home office overhead is included in the markups noted above. No markup shall be placed on sales tax, shipping or subcontractor markup. Change Order No. 15 adds an additional 550 days to the project, bringing the total time to complete the work to 2,291 days. Subject to the Board's approval of the 550 additional days in Change Order 15, the Final and Substantial Completion dates will be re-established based upon the issuance of a resume work letter. For example, if the Resume Work letter was issued for work to restart on March 27, 2024, this will result in a Substantial Completion date 450 days thereafter on July 24, 2025 and a Final Completion taking place 100 days thereafter on November 1, 2025. In addition to the design and construction of these mains, environmental permitting was required because the Florida Department of Environmental Protection determined it consists of wetlands. Impacts to the wetlands will be minimized because the pipelines are tunneled under those designated areas. The estimated cost to mitigate potential impacts requires the purchase of mitigation credits at a cost of $127,490.00, which is included in Change Order No. 15. Staff requested a third -party engineering consultant, Q. Grady Minor & Associates, P.A., (Grady Minor) to review and assess the cost reasonableness of the time and material quote developed for Change Order No. 15. Grady Minor concluded that the proposed costs for the work are appropriate. A copy of the Grady Minor letter is attached. Packet Pg. 525 03/26/2024 Staff is also requesting the Board waive $1,790,000 in liquidated damages for 716 days that accrued due to the Project Manager's failure to timely process a Change Order to extend the date for Substantial Completion before the Agreement's then existing Substantial Completion date of December 16, 2021. The Board subsequently approved staff s extension to provide the Contractor with additional time through Change Order Nos. 10-12 but such approval of time by the Board did not include a request by Staff for the Board to waive accrued liquidated damages. Only the Board has the authority to approve a waiver of the accrued liquidated damages. Because liquidated damages only accrued due to the timely failure to process an undisputed Change Order for time, staff asks that the Board waive the current accrued liquidated damages. If the Contractor fails to timely reach Substantial Completion on the additional Work requested in Change Order No. 15, it can still be subject to liquidated damages. The subject change order is based on a time and material estimate consistent with the terms of the contract. Staff wishes to note that permitting and design are not complete so the work authorized under Change Order No. 15 could be subject to future cost adjustments and Change Orders. All unit and hourly rates established through Change Order No. 15 will be applied to any future work designated under the Agreement. Additionally, the project has Work Directives that have been issued for work with a value of approximately $900,000. These Work Directives will be the subject of a future Change Order approval request. Finally, on February 16, 2024, a federal judge overturned USEPA's 2020 decision to give Florida oversight of the Clean Water Act, Section 404 permitting (dredge -and -fill permits). Many projects in the permitting pipeline, including this one, may be impacted in the wake of this ruling. FISCAL IMPACT: Funds in the amount of $4,820,600 for Change Order No. 15 are available in the Collier County Water Sewer District Bond Proceeds Fund (4019), NE Utility Facilities Project (70194). GROWTH MANAGEMENT IMPACT: There is no impact to the current Growth Management Plan standards to ensure the adequacy and availability of viable public facilities. LEGAL CONSIDERATIONS: This item is approved as to form and legality and requires majority vote for Board approval. -SRT RECOMMENDATION: Recommendation that the Board of County Commissioners, Ex-officio the Governing Board of the Collier County Water -Sewer District: (1) approve Change Order No. 15 in the amount of $4,820,600.00 under Agreement No. 18-7474, "Design -Build of Northeast Service Area Interim Wastewater Treatment Plant, Storage Tanks and Associated Pipelines," with Mitchell & Stark Construction Co., Inc., (2) add 550 days to the Agreement, (3) waive liquidated damages in the amount of $1,790,000, and (4) authorize the Chairman to sign the attached Change Order. Prepared by: Craig Pajer, Director, Subregional Utilities Division Joseph Bellone, Director Utilities Finance Exhibits: Change Order No. 15 Estimated Time & Materials Quote Q. Grady Minor & Associates, P.A. Cost Reasonableness Analysis dated October 11, 2023 Agreement to Provide Utility Services, December 13, 2022, meeting, Agenda Item 1 LC ATTACHMENT(S) 1. Agenda 12_13_2022 Item #I IC (CCWSD to provide exclusive potable water, wastewater and irri(PDF) 2. CO#15 - Brightshore DCA with Rate Sheet (PDF) 3. [Linked] Fully executed agreement 18-7474 (PDF) 4. Estimated Time & Materials Bid (PDF) 5. GradyMinor 20231011 Brightshores_Cost Review (PDF) Packet Pg. 526 11.D 03/26/2024 COLLIER COUNTY Board of County Commissioners Item Number: I LD Doc ID: 27110 Item Summary: Recommendation to approve Change Order No. 15 in the amount of $4,820,600.00, under Agreement No. 18-7474 pertaining to the "Design -Build of Northeast Service Area Interim Wastewater Treatment Plant, Storage Tanks and Associated Pipelines," with Mitchell & Stark Construction Co., Inc., add 550 days to the contract, waive liquidated damages of $1,790,000 and have the Chair sign the attached Change Order. (Project 70194) (Matt McLean, Director, PUD Engineering and Planning Division) Meeting Date: 03/26/2024 Prepared by: Title: Subregional Utilities Director — Engineering and Project Management Name: Craig Pajer 10/30/2023 9:52 AM Submitted by: Title: Subregional Utilities Director — Engineering and Project Management Name: Craig Pajer 10/30/2023 9:52 AM Approved By: Review: Engineering and Project Management Vincent Dominach Additional Reviewer Engineering and Project Management Vincent Dominach Additional Reviewer Engineering and Project Management Matthew McLean Additional Reviewer Public Utilities Operations Support Joseph Bellone Additional Reviewer Public Utilities Department Vincent Dominach Level 1 Department Review Procurement Services Sandra Srnka Level 1 Purchasing Gatekeeper Procurement Services Sandra Srnka Procurement Director Review Public Utilities Department George Yilmaz Level 2 Division Administrator Review County Attorney's Office Scott Teach Level 2 Attorney Review Office of Management and Budget Debra Windsor Level 3 OMB Gatekeeper Review County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Community & Human Services Maggie Lopez OMB Reviewer Corporate Compliance and Continuous Improvement Megan Gaillard Capital Project Planning, Impact Fees, and Program Management Ian Barnwell County Manager's Office Ed Finn Level 4 County Manager Review Board of County Commissioners Geoffrey Willig Meeting Pending Skipped 03/11/2024 8:34 AM Skipped 03/11/2024 8:34 AM Completed 03/11/2024 10:37 AM Completed 03/13/2024 11:51 AM Completed 03/13/2024 11:54 AM Completed 03/13/2024 1:16 PM Completed 03/13/2024 1:17 PM Completed 03/13/2024 1:45 PM Completed 03/14/2024 1:43 PM Completed 03/14/2024 2:12 PM Completed 03/14/2024 2:35 PM Completed 03/15/2024 11:48 AM Additional Reviewer Completed 03/15/2024 1:17 PM Other Reviewer Completed 03/19/2024 10:40 AM Completed 03/20/2024 8:50 AM 03/26/2024 9:00 AM Packet Pg. 527 DESIGN -BUILD AGREEMENT between The Board of County Commissioners for Collier County Florida, acting as the governing Board of the Collier County Water Sewer District and Mitchell &Stark Construction Co., Inc. dated of t .� r � •� "NESA Interim Treatment Plant and Pipelines" #18-7474 "NESA Interim Treatment Plant and Pipelines" RPS # 18-7474 CAO TABLE OF CONTENTS Article Name Page ARTICLE1 CONTRACT DOCUMENTS..................................................................................................1 ARTICLE 2 CONTRACTOR'S SERVICES AND RESPONSIBILITIES..... 0*02 9 0 4 a a 0 * 4 9 9 2 * a 4 0 4 0 0 0 0 9 9 * a 62 ARTICLE 3 OWNER'S RESPONSIBILITIES...........................................................................................4 ARTICLE4 CONTRACT AMOUNT, . 0 4 0 0 4 9 4 4 1, 6 & * 0 8 9 9 4 1 v * I * f 0 & 8 4 8 6 A 0 0 a 4 0 0 a 6 m * 0 f 4 4 9 9 4 6 0 0 a * 0 e * 4 9 m & 0 a 9 & 0 9 0 $ 0 6 0 0 0 0 0 9 0 4 b a 0 8 4 1 0 9 0 9 0 * 4 9 0 a 4 4 4 a t 9 5 ARTICLE 5 PERFORMANCE AND PAYMENT BOND..........................................................................5 ARTICLE 6 INSURANCE REQUIREMENTS........................................................................................... 6 ARTICLE 7 CONTRACT TIME AND LIQUIDATED DAMAGES.........................................................0 8 ARTICLE8 INDEMNIFICATION............................................................................................................10 ARTICLE 9 CONSEQUENTIAL DAMAGES, . * f & 0 t 8 8 4 0 s 6 # a 9 a a * # q 0 * * 0 a 0 4 0 0 6 9 0 * 0 4 0 f I I I w w 0 t 4 6 * 8 * w 6 $ * 4 * 9 & 0 f * * * 9 4 6 0 1 a 9 w q 9 0 6 0 1 9 # 0 q 0 0 4 4 4 6 f 0 1 0 ARTICLE 10 LAWS AND REGULATIONS...... 0 0 * 0 * 6 t & a t 9 4 m 9 0 * v * f 0 0 4 4 9 4 a 9 & 0 0 5 0 $ 1. 0 6 * 0 a 0 * 9 8 0 4 & * 0 a 4 a 4 * 0 k a 0 0 t 0 0 0 9 0 a $ f f a t 9 4 w 0 4 * 0 * * * a I * 4 0 1 1 ARTICLE 11 INDEPENDENT CONTRACTOR......................................................................................12 ARTICLE 12 DISPUTE RESOLUTION...................................................................................................12 ARTICLE13 ASSIGNMENT....................................................................................................................12 ARTICLE 14 PERFORMANCE OF WORK AND REMEDY.................................................................13 ARTICLE15 FORCE MAJEURE.............................................................................................................13 ARTICLE16 CHANGE IN LAW..............................................................................................................14 ARTICLE 17 TERMINATION FOR DEFAULT......................................................................................14 ARTICLE 18 TERMINATION FOR CONVENIENCE.... to to am set Rpm* to V* 0 fevo6i $***I ov ovit It 0*9909m#6 09ff*svfv 16 ARTICLE19 DOCUMENTS, . 0 4 a 6 6 * t a 4 a 1 2 0 6 $ * 0 # w t V 9 0 0 6 * * a 0 a * 9 1 a * 6 a & 0 0 * 0 0 * * 0 & 6 t 0 0 0 0 4 5 0 9 a 0 9 0 4 4 0 6 0 t a 0 a 0 0 0 9 * P * * * w 4 4 a 6 4 p 8 e I t 9 9 0 4 a * 0 a a 1 4 1 0 0 5 6 0 4 0 9 9 4 6 6 1 6 ARTICLE20 CONFIDENTIALITY... 9 0 massy @*IV# 5 4 #Ito to**@ 9 64962 a toot waowa 8 0 0 ow***6*tV oq*V*a4ffVv 9* q a **most 4 464 00*04 0 17 ARTICLE21 SEVERABILITY.................................................................................................................17 ARTICLE 22 PUBLIC ENTITY CRIMES...............................................................................................018 ARTICLE 23 EXHIBITS INCORPORATED. toomousa0*2 0q0qm*$*%of1 IV **&$ movie Vista wqqlqgs4 a 1 01 vivo $toot@ 18 ARTICLE24 NOTICES.............................................................................................................................19 ARTICLE25 CAPTIONS AND HEADINGS...........................................................................................19 ARTICLE 26 TRUTH IN NEGOTIATION CERTIFICATE....................................................................19 ARTICLE 27 ENTIRE AGREEMENT..... 0 beattoti of$$ &1 1444 Soso move IV is 0 to as ot 0 sestottoom 0 bosoms sets 40664 19 ARTICLE 28 SUBJECT TO APPROPRIATION...................................................................................... 20 ARTICLE29 ORDER OF PRECEDENCE............................................................................................... 20 "MESA Interim Treahnent Plant and Pipelines" RPS #18-7474 CAS DESIGN -BUILD AGREEMENT This Agreement is made this a:day of C, 2019 between Mitchell & Stark Construction Co., Inc., authorized to do business in the State of Florida (hereinafter called "Contractor") whose business address is 6001 Shirley Street, Naples, Florida 34109 and the Board of County Commissioners for Collier County, Florida, a political subdivision of the State of Florida, acting as the governing Board of the Collier County Water Sewer District (hereinafter called the "OWNER"), (collecti Wvely referred to as the "Parties"). WITNESSETH: WHEREAS, the Owner solicited for the provision of design and construction services related to the project as described in Request for Professional Services (RPS) #18-7474, "NESA Interim Treatment Plant and Pipelines," on that property located on 216.19 acres east of Immokalee Road and east of 39th Avenue NE, Naples, Florida 34120, hereinafter referred to as the "Project;" and WHEREAS, the Owner desires to contract with a single party to develop, design, and construct the Project; and WHEREAS, the Owner desires to engage the Contractor to perform services related to such work as described in Solicitation #184474 "NESA Interim Treatment Plant and Pipelines" in accordance with this Agreement; and WHEREAS, the Contractor and its sub -consultants and subcontractors are licensed in the State of Florida to provide all engineering and general contracting services required to develop, design and construct the Project; and WHEREAS, Contractor is willing and able to provide any and all services, labor, materials, and equipment necessary to construct the Project, to perform the Work and to bring the Project into full and complete operational status. NOW, THEREFORE, for and in consideration of the terms and conditions contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: ARTICLE 1 CONTRACT DOCUMENTS 1.1 The Contract Documents are comprised of the following and are incorporated by reference and made a part of this Agreement (all of said documents including the Agreement sometimes being referred to herein as the "Contract Documents" and sometimes as the "Agreement" and sometimes as the "Contract"): 1.1.1 This Agreement, the Exhibits described in Article 23 hereof, the Legal Advertisement, the Bidding Documents and any duly executed and issued addenda, Change Orders, Work Directive Changes, Field Orders, and amendments relating thereto. Page 1 of 64 "NESA Interim Treatment Plant and Pipelines" RPS # 18-7474 CAS 1.1.2 The Basis of Design Documents, including the Owner's Project Criteria, Contractor's Proposal, 1.1.3 Construction Documents prepared and approved in accordance with Article 2 of this Agreement. ARTICLE 2 CONTRACTOR'S SERVICES AND RESPONSIBILITIES 2.1 CONTRACTOR shall perform, or arrange for the performance of all design and construction services, and provide all material equipment, tools and labor necessary to complete the Work described in and reasonably inferable from the Contract Documents, including but not limited to, engineering, surveying, hydro -geological, soils testing, procurement and construction, start-up, testing, training and warranty services ("the Work") for the OWNER's Project. 2.2 Design Professional Services 2.2.1 CONTRACTOR shall, consistent with applicable state licensing r•equir•ements, provide through qualified, licensed design professionals employed by CONTRACTOR, or procured from qualified, independent licensed design consultants, the necessary design services, including engineering surveying, hydro -geological and other design professional services, for the preparation of the required drawings, specifications and other design submittals to permit CONTRACTOR to complete the Work as described in Exhibit A-2, and Article 1. The design for the Project shall be set forth in the Construction Documents. All changes, supplements and additions to the Construction Documents shall be subject to OWNER's review and written approval, such approval to be obtained prior to the commencement of any portion of the Work relating thereto. The standard of care for all design professional services performed by or arranged by CONTRACTOR shall be consistent with that degree of skill and care ordinarily exercised by members of the design profession practicing under similar circumstances and in the same or similar locality. CONTRACTOR shall use the services of those persons identified in the attached Exhibit K to provide all required professional design services for the Project ("List of Design Professionals"). All changes to the list of Design Professionals set forth in attached Exhibit K must be approved in advance and in writing by OWNER. 2.2.3 CONTRACTOR and OWNER shall agree upon any interim design submissions that OWNER may wish to review, including design criteria, preliminary design reports, drawings, diagrams and specifications as set forth in the Project requirements. CONTRACTOR and OWNER shall meet and confer about the submissions and following the meeting OWNER shall review and approve the interim design submissions. 2.2.4 On the basis of the approved interim design submissions, CONTRACTOR shall prepare Contract Documents showing the scope, extent and character of the construction to be performed by CONTRACTOR. 2.2.5 CONTRACTOR shall provide such descriptions and data as are required for obtaining approvals, permits, licenses, etc., of such govermnental authorities having jurisdiction to review or approve the final design of the Project. Page 2 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-74�4 CAS 2.3 Construction Services 2.3.1 After the Construction Documents have been sufficiently completed by the CONTRACTOR and approved by OWNER in writing for the Project (or such portions thereof as may be designated by OWNER in writing), OWNER shall authorize CONTRACTOR in writing to proceed with the Construction Phase Services. CONTRACTOR shall provide to itself or through duly licensed and qualified subcontractors the necessary management, supervision, financing, labor, inspection, testing, start-up, materials, equipment, machinery, tools, fuel, temporary utilities, construction offices and/or other temporary facilities of every kind and type necessary to diligently, timely and fully perform and complete in a good and workmanlike manner the construction of the Project (or designated portions thereof) to permit CONTRACTOR to complete construction of the Project in accordance with all of the terms and conditions of the Contract Documents and as described herein. 2.3.2 CONTRACTOR shall be solely responsible for the means, methods, techniques, sequences and procedures employed for the provision of the Work. CONTRACTOR shall be responsible for the completion of the Work in compliance with the Contract Documents and shall keep OWNER advised as to the progress of the Work by regular weekly written reports. 2.3.3 CONTRACTOR shall coordinate the activities of all Subcontractors. If OWNER perfol•Ins other work on the Project or at the site with separate CONTRACTOR's under OWNER's control, CONTRACTOR agrees to reasonably cooperate and coordinate its activities with those of such separate CONTRACTORS so that the Project can be completed in an orderly and coordinated manner without unreasonable disruption. 2.3.4 CONTRACTOR shall keep the site reasonably free from debris, trash and construction waste to permit CONTRACTOR to perform its construction services efficiently, safely and without interfering with the use of adjacent land areas, including compliance with the Land Development Code, Article VI, Litter, Weed and Exotics Control. Upon Substantial Completion of the Work, or a portion of the Work, CONTRACTOR shall remove all debris, trash, construction waste, materials, equipment, machinery and tools arising from the Work or applicable portions thereof to permit OWNER to occupy the Project or a portion of the Project for its intended use. 2.3.5 CONTRACTOR shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. CONTRACTOR shall be fully and solely responsible for safety and take all reasonable precautions for the safety of, and shall provide the reasonable protection to prevent damage, injury or loss to: a. All persons on the site or who may be affected by the Work; b. All Work and materials and equipment to be incorporated therein, whether in storage on or off the site and regardless whether purchased directly by the CONTRACTOR or OWNER; and c. Other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, utilities and underground facilities not designated for removal, relocation or replacement in the course of construction. Page 3 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 ■ 2.3.6 CONTRACTOR shall comply with applicable laws and regulations of any public body having jurisdiction for safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguards for such safety and protection. CONTRACTOR shall hold regular weekly safety meetings with their staff and shall issue meeting minutes of same. CONTRACTOR's duties and responsibilities for safety and for protection of the construction shall continue until such time as all the Work is completed. ARTICLE 3 OWNER'S RESPONSIBILITIES 3.1 OWNER shall provide CONTRACTOR with an accurate description of the site where the Work is to be performed and will furnish CONTRACTOR with all available information, i.e., record as - built drawings and legal site descriptions if they are available, the physical characteristics, legal limitations and utility limitations at the site. OWNER will assist in establishing test or boring locations in cooperation with the design professional. 3.2 OWNER will provide for or arrange for a right of entry to CONTRACTOR, its agents, staff, or subcontractors, for the purpose of performing and with the right to perform all acts, studies, and research including, without limitation, the making of tests and evaluations, pursuant to the agreed Work. Subject to applicable law, OWNER will provide CONTRACTOR, its employees and subcontractors, reasonable access to the site. 3.3 OWNER shall designate in writing to CONTRACTOR, prior to the commencement of the Work, a representative who shall be fully acquainted with the Work and who has authority on behalf of OWNER to approve changes in the scope of the Work, approve any daily reports submitted by CONTRACTOR, render decisions promptly, and furnish information expeditiously and in time to meet the time schedule for completion of the Work. 3.4 OWNER recognizes that CONTRACTOR'S Services may unavoidably alter the existing site conditions and affect the environment in the work area. 3.5 OWNER shall notify CONTRACTOR of any known health oI• safety hazard existing on or near the site where Work is to be or is being performed by CONTRACTOR or its subcontractors, with particular reference to utilities and hazardous substances or conditions. 3.6 OWNER shall provide CONTRACTOR with all relevant data and information in its possession relating to the site, the Work and the environmental, geologic and geotechnical conditions of the site and surrounding area and the location of subsurface structures, such as pipes, tanks, cables and utilities as known to OWNER. 3.7 OWNER shall, within seven (7) days of becoming aware of the occurrence of any event hereinafter described, give CONTRACTOR written notice of any suspected failul•e of CONTRACTOR to adhere to either the contract terms or the standard of care described herein. 