Agenda 02/25/2025 Item #16B 2 (Approve Change Order No. 3 under Agreement No. 21-7900, "Design Services for Stormwater Improvements for the BCG & CC/CNN Areas" Project (the "Project")2/25/2025
Item # 16.13.2
ID# 2024-2249
Executive Summary
Recommendation to approve Change Order No. 3 under Agreement No. 21-7900, "Design Services for Stormwater
Improvements for the BCG & CC/ CCN Areas," with Bowman Gulf Coast LLC, to extend the contract time by 180 days
for Tasks 1-4 and 730 days for Task 5, and authorize the Chairman to sign the attached Change Order. (Project Number
60102)
OBJECTIVE: To extend the contract time under Agreement No. 21-7900 due to additional design improvements
identified after survey completion for the "Design Services for Stormwater Improvements for the Big Cypress Golf &
Country Club Estates/Country Club of Naples Areas" Project (the "Project").
CONSIDERATIONS: On April 12, 2022, (Agenda Item 16A24), the Board approved Agreement No. 21-7900 (the
"Agreement") with Hole Montes, Inc. n/k/a Bowman Gulf Coast LLC, the Engineer of Record (the "EOR") for the
Project. Staff is requesting approval of Change Order No.3 to add an additional 180 days to the Agreement to complete
Tasks 1-4 (Project Management, Preliminary Design, Design, Permitting) and an additional 730 days to complete Task 5
(Post Design Services).
A time extension on Tasks 1-4 is necessary so that the FOR can revise the proposed plans and update its Opinion of
Probable Cost as staff continues to work with the FOR on additional design revisions. In part, those revisions involve
evaluating, researching, and updating the 100% plans to reflect the construction of homes and driveways since the initial
survey was completed and identified during the field survey. There are only 108 days left under Task 5, Post Design
Services, which is insufficient to provide assistance with the eventual construction bidding process and EOR-required
services during construction. The additional days being sought for Task 5 will allow the FOR to provide services
through the project's Final Completion.
If this Change Order is not processed, design plans cannot be updated to reflect current field conditions, concerns from
residents will not be addressed, and required FOR services will not be able to be provided to certify Final Completion.
This item is consistent with the Infrastructure and Asset Management Element of Collier County's Strategic Plan by
preparing for the impacts of natural disasters on our critical infrastructure and natural resources.
FISCAL IMPACT: Change Order No. 3 extends the time available on the agreement without changing the dollar value
of the contract. The source of funding for this project resides in Stormwater Bond Fund (3052) within Gordon River
Project (60102).
GROWTH MANAGEMENT IMPACT: This project is in accordance with the goals and objectives of the Stormwater
Element of the Growth Management Plan.
LEGAL CONSIDERATIONS: This item is approved as to form and legality and requires majority vote for Board
approval. —SRT
RECOMMENDATIONS: To approve Change Order No. 3 providing for an extension of the contract time under
Agreement No 21-7900 with Bowman Gulf Coast LLC, for the "Design Services for Stormwater Improvements for the
BCG & CC/CCN Areas" project, and authorize the Chairman to sign the attached Change Order. (Project Number
60102).
PREPARED BY: Isabel Soto, PM II, Transportation Engineering, Stormwater Management
ATTACHMENTS:
CO#3 Bowman 4500230354
21-7900Contract Bowman
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2/2s/2025
Item # 16.13.2
ID# 2024-2249
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ASSUMPTION AGREEMENT
This Assumption Agreement is made and entered into on this 1 3t, of
Fthrc ar , 2024 by and between Bowman Gulf Coast LLC d/b/a Hole Montes, a
Bowman Company ("Bowman Gulf Coast") and Collier County, a political subdivision of the
State of Florida("County"), (collectively the "Parties").
WHEREAS, on July 7, 2015 (Agenda Item No. 16.C.6), the County awarded Agreement
No. 14-6345,"Construction, Engineering and Inspection(CEI) Services for the Wastewater Basin
Programs," to Hole Montes, Inc. ("Hole Montes"), which is attached hereto as Exhibit "A-1"
Agreement No. 14-6345"); and
WHEREAS, on February 25, 2020 (Agenda Item No. 16.E.7) the County awarded
Agreement No. 18-7432-CE,"Professional Services Library Civil Engineering Category,"to Hole
Montes, which is attached hereto as Exhibit"A-2" ("Agreement No. 18-7432-CE"); and
WHEREAS,on April 28,2020(Agenda Item No. 16.E.8)the County awarded Agreement
No. 18-7432-UP,"Professional Services Library-Utility Plants Design and Engineering,"to Hole
Montes, which is attached hereto as Exhibit"A-3" ("Agreement No. 18-7432-UP"); and
WHEREAS, on September 8, 2020 (Agenda Item No. 16.E.4) the County awarded
Agreement No. 18-7432-SM, "Professional Services Library- Survey and Mapping Category,"to
Hole Montes, which is attached hereto as Exhibit"A-4" ("Agreement No. 18-7432-SM"); and
WHEREAS, on June 8, 2021 (Agenda Item No. 16.G.1) the County awarded Agreement
No. 20-7806, "Airport Improvement Program (AIP) Professional Services for Airports (FAA
Funded),"to Hole Montes,which is attached hereto as Exhibit"A-5"("Agreement No. 20-7806");
and
WHEREAS, on September 14, 2021 (Agenda Item No. 16.G.1) the County awarded
Agreement No. 20-7802, "Grant-Funded General Professional Services for Airports, to Hole
Montes, which is attached hereto as Exhibit"A-6" ("Agreement No. 20-7802"); and
WHEREAS, on April 12, 2022 (Agenda Item No. 16.A.24) the County awarded
Agreement No. 21-7900, "Design Services for Stormwater Improvements for the BCG&C/CCN
Areas," to Hole Montes, which is attached hereto as Exhibit "A-7" ("Agreement No. 21-7900");
and
WHEREAS, all the above-referenced Agreements are collectively referred to herein as
the Agreements"; and
WHEREAS, on May 22, 2023, Hole Montes, Inc. merged with and into Bowman Gulf
Coast with Bowman Gulf Coast being the surviving entity of the merger as documented in the
Articles of Merger and Agreement and Plan of Merger filed with the State, and attached hereto as
Exhibit"B;" and
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Assumption Agreement C,A
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WHEREAS, Federal Contract Provisions and Assurances shall apply to Agreement
Nos.18-7432-CE, 18-7432-UP, 18-7432-SM, 20-7806, and 20-7802 and shall take precedence
over the terms of those Agreements, as reflected in attached Exhibit"C"; and
WHEREAS, Bowman Gulf Coast, hereby represents to Collier County that by virtue of
the merger it is the successor in interest in relation to the Agreements; and
WHEREAS,the Parties wish to formalize Bowman Gulf Coast's assumption of rights and
obligations under the Agreement effective as of the date first above written.
NOW THEREFORE, IN CONSIDERATION of the mutual promises in this
Assumption Agreement,and for other good and valuable consideration,the receipt and sufficiency
of which is hereby acknowledged by the Parties, it is agreed as follows:
1. Bowman Gulf Coast accepts and assumes all rights,duties,benefits,and obligations
of Hole Montes under the Agreements, and subsequent amendments executed under the
Agreements, including all existing and future obligations to perform under the Agreements.
2.The parties hereby reaffirm and ratify each of the terms and conditions in the
Agreements.
3.Bowman Gulf Coast will promptly deliver to County evidence of insurance
consistent with the requirement of the Agreements.
4.Bowman Gulf Coast will promptly notify the County of any changes required to
Key Personnel or Qualified License Professional identified in the Agreements.
5.Further supplements to, or modifications of, the Agreements shall be approved in
writing by both parties.
6. Notice required under the Agreements to be sent to Bowman Gulf Coast shall be
directed to:
Bowman Gulf Coast LLC d/b/a Hole Montes, a Bowman Company
950 Encore Way
Naples, Florida 34110
Attention: Robert Mulhere, Senior Vice President
Phone: (239) 254-2000
Email: Rmulhere@bowman.com
7.The County hereby consents to Bowman Gulf Coast's assumption of the
Agreements in order to continue the services provided under Agreement Nos. 14-6345, 18-7432-
CE, 18-7432-UP, 18-7432-SM, 20-7806, 20-7802, and 21-7900. No waivers of performance or
extensions of time to perform are granted or authorized. The County will treat Bowman Gulf
Coast as it would have Hole Montes for all purposes under the Agreements. Except as provided
herein, all other terms and conditions of the Agreements remain in full force and effect.