3.8 CONTRACTOR shall be responsible for acquiring all permits that are part of the Work, as noted in Article 1 and Exhibit A-2. OWNER will pay for all Collier County peI•mits and fees applicable to the Project, including license fees, permit fees, impact fees or inspection fees applicable to this Work through an internal budget transfer(s). CONTRACTOR shall be responsible for the costs of Page 4 of 64 "NESA Interim Treatment Plant and Pipelines" RPS # 18-7474 Cp,,O obtaining all other required permits. OWNER will apply for permits that the CONTRACTOR cannot obtain. ARTICLE 4 CONTRACT AMOUNT 4.1 In consideration of the faithful performance by CONTRACTOR of the covenants in this Agreement to the full satisfaction and acceptance of OWNER, OWNER agrees to pay, or cause to be paid, to CONTRACTOR the following amounts (herein "Contract Amount"), in accordance with the terms of this Agreement: 4.1.1 For all Design Phase Services, including, but not limited to, causing the preparation of the Construction Documents, providing value engineering services, reviewing Construction Documents for constructability, assisting and meeting with the OWNER during the various design phases, and preparing cost estimates and schedules, and for all Construction Phase Services to be provided by the CONTRACTOR hereunder, OWNER shall pay CONTRACTOR for the Cost of the Services and Work (as that term is defined hereafter), a total guaranteed maximum lump sum of $77,653,700.00 (Seventy -Seven Million Sig Hundred Fifty -Three Thousand Seven Hundred and 00/100) for the entire Project, including alternate bid items, Owner's allowance and allowance items # 14 outlined in Exhibit A-1. 4.1.2 Owner's Contingency and Allowance. The Contract Amount includes Owner's Contingency, which is controlled by the Owner and available to defray expenses attributable to unforeseen circumstance relating to the construction and for added scope by the Owner. The allowance items identified in Exhibit A4 may be used per the general terms and conditions. ARTICLE 5 PERFORMANCE AND PAYMENT BOND 5.1 CONTRACTOR shall provide Performance and Payment Bonds, in the forms prescribed in Exhibit B-1 and B-2, in the amount of 100% of the Contract Amount, the costs of which is to be paid by CONTRACTOR. The Performance and Payment Bonds shall be underwritten by a surety authorized to do business in the State of Florida and otherwise acceptable to OWNER, provided, however, the surety shall meet the requirements of the Department of the Treasury Fiscal Service, "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsurance Companies" circular. This circular may be accessed via the web at www.fms.treas.gov/c570/c570.html#certified. Moreover, the surety shall be rated as "A-" or better as to general policy holders rating and Class V or higher rating as to financial size category and the amount required shall not exceed 5% of the reported policy holders surplus, all as reported in the most current Best Key Rating Guide, published by A.M. Best Company, Inc. of 75 Fulton Street, New York, New York 10038. Should the contract amount be less than $500,000, the requirements of Section 287.0935, Florida Statutes shall govern the rating and classification of the surety. 5.2 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 Flol7da, or it ceases to meet the requirements imposed by the Contract Documents, the CONTRACTOR shall, within fourteen (14) calendar days thereafter, substitute another bond and surety, both of which shall be subject to the OWNER's approval. Page 5 of 64 "MESA Interim Treatment Plant and Pipelines" RPS #18-7474 5.3 At the time CONTRACTOR executes this Agreement, CONTRACTOR shall deliver LOUWNER proof, reasonably acceptable to OWNER, of CONTRACTOR'S ability to deliver the Performance and Payment bonds required hereunder. ARTICLE 6 INSURANCE REQUIREMENTS 6.1 CONTRACTOR shall at its own expense, carry and maintain insurance coverage from responsible companies duly authorized to do business in the State of Florida as follows: A. Commercial General Liability: Coverage shall have minimum limits of $1,000,000 Per Occurrence, $2,000,000 aggregate 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 Liability: 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. 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 $1,000,000 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 $1,000,000 each claim and aggregate. �ecial 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. 6.2 OWNER and CONTRACTOR waive against each other and OWNER's separate CONTRACTOR'S, Design Consultant, Subcontractors, agents and employees of each and all of Page 6 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 them, all damages covered by property insurance provided herein, except such rights as they may have to the proceeds of such insurance. CONTRACTOR and OWNER shall, where appropriate, require similar waivers of subrogation from OWNER's separate CONTRACTOR's, Design Consultants and Subcontractors and shall require each of them to include similar waivers in their contracts. 6.3 The OWNER shall be responsible for purchasing and maintaining, its own liability insurance. 6.4 CONTRACTOR shall obtain and carry, at all times during its performance under the Contract Documents, insurance of the types and in the amounts set forth in this Article 6, and Exhibit B — Insurance Requirements, with certificates attached as Exhibit B to this Agreement. Certificates must identify the specific Project name, as well as the site location and address (if any). 6.5 All insurance policies, other than the Business Automobile and Workers Compensation policies, provided by CONTRACTOR to meet the requirements of this Agreement shall name Collier County, Florida, as an additional insured as to the operations of CONTRACTOR under this Agreement and shall contain a severability of interests provisions. 6.6 Collier County Board of County Commissioners shall be named as the Certificate Holder. NOTE --The "Certificate Holder" should read as follows: Collier County Board of County Commissioners Naples, Florida 6.7 The amounts and types of insurance coverage shall conform to the following minimum requirements with the use of Insurance Services Office (ISO) forms and endorsements or their• equivalents. If CONTRACTOR has any self -insured retentions or deductibles under any of the below listed minimum required coverages, CONTRACTOR must identify on the Certificate of Insurance the nature and amount of such self- insured retentions or deductibles and provide satisfactory evidence of financial responsibility for such obligations. All self -insured retentions or deductibles will be CONTRACTOR's sole responsibility. 6.8 Coverage's shall be maintained without interruption from the date of commencement of the Work until the date of completion and acceptance of the Project by the OWNER or as specified in this Agreement, whichever is longer. 6.9 The CONTRACTOR and/or its insurance carrier shall provide thirty (30) days written notice to the OWNER of policy cancellation or non -renewal on the part of the insurance carrier or the CONTRACTOR. CONTRACTOR shall also notify OWNER, in a like manner, within twenty- four (24) hours after receipt, of any notices of expiration, cancellation, non -renewal or material change in coverages or limits received by CONTRACTOR from its insurer and nothing contained herein shall relieve CONTRACTOR of this requirement to provide notice. In the event of a reduction in the aggregate limit of any policy to be provided by CONTRACTOR hereunder, CONTRACTOR shall immediately take steps to have the aggregate limit reinstated to the full extent permitted under such policy. 6.10 Should at any time the CONTRACTOR not maintain the insurance coverages required herein, the OWNER may terminate the Agreement or at its sole discretion shall be authorized to purchase such coverage's and charge the CONTRACTOR for such coverage's purchased. If CONTRACTOR fails to reimburse OWNER for such costs within thirty (30) days after demand, OWNER has the Page 7 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 right to offset these costs from any amount due CONTRACTOR under this Agreement or any other agreement between OWNER and CONTRACTOR. The OWNER shall be under no obligation to purchase such insurance, nor shall it be responsible for the coverage's purchased or the insurance company or companies used. The decision of the OWNER to purchase such insurance coverages shall in no way be construed to be a waiver of any of its rights under the Contract Documents, 6.11 If the initial or any subsequently issued Cercate of Insurance expires prior to the completion of the Work or termination of the Agreement, the CONTRACTOR shall furnish to the OWNER, renewal or replacement Certificate(s) of Insurance not later than ten (10) calendar days after to the date of their expiration. Failure of the CONTRACTOR to provide the OWNER with such renewal certificate(s) shall be considered justification for the OWNER to terminate the Agreement. ARTICLE 7 CONTRACT TIME AND LIQUIDATED DAMAGES 7.1 Time is of the essence in the performance of the Work under this Agreement. The Work is to be completed in segments and each segment will have two phases (i.e. Design Phase and Construction Phase), the timely completion of the first phase is critical to the timely completion of the second phase and, therefore, completion of the entire Project. The "Commencement Date" shall be established in the written Notice to Proceed to be issued by the OWNER. CONTRACTOR shall commence the Design Phase of the Work within five (5) calendar days from receipt of the notice of the Design Phase Commencement Date, No Work shall be performed at the Project site prior to the Commencement Date. Any Work performed by CONTRACTOR prior to the Design Phase Commencement Date shall be at the sole risk of CONTRACTOR. 7.2 The Work shall be substantially completed within nine hundred (900) calendar days from the Commencement Date. The date of substantial completion of the Work (or designated portions thereof) shall be the date certified by the OWNER, in its reasonable discretion, that construction is sufficiently complete and in accordance with the Contract Documents, so that OWNER can occupy or utilize the Work (or designated portions thereof) for the use(s) for which it is intended. 7.3 The Work shall reach final completion and be ready for final acceptance by OWNER within one - thousand (1000) calendar days from the Commencement Date (herein "Contract Time"). 7.4 OWNER and CONTRACTOR recognize that, since time is of the essence for this Agreement, OWNER will suffer financial loss if the Work is not substantially completed within the time specified above, as said time may be adjusted as provided for herein. Should CONTRACTOR fail to substantially complete the Work within the time period noted above, OWNER shall be entitled to assess, as liquidated damages, but not as a penalty, $2,500.00 (two thousand five hundred and 00/100 dollars) for each calendar day thereafter until substantial completion is achieved. Further, in the event Substantial Completion is reached, but the CONTRACTOR fails to reach Final Completion within the required time period, OWNER shall also be entitled to assess, and CONTRACTOR shall be liable for all actual damages incurred by OWNER as a result of CONTRACTOR failing to timely achieve Final Completion. The Project shall be deemed to be substantially completed on the date the OWNER's Project Manager or his designee issues a Certificate of Substantial Completion pursuant to the terms hereof. CONTRACTOR hereby expressly waives and relinquishes all rights which it may have to seek to characterize the above noted liquidated damages as a penalty, which the parties agree represents fair and reasonable estimates of the OWNER's actual damages at the time of contracting if CONTRACTOR fails to substantially complete or finally complete the Work as scheduled. Page 8 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 G;ap 7.5 CONTRACTOR agrees to promptly pay any and all fines and/or penalties that Inay be imposed upon Collier County by the State of Florida and/or any agency (or agencies) of the State of Florida arising as a result of CONTRACTOR's failure to substantially complete the scope of work within the time limits specified in this Agreement. CONTRACTOR is hereby authorized on behalf of Collier County to contest and/or otherwise dispute any and all such fines and/or penalties should any be threatened to be imposed. 7.6 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 its 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. 7.7 The OWNER shall have the power to suspend all or any portions of the services to be provided by CONTRACTOR hereunder upon giving CONTRACTOR two (2) calendar days prior written notice of such suspension. If all or any portion of the services to be rendered hereunder are so suspended, the CONTRACTOR'S sole and exclusive remedy shall be to seek an extension of time to its schedule in accordance with the procedures set forth in Article Eight herein. 7.8 When any period of time is referenced herein by "days", the. days shall be computed to exclude the first day and to include the last day of such time period. If the last day of any such period falls on a Saturday or Sunday or on a legal holiday in Collier County by Federal or Florida Law, each such day shall be omitted from the computation, and the last day shall become the next succeeding business day which is not a Saturday, Sunday or legal holiday in Collier County, Florida. A day shall be a legal holiday in Collier County only if the government of Collier County recognizes that holiday by giving that day off from work by most of its employees or the CONTRACTOR recognizes that day as a legal holiday and thereby gives the majority of its workers the day off from work. 7.9 For all contracts, Al of whether the Contract Time is stipulated in calendar days or working days, the OWNER will count default days as "calendar days. 7.10 In the event CONTRACTOR defaults on any of its obligations under the Agreement and OWNER elects to complete the Work, in whole or in part, through another contractor or its own forces, the CONTRACTOR and/or its surety shall continue to be liable for the liquidated damages under the Agreement until OWNER achieves Substantial and Final Completion of the Work. OWNER will not charge liquidated damages for any delay in achieving Substantial or Final Completion as a result of any unreasonable action or delay on the part of the OWNER. 7.11 The OWNER has the right to apply any amounts due CONTRACTOR under this Agreement or any other agreement between OWNER and CONTRACTOR, as payment on such damages due under this Agreement in OWNER'S sole discretion. Page 9 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 C�� 7.12 Notwithstanding anything herein to the contrary, the OWNER does not waive its right to damages due under the Contract by allowing the CONTRACTOR to continue and to finish the work, or any part of it, after the expiration of the Contract Time including granted time extensions. 7.13 In the case of a default of the Contract by the CONTRACTOR and the completion of the work by the OWNER, the CONTRACTOR and his surety are liable for the damages under the Contract, but the OWNER will not charge damages for any delay in the Final Completion of the OWNER's performance of the work due to any unreasonable action or delay on the part of the OWNER. 7.14 The OWNER considers the Contract complete when the CONTRACTOR has completed in its entirety all of the work and the OWNER, in its reasonable discretion, has accepted all of the work and notified the CONTRACTOR in writing that the work is complete. The OWNER will then release the CONTRACTOR from further obligation except as set forth in his bond and except as provided in the Contract. 7.15 Recovery of Damages Suffered by Third Parties. CONTRACTOR shall be liable to OWNER to the extent OWNER incurs damages from a third party as a result of CONTRACTOR'S failure to fulfill all of its obligations under the Contract Documents. OWNER's recovery of any delay related damages under this Agreement through the liquidated damages does not preclude OWNER from recovering from CONTRACTOR any other non -delay related damages that may be owed to it arising out of or relating to this Agreement. ARTICLE 8 INDEMNIFICATION 8.1 To the maximum extent permitted by Florida law, CONTRACTOR shall indemnify and hold harmless OWNER and its officers and employees from any and all liabilities, claims, damages, penalties, demands, judgments, actions, proceedings, losses or costs, including, but not limited to, reasonable attorneys' fees and paralegals' fees, whether resulting from any claimed breach of this Agreement by CONTRACTOR or from personal injury, property damage, direct or consequential damages, or economic loss, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of CONTRACTOR, its Design Consultants, and its Subcontractors, anyone employed directly or indirectly by any of them or anyone employed or utilized by the CONTRACTOR in the performance of this Agreement. 8.2 The duty to defend under this Article 8 is independent and separate from the duty to indemnify, and the duty to defend exists regardless of any ultimate liability of the CONTRACTOR, OWNER 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 8 will survive the expiration or earlier termination of this Agreement until it is determined by final judgment that an action against the OWNER or an indemnified party for the matter indemnified hereunder is fully and finally barred by the applicable statute of limitations. ARTICLE 9 CONSEQUENTIAL DAMAGES 9.1 Neither CONTRACTOR nor the OWNER shall be liable to the other for incidental or consequential damages, whether arising in contract, tort (including negligence), statute or strict liability. Page 10 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 CEO ARTICLE 10 LAWS AND REGULATIONS 10.1 CONTRACTOR will comply with applicable federal, state and local laws and regulations. 10.2 This Agreement shall be governed by the laws, I•ules, and regulations of the State of Florida. 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. 10.3 Contractor shall keep all records and supporting documentation, which concern or relate to the Work hereunder for a minimum of five (5) years from the date of termination of this Agreement or the date the Project is completed or such longer period as may be required by law, whichever is later, pursuant to Florida Public Records Law Chapter 119 and comply with specifically those contractual requirements in 119.0701(2)(a)-(b) as follows: IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: Communication and Customer Relations Division 3299 Tamiami Trail East, Suite 102 Naples, FL 34112-5746 Telephone: (239) 252-8383 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. Page 11 of G4 "MESA Interim Treatment Plant and Pipelines" RPS #18-7474 ARTICLE JUL INDEPENDENT CONTRACTOR 11.1 CONTRACTOR is an independent CONTRACTOR and the detailed means, manner and method of performing the Work are under the sole control of CONTRACTOR or its subcontractor(s). ARTICLE 12 DISPUTE RESOLUTION 12.1 A claiin is a demand or assertion by one of the parties seeking an adjustment or interpretation of the terms of the Contract Documents, payment of money, extension of time or other relief with respect to the terms of the Contract Documents. The term "Claim" also includes other disputes and matters in question between Owner and CONTRACTOR arising out of or relating to the Contract Documents. The responsibility to substantiate a Claim shall rest with the party making the Claim. 12.2 Claims by the CONTRACTOR shall be made in writing to the Project Managel• within forty-eight (48) hours from when the CONTRACTOR knew or should have known of the event giving rise to such Claim or else the CONTRACTOR shall be deemed to have waived the Claim. Written supporting data shall be submitted to the Project Manager within fifteen (15) calendar days after the occurrence of the event, unless the Owner grants additional time in writing, or else the CONTRACTOR shall be deemed to have waived the Claim. 12.3 The CONTRACTOR shall proceed diligently with its performance as directed by the Owner, regardless of any pending Claim, action, suit or administrative proceeding, unless otherwise agreed to by the Owner in writing. Owner shall continue to make payments in accordance with the Contract Documents pending resolution of any Claim. 12.4 Prior to the initiation of any action or proceeding permitted by this Agreement to resolve disputes between the parties, the parties shall make a good faith effort to resolve any such disputes by negotiation. The negotiation shall be attended by representatives of CONTRACTOR with full decision -making authority and by OWNER's staff person who would make the presentation of any settlement reached during negotiations to OWNER for approval. Failing resolution, and prior to the commencement of depositions in any litigation between the parties arising out of this Agreement, the parties shall attempt to resolve the dispute through Mediation before an agreed - upon Circuit Court Mediator certified by the State of Florida. The mediation shall be attended by representatives of CONTRACTOR with full decision -making authority and by OWNER's staff person who would make the presentation of any settlement reached at mediation to OWNER'S board for approval. Should either party fail to submit to mediation as required hereunder, the other party may obtain a court order requiring mediation under section 44.102, Fla. Stat. 12.5 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 Co11iel• County, Florida, which courts have sole and exclusive jurisdiction on all such matters. ARTICLE 13 ASSIGNMENT 13.1 CONTRACTOR shall not assign this Agreement or any part thereof without prior expressed written consent of OWNER, which shall not be unreasonably withheld. Any attempt to assign oI• othelwise transfer this Agreement, or any part herein, without such OWNER's consent, shall be void. If Page 12 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 ■ 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. ARTICLE 14 PERFORMANCE OF WORK AND REMEDY 14.1 CONTRACTOR shall obtain and assign to OWNER all express warranties given to CONTRACTOR or any subcontractor(s) by any material men 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 except to the extent, if any, expressly specified otherwise, and that all Work shall be of good quality, free from all material 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 substantial 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 or repair. These warranties are in addition to those implied warranties to which OWNER is entitled as a matter of law. 14.2 No later than thirty (30) days prior to expiration of the warranty, the Project Manager, or any other• representative of the OWNER, shall conduct an inspection of the warranted work to verify compliance with the requirements of the Agreement. The CONTRACTOR's Representative shall be present at the time of inspection and shall take remedial actions to correct any deficiencies noted in the inspection. Failure of the CONTRACTOR to correct the cited deficiencies shall be grounds for the County to disqualify the CONTRACTOR from future County bid opportunities. ARTICLE 15 FORCE MAJEURE 15.1 Notwithstanding anything to the contrary contained herein, if CONTRACTOR is delayed at any time in the progress of the Work contemplated hereunder by any act of the OWNER, by act of force majeure, by any act of CONTRACTOR, of OWNER or a third party, by adverse weather conditions not reasonably anticipated, or by unavoidable casualties, or by any other cause beyond CONTRACTOR's control, or by delay authorized by OWNER, the time for completion of the Work shall be extended for a time equal to the time of such delay, and CONTRACTOR shall be compensated for changes in the Work necessitated by such force majeure event provided, however, that the delay would not have occurred but for the act or the force majeure. 15.2 In the event either party to this agreement is rendered unable, either wholly or• in part, by an act or force majeure as described her•einabove, to carry out its obligation under this Agreement, other than its obligations to make payments when due, then the party affected by such act or force majeure, as described hereinabove, shall give written notice with clear explanation to the other party within five (5) business days of discovery of the act or force majeure. Following such notice, the effective obligations of the party giving notice shall be suspended only during the continuance of the act or force majeure, provided good faith due diligence is demonstrated in seeking remedy to the cause. Page 13 of 64 "NESA Interim Treatment Plant and Pipelines" ItPS #18-7474 �� 15.3 The term "force majeure" as employed herein shall mean acts of Nature, acts of public enemy, war, blockade, insurrection, riot, act of terrorism, epidemic, landslide, lightning, earthquake, fire, storm, flood, washout, civil disturbance, explosion, labor dispute, inability with reasonable diligence to obtain material(s) and/or any other substantially similar cause(s) not within the reasonable control of the party claiming a suspension despite that party's due diligence. ARTICLE 16 CHANGE IN LAW 16.1 CONTRACTOR shall be compensated for changes in the Work and the time for completion of the Work shall be extended as necessitated by the occurrence of any of the following on or subsequent to the Agreement Date: (a) the enactment, adoption, promulgation, modification, repeal, or formal change in interpretation of any federal, state or local law or regulation having the force of law; (b) the issuance or modification of an order, decree, or judgment of any federal, state or local court, administrative agency or governmental officer or body, acting in a judicial or quasi judicial capacity, if the issuance or modification of any such order, decree, or judgment is not also the result of CONTRACTOR's negligent or willful action or failure to act.; or (c) the delay in the review, issuance or renewal of or suspension, termination, interruption, denial, failure to issue or failure to renew any legal requirement, permit or approval, or the imposition of a term, condition or requirement which is more stringent or burdensome than that required by the Project Scope, if such act is not also the result of CONTRACTOR's negligent or willful action or failure to act. ARTICLE 17 TERMINATION FOR DEFAULT 17.1 CONTRACTOR shall be considered in material default of the Agreement and such default shall be considered cause for OWNER to terminate the Agreement, in whole or m part, as further set it in this Section, if CONTRACTOR: (1) either fails to begin the Work under the Contract Documents within the time specified herein; or (2) fails to properly and timely perform the Work as directed by the Project Manager, or as provided for in the approved Schedule of Values; or (3) performs the Work unsuitably, or neglects or refuses to remove materials, or fails to correct or replace such Work as may be rejected by OWNER (or OWNER's representative) as being unacceptable or unsuitable; or (4) discontinues prosecution of the Work; or (5) fails to resume Work that has been suspended within a reasonable time after being notified to resume the Work, or (6) becomes insolvent or is declared bankrupt, or commits any act of bankruptcy; or (7) allows any final judgment to stand against it unsatisfied for more than ten days; or (8) makes an assignment for the benefit of creditors; or (9) fails to obey any then applicable codes, laws, ordinances, rules or regulations with respect to the Work; or (10) materially breaches any other provision of the Contract Documents. Termination of the Agreement pursuant to subparagraphs (6) and (7) herein is allowed to the extent not prohibited by then applicable law. 17.2 OWNER shall notify CONTRACTOR in writing of CONTRACTOR'S default(s). If OWNER determines that CONTRACTOR has not remedied and cured the defaults) or commenced reasonable actions to effect a remedy or cure, within seven (7) calendar days following receipt by CONTRACTOR of said written notice, then OWNER, at its option, without releasing or waiving any of its rights and remedies against CONTRACTOR's sureties and without prejudice to any other right or remedy it, may be entitled to hereunder or by law, may terminate CONTRACTOR's right to proceed under the Agreement, in whole or in part, and may take possession of all or any portion of the Work, may take assignments of any of CONTRACTOR's subcontracts and purchase orders, Page 14 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 and may complete all or any portion of CONTRACTOR Work by whatever lawful means, method or agency which OWNER, in its sole discretion, may choose. 17.3 If OWNER deems any of the foregoing remedies necessary, CONTRACTOR agrees that it shall not be entitled to receive any further payments hereunder until after the Project is completed. All moneys expended and all of the costs, losses, damages and extra expenses, including all management, administrative and other overhead and other direct and indirect expenses (including Design Professional and reasonable attorneys' fees, including appeals) or damages incurred by OWNER incident to such completion, shall be deducted from the Contract Amount, and if such expenditures exceed the unpaid balance of the Contract Amount, CONTRACTOR agrees to pay promptly to OWNER on demand the full amount of such excess, including costs of collection, reasonable attorneys' fees (including appeals) with interest thereon (compounded monthly until paid in full) at the Prime Rate as published daily in the Wall Street Journal. If the unpaid balance of the Contract Amount exceeds all such costs, expenditures and damages incurred by the OWNER to complete the Work, such excess with such interest shall be paid to the CONTRACTOR. The amount to be paid to the CONTRACTOR or OWNER, as the case may be, shall be approved by the OWNER, upon application, and this obligation for payment shall survive termination of the Agreement. 17.4 The liability of CONTRACTOR hereunder shall extend to and include the full amount of any and all sums paid, expenses and losses incurred, damages sustained, and obligations assumed by OWNER in good faith under the belief that such payments or assumptions were necessary or required, in completing the Work and providing labor, materials, equipment, supplies, and other items therefore or re4etting the Work, and in settlement, discharge or compromise of any claims, demands, suits, and judgments pertaining to or arising out of the Work hereunder. 17.5 If, after notice of termination of CONTRACTOR's right to proceed pursuant to this Section, it is determined for any reason that CONTRACTOR was not in default, or that its default was excusable, or that OWNER is not entitled to the remedies against CONTRACTOR provided herein, then the termination will be deemed a termination for convenience and Contractor's remedies against Owner shall be the same as and limited to those afforded Contractor under Article 18 below. 17.6 The OWNER shall use all reasonable and diligent, good faith efforts to mitigate any of its damages against the CONTRACTOR. 17.7 In the event (i) Owner fails to make any undisputed payment to Contractor within thirty (30) days after such payment is due or Owner otherwise persistently fails to fulfill some material obligation owed by Owner to Contractor under this Agreement, and (ii) Owner has failed to cure such default within fourteen (14) days of receiving written notice of same from Contractor, then Contractor may stop its performance under this Agreement until such default is cured, after giving Owner a second fourteen (14) days written notice of Contractor's intention to stop performance under the Agreement. If the Work is so stopped for a period of one hundred and twenty (120) consecutive days through no act or fault of the Contractor or its Subcontractors or their agents or employees or any other persons performing portions of the Work under contract with the Contractor or any Subcontractor, the Contractor may terminate this Agreement by giving written notice to Owner of Contractor's intent to terminate this Agreement. If Owner does not cure its default within fourteen (14) days after receipt of Contractor's written notice, Contractor may, upon fourteen (14) additional days' written notice to the Owner, terminate the Agreement and recover from the Owner payment for Work performed through the termination date, but in no event shall Contractor be entitled to payment for Work not performed or any other damages from Owner. Page 15 of 64 "NESA Interim Treatment Plant and Pipelines" RPS # 18-7474 Kv d ARTICLE 18 TERMINATION FOR CONVENIENCE 18.1 OWNER shall have the right to terminate this Agreement without cause upon seven (7) calendar days written notice to CONTRACTOR. In the event of such termination for convenience, CONTRACTOR's recovery against OWNER shall be limited to that portion of the Contract Amount earned through the date of termination, together with any retainage withheld and reasonable termination expenses incurred, but CONTRACTOR shall not be entitled to any other or further recovery against OWNER, including, but not limited to, damages or any anticipated profit on portions of the Work not performed. 18.2 OWNER shall have the right to suspend all or any portions of the Work upon giving CONTRACTOR not less than five (5) calendar days' prior written notice of such suspension. If all or any portion of the Work is so suspended for an aggregate of thirty (30) calendar days or less, CONTRACTOR's sole and exclusive remedy shall be to seek an extension of time to its schedule in accordance with the procedures set forth in the Contract Documents. In no event shall the Contractor be entitled to any additional compensation or damages. Provided, however, if the ordered suspension exceeds six (6) months, the Contractor shall have the right to terminate the Agreement with respect to that portion of the Work which is subject to the ordered suspension. ARTICLE 19 DOCUMENTS 19.1 All documents, including but not limited to, drawings, specifications, reports, boring logs, field notes, laboratory test data, calculations and estimates, prepared by CONTRACTOR as instruments of service pursuant to this Agreement, shall be OWNER's sole property, upon payment of all compensation due to the CONTRACTOR hereunder. OWNER agrees that all documents of any nature furnished to OWNER or OWNER's agents or designees, if not paid for, will be returned upon demand and will not be used by OWNER for any purpose whatsoever. 19.2 Upon the completion or• termination of this Agreement, as directed by OWNER, CONTRACTOR shall deliver to OWNER copies or originals of all records, documents, drawings, notes, tracings, plans, AutoCAD files, specifications, maps, evaluations, reports and other technical data, other than working papers, prepared or developed by or for CONTRACTOR under this Agreement ("Project Documents"). OWNER shall specify whether the originals or copies of such Project Documents are to be delivered by CONTRACTOR. CONTRACTOR shall be solely responsible for all costs associated with delivering to OWNER the Project Documents. CONTRACTOR, at its own expense, may retain copies of the Project Documents for its files and internal use. 19.3 CONTRACTOR shall keep such full and detailed records as may be reasonably necessary to reflect: a) proper financial management under this Agreement; and b) the Services performed, including, when applicable, testing, sampling and investigatory services performed by CONTRACTOR. Such records will be subject to review by OWNER on the condition that OWNER identifies, in writing, those documents requested. Documents will be available for inspection at mutually agreeable times for a period of two (2) years after the Services have been completed, or longer where required by law. 19.4 Notwithstanding anything in this Agreement to the contrary and without requiring OWNER to pay any additional compensation, CONTRACTOR hereby grants to OWNER a nonexclusive, irrevocable license in all of the Project Documents for• OWNER's use on this Project. Page 16 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 CAO CONTRACTOR warrants to OWNER that it has full right and authority to grant this license to OWNER. Further, CONTRACTOR consents to OWNER'S use of the Project Documents to complete the Project following CONTRACTOR'S termination for any reason or to perform additions to or remodeling, replacement or renovations of the Project. CONTRACTOR also acknowledges OWNER may be making Project Documents available for review and information to various third parties and hereby consents to such use by OWNER. ARTICLE 20 CONFIDENTIALITY 20.1 CONTRACTOR shall treat as confidential property and not disclose to others, any information (including any technical information, experience or date) regarding OWNER's plans, programs, plants, processes, products, costs, equipment, operations or customers which may come within the knowledge of CONTRACTOR, its officers or employees, agents or consultants in the performance of this Agreement, including any data gathered and reports prepared by CONTRACTOR, without in each instance securing the prior written consent of OWNER. 20.2 Nothing contained herein, shall prevent CONTRACTOR from disclosing to others or using in any manner information which it can show: a. Has been published and has become part of the public domain other than by the acts, omissions or fault of CONTRACTOR its employees, agents or consultants; b. Has been furnished or made known to CONTRACTOR by third parties (other than those acting directly or indirectly for or on behalf of CONTRACTOR or OWNER) as a matter of legal right without restrictions on its disclosure; c. Was in CONTRACTOR's possession prior to the disclosure thereof by OWNER to CONTRACTOR; d. Was independently developed by CONTRACTOR; or e. Was required to be disclosed by law. Provided, however, CONTRACTOR shall not release, or cause or allow the release of, information to the communications media, except as required by law, concerning the existence or teI•Ins of this Agreement. The foregoing obligations shall survive the termination or expiration of this Agreement for a period of two (2) years from the completion of Services. ARTICLE 21 SEVERABILITY 21.1 In the event any provision or part herein shall be deemed invalid or unenforceable, the other provisions or parts hereof shall remain in full force and effect, and binding upon the parties hereto. 21.2 All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating responsibility or liability between OWNER and CONTRACTOR shall survive the completion of the Services and the termination of this Agreement. Page 17 of G4 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 Ct'�� ARTICLE 22 PUBLIC ENTITY CRIMES 22.1 By its execution of this Contract, Construction Contractor acknowledges that it has been informed by Owner of the terms of Section 287.133(2)(a) of the Florida Statutes which read as follows: "A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list." ARTICLE 23 EXHIBITS INCORPORATED The following documents are expressly agreed to be incorporated by reference and made a part of this Agreement. Exhibit Exhibit A-l: A-2: Exhibit Exhibit Exhibit A-3: B-1: 13-2: Exhibit C: Exhibit D: Exhibit Exhibit E-1: E-2: Exhibit F: Exhibit G: Exhibit H: Exhibit I: Contractor's GMP Schedule Contractor's Proposal, Submittal Forms and Addendums Contractor's List of Key Personnel Payment Bond Forms Performance Bond Forms Release and Affidavit Form Contractor Application for Payment Form Change Order Form Work Directive Certificate of Substantial Completion Form Final Payment Checklist General Terms and Conditions Truth in Negotiation Certificate The RPS 4418-7474 "NESA Interim Treatment Plant and Pipelines" Step -One Design Criteria and Step -Two, including attachments, exhibits, and Addenda with attachments, are expressly agreed to be incorporated by reference and made a part of this Agreement. These complete contract documents are available on the County's on-line bidding system: ttps://www.bidsyne.com/bidsyne-cas/, which the parties agree comprise the final integrated agreement executed by the parties. Page 18 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 C�� ARTICLE 24 NOTICES Any notices required to be given under the terms of this agreement shall be provided in writing and posted in regular mail, postage prepaid, to the following addresses: CONTRACTOR: Michael P. Westhafer, P.E., Vice President Mitchell & Start Construction Co., Inc. 6001 Shirley Street Naples, Florida 34109 Telephone: 239-3324632 Email: Mwesthafergmitchellstark.com OWNER: Tom Chmelik, Director, Planning and Project Management Department Collier County Public Utilities Division 3339 Tamiarni Trail East, Suite 303 Naples, Florida 34112 Telephone: 239-252-6213 Email: Tom. Chmelik@colliercou! Utfl.gov For the purposes of this Agreement, notices shall be deemed to have been received upon three (3) days' time after posting of the written notice in the U.S. Mail. ARTICLE 25 CAPTIONS AND HEADINGS 25.1 The captions and headings throughout this Agreement are for convenience and reference only, and the words contained therein shall in no way be held or deemed to define, limit, describe, explain, modify, amplify, or add to the interpretation, construction or meaning of any provision of, or scope of intent of, this Agreement nor in any way affect this Agreement. ARTICLE 26 TRUTH IN NEGOTIATION CERTIFICATE 26.1 In accordance with provisions of Section 287.055, (5)(a), Florida Statutes, the CONTRACTOR agrees to execute the required Truth -In -Negotiation Certificate, attached hereto and incorporated herein as Exhibit I certifying that wage rates and other factual unit costs supporting the compensation for CONTRACTOR'S Design Professional services to be provided under this Agreement are accurate, complete and current at the time of the Agreement. The CONTRACTOR agrees that the original Agreement price and any additions thereto shall be adjusted to exclude any significant sums by which the OWNER determines the Agreement price was increased due to inaccurate, incomplete, or non -current wage rates and other factual unit costs. All such adjustments shall be made within one (1) year following the end of this Agreement. ARTICLE 27 ENTIRE AGREEMENT 27.1 This Agreement, and any attachments or other documents incorporated by reference herein, supersede any previous written or oral contracts or negotiations and this Agreement shall constitute the complete Agreement between the parties hereto and is subject to change only by an instrument in writing and signed by OWNER and CONTRACTOR. No third -party beneficiary is anticipated or intended by this Agreement. Page 19 of 64 "NESA Interim Treatment Plant and Pipelines" RPS 4184474 C�� 27.2 The Parties agree that the provisions of these terms and conditions shall control over and govern as to any form writings signed by the Parties, such as Purchase Orders, Work Orders, or other Order, and that such forms may be issued by OWNER to CONTRACTOR as a matter of convenience to the Parties without altering any of the terms or provisions hereof, regardless of the language appearing on such Order which may be contrary. In case of conflict, the terms of this Agreement shall govern. ARTICLE 28 SUBJECT TO APPROPRIATION 28.1 It is fuI-ther understood and agreed by and between the paI•ties herein that this Agreement is subject to appropriation by the Board of County Commissioners. ARTICLE 29 ORDER OF PRECEDENCE 29.1 In the event of any conflict between or among the terms of any of the Contract Documents, the terms of the Agreement and the General Terms and Conditions shall take precedence over the terms of all other Contract Documents, except the terms of any Supplemental Conditions shall take precedence over the Agreement and the General Terms and Conditions. To the extent any conflict in the terms of the Contract Documents including the Owner's Board approved Executive Summary cannot be resolved by application of the Supplemental Conditions, if any, or the Construction Agreement and the General Terms and Conditions, the conflict shall be resolved by imposing the more strict or costly obligation under the Contract Documents upon the Contractor at Owner's discretion. (signature page to follow) Page 20 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 CAU IN WETNESS VdHERB014, the parties hereto, have each, respectively, by an authorized person or agent, have executed this Agreement on the date and year first written above. A'I•TI ST; BOARD OF COUNTY COMNIIS'� IIONI )9,* '/%, COLLIER C E�L,ORlDA, N TING ASS'''''; 'f Crystal K.i<u�c�I ,,Iei%k ol'Comlts I'HE4 GOVING BUAA Of;tOL,LIELi Iz C ImpU•ii3d�t ` U 'EWER. D r C'E' Col ' C liity, , l ,1ori tj _j �illiant L. McDaniel, JI., Chxt�ttiatt (5l i aSr,taS`t haiEman's '�'�►�,►o►►►lit,, Sl%n�ature only;... Contractor's Witnesses: Mitchell & StarkConstruction Co., Inc. Contract s First Witness-/S^�i�,n�a�h►re *INype/print,witnesAkune* Cofi�etoi•'s Sc3G�td Wi mess —Signature 1 A111+ *'r'ype/print witn name* Appr� ved a. r E� •r ar 1 L.e tlity: Scott R. Teach, ep ► y County Attorney By; Signature — Authorized Agent *'I"ype/print title* ra�c:ar �,r�a "NEiSA Gxcriw'rreahnent t�taut anti 1'ipalines" RPS i118-7.17�1 EXHIBIT A-1 GMP Item Description Unit Qmantity Price Desi n=Build Base bid including the followina Owner -directed allowance line items 1- 1 Security Amount 1 $1255000900 2 Environmental Permitting Amount 1 $350 000M 3 FPL Electrical Services Amount 1 $25%000.00 4 Buffer Clearing, Irrigation, Amount 1 $25%000.00 Landscape Buffer Plantings & Design per SDP 5 Owner's Allowance Amount 5% of $3,1341700A0 Design Build Price Item #6 6 Design -Build (excludes the LS 1 $62,694,000AO Additive and Deductive Alternate Bid Items Additive and Deductive Alternate Bid Items: Add Segment 5A LS 1 $3,500,000AO Add Segment 5B LS 1 $71900,000.00 Deduct Segment 1 IQ Main LS 1 $5505000*00 and Segment 2 IQ west of tee Total GMP (with alternate bid items l $77,653,700*00 Page 22 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 EXHIBIT A-2 CONTRACTOR'S PROPOSAL (following this page) Page 23 of 64 "MESA Interim Treatment Plant and Pipelines" RPS #18-7474 Name Brian Penner Mike Westhafer P.E. Josh Peterson Penner Mike Dickey P.E. Davide Trouteaud P.E. Mark Thomas, EI EXHIBIT A-3 LIST OF PROFESSIONALS AND KEY PERSONNEL Title Firm President Mitchell &Stark Construction Co. Inc. Vice President Mitchell & Stark Construction Co. Inc. Project Manager Mitchell & Stark Construction Co. Inc. Mitchell Project Manager Mitchell & Stark Construction Co. Inc. Project Manager Design Johnson Engineering Project Engineer• Johnson Engineering Utility EngineerJohnson Engineering Page 24 of G4 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 r'AO EXHIBIT 13•1 PUBLIC PAYMENT BOND Band No. 9209550 Contract No. 18=7474 KNOW ALL MEN BY THESE PRESENTS: That MITCHELL &STARK CONSTRUCTION CO., INC. as Principal, and FIDELITY AND DEPOSIT COMPANY OF MARYLAND AND ZURICH AMERICAN INSURANCE COMPANY , as Surety, located at 1299 ZURICH WAY SCHAUMBERG, IL. 60196 (Business Address) are held and firmly bound to BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY FLORIDA as Obligee in the sum of SEVENTY SEVEN MILLION SIX HUNDRED FIFTY THREE THOUSAND SEVEN HUNDRED DOLLARS AND NO CENTS ($ 77,653,700,00 for the payment whereof we bind ourselves, our heirs, executors, personal representatives, successors and assigns, jointly and severally, WHEREAS, Principal has entered into a contract dated as of the trL day of µ c r �h 20 1 � , With Obligee far NESA INTERM TREATMENT PLANT AND PIPELINES in RPS#18-7474 in accordance With drawings and specifications, which contract is incorporated by reference and made a part hereof, and is referred to herein as the Contract. THE CONDITION OF THIS BOND is that if Principal: Promptly makes payment to all claimants as defined in Section 2SSA5(1), Florida Statutes, supplying Principal with labor, materials or supplies, used directly or indirectly by Principal in the prosecution of the work provided fot• 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 band are subject to the time limitations of Section 255.05(2), 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 I 4 day of M G. r r,� 20 i g ,the name of each party being affixed and these presents duly signed by its under -signed representative, pursuant to authority of its governing body. Page 25 of G4 "MESA Interim Treatment Plant and Pipelines" RP5 #18-7A74 CAO Signed, sealed and delivered in the uresenc-ef: ncipal COUNTY OF PRINCIPAL MITCHELL &STARK CONSTRUCTION CO., INC. BY: NAME: BRIAN PENNER ITS: PRESIDENT/CEO The fore�oing instrument was acknowledged before n Re � � n) ~ V� /' , ee z, as k Ca.