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Assumption Agreement
CAO
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IN WITNESS WHEREOF, the undersigned have executed and delivered this
Assumption Agreement effective as of the date first above written.
ATTEST:
K. Kinzel, Clerk& Comptroller BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
Byt By:
At t as to Chairman's , Deputy Clerk kris Hall, Chairm
sicinture only.
Approved as to Form and Legality:
siBy: _ P
Scott R. Teach, Deputy County Attorney
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Assumption Agreement
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Company's Witnesses: Bowman Gulf Coast LLC d/b/a Hole
Montes, a Bowman Company
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First Witness By: Signature
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INType/print witness name T Type/print name and title T
Secohd Witness
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Assumption Agreement CAO
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Exhibit "A-7"
Agreement No. 21-7900
Design Services for Stormwater Improvements for the BCG&C/CCN Areas"
TO FOLLOW THIS PAGE
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Assumption Agreement CMA
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6E341'1111
PROFESSIONAL SERVICES AGREEMENT
Contract# 21-7900
for
Design Services for Stormwater Improvements for the BCG & CC/CCN Areas
THIS AGREEMENT is made and entered into this L. day of 1\Pr t \ , 20 22 by and
between the Board of County Commissioners for Collier County, Florida, a political subdivision of the
State of Florida (hereinafter referred to as the "COUNTY") and
Hole Montes, Inc. authorized to
do business in the State of Florida, whose business address is
950 Encore Way, Naples, Florida 34110 hereinafter
referred to as the "CONSULTANT" and/or"CONTRACTOR").
WITNESSETH:
WHEREAS, the COUNTY desires to obtain the professional services of the CONSULTANT
concerning Design Services for Stormwater Improvements for the BCG & CC/CCN Areas
hereinafter referred to as the "Project"), said services in
accordance with the provisions of Section 287.055, Florida Statutes being more fully described in
Schedule A, "Scope of Services", which is attached hereto and incorporated herein;
WHEREAS, the CONSULTANT has submitted a proposal for provision of those services; and;
WHEREAS, the CONSULTANT represents that it has expertise in the type of professional
services that will be required for the Project.
NOW, THEREFORE, in consideration of the mutual covenants and provisions contained
herein, the parties hereto agree as follows:
ARTICLE ONE
CONSULTANTS RESPONSIBILITY
1.1. CONSULTANT shall provide to COUNTY professional services in all phases of the Project to
which this Agreement applies.
1.2. The Basic Services to be performed by CONSULTANT hereunder are set forth in the Scope of
Services described in detail in Schedule A. The total compensation to be paid CONSULTANT by the
COUNTY for all Basic Services is set forth in Article Five and Schedule B, "Basis of Compensation",
which is attached hereto and incorporated herein.
1.3. The CONSULTANT agrees to obtain and maintain throughout the period of this Agreement all
such licenses as are required to do business in the State of Florida and in Collier County, Florida,
including, but not limited to, all licenses required by the respective state boards and other
governmental agencies responsible for regulating and licensing the professional services to be
provided and performed by the CONSULTANT pursuant to this Agreement.
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1.4. The CONSULTANT agrees that, when the services to be provided hereunder relate to a
professional service which, under Florida Statutes, requires a license, certificate of authorization or
other form of legal entitlement to practice such services, it shall employ and/or retain only qualified
personnel to provide such services to the COUNTY.
1.5. CONSULTANT designates Richard "Rick" Brylanski, P.E.a qualified licensed
professional to serve as the CONSULTANT's project coordinator (hereinafter referred to as the
Project Coordinator"). The Project Coordinator is authorized and responsible to act on behalf of the
CONSULTANT with respect to directing, coordinating and administering all aspects of the services to
be provided and performed under this Agreement. Further, the Project Coordinator has full authority
to bind and obligate the CONSULTANT on all matters arising out of or relating to this Agreement. The
CONSULTANT agrees that the Project Coordinator shall devote whatever time is required to
satisfactorily manage the services to be provided and performed by the CONSULTANT hereunder.
The Project Coordinator shall not be removed by CONSULTANT from the Project without the
COUNTY's prior written approval, and if so removed must be immediately replaced with a person
acceptable to the COUNTY.