+S.Fe,.r.�tJ�r ,a xw.t oev� is personally known to me OR has produced My BELINDA BURGBACHER MY COMMISSION it 278246 EXPIRES: January 22, 2023 Bonded Thru Notary Public Underwriters (AFFIX OFFICIAL SEAL} ATTEST: REGINA WILLIAMS, ADMINISTRATIVE ASSISTANT Witnesses to Surety to this 14 day of /✓t a � o'l, 20 t � by Pr is%.� .~A. of corporation, on behalf of the corporation. He/she as identification and did (did not) take an oath. ignatu►e ofNotary) N1� 9 #� A*9 Ij a c 1, (Legibly Printed) Notary Public, State of �� Commission No.: 2 �2y Page 2G of G4 SURETY: FIDELITY AND DEPOSIT COMPANY OF MARYLAND ZURICH AMERICAN INSURANCE COMPANY (Printed Name) 1299 ZURICH WAY SCHAUMBERT, IL.60196 t (Authorized Signature) ROBERT E. WILLIAMS, JR, ATTORNEY IN FACT (P►•inted Name) "MESA Interim Treatment Plant and Pipelines" RPS N I8-?474 rl© Witnesses COUNTY OF LQ� As Attorney in Fact (Attach Power of Attorney) (Printed Name) (Business Address) (Telephone Number) The foregoing instrument was acknowledged before me this /S day of �1 a� c 1, , 20 / � , by be %R N Vt,.,p as re 4=5:1 z.... r of NtC.)%CaA 4�S.FQ e k Gc«Ski...4,11�kv.�cam y.&ee Surety, on behalf of Surety. He/She is personally known to me OR has produced as identification and wTio find (did ngt) take an oath. My Commission Expires: (AFFIX OFFICIAL SEAL) gELINDA BURGgACHER MY COMMISSION # GG 278246 EXPIRES: January 22, 2023 (Signature) Name: Q (Legibly Printed) Notary Public, State of; ¢ I Conunission No.; Page 27 of f,4 "NrsSA Interim Trenhnent Plnnt and Pipelines" Rf'S tl 18-7474 ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That the ZURICH AMERICAN INSURANCE COMPANY, a corporation of the State of New York, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, a corporation of the State of Maryland, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND a corporation of the State of Maryland (herein collectively called the "Companies"), by MICHAEL BOND, Vice President, in pursuance of authority granted by Article V, Section 8, of the By -Laws of said Companies, which are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof, do hereby nominate, constitute, and appoint Robert E. WILLIAMS, JR., of Brownstown, Indiana, its true and lawful agent and Attorney -in -Fact, to make, execute, seal and deliver, for, and on its behalf as surety, and as its act and deed: any and all bonds and undertakings, and the execution of such bonds or undertakings in pursuance of these presents, shall be as binding upon said Companies, as fully and amply, to all intents and purposes, as if they had been duly executed and acknowledged by the regularly elected officers of the ZURICH AMERICAN INSURANCE COMPANY at its office in New York, New York., the regularly elected officers of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at its office in Owings Mills, Maryland., and the regularly elected officers of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at its office in Owings Mills, Maryland., in their own proper persons. The said Vice President does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article V, Section 8, of the By -Laws of said Companies, and is now in force. IN WITNESS WHEREOF, the said Vice -President has hereunto subscribed his/her names and affixed the Corporate Seals of the said ZURICH AMERICAN INSURANCE COMPANY, COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 19th day of May, A.D. 2017. ATTEST: t ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND Assistant Secretary Vice President Dawn E. Brown Michael Bond State of Maryland County of Baltimore On this 19th day of May, A.D. 2017, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, IVIICHAEL BOND, Vice President, and DAWN E. BROWN, Assistant Secretary, of the Companies, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and acknowledged the execution of same, and being by me duly sworn, deposeth and saith, that he/she is the said officer of the Company aforesaid, and that the seals affixed to the preceding instrument are the Corporate Seals of said Companies, and that the said Corporate Seals and the signature as such officer were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporations. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above written. Constance A. Dunn, Notary Public My Commission Expires: July 9, 2019 POA-F 044-3937A EXTRACT FROM BY-LAWS OF THE COMPANIES "Article V, Section 8, Attorneys -in -Fact. The Chief Executive Officer, the President, or any Executive Vice President or Vice President may, by written instrument under the attested corporate seal, appoint attomeys4n4act with authority to execute bonds, policies, recognizances, stipulations, undertakings, or other like instruments on behalf of the Company, and may authorize any officer or any such attorney -in -fact to affix the corporate seal thereto; and may with or without cause modify of revoke any such appointment or authority at any time." CERTIFICATE I, the undersigned, Vice President of the ZURICH AMERICAN INSURANCE COMPANY, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the foregoing Power of Attorney is still in full force and effect on the date of this certificate; and I do further certify that Article V, Section 8, of the By -Laws of the Companies is still in force. 'kI This Power of Attorney and Certif cate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the ZURICH AMERICAN INSURANCE COMPANY at a meeting duly called and held on the 15th day of December 1998. RESOLVED: "That the signature of the President or a Vice President and the attesting signature of a Secretary or an Assistant Secretary and the Seal of the Company may be affixed by facsimile on any Power of Attorney ... Any such Power or any certificate thereof bearing such facsimile signature and seal shall be valid and binding on the Company." This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the 5th day of May, 1994, and the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 10th day of May, 1990. RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature of any Vice -President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect as though manually affixed. IN TESTIMONY WI-IEREOF, I have hereunto subscribed my name and affixed the corporate seals of the said Companies, this 1 �1 day of N�� ah 20 ih David MWicker, Vice President TO REPORT A CLAIM WITH REGARD TO A SiJRETY BOND, PLEASE SUBMIT ALL REQUIRED INFORMATION TO: Zurich American Insurance Co. Atin: Surety Claims 1299 Zurich Way Schaumburg, IL 601964056 EXHIBIT B-2: PUBLIC I'ERaCORMANCE BOND KNOW ALL MEN BY THESE Co., INC. as ZURICH AMERICAN INSURANCE COMPANY PRESENTS: Principal, as That and BOnd No. 9209550 Contract No. 18-7474 11 MITCHELL &STARK CONSTRUCTION AND FIDELITY AND DEPOSIT COMPANY OF MARYLAND located ET 1299 ZURICH WAY SCHAUMBERG, It 60196 �$USIneSS Address) are held and firmly bound to BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA s as Obligee in the sum of SEVENTY SEVEN MILLION SIX HUNDRED FIFTY THREE THOUSAND SEVEN HUNDRED DOLLARS AND NO CENTS �077,653,700.00 )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 K d e e� h 20 11 with Obligee day of for NESA INTERIM TREATMENT PLANT AND PIPELINES RPS# 18-7474 In accordance with drawings and specifications, which contract is incorporated by reference and made a part hereof, and is referred to herein 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 Obligee any and all losses, damages, costs and attorneys' fees that Obligee sustains because of any default by Principal under the Contract, including, but not limited to, all delay damages, whether Liquidated or actual, incurred by Obligee; and 3. Ferfarms the guarantee of all work and materials furnished under the Contract for the time specified in the Contract, then this on 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, far 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, alterations or additions to the terms of the Contract or to work or to the specifications. This instrument shall be construed in all respects as a common law bond. It'is expressly understood that the time previsions and statute of limitations under Section 255.05, Florida Statutes, shall net apply to this bond. In no event will the Surety be liable in the aggregate to Obligee for more than the penal sum of this Performance Bond regardless of the number of suits that may be filed by Obligee. IN WITNESS WHEREOF, the above parties have executed this instrument this day of Iw a . �� , 20 ► e ,the name of each party being affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body. Page 28 of 64 "NfuSA Interim Treatment Pant and Pipelines" itPS !1 ] 8-'74?4 CA© Signed, sealed and delivered PRINCIPAL MITCHELL &STARK CONSTRUCTION CO., INC. BY: NAME: BRIAN PENNER ITS: PRESIDENT/CEO COUNTY OF G s 1 I `e-. e The foregoing instrument was acknowledged befoee me this !�, day of /u • < <� , 20 �S , by as of Ohm A6- corporation, on behalf of the corporation, He/she is personally�wn to me OR has produced as identification and did (did not) take an oath, My Commission Expires: {Signature) J Name: lg+;l,���, ,. �7.�ao E (Legibly Printed) (AFFIX OFFICIAL SEAL) Notary Public, State of: � I. Masson Commission No.: e B Zy Fri 7BEELINDABDR�CHER MYMISSION # 20236ES: �' twriters BOrlu Notary public Ulyde P1ge 29 of G4 "MESA Interim Treatment Piant and Pipciines" RPS N 18-7474 ATTEST: SURETY: FIDELITY AND DEPOSIT COMPANY OF MARYLAND AND ZURICH AMERICAN INSURANCE COMPANY (Printed Name) 1299 ZURICH WAY SCHAUMBERG, IL. 60196 (BU At[dl'eSlS) (Authorized Signature) ROBERT E. WILLIAMS, JR, ATTORNEY IN FACT i t0 Surety REGINA WILLIAMS (Printed Name) ADMINISTRATIVE ASSISTANT OR Witnesses STATE OF �)u��Jg COUNTY OF G Q 11 > !% do' As Attorney in Fact (Attach Power of Attorney) (Printed Name) (Business Address) (Telephone Number) The foregoing instrument was acknowledged befo►•e me this / S day of µtr � �t , 20 ► � , by produced My Commission Expires: (AFFIX OFFICIAL SEAL) Surety, an behalf of Surety. He/She is personall kn��n to me OR has as identification and who id (did not) take an oath. ignature) iJ Ifi� 1 f 1' Name: � elr�VNALcz (Legibly Printed} Notary Public, State of: 1:7� ' ' Commission No„ � ca 27� �- y � Page 30 of G4 "NESA Interim Treatment Plant and Pipelines" RPS # 18-7474 CAv ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That the ZURICH AMERICAN INSURANCE COMPANY, a corporation of the State of New York, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, a corporation of the State of Maryland, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND a corporation of the State of Maryland (herein collectively called the "Companies"), by MICHAEL BOND, Vice President, in pursuance of authority granted by Article V, Section 8, of the By -Laws of said Companies, which are set forth on the reverse side hereof and are hereby certified to be in full force and effect on the date hereof, do hereby nominate, constitute, and appoint Robert E. WILLIAMS, JR., of Brownstown, Indiana, its true and lawful agent and Attorney -in -Fact, to make, execute, seal and deliver, for, and on its behalf as surety, and as its act and deed: any and all bonds and undertakings, and the execution of such bonds or undertakings in pursuance of these presents, shall be as binding upon said Companies, as fully and amply, to all intents and purposes, as if they had been duly executed and acknowledged by the regularly elected officers of the ZURICH AMERICAN INSURANCE COMPANY at its office in New York, New York., the regularly elected officers of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at its office in Owings Mills, Maryland., and the regularly elected officers of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at its office in Owings Mills, Maryland., in their own proper persons. The said Vice President does hereby certify that the extract set forth on the reverse side hereof is a true copy of Article V, Section 8, of the By -Laws of said Companies, and is now in force. IN WITNESS WFIEREOF, the said Vice -President has hereunto subscribed his/her names and affixed the Corporate Seals of the said ZURICH AMERICAN INSURANCE COMPANY, COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 19th day of May, A.D. 2017. ATTEST: ZURICH AMERICAN INSURANCE COMPANY COLONIAL AMERICAN CASUALTY AND SURETY COMPANY FIDELITY AND DEPOSIT COMPANY OF MARYLAND 1tN ,ra �1 t068 ' ✓GG20 Assistant Secretary Vice President Dawn E. Brown Michael Bond State of Maryland County of Baltimore On this 19th day of May, A.D. 2017, before the subscriber, a Notary Public of the State of Maryland, duly commissioned and qualified, NLICHAEL BOND, Vice President, and DAWN E. BROWN, Assistant Secretary, of the Companies, to me personally known to be the individuals and officers described in and who executed the preceding instrument, and acknowledged the execution of same, and being by me duly sworn, deposeth and saith, that he/she is the said officer of the Company aforesaid, and that the seals affixed to the preceding instrument are the Corporate Seals of said Companies, and that the said Corporate Seals and the signature as such officer were duly affixed and subscribed to the said instrument by the authority and direction of the said Corporations. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above written. Constance A. Dunn, Notary Public My Commission Expires: July 9, 2019 POA-F 044-3937A EXTRACT FROM BY-LAWS OF THE COMPANIES "Article V. Section 8, Attorneys4n-Fact. The Chief Executive Officer, the President, or any Executive Vice President or Vice President may, by written instrument under the attested corporate seal, appoint attomeys4n4act with authority to execute bonds, policies, recognizances, stipulations, undertakings, or other like instruments on behalf of the Company, and may authorize any officer or any such attorney -in -fact to affix the corporate seal thereto; and may with or without cause modify of revoke any such appointment or authority at any time." CERTIFICATE I, the undersigned, Vice President of the ZURICH AMERICAN INSURANCE COMPANY, the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY, and the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify that the foregoing Power of Attorney is still in full force and effect on the date of this certificate; and I do further certify that Article V, Section 8, of the By -Laws of the Companies is still in force. This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the ZURICH AMERICAN INSURANCE COMPANY at a meeting duly called and held on the 15th day of December 1998. RESOLVED: "That the signature of the President or a Vice President and the attesting signature of a Secretary or an Assistant Secretary and the Seal of the Company may be affixed by facsimile on any Power of Attorney ... Any such Power or any certificate thereof bearing such facsimile signature and seal shall be valid and binding on the Company." This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the Board of Directors of the COLONIAL AMERICAN CASUALTY AND SURETY COMPANY at a meeting duly called and held on the 5th day of May, 1994, and the following resolution of the Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on the 10th day of May, 1990. RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically reproduced signature of any Vice -President, Secretary, or Assistant Secretary of the Company, whether made heretofore or hereafter, wherever appearing upon a certified copy of any power of attorney issued by the Company, shall be valid and binding upon the Company with the same force and effect as though manually affixed. IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seals of the said Companies, 1O IM !: i w\ im David McVicker, Vice President TO REPORT A CLAIM WITH REGARD TO A SURETY BOND, PLEASE SUBMIT ALL REQUIRED INFORMATION TO: Zurich American Insurance Co. Attn: Surety Claims 1299 Zurich Way Schaumburg, IL 601964056 EXHIBIT C RELEASE AND AFFIDAVIT FORM 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" hereby releases and waives for itself and its subcontractors at every tier, material men, suppliers, successors and/or assigns, all claims for payments due under this Agreement, against the Board of County Commissioners of Collier County, Florida, ("OWNER") relating in any way to the performance of the Agreement between Contractor and OWNER, dated , 20� for the period from to (2) CONTRACTOR hereby certifies for itself and its subcontractors at every tier, material men, suppliers, successors and/or 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) This Release and Affidavit is given in connection with CONTRACTOR'S [monthly/final] Application for Payment No. Mitchell & Stark Construction Co., Inc. "Contractor" Date: ATTEST: First Witness Printed Name Second Witness Printed Name STATE OF By: Title of individual signing COUNTY OF The foI•egoing instrument was acknowledged before me this day of as of a corporation, on behalf of the corporation. He/she is personally known to me oI• as identification, and did not take an oath. My Commission Expires: (AFFIX OFFICIAL SEAL) (Signature of Notary) Name: (Legibly Printed) Notary Public, State of 20_, by uced prod Page 31 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 �At7 EXHIBIT D APPLICATION FOR PAYMENT (County Project Manager) (County Department) Collier County Board of County Commissioners (the OWNER) or Collier County Water -Sewer District (the OWNER) FROM: (Contractor's Representative) (Contractor's Name) (Contractor's Address) RE: Original Contract Time: Revised Contract Time: Retainage @ 10% thru[insert date] Retainage @ _% after [insert date] Percent Work completed to Date: Percent Contract Time completed to Date Liquidated Damages to be Accrued Bid No. Project No. Purchase Order No. Application Date _ Payment Application No. for Work accomplished through the Date: roject Name) Original Contract Amount: Total Change Orders to Date Revised Contract Amount Total value of Work Completed and stored to Date Less previous payment (s) AMOUNT DUE THIS APPLICATION: 43 ATTACH SCHEDULE OF VALUES AND ACCOMPANYING DOCUMENTATION TO THIS APPLICATION CONTRACTOR'S CERTIFICATION: The undersigned CONTRACTOR certifies that: (1) all previous progress 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 DATE: (DP's Name) (Signature) (Type Name &Title) Payment to the CONTRACTOR for the above AMOUNT DUE THIS APPLICATION is approved: By OWNER'S Project Manager: (Signature) (Type Name and Title) Page 32 of 64 "NESA Interim Treatment Plant and Pipelines" RPS#18-7474 C:t4i� EXHIBIT D (Continued) SCHEDULE OF VALUES Project Name: Project Number. Date: Period To: --- -- ITEM NUMBER DESCRIPTION SCHEDULED .._ .._... . VALUE WORK COMPLETED ... ......__......_..__.. . _. STORED -- MATERIALS TOTAL _ _ GOMPLETEE & STORED TO DATE PERCENT COMPLETE BALANCE TO FINISH Iit _..._ RETAINAGE _% _ RETAINAGE (roducedote( TOTAL __...._ RETAINAGE NITHHELD PREVIOUS APPLICATIONS THIS PERIOD THRU DATE SINCE DATE TOTALS *Explanation for the two columns under Previous Applications; The Thru Date is where you will place all information until the contract is complete unless a release or reduction of retainage issue coi into play. If this happens, all information up to the date of the %change in retainage is placed in the Thru Date column. Information after that date is placed in the Since Date column. Thls states what has happened since the change in retainage. Page 33 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #f 18-7474 C�C� Exhibit D (Continued) Stored Materials Record Formula: A+ B- C- D= E A B C D E Date Description. Supplier Invoice Number Previously Received Received This Period Previously Installed Installed This Period Balance To Install Page 34 of 64 "MESA Interim Treatment Plant and Pipelines" RPS # 18-7474 CAE? EXHIBIT E-1 CHANGE ORDER Ghange Order Form Contract#: Change.#:= Purchase Order#: � � Project#:�� ContractorJFnnName:�— —� Project Name: ProjectManager Namel —� Department: �— Or sl CorrtrsctfJ+lark Order Amount Original BCC Apprwsl Date* Agenda Item #, Curti d BCC A.pprOved Amount.„ Last BGC Approval Date; Agenda Item # Current ContracbWrx;s Order Amount BAP Contract Expiration Data tratasterj Dollsr Amountof this Change holeMio; Tots Chsrig e from Original Amount € nn #DI ChangefrontCirrentAmounttAtReoi-ed Co ntrsctMl ors f7rder Toter! 5 0.00 #D11 Change from Current BCC Approved Amount i Completion Date, Description of the Tasks}Change, and Rationale for the Change Notice to Frocee� C millet Last Approved Revised Date Date Completion Date Date (InnyJas Trs MT3e1 #of Days Added �� Select Tasks q.Addnewtask[s) r3 Deletetask(s) 13-1 Changetask(s) CQfOther (sytrac�avj Provide a respo n se to th a fo I lowin g:11.)detai led and specific exp lanationkatio nal a of the requested change(s)to the tasks} and ! or the additio nal days added (if requested}; 2.) why this change was not i nctuded in the origi nal contract; and, 3.) describe the impactif this change is not processed. Attach additional information from the Design Professiwai anJor Contractor 3f nseie:f. Prepared by: Date: {Froje,:t Frtanager Name and Deg>dment} Aeceptance of this Change Ord= rshad e-erutit>ris a mo3ifi:avon to conuad / vrork ord_r i3_ntiried at¢r<<F Sod '+rill bs 5rrtja:t fio all the same terms and cowrdions as contained in above, as fultyras if the Sam eWeTe stated in this Try adiustmeni I iF any, to ih Contrao# s hall carer ihrte a full and finals=_ttterrt nt of any and all claim s of the Contractor J Vendor J Cons aftant J Design Professional arising out of or related to the change set forth herein, including claims for im psct arcs delay coasts. Accepted by: Date". (Contractor J 4'=_n3or J Consuiiant J Design Professional and Name of Firm, if prat-rtapplivsbk) Ap p roved by: Date: (Design Professional and Name of Firm, if project applicable) Approved by: Date: {Pro,.-urement Professional ,--,.^aT _�...987i:rr37:Aa01„.�a..