1.6. CONSULTANT agrees, within fourteen (14) calendar days of receipt of a written request from
the COUNTY to promptly remove and replace the Project Coordinator, or any other personnel
employed or retained by the CONSULTANT, or any subconsultants or subcontractors or any
personnel of any such subconsultants or subcontractors engaged by the CONSULTANT to provide
and perform services or work pursuant to the requirements of this Agreement, said request may be
made with or without cause. Any personnel so removed must be immediately replaced with a person
acceptable to the COUNTY.
1.7. The CONSULTANT represents to the COUNTY that it has expertise in the type of professional
services that will be performed pursuant to this Agreement and has extensive experience with projects
similar to the Project required hereunder. The CONSULTANT agrees that all services to be provided
by CONSULTANT pursuant to this Agreement shall be subject to the COUNTY's review and approval
and shall be in accordance with the generally accepted standards of professional practice in the State
of Florida, as well as in accordance with all applicable laws, statutes. including but not limited to
ordinances, codes, rules, regulations and requirements of any governmental agencies, and the Florida
Building Code where applicable, which regulate or have jurisdiction over the Services to be provided
and performed by CONSULTANT hereunder, the Local Government Prompt Payment Act (218.735
and 218.76 F.S.), as amended, and the Florida Public Records Law Chapter 119, including specifically
those contractual requirements at F.S. § 119.0701(2)(a)-(b) as stated 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:
Communications, Government and Public Affairs Division
3299 Tamiami Trail East, Suite 102
Naples, FL 34112-5746
Telephone: (239) 252-8999
Email: PublicRecordRequest(o colliercountyfl.gov
The Contractor must specifically comply with the Florida Public Records Law to:
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1. Keep and maintain public records required by the public agency to perform the service.
2. Upon request from the public agency's custodian of public records, provide the public
agency with a copy of the requested records or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost provided in this
chapter or as otherwise provided by law.
3. Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law for the
duration of the contract term and following completion of the contract if the Contractor
does not transfer the records to the public agency.
4. Upon completion of the contract, transfer, at no cost, to the public agency all public
records in possession of the Contractor or keep and maintain public records required
by the public agency to perform the service. If the Contractor transfers all public records
to the public agency upon completion of the contract, the Contractor shall destroy any
duplicate public records that are exempt or confidential and exempt from public records
disclosure requirements. If the Contractor keeps and maintains public records upon
completion of the contract, the Contractor shall meet all applicable requirements for
retaining public records. All records stored electronically must be provided to the public
agency, upon request from the public agency's custodian of public records, in a format
that is compatible with the information technology systems of the public agency.
If Contractor observes that the Contract Documents are at variance therewith, it shall promptly notify
the County in writing. Failure by the Contractor to comply with the laws referenced herein shall
constitute a breach of this Agreement and the County shall have the discretion to unilaterally terminate
this Agreement immediately.
1.8. In the event of any conflicts in these requirements, the CONSULTANT shall notify the COUNTY
of such conflict and utilize its best professional judgment to advise the COUNTY regarding resolution
of each such conflict. The COUNTYS approval of the design documents in no way relieves
CONSULTANT of its obligation to deliver complete and accurate documents necessary for successful
construction of the Project.
1.9. The COUNTY reserves the right to deduct portions of the (monthly) invoiced (task) amount for
the following: Tasks not completed within the expressed time frame, including required deliverables,
incomplete and/or deficient documents, failure to comply with local, state and/or federal requirements
and/or codes and ordinances applicable to CONSULTANT's performance of the work as related to
the project. This list is not deemed to be all-inclusive, and the COUNTY reserves the right to make
sole determination regarding deductions. After notification of deficiency, if the CONSULANT fails to
correct the deficiency within the specified timeframe, these funds would be forfeited by the
CONSULTANT. The COUNTY may also deduct or charge the CONSULTANT for services and/or
items necessary to correct the deficiencies directly related to the CONSULTANT's non-performance
whether or not the COUNTY obtained substitute performance.
1.10. CONSULTANT agrees not to divulge, furnish or make available to any third person, firm or
organization, without the COUNTY's prior written consent. or unless incident to the proper
performance of the CONSULTANT'S obligations hereunder, or in the course of judicial or legislative
proceedings where such information has been properly subpoenaed, any non-public information
concerning the services to be rendered by CONSULTANT hereunder, and CONSULTANT shall
require all of its employees, agents, subconsultants and subcontractors to comply with the provisions
of this paragraph. CONSULTANT shall provide the COUNTY prompt written notice of any such
subpoenas.
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1.11. As directed by the COUNTY, all plans and drawings referencing a specific geographic area
must be submitted in an AutoCAD DWG or MicroStation DGN format on a CD or DVD, drawn in the
Florida State Plane East (US Feet) Coordinate System (NAD 83/90). The drawings should either
reference specific established Survey Monumentation, such as Certified Section Corners (Half or
Quarter Sections are also acceptable), or when implemented, derived from the RTK (Real-Time
Kinematic) GPS Network as provided by the COUNTY. Information layers shall have common naming
conventions (i.e. right-of-way- ROW, centerlines- CL, edge-of-pavement- EOP, etc.), and adhere to
industry standard CAD specifications.
ARTICLE TWO
ADDITIONAL SERVICES OF CONSULTANT
2.1. If authorized in writing by the COUNTY through a Change Order or Amendment to this
Agreement, CONSULTANT shall furnish or obtain from others Additional Services of the types listed
in Article Two herein. The agreed upon scope, compensation and schedule for Additional Services
shall be set forth in the Change Order or Amendment authorizing those Additional Services. With
respect to the individuals with authority to authorize Additional Services under this Agreement, such
authority will be as established in the COUNTY's Procurement Ordinance and Procedures in effect at
the time such services are authorized. These services will be paid for by the COUNTY as indicated
in Article Five and Schedule B. Except in an emergency endangering life or property, any Additional
Services must be approved in writing via a Change Order or an Amendment to this Agreement prior
to starting such services. The COUNTY will not be responsible for the costs of Additional Services
commenced without such express prior written approval. Failure to obtain such prior written approval
for Additional Services will be deemed: (i) a waiver of any claim by CONSULTANT for such Additional
Services and (ii) an admission by CONSULTANT that such Work is not additional but rather a part of
the Basic Services required of CONSULTANT hereunder. If the COUNTY determines that a change
in the Agreement is required because of the action taken by CONSULTANT in response to an
emergency, an Amendment shall be issued to document the consequences of the changes or
variations, provided that CONSULTANT has delivered written notice to the COUNTY of the emergency
within forty-eight (48) hours from when CONSULTANT knew or should have known of its occurrence.
Failure to provide the forty-eight (48) hour written notice noted above, waives CONSULTANT's right
it otherwise may have had to seek an adjustment to its compensation or time of performance under
this Agreement. The following services, if not otherwise specified in Schedule A as part of Basic
Services, shall be Additional Services:
2.1.1 Preparation of applications and supporting documents (except those already to be
furnished under this Agreement) for private or governmental grants, loans, bond issues or advances
in connection with the Project.
2.1.2 Services resulting from significant changes in the general scope, extent or character of
the Project or its design including, but not limited to, changes in size, complexity, the COUNTY's
schedule or character of construction; and revising studies, reports, design documents or Contract
Documents previously accepted by the COUNTY when such revisions are required by changes in
laws, rules, regulations, ordinances, codes or orders enacted subsequent to and not reasonably
anticipated prior to the preparation of such studies, reports or documents, or are due to any other
causes beyond CONSULTANT's control and fault.
2.1.3 Providing renderings or models for the COUNTY's use.
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2.1.4 Investigations and studies involving detailed consideration of operations, maintenance
and overhead expenses; the preparation of feasibility studies, cash flow and economic evaluations,
rate schedules and appraisals; and evaluating processes available for licensing and assisting the
COUNTY in obtaining such process licensing.
2.1.5 Furnishing services of independent professional associates and consultants for other
than the Basic Services to be provided by CONSULTANT hereunder.
2.1.6 Services during travel outside of Collier and Lee Counties required of CONSULTANT
and directed by the COUNTY, other than visits to the Project site or the COUNTY's office.
2.1.7 Preparation of operating, maintenance and staffing manuals, except as otherwise
provided for herein.
2.1.8 Preparing to serve or serving as a CONSULTANT or witness for the COUNTY in any
litigation, or other legal or administrative proceeding, involving the Project (except for assistance in
consultations which are included as part of the Basic Services to be provided herein).
2.1.9 Additional services rendered by CONSULTANT in connection with the Project, not
otherwise provided for in this Agreement or not customarily furnished in Collier County as part of the
Basic Services in accordance with generally accepted professional practice.