•-- Page 35 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 �;�� EXHIBIT E-2 WORK DIRECTIVE CHANGE PROJECT NAME: DATE OF ISSUANCE: OWNER: Collier County Board of Commissioners CONTRACTOR: CHANGE # EFFECTIVE DATE: PROJECT#: ENGINEER: You are directed to proceed promptly with the following change(s): Description: Purpose of Work Directive Change: Attachments: If a claim is made that the above changes) have affected Contract amount or Contract Times any claim for a Change Order based thereon will involve one or more of the following methods of determining the effect of the changes(s). Method of determining change in Contract amount: Method of determining change in Contract Times: ❑ Unit Prices ❑ CONTRACTOR'S records ❑ Lump Sum ❑ Engineer's record ❑ Other ❑ Other Estimated increase (decrease) in Contract amount RECOMMENDED: By: Engineer Estimated change in Contract Time: Increase or decrease by calendar days. AUTHORIZED: By: OWNER's Representative Page 36 of 64 "NESA Interim Treatment Plant and Pipelines" i.E�� RPS #18-7474 OWNER'S ProjectNo. PROJECT: Contract For _ Contract Date EXHIBIT F CERTIFICATE OF SUBSTANTIAL COMPLETION ENGINEER'S Project This Certificate of Substantial completion applies to all Work under the Contract documents or to the following specified parts thereof. To OWNER And To The Work to which this Certificate applies has been inspected by authorized representatives of OWNER, CONTRACTOR, AND DESIGN PROFESSIONAL, and that such Work is hereby declared to be substantially complete in accordance with the contract documents on the following effective date: THE DATE OF SUBSTANTIAL COMPLETION A tentative list of items to be completed or corrected is attached hereto. This list may not be an -inclusive, and the failure to include an item in it does not alter the I•esponsibility of CONTRACTOR to complete all the Work in accordance with the Contract Documents. The items in the tentative list shall be completed or corrected by CONTRACTOR within days of the above date of Substantial Completion, Page 37 of 64 "NESA Interim Treatment Plant and Pipelines" The responsibilities between OWNER and CONTRACTOR for security, operation, safety, maintenance, heat, utilities, insurance and warranties shall be as follows: RESPONSIBILITIES: OWNER: CONTRACTOR: The following documents are attached to and made a part of this Certificate: This certificate does not constitute an acceptance of Work not in accordance with the Contract Documents nor is it a release of CONTRACTOR'S obligation to complete the Work in accordance with the Contract Documents. Executed by Design Professional on By: 20 Design Professional Type Name and Title CONTRACTOR accepts this Certificate of Substantial Completion on By: OWNER accepts this Certificate of Substantial Completion on By: Page 38 of 66 CONTRACTOR Type Name and Title 20 Type Name and Title "NESA Interim Treatment Plant and Pipelines" RPS # 18-7474 EXHIBIT G FINAL PAYMENT CHECKLIST Bid No.: Project No.: Date: , 20 Contractor: The following items have been secured by the for the Project known as and have been reviewed and found to comply with the requirements of the Contract Documents. Original Contract Amount: Final Contract Amount: Commencement Date: Substantial Completion Time as set forth in the Agreement: Calendar Days. Actual Date of Substantial Completion: Final Completion Time as set forth in the Agreement: Calendar Days. Actual Final Completion Date: YES NO 1. All Punch List items completed on 2. Warranties and Guarantees assigned to Owner (attach to this form). 3. Effective date of General one-year warranty from Contractor is: 4. 2 copies of Operation and Maintenance manuals for equipment and system submitted (list manuals in attachment to this form). 5. As -Built drawings obtained and dated: 6. Owner personnel trained on system and equipment operation. 7. Certificate of Occupancy No.: issued on (attach to this form). 8. Certificate of Substantial Completion issued on 9. Final Payment Application and Affidavits received from Contractor on: 10. Consent of Surety received on 11. Operating Department personnel notified Project is in operating phase. Z. All Spare Parts or Special Tools provided to Owner: 13. Finished Floor Elevation Certificate provided to Owner: 14. Other: If any of the above is not applicable, indicate by N/A. Acknowledgments: By Contractor: By Design Professional: By Owner: If NO is checked for any of the above, attach explanation. (Company Name) (Signature) (Typed Name & Title) (Firm Name) (Signature) (Typed Name & Title) (Department Name) (Signature) (Name & Title) Page 39 of 64 "MESA Interim Treatment Plant and Pipelines" RPS # 18-7474 `�� EXHIBIT H GENERAL TERMS AND CONDITIONS EXHIBIT H: GENERAL TERMS AND CONDITIONS 1. INTENT OF CONTRACT DOCUMENTS. 1.1 Contractor and Owner, prior to execution of the Agreement, shall carefully review all the Contract Documents, including the various documents comprising the Basis of Design Documents, for any conflicts or ambiguities. Contractor and Owner will discuss and resolve any identified conflicts or ambiguities prior to execution of the Agreement. 1.2 The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents within the Contract Time(s) for the Contract Price. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a mariner consistent with construction and design industry standards. In the event inconsistencies, conflicts, or ambiguities between or among the Contract Documents are discovered after execution of the Agreement, Contractor and Owner shall attempt to resolve any ambiguity, conflict or inconsistency informally, recognizing that the Contract Documents shall take precedence in the order in which they are listed in Article 1 of this Agreement hereof. 1.3 Terms, words and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in the General Conditions of Contract. IA If Owner's Project Criteria contain design specifications: (a) Contractor shall be entitled to reasonably rely on the accuracy of the information represented in such design specifications and their compatibility with other information set forth in Owner's Project Criteria, including any performance specifications; and (b) Contractor shall be entitled to an adjustment in the Contract Price and/or Contract Time(s) to the extent Contractor's cost and/or time of performance have been adversely impacted by such inaccurate design specification. 1.5 The Contract Documents form the entire Agreement between Owner and Contractor and by incorporation herein are as fully binding on the parties as if repeated herein. No oral representations or other agreements have been made by the parties except as specifically stated in the Contract Documents. 2. INVESTIGATION AND UTILITIES. 2.1 Subject to Section 2.3 below, Contractor shall have the sole responsibility of satisfying itself concerning the nature and location of the Work and the general and local conditions, and particularly, but without limitation, with respect to the following: those affecting transportation, access, disposal, handling and storage of materials; availability and quality of labor; water and electric power; availability and condition of roads; work area; living facilities; climatic conditions and seasons; physical conditions at the work -site and the project area as a whole; topography and ground surface conditions; nature and quantity of the surface materials to be encountered; subsurface conditions; equipment and facilities needed preliminary to and during performance of the Work; and all other costs associated with such performance. The failure of Contractor to acquaint itself with any applicable conditions shall not relieve Contractor from any of its responsibilities to perform under the Contract Documents, nor shall it be considered the basis for any claim for additional time or compensation. 2.2 Contractor shall locate all existing roadways, railways, drainage facilities and utility services above, upon, or under the Project site, said roadways, railways, drainage facilities and utilities being referred to in this Sub - Section 2.2 as the "Utilities". Contractor shall contact the owners of all Utilities to determine the necessity for• relocating or temporarily interrupting any Utilities during the construction of the Project. Contractor shall schedule and coordinate its Work around any such relocation or temporary service interruption. Contractor shall be responsible for properly shoring, supporting and protecting all Utilities at all tunes during the course of the Page 40 of 64 "NESA Interim Treatment Plant and Pipelines" RPS # 18-7474 C�1,0 Work. The Contractor is responsible for coordinating all other utility work so as to not interfere with the prosecution of the Work (except those utilities to be coordinated by the Owner as may be expressly described elsewhere in the Contract Documents). 2.3 Notwithstanding anything in the Contract Documents to the contrary, if conditions are encountered at the Project site which are (i) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (ii) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, and which reasonably should not have been discovered by Contractor as part of its scope of site investigative services required pursuant to the terms of the Contract Documents. Contractor will not be entitled to any adjustment to the Lump Sum Price or the Contract Time as a result of any site conditions encountered. It is the specific intention of the Parties that Contractor will propose and perform as part of its Design Services any necessary investigation and testing that Contractor deems necessary to assume such risk. 3. SCHEDULE. 3.1 The Contractor, within ten (10) calendar days after receipt of the executed Agreement, shall prepare and submit to Project Manager, for their review and approval, a Schedule of Values for the Project (herein "Schedule of Values"). The Schedule of Values shall relate to all Work required by the Contract Documents and shall utilize the Critical Path method of scheduling and shall provide for expeditious and practicable execution of the Work within the Contract Time. The Schedule of Values shall indicate the dates for starting and completing the various stages of the Work, 3.2 The Schedule of Values shall be updated monthly by the Contractor. All monthly updates to the Schedule of Values shall be subject to the Project Manager's review and approval. Contractor shall submit the updates to the Schedule of Values with its monthly Applications for Payment noted below. The Project Manager's review and approval of the submitted Schedule of Values updates shall be a condition precedent to the Owner's obligation to pay Contractor. 3.3 All work under this Agreement shall be performed in accordance with the requirements of all Collier County Noise Ordinances then in effect. Unless otherwise specified, work will generally be limited to the hours of 7 a.m. to 7 p.m., Monday through Saturday. No work shall be performed outside the specified hours without the prior approval of the Project Manager. 4. PROGRESS PAYMENTS. 4.1 Prior to submitting its first monthly Application for Payment, Contractor shall submit to Project Manager, for their review and approval, a Risk Safety Management Plan, Quality Assurance /Quality Control Plan, a Critical Path Method Schedule showing critical path, interdependencies and slack or float, a Hurricane Plan and a schedule of values based upon the Contract amount, listing the major elements of the Work and the dollar value for each element. After its approval by the Project Manager, this schedule of values shall be used as the basis for the Contractor's monthly Applications for Payment. This 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 and attached to the Agreement as Exhibit D. 4.2 Prior to submitting its first monthly Application for Payment, Contractor shall provide to the Project Manager the list of its Subcontractors and materialmen submitted 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 and any subsequently identified Subcontractors are subject to Owner's prior written approval. The first Application for Payment shall be submitted no earlier than thirty (30) days after the Commencement Date. Page 41 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 4.3 Unless expressly approved by Owner in advance and in writing, said approval at Owner's sole discretion, Owner is not required to make any payment for materials or equipment that have not been incorporated into the Project. If payment is requested on the basis of materials and equipment not incorporated into the Project, but delivered and suitably stored at the site or at another location, and such payment and storage have been agreed to by Owner in writing, the Application for Payment also shall 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 attached hereto and made a part hereof as Exhibit D. 4.4 Contractor shall submit its monthly Application for Payment to the Project Manager or• his or her designee, as directed by Owner•. 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, 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 therefore; or (3) return the Application for Payment to the Contractor indicating, in writing, the reason for refusing to approve payment. Payments of proper invoices in the amounts approved shall be processed and paid in accordance with Section 218,735, F.S. and the administrative procedures established by the County's Procurement Services Division and the Clerk of Court's Finance Department respectively. 4.5 In the event of a total denial by Owner and return of the Application for Payment by the Project Manager, the Contractor may make the necessary corrections and re -submit the Application for Payment. The Owner shall, within ten (10) business days after the Application for Payment is stamped and received and after Project Manager approval of an Application for Payment, pay the Contractor the amounts so approved. 4.6 Owner shall retain ten percent (1no/ ) of the gross amount of each monthly payment request or ten percent (10%) of the portion thereof approved by the Project Manager for payment, whichever is less. Such sum 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. The Project Manager shall have the discretion to establish, in writing, a schedule to periodically reduce the percentage of cumulative retainage held throughout the course of the Project schedule. Owner shall reduce the amount of the retainage withheld on each payment request subsequent to fifty percent (50%) completion subject to the guidelines set forth in Florida Statute 255.078 and as set forth in the Owner's procurement ordinance and policies. 4.7 Monthly payments to Contractor• shall in no way imply approval or acceptance of Contractor's Work. 4.8 Each Application for Payment, subsequent to the first pay application, shall be accompanied by a Release and Affidavit, in the form attached as Exhibit C, acknowledging Contractor's receipt of payment in full for all materials, labor, equipment and other bills that are then due and payable by Owner with respect to the current Application for Payment. Further, to the extent directed by Owner and in Owner's sole discretion, Contractor shall also submit a Release and Affidavit from each Subcontractor, sub -subcontractor, or supplier in the form attached as Exhibit C acknowledging that each Subcontractor, sub -subcontractor or supplier has been paid in full through the previous month's Application for Payment. The Owner shall not be required to make payment until and unless these affidavits are furnished by Contractor. 4.9 Contractol• 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 Schedule of Values. Accordingly, prior to submitting its first monthly Application for Payment, Contractor shall prepare and submit for Project Manager's review and approval, a detailed Project Funding Schedule, 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 the approved Project Funding Schedule. Page 42 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 CAO 4.10 Notwithstanding anything in the Contract Documents to the contrary, Contractor acknowledges and agrees that in the event of a dispute concerning payments for Work performed under this Agreement, Contractor shall continue to perform the Work required of it under this Agreement pending resolution of the dispute provided that Owner continues to pay Contractor all amounts that Owner does not dispute are due and payable. 4.11 Payments will be made for services furnished, delivered, and accepted, upon receipt and approval of invoices submitted on the date of services or 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. 4.12 The County 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 County may not accept any additional surcharges (credit card transaction fees) as a result of using the County's credit card for transactions relating to this Agreement. 4.13 Allowance Items and Allowance Values. 4.13.1 Any and all Allowance Items, as well as their corresponding Allowance Values, are set forth in an Exhibit Atom hereto. 4.13.2 Contractor• and Owner• have worked together to review the Allowance Items and Allowance Values based on design information then available to determine that the Allowance Values constitute reasonable estimates for the Allowance Items. Contractor and Owner will continue working closely together during the preparation of the design to develop Construction Documents consistent with the Allowance Values. Nothing herein is intended in any way to constitute a guarantee by Contractor that the Allowance Item in question can be performed for the Allowance Value. 4.13.3 No work shall be performed on any Allowance Item without Contractor first obtaining in writing advanced authorization to proceed from Owner. Owner• agrees that if Contractor is not provided written authorization to proceed on an Allowance Item by the date set forth in the Project schedule, due to no fault of Contractor, Contractor may be entitled to an adjustment of the Contract Time(s) and Contract amount. 4.13.4 The Allowance Value for an Allowance Item includes the direct cost of labor, materials, equipment, transportation, taxes and insurance associated with the applicable Allowance Item. All other costs, including design fees, Contractor's overall project management and general conditions costs, overhead and fee, are deemed to be included in the original Contract amount, and are not subject to adjustment, regardless of the actual amount of the Allowance Item. 4.13.5 Whenever the actual costs for an Allowance Item is more than or• less than the stated Allowance Value, the Contract amount shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect the difference between actual costs incurred by Contractor for the particular Allowance Item and the Allowance Value. 5. PAYMENTS WITHHELD. 5.1 The Project Manager may decline to approve any Application for Payment, or portions thereof, because of subsequently discovered evidence or subsequent inspections that reveal non-compliance with the Contract Documents. The Project Manager may nullify the whole or any part of any approval for payment previously issued and Owner may withhold any payments otherwise due Contractor under this Agreement or any other agreement between Owner and Contractor, to such extent as may be necessary in the Owner's opinion to protect it from loss because of. Page 43 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 Cry.€3 (a) Defective Work not remedied; (b) third party claims filed or reasonable evidence indicating probable filing of such claims; (c) failure of Contractor to make payment properly to subcontractors or for labor, materials or equipment; (d) reasonable doubt that the Work can be completed for the unpaid balance of the Contract Amount; (e) reasonable indication that the Work will not be completed within the Contract Time; (f) unsatisfactory prosecution of the Work by the Contractor; or (g) any other material breach of the Contract Documents by Contractor. 5.2 If any conditions described in 5.1, are not remedied or removed, Owner may, after three (3) days written notice, rectify the same at Contractor's expense. Provided however, in the event of an emergency, Owner shall not be required to provide Contractor any written notice prior to rectifying the situation at Contractor's expense. Owner also may offset against any sums due Contractor the amount of any liquidated or non -liquidated obligations of Contractor to Owner, whether relating to or arising out of this Agreement or any other agreement between Contractor and Owner. 5.3 In instances where the successful 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 arnount owed to the vendor or contractor for services performed of for materials delivered in association with a contract. 6. COMPLETION. 6.1 When the entire Work (or any portion thereof designated in writing by Owner•) is ready for its intended use, Contractor shall notify Project Manager in writing that the entire Work (or such designated portion) is substantially complete. Within a reasonable time thereafter, Owner and Contractor shall make an inspection of the Work (or designated portion thereof) to determine the status of completion. If Owner, does not consider the Work (or designated portion) substantially complete, Project Manager shall notify Contractor in writing giving the reasons therefore. If Owner, considers the Work (or designated portion) substantially complete, Project Manager shall prepare and deliver to Contractor a Certificate of Substantial Completion which shall fix the date of Substantial Completion for the entire Work (or designated portion thereof) and include a tentative punch -list 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 punch -list. The Project Manager, shall coordinate with the Contractor the return of any surplus assets, including materials, supplies, and equipment. 6.2 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, Project Manager will make such inspection and, if the Work acceptable and fully performed under the Contract Documents shall promptly approve payment, recommending that, on the basis of 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. Neither the final payment nor the retainage shall become due and payable until Contractor submits. (1) Receipt of Contractor's Final Application for Payment. (2) The Release and Affidavit in the form attached as Exhibit C. (3) Consent of surety to final payment. (4) Receipt of the final payment check list. (5) If required by Owner, other data establishing payment or satisfaction of all obligations, such as receipts, releases and waivers of liens, arising out of the Contract Documents, to the extent and in such form as may be designated by Owner. 6.3 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, OWNER shall release to CONTRACTOR any retained amounts relating, as applicable, to the entire Work or completed portion Page 44 of 64 "NESA Interim Treatment Plant and Pipelines" i2PS # 18-7474 of the Work, less an amount equal to the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion, 6.4 OWNER, at its option, may use a portion of the Work which has been determined to be substantially complete, provided, however, that (i) a Certificate of Substantial Completion has been issued for the portion of Work addressing the items set forth in above, and (ii) OWNER and CONTRACTOR agree that OWNER's use or occupancy will not interfere with CONTRACTOR's completion of the remaining Work. 6.5 OWNER reserves the right to inspect the Wo1•k and make an independent determination as to the Work's acceptability, even though the CONTRACTOR may have issued its recommendations. Unless and until the OWNER is completely satisfied, neither the final payment nor the retainage shall become due and payable. 7. FINAL PAYMENT. 7.1 Owner shall make final payment to Contractor in accordance with Section 218.735, F.S. and the administrative procedures established by the County's Procurement Services Division and the Clerk of Court's Finance Department after the Work is finally inspected and accepted by Project Manager as set forth with Section 6.1 herein, provided that Contractor first, and as an explicit condition precedent to the accrual of Contractor's right to final payment, shall have furnished Owner with a properly executed and notarized copy of the Release and Affidavit attached as Exhibit C, as well as, a duly executed copy of the Surety's consent to final payment and such other documentation that may be required by the Contract Documents and the Owner. Prior to release of final payment and final retainage, the Contractor's Representative and the Project Manager shall jointly complete the Final Payment Checklist, a representative copy of which is attached to this Agreement as Exhibit G. 7.2 Contractor's acceptance of final payment shall constitute a full waiver fa and all claims by Contractor against Owner arising out of this Agreement or otherwise relating to the Project, except those previously made in writing in accordance with the requirements of the Contract Documents and identified by Contractor as unsettled in its final Application for Payment. Neither the acceptance of the Work nor payment by Owner shall be deemed to be a waiver of Owner's right to enforce any obligations of Contractor hereunder or to the recovery of damages for defective Work not discovered by the Project Manager at the time of final inspection. 