ARTICLE THREE
THE COUNTY'S RESPONSIBILITIES
3.1. The COUNTY shall designate in writing a project manager to act as the COUNTY's
representative with respect to the services to be rendered under this Agreement (hereinafter referred
to as the "Project Manager"). The Project Manager shall have authority to transmit instructions,
receive information, interpret and define the COUNTY's policies and decisions with respect to
CONSULTANT's services for the Project. However, the Project Manager is not authorized to issue
any verbal or written orders or instructions to the CONSULTANT that would have the effect, or be
interpreted to have the effect. of modifying or changing in any way whatever:
a. The scope of services to be provided and performed by the CONSULTANT hereunder;
b. The time the CONSULTANT is obligated to commence and complete all such services; or
c. The amount of compensation the COUNTY is obligated or committed to pay the
CONSULTANT.
3.2. The Project Manager shall:
a. Review and make appropriate recommendations on all requests submitted by the
CONSULTANT for payment for services and work provided and performed in accordance
with this Agreement;
b. Provide all criteria and information requested by CONSULTANT as to the COUNTY 's
requirements for the Project, including design objectives and constraints, space, capacity
and performance requirements, flexibility and expandability, and any budgetary limitations;
c. Upon request from CONSULTANT, assist CONSULTANT by placing at CONSULTANT's
disposal all available information in the COUNTY's possession pertinent to the Project,
including existing drawings, specifications, shop drawings, product literature, previous
reports and any other data relative to the Project;
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d. Arrange for access to and make all provisions for CONSULTANT to enter the Project site
to perform the services to be provided by CONSULTANT under this Agreement; and
e. Provide notice to CONSULTANT of any deficiencies or defects discovered by the COUNTY
with respect to the services to be rendered by CONSULTANT hereunder.
ARTICLE FOUR
TIME
4.1. Services to be rendered by CONSULTANT shall be commenced subsequent to the execution
of this Agreement upon written Notice to Proceed from the COUNTY for all or any designated portion
of the Project and shall be performed and completed in accordance with the Project Milestone
Schedule attached hereto and made a part hereof as Schedule C. Time is of the essence with respect
to the performance of this Agreement.
4.2. Should CONSULTANT be obstructed or delayed in the prosecution or completion of its
services as a result of unforeseeable causes beyond the control of CONSULTANT, and not due to its
own fault or neglect, including but not restricted to acts of nature or of public enemy, acts of
government or of the COUNTY, fires, floods, epidemics, quarantine regulations, strikes or lock-outs,
then CONSULTANT shall notify the COUNTY in writing within five (5) working days after
commencement of such delay, stating the specific cause or causes thereof, or be deemed to have
waived any right which CONSULTANT may have had to request a time extension for that specific
delay.
4.3. No interruption, interference, inefficiency, suspension or delay in the commencement or
progress of CONSULTANT's services from any cause whatsoever, including those for which the
COUNTY may be responsible in whole or in part, shall relieve CONSULTANT of its duty to perform or
give rise to any right to damages or additional compensation from the COUNTY. CONSULTANT's
sole remedy against the COUNTY will be the right to seek an extension of time to its schedule
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 claims based on late completion. Provided, however, if through no fault
or neglect of CONSULTANT, the services to be provided hereunder have been delayed for a total of
180 calendar days, CONSULTANT's compensation shall be equitably adjusted, with respect to those
services that have not yet been performed, to reflect the incremental increase in costs experienced
by CONSULTANT, if any, as a result of such delays.
4.4. Should the CONSULTANT fail to commence, provide, perform or complete any of the services
to be provided hereunder in a timely manner, in addition to any other rights or remedies available to
the COUNTY hereunder, the COUNTY at its sole discretion and option may withhold any and all
payments due and owing to the CONSULTANT until such time as the CONSULTANT resumes
performance of its obligations hereunder in such a manner so as to reasonably establish to the
COUNTY's satisfaction that the CONSULTANT's performance is or will shortly be back on schedule.
4.5. In no event shall any approval by the COUNTY authorizing CONSULTANT to continue
performing Work under this Agreement or any payment issued by the COUNTY to CONSULTANT be
deemed a waiver of any right or claim the COUNTY may have against CONSULTANT for delay or
any other damages hereunder.
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ARTICLE FIVE
COMPENSATION
5.1. Compensation and the manner of payment of such compensation by the COUNTY for services
rendered hereunder by CONSULTANT shall be as prescribed in Schedule B, entitled "Basis of
Compensation", which is attached hereto and made a part hereof. The Project Manager, or designee,
reserves the right to utilize any of the following Price Methodologies:
ed-tstal-pciee-effering for a project; the ricks-aFe-t=ansfer-red
from the COUNTY t tefial
invoices-prese n of the COUNTY's
Prof
Time and Materials: The COUNTY agrees to pay the contractor for the amount of labor time
spent by the CONSULTANT '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 mark-up). 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.
5.2. The hourly rates as set forth and identified in Schedule B, which is attached hereto, shall apply
only to tasks procured under the Time and Materials pricing methodology specified in paragraph 5.1
above. Gr-art-ti ded:The-hourly-rates-as-cet feftk nd-identified-in-Sshedttle-Bich is-attached
hereto, arc fer purposes of providing estimate(s), as requir
ARTICLE SIX
THE OWNERSHIP OF DOCUMENTS
6.1. Upon the completion or termination of this Agreement, as directed by the COUNTY,
CONSULTANT shall deliver to the COUNTY copies or originals of all records, documents, drawings,
notes, tracings, plans, MicroStation or AutoCAD files, specifications, maps, evaluations, reports and
other technical data, other than working papers, prepared or developed by or for CONSULTANT under
this Agreement ("Project Documents"). The COUNTY shall specify whether the originals or copies of
such Project Documents are to be delivered by CONSULTANT. CONSULTANT shall be solely
responsible for all costs associated with delivering to the COUNTY the Project Documents.
CONSULTANT, at its own expense, may retain copies of the Project Documents for its files and
internal use.
6.2. Notwithstanding anything in this Agreement to the contrary and without requiring the COUNTY
to pay any additional compensation, CONSULTANT hereby grants to the COUNTY a nonexclusive,
irrevocable license in all of the Project Documents for the COUNTY's use on this Project.
CONSULTANT warrants to the COUNTY that it has full right and authority to grant this license to the
COUNTY. Further, CONSULTANT consents to the COUNTY's use of the Project Documents to
complete the Project following CONSULTANT's termination for any reason or to perform additions to
or remodeling, replacement or renovations of the Project. CONSULTANT also acknowledges the
COUNTY may be making Project Documents available for review and information to various third
parties and hereby consents to such use by the COUNTY.
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ARTICLE SEVEN
MAINTENANCE OF RECORDS
7.1. CONSULTANT will keep adequate records and supporting documentation which concern or
reflect its services hereunder. The records and documentation will be retained by CONSULTANT for
a minimum of five (5) years from (a) the date of termination of this Agreement or (b) the date the
Project is completed, whichever is later, or such later date as may be required by law. The COUNTY,
or any duly authorized agents or representatives of the COUNTY, shall, free of charge, have the right
to audit, inspect and copy all such records and documentation as often as they deem necessary during
the period of this Agreement and during the five (5) year period noted above, or such later date as
may be required by law; provided, however, such activity shall be conducted only during normal
business hours.
ARTICLE EIGHT
INDEMNIFICATION
8.1. To the maximum extent permitted by Florida law, CONSULTANT shall indemnify and hold
harmless the COUNTY, its officers and employees from any and all liabilities, damages, losses and
costs, including, but not limited to, reasonable attorneys' fees and paralegals' fees, to the extent
caused by the negligence, recklessness, or intentionally wrongful conduct of CONSULTANT or
anyone employed or utilized by the CONSULTANT in the performance of this Agreement. This
indemnification obligation shall not be construed to negate, abridge or reduce any other rights or
remedies which otherwise may be available to an indemnified party or person described in this
paragraph 8.1.
8.2. To the extent that the Agreement that the work pertains to a "Professional Services
Contract" as defined in Section 725.08(3), Florida Statutes, and the CONSULTANT is a "Design
Professional" as defined in Section 725.08(4), Florida Statutes, the indemnification provided herein
shall be limited as provided in Sections 725.08(1) & (2), Florida Statutes.
ARTICLE NINE
INSURANCE
9.1. CONSULTANT 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 SCHEDULE D to this Agreement.
9.2. All insurance shall be from responsible companies duly authorized to do business in the State
of Florida.
9.3. All insurance policies required by this Agreement shall include the following provisions and
conditions by endorsement to the policies:
9.3.1. All insurance policies, other than the Business Automobile policy, Professional Liability
policy, and the Workers Compensation policy, provided by CONSULTANT to meet the
requirements of this Agreement shall name Collier County Board of County Commissioners,
OR, Board of County Commissioners in Collier County, OR, Collier County Government, as an
additional insured as to the operations of CONSULTANT under this Agreement and shall
contain a severability of interests' provisions.