8. SUBMITTALS AND SUBSTITUTIONS. 8.1 Contractor shall carefully examine the Contract Documents for all requirements for• approval of materials to be submitted such as shop drawings, data, test results, schedules and samples. Contractor shall submit all such materials at its own expense and in such form as required by the Contract Documents in sufficient time to prevent any delay in the delivery of such materials and the installation thereof. 8.2 Whenever• materials or equipment are specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular supplier, the naming of the item is intended to establish the type, function and quality required. Unless the name is followed by words indicating that no substitution is permitted, materials or equipment of other suppliers may be accepted by Owner if sufficient information is submitted by Contractor to allow the Owner to determine that the material or equipment proposed is equivalent or equal to that named. Requests for review of substitute items of material and equipment will not be accepted by Owner from anyone other than Contractor and all such requests must be submitted by Contractor to Project Manager within thirty (30) calendar days after Notice of Award is received by Contractor, unless otherwise mutually agreed in writing by Owner and Contractor. 8.3 If Contractor wishes to furnish or use a substitute item of material or equipment, Contractor• shall make application to the Project Manager for• acceptance thereof, certifying that the proposed substitute shall adequately perform the functions and achieve the results called for by the general design, be similar and of equal substance to that specified and be suited to the same use as that specified. The application shall state that the evaluation and Page 45 of 64 "NESA Interim Treatment Plant and Pipelines" RPS # 18-7474 �C) acceptance of the proposed substitute will not prejudice Contractor's achievement of substantial completion on time, whether or not acceptance of the substitute for use in the Work will require a change in any of the Contract Documents (or in the provisions of any other direct contract with Owner for the Project) to adapt the design to the proposed substitute and whether or not incorporation or use by the substitute in connection with the Work is subject to payment of any license fee or royalty. All variations of the proposed substitute from that specified will be identified in the application and available maintenance, repair and replacement service shall be indicated. The application also shall contain an itemized estimate of all costs that will result directly or indirectly from acceptance of such substitute, including costs for redesign and claims of other contractors affected by the resulting change, all of which shall be considered by the Project Manager in evaluating the proposed substitute. The Project Manager may require Contractor to furnish at Contractor's expense additional data about the proposed substitute. 8.4 If a specific means, method, technique, sequence or procedure of construction is indicated in or required by the Contract Documents, Contractor may furnish or utilize a substitute means, method, sequence, technique or procedure of construction acceptable to the Project Manager, if Contractor submits sufficient information to allow the Project Manager to determine that the substitute proposed is equivalent to that indicated or required by the Contract Documents. The procedures for submission to and review by the Project Manager shall be the same as those provided herein for substitute materials and equipment. 8.5 The Project Manager shall be allowed a reasonable time within which to evaluate each proposed substitute. 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 cost for evaluating each proposed substitute. 8.6 Notwithstanding anything in the Contract Documents to the contrary, Contractor expressly acknowledges and agrees that Owner's review or approval of any design documents submitted by Contractor, including but not limited to any submittals as described herein, shall not relieve Contractor of its responsibilities or liabilities for design hereunder. Notwithstanding anything in the Contract Documents to the contrary, Contractor further expressly acknowledges and agrees that any such review or approval shall not &be deemed as Owner's approval of any deviations to such design documents unless such deviation is expressly brought to Owner's attention by Contractor in writing and Owner expressly approves such deviation in writing. 9. HAZARDOUS AND SAMPLES. 9.1 Test specimens or samples generally are consumed or substantially altered during testing and are disposed of immediately upon completion of tests. Drilling samples and other specimens ar•e disposed of thirty (30) days after CONTRACTOR's submission of its report. 9.2 NON -HAZARDOUS SAMPLES. At OWNER's written request, CONTRACTOR will retain preservable test specimens or the residue there from for thirty (30) days after submission of CONTRACTOR'S report free of storage charges. 9.3 HAZARDOUS OR POTENTIALLY HAZARDOUS SAMPLES. If samples contain hazardous constituents, CONTRACTOR will return such samples to OWNER, or using a manifest signed by OWNER as generator, CONTRACTOR will have such samples transported to a location selected by OWNER for final disposal. OWNER agrees to pay all costs associated with the storage, transport, and disposal of samples. OWNER recognizes and agrees that CONTRACTOR acts as a bailee and at no time assumes title to said materials. Page 46 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 � �� 10. DAILY REPORTS, SIGNED AND SEALED AS-BUILTS AND MEETINGS. 10.1 Unless waived in writing by Owner, Contractor shall complete and submit to Project Manager on a weekly basis a daily log of the Contractor's work for the preceding week in a format approved by the Project Manager. The daily log shall document all activities of Contractor at the Project site including, but not limited to, the following: M I A Weather conditions showing the high and low temperatures during work hours, the amount of precipitation received on the Project site, and any other weather conditions which adversely affect the Work; 10.1.2 Soil conditions which adversely affect the Worlc; 10.1.3 The hours of operation by Contractor's and Sub -Contractor's personnel; 10.1.4 The number• of Contractor's and Sub -Contractor's personnel present and working at the Project site, by subcontract and trade; 10.1.5 All equipment present at the Project site, description of equipment use and designation of time equipment was used (specifically indicating any down time); 10.1.6 10.13 10.1.8 10.1.9 10.1.10 performance. Description of Work being performed at the Project site; Any unusual or special occurrences at the Project site; Materials received at the Project site; A list of all visitors to the Project Any problems that might impact either the cost or quality of the Work or the time of The daily log shall not constitute nor• take the place of any notice r•equir•ed to be given by Contractor to Owner• pursuant to the Contract Documents. 10.2 Contractor shall maintain in a safe place at the Project site one record copy of the Contract Documents, including, but not limited to, all drawings, specifications, addenda, amendments, Change Orders, Work Directive Changes and Field Orders, as well as all written interpretations and clarifications, in good order and annotated to show all changes made during construction. The annotated drawings shall be continuously updated by the Contractor throughout the prosecution of the Work to accurately reflect all field changes that are made to adapt the Work to field conditions, changes resulting from Chang e Orders, Work Directive Changes and Field Orders, and all concealed and buried installations of piping, conduit and utility services. All buried and concealed items, both inside and outside the Project site, shall be accurately located on the annotated drawings as to depth and in relationship to not less than two (2) permanent features (e.g. interior or exterior wall faces). The annotated drawings shall be clean, and all changes, corrections and dimensions shall be given in a neat and legible manner in a contrasting color. The "As -Built" record documents, together with all approved samples and a counterpart of all approved shop drawings shall be available to the Project Manager for reference. Upon completion of the Work and as a condition precedent to Contractor's entitlement to final payment, these "As -Built" record documents, samples and shop drawings shall be delivered to Project Manager by Contractor for Owner. 11. CONTRACT TIME AND TIME EXTENSIONS. 11.1 Contractor shall diligently pursue the completion of the Work and coordinate the Work being done on the Project by its subcontractors and material -men, as well as coordinating its Work with all work of others at the Page 47 of 64 "NESA Interim Treatment Plant and Pipelines" RPS 4418-7474 £,��� 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 suppliers and contractors as set forth in Paragraph 12.2. herein. 11.2 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. 11.3 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 its 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. 11.4 Notwithstanding anything contained within Section 2.3 to the contrary, if Contractor encounters on the Project site any materials reasonably believed by Contractor to be petroleum or petroleum related products or other hazardous or toxic substances which have not been rendered harmless, Contractor immediately shall (i) stop Work in the area affected and (ii) report the condition to Owner in writing. If the Work is so stopped and hazardous material is found, the Work in the affected area shall not thereafter be resumed except by Change Order. Any such Change Order shall include, but not be limited to, an adjustment to the Lump Sum Price and Contract Time as appropriate. If no hazardous material is found after the Work is stopped, no Change Order is required to resume the Work in the affected area. Notwithstanding the foregoing sentences in this, if the hazardous material encountered was generated or caused by Contractor or any of its employees, agents, subconsultants, subcontractors, or material suppliers, no adjustment to the Contract Time or Lump Sum Price shall be made and Contractor shall indemnify Owner and hold Owner harmless for any costs incurred by Owner with respect to such hazardous material. Contractor will coordinate and cooperate with any person or entity who is hired to perform any hazardous material mitigation services. 11.5 In no event shall any approval by Owner authorizing Contractor to continue performing Work under this Agreement or any payment issued by Owner to Contractor be deemed a waiver of any right or claim Owner may have against Contractor for delay damages hereunder. 12. CHANGES IN THE WORK. 12.1 Owner shall have the right at any tune 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, 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. Ownerwill not be responsible forthe 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. Page 48 of 64 "MESA Interim Treatment Plant and Pipelines" RPS #]8-7474 C;Ai} 12.2 A Change Order, in the form attached as Exhibit E 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. 12.3 If Owner and Contractor are unable to agree on a Change Order for the requested change, Contractor shall, nevertheless, promptly perform the change as directed by Owner in a written Work Directive Change. In that event, the Contract Amount and Contract Time shall be adjusted as directed by Owner. If Contractor disagrees with the Owner's adjustment determination, Contractor must make a claim or else be deemed to have waived any claim on this matter it might otherwise have had. 12.4 In the event a requested change results in an increase to the Contract Amount, the amount of the increase shall be limited to the Contractor's reasonable direct labor and material costs and reasonable actual equipment costs as a result of the change (including allowance for labor burden costs) plus a maximum ten percent (10%) markup for all overhead and profit. In the event such change Work is performed by a Subcontractor, a maximum ten percent (10%) markup for all overhead and profit for all Subcontractors' and sub -consultants' direct labor and material costs and actual equipment costs shall be permitted, with a maximum five percent (5%) markup thereon by the Contractor for all of its overhead and profit, for a total maximum markup of fifteen percent (15%). All compensation due Contractor and any Subcontractor or sub -subcontractor for field and home office overhead is included in the markups noted above. No markup shall be placed on sales tax, shipping or subcontractor markup. 12.5 Owner 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 Change Order or Work Directive Change. 12.6 Minor changes in the Work do not involve an adjustment in the Contract Price and/or Contract Time(s) and do not materially and adversely affect the Work, including the design, quality, performance and workmanship required by the Contract Documents. Contractor may make minor changes in the Work consistent with the intent of the Contract Documents, provided, however, that Design -Builder shall promptly inform Owner, in advance and in writing, of any such changes and record such changes on the documents maintained by Design -Builder. 12.7 No action, conduct, omission or course of conduct by Owner shall act to waive, alter, or change the requirement that Amendments, Change Orders, and Work Directive Changes must be in writing and signed by Owner. Such written and signed Amendments, Change Orders and Work Directive Changes are the sole and exclusive way to change either the amount of compensation to be paid to Contractor or the time within which Contractor is to perform its obligations hereunder. No changes will be allowed based upon actual, constructive, or oral notice or lack of prejudice to Owner. Any modifications to this Contract shall be in compliance with the County procurement ordinance and policies and Administrative Procedures in effect at the time such modifications are authorized. 13. OTHER WORK. 13.1 Owner may perform other work related to the Project at the site by Owner's own forces, have other work performed by utility owners or let other direct contracts. If the fact that such other work is to be performed is not noted in the Contract Documents, written notice thereof will be given to Contractor prior to starting any such other work. If Contractor believes that such performance will involve additional expense to Contractor or require additional time, Contractor shall send written notice of that fact to Owner within forty-eight (48) hours of being notified of the other work. If the Contractor fails to send the above required forty-eight (48) hour notice, the Contractor will be deemed to have waived any rights it otherwise may have had to seek an extension to the Contract Time or adjustment to the Contract Amount, Page 49 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 CAO 13.2 Contractor shall afford each utility owner and other contractor who is a party to such a direct contract (or Owner, if Owner is performing the additional work with Owner's employees) proper and safe access to the site and a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such work and shall properly connect and coordinate its Work with theirs. Contractor shall do all cutting, fitting and patching of the Work that may be required to make its several parts come together properly and integrate with such other work. Contractor shall not endanger any work of others by cutting, excavating or otherwise altering their work and will only cut or alter their work with the written consent of the Project Manager and the others whose work will be affected. The duties and responsibilities of Contractor under this paragraph are for the benefit of such utility owners and other Contractors to the extent that there are comparable provisions for the benefit of Contractor in said direct contracts between Owner and such utility owners and other contractors. 13.3 If any part of Contractor's Work depends for proper execution or results upon the work of any other contractor or utility owner (or Owner), Contractor shall inspect and promptly report to Project Managerin writing any delays, defects or deficiencies in such work that render it unavailable or unsuitable for such proper execution and results. Contractor's failure to report will constitute an acceptance of the other work as fit and proper for integration with Contractor's Work. 14. COMPLIANCE WITH LAWS. 14.1 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, worker's 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 Project Manager in writing. To the extent any law, rule, regulation, code, statute, or ordinance requires the inclusion of certain terms in this Agreement in order for this Agreement to be enforceable, such terms shall be deemed included in this Agreement. Notwithstanding anything in the Contract Documents to the contrary, it is understood and agreed that in the event of a change in any applicable laws, ordinances, rules or regulations subsequent to the date this Agreement was executed that increases the Contractor's time or cost of performance of the Work, Contractor is entitled to a Change Order for such increases, except to the extent Contractor knew or should have known of such changes prior to the date of this Agreement. 14.2 By executing and entering into this agreement, the Contractor is for•rnally 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 secq, 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. 14.3 Statutes and executive orders require employers to abide by the immigration laws of the United States and to employ only individuals who are eligible to work in the United States. The Employment Eligibility Verification System (E-Verify) operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA), provides an Internet -based means of verifying employment eligibility of workers in the United States; it is not a substitute for any other employment eligibility verification requirements, The program will be used for Collier County formal Invitations to Bid (ITB) and Request for Proposals (RFP) including professional services and construction services. Exceptions to the program: • Commodity based procurement where no services are provided. • Where the requirement for the affidavit is waived by the Board of County Commissioners Contractors /Bidders are required to enroll in the E-Verify program, and provide acceptable evidence of their enrollment, at the tune of the submission of the Contr•actor•'s/bidder's proposal. Acceptable evidence consists of a copy of the properly completed E-Verify Company Profile page or a copy of the fully executed E-Verify Page 50 of 64 "NESA Interim Treatment Plant and Pipelines" RPS#18-7474 CAf� Memorandum of Understanding for the company. Contractors are also required to provide the Collier County Procurement Services Division an executed affidavit certifying they shall comply with the E-Verify Program. The affidavit is attached to the solicitation documents. If the Bidder/Contractor does not comply with providing both the acceptable E-Verify evidence and the executed affidavit the bidder's / Contractor's proposal may be deemed non -responsive. Additionally, Contractors shall require all subcontracted Contlactvia to use the E-Verify system for all purchases not covered under the "Exceptions to the program" clause above. For additional information regarding the Employment Eligibility Vercation System (E-Verify) program visit the following website: http://www.dhs.gov/E-Verify. It shall be the Contractor's responsibility to familiarize themselves with all rules and regulations governing this program. Contractor acknowledges, and without exception or stipulation, any firms) receiving an award shall be 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 seMc . and regulations relating thereto, as either may be amended and with the provisions contained within this affidavit. Failure by the awarded firm(s) to comply with the laws referenced herein or the provisions of this affidavit shall constitute a breach of the award agreement and the County shall have the discretion to unilaterally terminate said agreement immediately. 15. CLEANUP AND PROTECTIONS. 15.1 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. 15.2 Any existing surface or• subsurface improvements, including, but not limited to, pavements, curbs, sidewalks, pipes, utilities, footings, structures, trees and shrubbery, not indicated in the Contract Documents to be removed or altered, shall be protected by Contractor from damage during the prosecution of the Work. Subject to the Section 2.3 above, any such improvements so damaged shall be restored by Contractor to the condition equal to that existing at the time of Contractor's commencement of the Work. 16. PERMITS, LICENSES AND TAXES, 16.1 Pursuant to Section 218.80, F.S., Owner will pay for all Collier County permits and fees, including license fees, permit fees, impact fees or inspection fees applicable to the Work through an internal budget transfer(s). Contractor is not responsible for paying for permits issued by Collier County, but Contractor 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. Owner will not be obligated to pay for• any permits obtained by Subcontractors. 16.2 All permits, fees and licenses necessary for the prosecution of the Worlc which are not issued by Collier County shall be acquired and paid for• by the Contractor. 16.3 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. 17. WARRANTY. 17.1 Contractor shall obtain and assign to Owner• all express warranties given to Contractor or any subcontractors by any subcontractor or material men supplying materials, equipment or fixtures to be incorporated into the Project. Contractor warrants to Owner that any materials and equipment furnished under the Contract Page 51 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 ��� 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 Substantial 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 or repair. Further, in the event of an emergency, Owner may commence to correct any defective Work, without prior notice to Contractor, at Contractor's expense. These warranties are in addition to those implied warranties to which Owner is entitled as a matter of law. 17.2 No later than 30 days prior to expiration of the warranty, the Project Manager, or another representative of the Owner, shall conduct an inspection of the warranted work to verify compliance with the requirements of the Agreement. The Contractor's Representative shall be present at the time of inspection and shall take remedial actions to correct any deficiencies noted in the inspection. Failure of the Contractor to correct the cited deficiencies shall be grounds for the Owner to disqualify the Contractor from future bid opportunities with the Owner, in addition to any other rights and remedies available to Owner. 18. TESTS AND INSPECTIONS. 18.1 Owner, their respective representatives, agents and employees, and governmental agencies with jurisdiction over the Project shall have access at all times to the Work, whether the Work is being performed on or off of the Project site, for their observation, inspection and testing. Contractor shall provide proper, safe conditions for such access. Contractor shall provide Project Manager with timely notice of readiness of the Work for all required inspections, tests or approvals. 18.2 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 Project Manager 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 Project Manager, 18.3 Contractor is responsible, without reimbursement from Owner, for re -inspection fees and costs; to the extent such re -inspections are due to the fault or neglect of Contractor. 18.4 If any Work that is to be inspected, tested or approved is covered without written concurrence from the Project Manager, such work must, if requested by Project Manager, be uncovered for observation. Such uncovering shall be at Contractor's expense unless Contractor has given Project Manager timely notice of Contractor's intention to cover the same and Project Manager has not acted with reasonable promptness to respond to such notice. If any Work is covered contrary to written directions from Project Manager, such Work must, if requested by Project Manager, be uncovered for Project Manager's observation and be replaced at Contractor's sole expense. 18.5 The Owner shall charge to Contractor and may deduct from any payments due Contractor all engineering and inspection expenses incurred by Owner in connection with any overtime work. Such overtime work consisting of any work during the construction period beyond the regular eight (8) hour day and for any work performed on Saturday, Sunday or holidays. 18.6 Neither observations nor other actions by the Project Manager nor inspections, tests or approvals by others shall relieve Contractor from Contractor's obligations to perform the Work in accordance with the Contract Documents. Page 52 of 64 "MESA Interim Treatment Plant and Pipelines" RPS#18-7474 �'A(3 18.7 Owner shall have the right, but not the obligation, to hire any consultant it deems appropriate to perform a peer review on Contractor's design documents. Contractor agrees to cooperate with any such peer review. 19. DEFECTNE WORK. 19.1 Work not conforming to the requirements of the Contract Documents or any warranties made or assigned by Contractor to Owner shall be deemed defective Work. If required by Project Manager, Contractor shall, as directed, either correct all defective Work, whether or not fabricated, installed or completed, or if the defective Work has been rejected by Project Manager, remove it from the site and replace it with non -defective Work. Contractor shall bear all direct, indirect and consequential costs of such correction or removal (including, but not limited to fees and charges of engineers, architects, attorneys and other professionals) made necessary thereby, and shall hold Owner harmless for same. 19.2 If the Project Manager considers it necessary or advisable that covered Work be observed or inspected or tested by others and such Work is not otherwise required to be inspected or tested, Contractor, at Project Manager's request, shall uncover, expose or otherwise make available for observation, inspection or tests as Project Manager may require, that portion of the Work in question, furnishing all necessary labor, material and equipment. If it is found that such Work is defective, Contractor shall bear all direct, indirect and consequential costs of such uncovering, exposure, observation, inspection and testing and of satisfactory reconstruction (including, but not limited to, fees and charges of engineers, architects, attorneys and other professionals), and Owner shall be entitled to an appropriate decrease in the Contract Amount. If, however, such Work is not found to be defective, Contractor shall be allowed an increase in the Contract Amount and/or an extension to the Contract Time, directly attributable to such uncovering, exposure, observation, inspection, testing and reconstruction. 19.3 If any portion of the Work is defective, or if Contractor fails to supply sufficient skilled workers, suitable materials or equipment or fails to finish or perform the Work in such a way that the completed Work will conform to the Contract Documents, Project Manager may order Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated. The right of Project Managerto stop the Work shall be exercised, if at all, solely forOwner's benefit and nothing herein shall be construed as obligating the Project Manager to exercise this right for the benefit of Design Engineer, Contractor, or any other person. 19.4 Should the Owner determine, at its sole opinion, it is in the Owner's best interest to accept defective Work, the Owner may do so. Contractor shall bear all direct, indirect and consequential costs attributable to the Owner's evaluation of and determination to accept defective Work. If such determination is rendered prior to final payment, a Change Order shall be executed evidencing such acceptance of such defective Work, incorporating the necessary revisions in the Contract Documents and reflecting an appropriate decrease in the Contract Amount. If the Owner accepts such defective Work after final payment, Contractor shall promptly pay Owner an appropriate amount to adequately compensate Owner for its acceptance of the defective Work. 19.5 If Contractor fails, within a reasonable time after the written notice from Project Manager, to correct defective Work or to remove and replace rejected defective Work as required by Project Manager or Owner, or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any of the provisions of the Contract Documents, Owner may, after seven (7) days written notice to Contractor, correct and remedy any such deficiency. Provided, however, Owner shall not be required to give notice to Contractor in the event of an emergency. To the extent necessary to complete corrective and remedial action, Owner may exclude Contractor from any or all of the Project site, take possession of all or any part of the Work, and suspend Contractor's services related thereto, take possession of Contractor's tools, appliances, construction equipment and machinery at the Project site and incorporate in the Work all materials and equipment stored at the Project site or for which Owner has paid Contractor but which are stored elsewhere. Contractor shall allow Owner and their respective representatives, agents, and employees such access to the Project site as may be necessary to enable Owner to exercise the rights and remedies under this paragraph. All direct, indirect and consequential costs of Owner in exercising such rights and remedies shall be charged against Contractor, and a Change Order shall be issued, incorporating the necessary revisions to the Contract Documents, including an Page 53 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 C�4(7 appropriate decrease to the Contract Amount. Such direct, indirect costs shall include, but not be limited to, fees and charges of engineers, architects, attorneys and other professionals, all court costs and all costs of repair and replacement of work of others destroyed or damaged by correction, removal or replacement of Contractor's defective Work. Contractor shall not be allowed an extension of the Contract Time because of any delay in performance of the Work attributable to the exercise by Owner of Owner's rights and remedies hereunder. 20. SUPERVISION AND SUPERINTENDENTS. 20.1 Contractor shall plan, organize, supervise, schedule, monitor, direct and control the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. Contractor shall be responsible to see that the finished Work complies accurately with,the Contract Documents. Contractor shall keep on the Work at all times during its progress a competent resident superintendent, who shall be subject to Owner's approval and not be replaced without prior written notice to Project Manager except under extraordinary circumstances. The superintendent shall be employed by the Contractor and be the Contractor's representative at the Project site and shall have authority to act on behalf of Contractor. All communications given to the superintendent shall be as binding as if given to the Contractor. Owner shall have the right to direct Contractor to remove and replace its Project superintendent, with or without cause. Attached to the Agreement as Exhibit A-3 is a list identifying Contractor's Project Superintendent and all of Contractor's key personnel who are assigned to the Project; such identified personnel shall not be removed without Owner's prior written approval, and if so removed must be immediately replaced with a person acceptable to Owner. 20.2 Contractor• shall have a competent superintendent on the project at all times whenever contractor's work crews, or work crews of other parties authorized by the Project Manager are engaged in any activity whatsoever associated with the Project. Should the Contractor fail to comply with the above condition, the Project Manager shall, at his discretion, deduct from the Contractor's monthly pay estimate, sufficient moneys to account for the Owner's loss of adequate project supervision, not as a penalty, but as liquidated damages, separate from the liquidated damages described in Article 7 of the Agreement, for services not rendered. 21. PROTECTION OF WORK. 21.1 Contractor shall fully protect the Work from loss or damage and shall bear the cost of any such loss or damage until final completion is achieved. If Contractor• or any one for whom Contractor is legally liable for 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 moneys necessary to replace such loss or damage shall be deducted from any amounts due Contractor. 21.2 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 shesses or pressures that will endanger it. 21.3 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 Project Manager. The Owner shall re-establish the benchmarks and Contractor shall be liable for all costs incurred by Owner associated therewith. 22. EMERGENCIES. 22.1 In the event of an 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 Project Manager written notice within forty-eight (48) hours after• Contractor knew or should have known of the occurrence of the emergency, if Contractor believes that any significant changes in the Work or variations from the Contract Documents have Page 54 of 64 "NESA Interim Treatment Plant and Pipelines" RPS # 184474 been caused thereby. If the Project Manager 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. 23. USE OF PREMISES. 23.1 Contractor shall maintain all construction equipment, the storage of materials and equipment and the operations of workers to the Project site and land and areas identified in and permitted by the Contract Documents and other lands and areas permitted by law, rights of way, permits and easements, and shall not unreasonably encumber the Project site with construction equipment or other material or equipment. Contractor shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof, or any land or areas contiguous thereto, resulting from the performance of the Work. 23.2 Contractor acknowledges that Work may be performed at a particular Project site where Owner simultaneously is conducting and continuing its operations upon the salve site. In such event, Contractor shall coordinate its Work and cooperate so as to cause no unreasonable interference with or disruption to Owner's operations. 24. SAFETY. 24.1 Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 24.1.1 All employees on or about the project site and other persons and/or organizations who may be affected thereby; 24.1.2 All the Work and lnatel•ials and equipment to be incorporated therein, whether in storage on or off the Project site; and 24.1.3 Other property on Project site or adjacent thereto, including trees, shrubs, walks, pavements, roadways, structures, utilities and any underground structures or improvements not designated for removal, Telocation or replacement in the Contract Documents. 24.2 Contractor shall comply with all applicable codes, laws, ordinances, rules and regulations of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss. Contractor shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property and of underground structures and improvements and utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation or replacement of their property. Contractor's duties and responsibilities for the safety and protection of the Work shall continue until such time as the Work is completed and final acceptance of same by Owner has occurred. All new electrical installations shall incorporate NFPA 70E Short Circuit Protective Device Coordination and Arc Flash Studies where relevant as determined by the engineer. All electrical installations shall be labeled with appropriate NFPA 70E arch flash boundary and PPE Protective labels. 24.3. Contractor• shall designate a responsible representative located on a full-time basis at the Project site whose duty shall be the prevention of accidents. This person shall be Contractor's superintendent unless otherwise designated in writing by Contractor to Owner. Page 55 of 64 "NESA Interim Treatment Plant and Pipelines" 24.4 Alcohol, drugs and all illegal substances are strictly prohibited on any Owner property. All employees of Contractor, as well as those of all subcontractors and those of any other person or entity for whom Contractor is legally liable (collectively referred to herein as "Employees"), shall not possess or be under the influence of any such substances while on any Owner property. Further, Employees shall not bring on to any Owner property any gun, rifle or other firearm, or explosives of any kind. 24.5 Contractor acknowledges that the or may be progressing on a Project site which is located upon or adjacent to an existing Owner facility. In such event, Contractor shall comply with the following: 24.5.1 All Owner facilities are smoke free. Smoking is strictly prohibited; 24.5.2 All Employees shall be provided an identification badge by Contractor. Such identification badge must be prominently displayed on the outside of the Employees' clothing at all times. All Employees working at the Project site must log in and out with the Contractor each day; 24.5.3 Contractor shall strictly limit its operations to the designated work areas and shall not permit any Employees to enter any other portions of Owner's property without Owner's expressed prior written consent; 24.5.4 All Employees are prohibited from distributing any papers or other materials upon Owner's property, and are strictly prohibited from using any of Owner's telephones or other office equipment; 24.5.5 All Employees shall at all times comply with the OSHA regulations with respect to dress and conduct at the Project site. Further, all Employees shall comply with the dress, conduct and facility regulations issued by Owner's officials onsite, as said regulations may be changed from time to time; 24.5.6 All Employees shall enter and leave Owner's facilities only through the ingress and egress points identified in the site utilization plan approved by Owner or as otherwise designated, from time to time, by Owner in writing; 24.5.7 When requested, Contractor shall cooperate with any ongoing Owner investigation involving personal injury, economic loss or damage to Owner's facilities oI personal property therein; 24.5.8 The Employees may not solicit, distribute or sell products while on Owner's property. Friends, family members or other visitors of the Employees are not permitted on Owner's property; and 24.5.9 At all times, Contractor shall adhere to Owner's safety and security regulations, and shall comply with all security requirements at Owner's facilities, as said regulations and requirements may be modified or changed by Owner from time to time. 24.5.10 At all times while at the Project site, all Employees shall refrain from any abusive or offensive language and shall refrain from the harassment of any Owner employee, agent or• invitee on the Project site. 25. PROJECT MEETINGS. Prior to the commencement of Work, the Contractor shall attend apre-construction conference with the Project Manager and others as appropriate to discuss the Progress Schedule, procedures for handling shop drawings and other submittals, and for processing Applications for Payment, and to establish a working understanding among the parties as to the Work. During the prosecution of the Work, the Contractor shall attend any and all meetings convened by the Project Manager with respect to the Project, when directed to do so by Project Manager•, The Contractor shall have its subcontractors and suppliers attend all such meetings (including the pre -construction conference) as may be directed by the Project Manager. Page 56 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 {',4 f3 26. VENDOR PERFORMANCE EVALUATION. Owner has implemented a Vendor Performance Evaluation System for all contracts awarded in excess of $25,000. To this end, vendors will be evaluated on their performance upon completion/termination of this Agreement. 27. MAINTENANCE OF TRAFFIC POLICY. For all projects that are conducted within a Collier County Right -of -Way, the Contractor shall provide and erect Traffic Control Devices as prescribed in the current edition of the Manual On Uniform Traffic Control Devices (MUTCD), where applicable on local roadways and as prescribed in the Florida Department of Transportation's Design Standards (DS), where applicable on state roadways. These projects shall also comply with Collier County's Maintenance of Traffic Policy, #5807, incorporated herein by reference. Copies are available through Risk Management. The Contractor will be responsible for obtaining copies of all required manuals, MUTCD, FDOT Roadway & Traffic Design Standards Indexes, or other related documents, so to become familiar with their requirements. Strict adherence to the requirements of the Maintenance of Traffic ("MOT") policy will be enforced under this Contract. All costs associated with the Maintenance of Traffic shall be included within the Lump Sum Proposal. If MOT is required, MOT is to be provided within ten (10) days of receipt of Notice of Award. 28. SALES TAX SAVINGS AND DIRECT PURCHASE. 28.1 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. No markup shall be applied to sales tax. Additionally, as directed by Owner and at no additional cost to Owner, Contractor shall comply with and fully implement the sales tax savings program with respect to the Work, as set forth in Section 28.2 below: 28.2 Notwithstanding anything herein to the contrary, because Owner is exempt from sales tax and may wish to generate sales tax savings for the Project, Owner reserves the right to make direct purchases of various construction materials and equipment included in the Work ("Direct Purchase"). Contractor shall prepare purchase orders to vendors selected by Contractor, for execution by Owner, on forms provided by Owner. Contractor shall allow two weeks for execution of all such purchase orders by Owner. Contractor represents and warrants that it will use its best efforts to cooperate with Owner in implementing this sales tax savings program in order to maximize cost savings for the Project. Adjustments to the Contract Amount will be made by appropriate Change Orders for the amounts of each Owner Direct Purchase, plus the saved sales taxes. A Change Order shall be processed promptly after each Direct Purchase, or group of similar or related Direct Purchases, unless otherwise mutually agreed upon between Owner and Contractor. With respect to all Direct Purchases by Owner, Contractor shall remain responsible for coordinating, ordering, inspecting, accepting delivery, storing, handling, installing, warranting and quality control for all Direct Purchases. Notwithstanding anything herein to the contrary, Contractor expressly acknowledges and agrees that all Direct Purchases shall be included within and covered by Contractor's warranty to Owner to the same extent as all other warranties provided by Contractor pursuant to the terms of the Contract Documents. In the event Owner makes a demand against Contractor with respect to any Direct Purchase and Contractor wishes to make claim against the manufacturer or supplier of such Direct Purchase, upon request from Contractor Owner shall assign to Contractor any and all warranties and Contract rights Owner may have from any manufacturer or supplier of any such Direct Purchase by Owner. 28.3 Bidder represents and warrants that it is aware of its statutory responsibilities for sale tax under Chapter 212, Florida Statutes, and for its responsibilities for Federal excise taxes. Page 57 of 64 "NESA Interim Treatment Plant and Pipelines" 29. SUBCONTRACTS. 29.1 Contractor shall review the design and shall determine now it desires to divide the sequence of construction activities. Contractor will determine the breakdown and composition of bid packages for award of subcontracts, based on the current Schedule of Values, and shall supply a copy of that breakdown and composition to Owner for their review and approval prior to submitting its first Application for Payment. Contractor shall take into consideration such factors as natural and practical lines of sever•ability, sequencing effectiveness, access and availability constraints, total time for completion, construction market conditions, availability of labor and materials, community relations and any other factors pertinent to saving time and costs. 29.2 A Subcontractor is any person or entity who is performing, furnishing, supplying or providing any portion of the Work pursuant to a contract with Contractor. Contractor shall be solely responsible for and have control over the Subcontractors. Contractor shall negotiate all Change Orders, Work Directive Changes, Field Orders and Requests for Proposal, with all affected Subcontractors and shall review the costs of those proposals and advise Owner of their validity and reasonableness, acting in Owner's best interest, prior to requesting approval of any Change Order from Owner. All Subcontractors performing any portion of the Work on this Project must possess all licenses required by state or local law and be "qualified" as defined in Collier County Ordinance 2013-69, as amended, meaning a person or entity that has the capability in all respects to perform fully the Agreement requirements with respect to its portion of the Work and has the integrity and reliability to assure good faith performance. 29.3 In addition to those Subcontractors identified in Contractor's proposal that were approved by Owner, Contractor also shall identify any other Subcontractors, including their addresses, licensing information and phone numbers, it intends to utilize for the Project prior to entering into any subcontract or purchase order and prior to the Subcontractor commencing any work on the Project. The list identifying each Subcontractor cannot be modified, changed, or amended without prior written approval from Owner. Any and all Subcontractor work to be self -performed by Contractor must be approved in writing by Owner in its sole discretion prior to commencement of such work. Contractor shall continuously update that Subcontractor list, so that it remains current and accurate throughout the entire performance of the Work. 29.4 Contractor shall not enter into a subcontract or• purchase order with any Subcontractor, if Owner reasonably objects to that Subcontractor. Contractor shall not be required to contract with anyone it reasonably objects to. Contractor shall keep on file a copy of the license for every Subcontractor and sub -subcontractor performing any portion of the Work, as well as maintain a log of all such licenses. All subcontracts and purchase orders between Contractor and its Subcontractors shall be in writing and are subject to Owner's approval. Further, unless expressly waived in writing by Owner, all subcontracts and purchase orders shall (1) require each Subcontractor to be bound to Contractor to the same extent Contractor is bound to Owner by the terms of the Contract Documents, as those terms may apply to the portion of the Work to be performed by the Subcontractor, (2) provide for the assignment of the subcontract or purchase order from Contractor to Owner at the election of Owner upon termination of Contractor, (3) provide that Owner will be an additional indemnified party of the subcontract or purchase order, (4) provide that Owner, Collier County Government, will be an additional insured on all liability insurance policies required to be provided by the Subcontractor except workman's compensation and business automobile policies, (5) assign all warranties directly to Owner, and (6) identify Owner as an intended third -party beneficiary of the subcontract or purchase order. Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract, copies of the Contract Documents to which the Subcontractor will be bound. Each Subcontractor shall similarly make copies of such documents available to its sub -subcontractors. 29.5 Each Subcontractor performing work at the Project Site must agree to provide field (on -site) supervision through a named superintendent for each trade (e.g., general concrete forming and placement, masonry, mechanical, plumbing, electrical and roofing) included in its subcontract or purchase order. In addition, the Subcontractor shall assign and name a qualified employee for scheduling direction for its portion of the Work. The supervisory employees of the Subcontractor (including field superintendent, foreman and schedulers at all Page 58 of 64 "NESA Interim Treatment Plant and Pipelines" RPS # 18-7474 levels) must have been employed in a supervisory (leadership) capacity of substantially equivalent level on a similar project for at least two years within the last five years. The Subcontractor shall include a resume of experience for each employee identified by it to supervise and schedule its work. 29.6 Unless otherwise expressly waived by Owner in writing, all subcontracts and purchase orders shall provide: 29.6.1 That the Subcontractor's exclusive remedy for delays in the performance of the subcontract or purchase order caused by events beyond its control, including delays claimed to be caused by Owner or attributable to Owner and including claims based on breach of contract or negligence, shall be an extension of its contract time. 29.6.2 In the event of a change in the work, the Subcontractor's claim for adjustments in the contract sum are limited exclusively to its actual costs for such changes plus no more than 10% for overhead and profit. 29.6.3 The subcontract or purchase order, as applicable, shall require the Subcontractor to expressly agree that the foregoing constitute its sole and exclusive remedies for delays and changes in the Work and thus eliminate any other remedies for claim for increase in the contract amount, damages, losses or additional compensation. Further, Contractor shall require all Subcontractors to similarly incorporate the terms of this Section 29.6 into their sub -subcontracts and purchase orders. 29.6.4 Each subcontract and purchase order shall require that any claims by Subcontractor• for delay or additional cost must be submitted to Contractor within the time and in the manner in which Contractor must submit such claims to Owner, and that failure to comply with such conditions for giving notice and submitting claims shall result in the waiver of such claims. 30. CONSTRUCTION SERVICES. 30.1 Contractor shall maintain at the Project site, originals or copies of, on a current basis, all Project files and records, including, but not limited to, the following administrative records: 30.1.1 Subcontracts and Purchase Orders 30.1.2 Subcontractor Licenses 30.1.3 Shop Drawing Submittal/Approval Logs 30.1 A Equipment Purchase/Delivery Logs 30.1.5 Contract Drawings and Specifications with Addenda 30.1.6 Warranties and Guarantees 30.1.7 Cost Accounting Records 30.1.8 Labor Costs 30.1.9 Material Costs 30.1.10 Equipment Costs 30.1.11 Cost Proposal Request 30.1.12 Payment Request Records 30.1.13 Meeting Minutes 30.1.14 Cost -Estimates 30.1,15 Bulletin Quotations 30.1.16 Lab Test Reports 30.1.17 Insurance Certificates and Bonds 30.1.18 Contract Changes 30.1.19 Permits 30.1.20 Material Purchase Delivery Logs 30.1.21 Technical Standards 30.1.22 Design Handbooks Page 59 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 30.1.23 "As -Built" Marked Prints 30.1.24 Operating & Maintenance Instruction 30.1.25 Daily Progress Reports 30.1.26 Monthly Progress Reports 30.1.27 Correspondence Files 30.1.28 Transmittal Records 30.1.29 Inspection Reports 30.1.30 Punch Lists 30.1.31 PMIS Schedule and Updates 30.1.32 Suspense (Tickler) Files of Outstanding Requirements The Project files and records shall be available at all times to Owner or their designees for• reference, review or copying. 30.2 Contractor Presentations At the discretion of the County, the Contractor may be required to provide a brief update on the Project to the Collier County Board of County Commissioners, "Board", up to two (2) times per contract term. Presentations shall be made in a properly advertised Public Meeting on a schedule to be determined by the County Manager or his designee. Prior to the scheduled presentation date, the Contractor shall meet with appropriate County staff to discuss the presentation requirements and format. Presentations may include, but not be limited to, the following information: Original contract amount, project schedule, project completion date and any changes to the aforementioned since Notice to Proceed was issued. 31. SECURITY. The Contractor is required to comply with County Ordinance 2004-52, as amended. Background checks are valid for five (5) years and the Contractor shall be responsible for all associated costs. If required, Contractor shall be responsible for the costs of providing background checks by the Collier County Facilities Management Division for all employees that shall provide services to the County under this Agreement. This may include, but not be limited to, checking federal, state and local law enforcement records, including a state and FBI fingerprint check, credit reports, education, residence and employment verifications and other related records. Contractor shall be required to maintain records on each employee and make them available to the County for at least four (4) years. All of Contractor's employees and subcontractors must wear Collier County Government Identification badges at all times while performing services on County faces and properties. Contractor ID badges are valid for one (1) year from the date of issuance and can be renewed each year at no cost to the Contractor during the time period in which their background check is valid, as discussed below. All technicians shall have on their shirts the name of the contractor's business. The Contractor shall immediately notify the Collier County Facilities Management Division via e-mail (DL- FMOPS�u,collier og v.net) whenever an employee assigned to Collier County separates from their employment. This notification is critical to ensure the continued security of Collier County facilities and systems. Failure to notify within four (4) hours of separation may result in a deduction of $500 per incident. CCSO requires separate fingerprinting prior• to work being performed in any of their locations. This will be coordinated upon award of the contract. If there are additional fees for• this process, the Contractor is responsible for all costs. 32. HAZARDOUS CONDITIONS AND DIFFERING SITE CONDITIONS. 32.1 Hazardous Conditions. Page 60 of 64 "NESA Interim Treatment Plant and Pipelines" RPS # 1 &7474 E `q o 32.1.1 Unless otherwise expressly provided in the Contract Documents to be part of the Work, CONTRACTOR is not responsible for any Hazardous Conditions encountered at the site. Upon encountering any Hazardous Conditions, CONTRACTOR will stop Work immediately in the affected area and duly notify OWNER. 32.1.2 Upon receiving notice of the presence of suspected Hazardous Conditions, OWNER shall take the necessary measures required to ensure that the Hazardous Conditions are remedied or rendered harmless. Such necessary measures shall include OWNER retaining qualified independent experts to (i) ascertain whether Hazardous Conditions have actually been encountered, and, if they have been encountered, (ii) prescribe the remedial measures that OWNER must take either to remove the Hazardous Conditions or render the Hazardous Conditions harmless. 32.1.3 CONTRACTOR shall be obligated to resume Work at the affected area of the Project only after OWNER's expert provides it with written certification that (i) the Hazardous Conditions have been removed or rendered harmless and (ii) all necessary approvals have been obtained from all government and quasi -government entities having jurisdiction over the Project or site. 32.1.4 CONTRACTOR will be entitled, in accordance with these General Conditions of Contract, to an adjustment in its Contract amount and/or Contract Time(s) to the extent CONTRACTOR's cost and/or time of performance have been adversely impacted by the presence of Hazardous Conditions. 32.1.5 The CONTRACTOR shall ensure compliance with all NFPA regulations: specifically, 110 & 30/30A; FDEP chapter 62 regulations: specifically, 761, 762, 777, and 780; 376 & 403 Florida Statutes; and STI, UL, PEI, ASME, NACE, NLPA, NIST & API referenced standards pertaining to the storage of hazardous materials and petroleum products. 32.1.6 The CONTRACTOR shall notify the Solid &Hazardous Waste Management Department (SHWMD) prior to the installation, removal, or maintenance of any storage tank, including day tanks for generators, storing / will be storing petroleum products orhazardous materials. The contractor shall provide a 10 day and 4&hour notice to SHWMD 239-252-2508 prior to commencement. 32.1.7 The CONTRACTOR shall provide the plans pertaining to the storage tank systems containing hazardous materials / petroleum products to the SHWMD prior to plans submittal to a permitting entity and then SHWMD must approve the plans prior to contractor's submittal for permitting. 32.2 Differing Site Conditions. 32.2.1 Notwithstanding anything in the Contract Documents to the contrary, if conditions are encountered at the Project site which are (i) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (ii) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, and which reasonably should not have been discovered by CONTRACTOR as part of its scope of site investigative services required pursuant to the terms of the Contract Documents, then CONTRACTOR shall provide OWNER with prompt written notice thereof before conditions are disturbed and in no event later than three (3) calendar days after first observance of such conditions. OWNER shall promptly investigate such conditions and, if they differ materially and cause an increase or decrease in CONTRACTOR's cost of, or time required for, performance of any part of the Work, OWNER will acknowledge and agree to an equitable adjustment to CONTRACTOR's compensation or time for performance, or both, for such Work. If OWNER determines that the conditions at the site are not materially different from those indicated in the Contract Documents or not of an unusual nature or should have been discovered by CONTRACTOR as part of its investigative services, and that no change in the terms of the Agreement is justified, OWNER shall so notify CONTRACTOR in writing, stating its reasons. Claims by CONTRACTOR in opposition Page 61 of 64 "NESA Interim Treatment Plant and Pipelines" RPS #18-7474 CA 0 10 to such determination by OWNER must be made within ten (10) calendar days after CONTRACTOR's receipt of OWNER's written determination notice. If OWNER and CONTRACTOR cannot agree on an adjustment to CONTRACTOR's cost or time of performance, the dispute resolution procedure set forth in the Contract Documents shall be complied with by the parties. 33. ABOVEGROUND/UNDERGROUND TANKS. 33.1 The CONTRACTOR shall ensure compliance with all NFPA regulations: specifically, 110 & 30/30A; FDEP chapter 62 regulations: specifically, 761, 762, 777, and 780; 376 & 403 Florida Statutes; and STI, UL, PEI, ASME, NACE, NLPA, NIST & API referenced standards pertaining to the storage of hazardous materials and petroleum products. 33.2 The CONTRACTOR shall notify the Solid &Hazardous Waste Management Department (SHWMD) prior to the installation, removal, or maintenance of any storage tank, including day tanks for generators, storing / will be storing petroleum products or hazardous materials. The contractor shall provide a 10 day and 48-hour notice to SHWMD 239-252-2508 prior to commencement. The CONTRACTOR shall provide the plans pertaining to the storage tank systems containing hazardous materials / petroleum products to the SHWMD prior to plans submittal to a permitting entity and then SHWMD must approve the plans prior to contractor's submittal for permitting. 34. STANDARDS OF CONDUCT: PROJECT MANAGER, SUPERVISOR, EMPLOYEES. The Contractor shall employ people to work on Owner's projects who are neat, clean, well-groomed and courteous. Subject to the Americans with Disabilities Act, Contractor shall supply competent employees who are physically capable of performing their employment duties. The Owner may require the Contractor to remove an employee it deems careless, incompetent, insubordinate or otherwise objectionable and whose continued employment on Owner's projects is not in the best interest of the County. 35. ADDITIONAL NEGOTIATED TERMS. 35.1. The OWNER' S reserves the right to pay the allowance items per any of the following Price Methodology (as selected below): 35.1.1 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. 35.1.2 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 not company (or subcontractor) timekeeping or payroll records), material or equipment invoices, and other reimbursable documentation for the project. 35.1.3 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). If Page 62 of 64 "NESA Interim Treatment Plant and Pipelines" RPS # 1 &7474 10 35.2. FPL Electrical Services Allowance, 35.2,1 The Contractor shall be responsible for the coordination of these services and the Owner agrees to direct pay for these services. 35.3. Landscape Buffer Plantings &Design per SDP Allowance. 35.3.1 Solicitation of Bids 35.3.1.1 Contractor shall prepare invitations for bids for the buffer clearing landscape and irrigation services. The Construction Manager shall obtain competitive pricing and obtain at least a minimum of three (3) proposals when available. 35.3,1.2 These proposals shall be based on approved plans and specifications, Bids shall be received and submitted to the Design Professional and the Owner for approval. 35.3.1.3 Should the Contractor receive less than thI•ee (3) proposals, he may proceed only if the Design Professional certifies to the Owner that the recommended pricing is reasonable, and representative of the market and the Owner agrees. 35.4. Site clearing shall include the removal of all existing orange trees. Viable existing perimeter vegetation shall be preserved for potential use as a landscape buffer. Clearing of the perimeter vegetation will be included and paid through the landscaping allowance, as directed in writing by the Owner. 35.5, Environmental. The Parties are fully aware the environmental peI•mits may cause a delay in the overall project schedule. Should a delay occur, the parties will work on processing a change order to increase the project days. 35.6. Long Lead Items. 35.6.1 Long Lead Procurement: Contractor• shall review the PI•oject design for the purpose of identifying long lead procurement items (machinery, equipment, materials and supplies) and consult with the Project Manager concerning same. When each item is identified, Contractor shall notify the subcontractors and Owner of the required procurement and schedule. Such information shall be included in the bid documents and made a part of all affected subcontracts. Contractor shall keep itself informed of the progress of the respective subcontractors or suppliers, manufacturing or fabricating such items, and advise Owner of any problems or possible delays in delivery. 35.6.2 The Owner agrees to pay Contractor for the shop drawings and submittals accepted by manufacture(s), upon submission of a paid invoice by Contractor to the manufacture(s). Page 63 of 64 "NESA Interim Treatment Plant and Pipelines" �� RPS # 18-7474 '�� i:7{Hi13i`I' T T'ITVI'H iN NPGQTIA'I'if)N C1;1TT'TT�ICA'1'T► to eo►npliance with the Consultants' Competitive Negotiation Act, Section 287•SS, Florida Statutes, Mitchell & Stark C:onsirucfion Cv,, Trrc,, hereby certifies that wages, rates and other tackual unit costs suppartiryg the compensation for the L)esign I'rofessiattat services to be provided under fhis Agreement, concernir►g Mitchell & Stark Caustruction Co., Inc„ are accurate, comf}lete aad current as of'the time aPcontracting, Mitchell �� Stark C,'onstructiurr Cu., Inc. B Y: DATE:: l f r g "NCiSri (nlerinr'i'rea►rnent Plant and Pipelines" ,�� � DATE(MMIDD/YYYY) CERTIFICATE OF LIABILITY INSURANCE o3/06/2019 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER 1-317-844-7759 NAMEACT Kindra Dunlap AssuredPartners of Indiana, LLC PHONE FAX 10401 N. Meridian #300 Indianapolis, IN 46290 INSURED Mitchell & Stark Florida 6001 Shirley Street Naples, FL 34109 COVERAGES CERTIFICATE NUMBER: 55550412 317-595-7319 kindra.dunla com INSURER S AFFORDING COVERAGE NAIC # INSURERA:XL INS AMBR INC 24554 INSURERB:STARR IND & LIAB CO 38318 INSURERC: GREENWICH INS CO 22322 INSURERD:TRAVSLERS PROP CAS CO OF AMER 25674 INSURERE: NAUTILUS INS CO 17370 INSURER F REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. 1�7R TYPE OF INSURANCE ADDL SUBDR POLICY NUMBER MM/DDY� MM DD/Yl'YY LIMITS A X COMMERCIALGENERALLIABILITY CLAIMS -MADE OCCUR X CGS740906408 03/O1/19 03/O1/20 EACH OCCURRENCE $ 1,000,000 DAMAGE TO RENTED PREMISES Ea occurrence $ 300,000 MED EXP (Any one person) $ 10 , 000 PERSONAL&ADVINJURY $ 1,000,000 GEN'LAGGREGATELIMITAPPLIESPER: POLICY a PRO- � LOC JECT GENERAL AGGREGATE $ 2,000,000 PRODUCTS•COMP/OP AGG $ 2, 000, 000 EMPLOYEE BENEFIT $ 2,000,000 OTHER: A AUTOMOBILE LIABILITY CAH740002708 03/O1/19 03/Ol/20 COMBINED SINGLE LIMIT Ea accident $ 1,000,000 X ANY AUTO BODILY INJURY (Per person) _ $ OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) $ HIRED X NON•OWNED AUTOS ONLY AUTOS ONLY X PROPERTY DAMAGE Per accident $ B X UMBRELLA LIAB X OCCUR X 1000584931191 03/O1/19 03/O1/20 EACH OCCURRENCE $ 5,000,000 AGGREGATE $ 5, 000, 000 EXCESS LIAB CLAIMS -MADE DED X RETENTION $ 0 $ C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N CWG740002508 03/O1/19 03/O1/20 X STATUTE OERH ANYPROPRIETOR/PARTNER/EXECUTIVE � OFFICER/MEMBEREXCLUDED? N/A E.L. EACH ACCIDENT $ 1,000,000 (MandatorylnNH) If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE -EA EMPLOYEE $ 1,000,000 E.L. DISEASE -POLICY LIMIT $ 1, 000, 000 D EXCESS LIABILITY ZUP15S1987A19NF 03/O1/19 03/O1/20 OCC/AGG 25,000,000 E CPL-PROFESSIONAL X CPP201737413 03/Ol/19 03/O1/20 OCC/AGG 5,000,000 DESCRIPTION OFOPERATIONS / LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) RE: NESA INTERIM TREATMENT PLANT AND PIPELINES #18-7474 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS NAPLES, FLORIDA IS AN ADDITIONAL INSURED ON A PRIMARY NON-CONTRIBUTORY BASIS FOR GENERAL LIABILITY, UMBRELLA AND EXCESS LIABILITY POLICIES, 30 DAYS NOTICE OF CANCELLATION APPLIES IF THE INSURANCE COMPANY CANCELS THE POLICY FOR ANY REASON OTHER THAN NON-PAYMENT OF PREMIUM s CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE COLLIER COUNTY BOARD OF COUNTY THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN COMMISSIONERS ACCORDANCE WITH THE POLICY PROVISIONS. 3339 TAMIAMI TRAIL EAST SUITE 303 AUTHORIZEDREPRESENTATIVE NAPLES, FL 34112 „--`'� - 1 USA '---"L:..���;i"., ----- ACORD 25 (2016/03) CGOODWIN 55550412 ©1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD AssuredPartners -.� of Indiana 10401 N. Meridian St., Suite 300 Indianapolis, IN 46290 Phone: 317-844-7759 Fax: 317-815-6036 or Fax 317-844-9910 IF YOU ARE THE RECIPIENT OF THIS CERTIFICATE: ANY WORDING TO PROVIDE ADDITIONAL INSURED COVERAGE, PROVIDE COVERAGE ON A PRIMARY AND NON-CONTRIBUTORY BASIS, OR PROVIDE A WAIVER OF SUBROGATION APPLIES ONLY WHERE REQUIRED BY WRITTEN CONTRACT OR AGREEMENT. CONTRACTUAL LIABILITY COVERAGE IS ONLY PROVIDED TO THE EXTENT SET FORTH IN THE POLICIES AND MAY NOT COVER ALL LIABILITY ASSUMED BY THE NAMED INSURED UNDER THE CONTRACT, IF YOU ARE THE REQUESTOR OF THIS CERTIFICATE OF INSURANCE: AssuredPartners of Indiana, LLC has, upon your request, issued the attached Certificate of Insurance. If you have not already done so, we highly recommend that you provide AssuredPartners of Indiana, LLC with a copy of the insurance and indemnification provisions of the contract pertaining to the Certificate of Insurance request so that we may properly ascertain whether the referenced insurance policies address the limits of insurance, terms and types of coverage required by the contract. While most Certificates of Insurance can be issued at no cost, the contract may require the purchase of additional insurance coverage that could be subject to an additional premium charge. In some instances, the coverage identified in the contract may be outside the underwriting guidelines of the insurance carrier and cannot be obtained. Any contract review performed by AssuredPartners of Indiana, LLC should not be construed as the rendering of legal advice or a legal opinion concerning any portion of the contract. AssuredPartners of Indiana, LLC has not endeavored to identify all potential liability issues that might arise under this contract. This review is provided for information purposes only and should not be relied upon by third parties. Any description of insurance coverage is subject to the terms, conditions, exclusions and other provisions of the policies and any applicable regulations, rating rules or plans. This Certificate of Insurance does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD forms &Policy Cancellation Requirements Effective September 2009, ACORD revised the ACORD 25 Certificate of Insurance and the Acord 27 & 28 Evidence of Property forms, the major change being removal of the cancellation notice provision. Per our contract with ACORD, we are not able to alter pre-existing wording on the current form, nor are we able to complete a proprietary form you provide: • Per Indiana House Enrolled Act 1322, effective July 1, 20131 Sec.13. (a) A person is not entitled to notice of: (1) cancellation of (2) non -renewal of; or (3) a material change in; a policy of property or casualty insurance unless the person has notice rights under the terms of the policy of property or casualty insurance or an endorsement to the policy. Violation of this statute is considered an unfair and deceptive act or practice under Indiana Law and if an agent is found to be in violation, they can possibly lose their license, and an insured or customer can possibly be fined. We appreciate your understanding of the legal restrictions on our ability to fully comply with your request.