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9.3.2. Companies issuing the insurance policy or policies shall have no recourse against the
COUNTY for payment of premiums or assessments for any deductibles which all are at the
sole responsibility and risk of CONSULTANT.
9.3.3. All insurance coverage of CONSULTANT shall be primary to any insurance or self-
insurance program carried by the COUNTY applicable to this Project, and the "Other
Insurance" provisions of any policies obtained by CONSULTANT shall not apply to any
insurance or self-insurance program carried by the COUNTY applicable to this Project.
9.3.4. The Certificates of Insurance must read: For any and all work performed on behalf
of Collier County, or reference this contract number.
9.3.5. All insurance policies shall be fully performable in Collier County, Florida, and shall be
construed in accordance with the laws of the State of Florida.
9.4. CONSULTANT, its subconsultants and the COUNTY shall waive all rights against each other
for damages covered by insurance to the extent insurance proceeds are paid and received by the
COUNTY, except such rights as they may have to the proceeds of such insurance held by any of
them.
9.5. All insurance companies from whom CONSULTANT obtains the insurance policies required
hereunder must meet the following minimum requirements:
9.5.1. The insurance company must be duly licensed and authorized by the Department of
Insurance of the State of Florida to transact the appropriate insurance business in the State of
Florida.
9.5.2. The insurance company must have a current A. M. Best financial rating of"Class VI" or
higher.
ARTICLE TEN
SERVICES BY CONSULTANT'S OWN STAFF
10.1. The services to be performed hereunder shall be performed by CONSULTANT's own staff,
unless otherwise authorized in writing by the COUNTY. The employment of, contract with, or use of
the services of any other person or firm by CONSULTANT, as independent consultant or otherwise,
shall be subject to the prior written approval of the COUNTY. No provision of this Agreement shall,
however, be construed as constituting an agreement between the COUNTY and any such other
person or firm. Nor shall anything in this Agreement be deemed to give any such party or any third
party any claim or right of action against the COUNTY beyond such as may then otherwise exist
without regard to this Agreement.
10.2. Attached as Schedule F is a listing of all key personnel CONSULTANT intends to assign to the
Project to perform the Services required hereunder. Such personnel shall be committed to this Project
in accordance with the percentages noted in Schedule F. All personnel, identified in Schedule F shall
not be removed or replaced without the COUNTY's prior written consent.
10.3. CONSULTANT is liable for all the acts or omissions of its subconsultants or subcontractors.
By appropriate written agreement, the CONSULTANT shall require each subconsultant or
subcontractor, to the extent of the Services to be performed by the subconsultant or subcontractor, to
be bound to the CONSULTANT by the terms of this Agreement, and to assume toward the
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CONSULTANT all the obligations and responsibilities which the CONSULTANT, by this Agreement,
assumes toward the COUNTY. Each subconsultant or subcontract agreement shall preserve and
protect the rights of the COUNTY under this Agreement with respect to the Services to be performed
by the subconsultant or subcontractor so that the sub consulting or subcontracting thereof will not
prejudice such rights. Where appropriate, the CONSULTANT shall require each subconsultant or
subcontractor to enter into similar agreements with its sub-subconsultants or sub-subcontractors.
10.4. CONSULTANT acknowledges and agrees that the COUNTY is a third-party beneficiary of each
contract entered into between CONSULTANT and each subconsultant or subcontractor, however
nothing in this Agreement shall be construed to create any contractual relationship between the
COUNTY and any subconsultant or subcontractor. Further, all such contracts shall provide that, at
the COUNTY's discretion, they are assignable to the COUNTY upon any termination of this
Agreement.
ARTICLE ELEVEN
WAIVER OF CLAIMS
11.1. CONSULTANT's acceptance of final payment shall constitute a full waiver of any and all claims,
except for insurance company subrogation claims, by it against the COUNTY arising out of this
Agreement or otherwise related to the Project, and except those previously made in writing in
accordance with the terms of this Agreement and identified by CONSULTANT as unsettled at the time
of the final payment. Neither the acceptance of CONSULTANT's services nor payment by the
COUNTY shall be deemed to be a waiver of any of the COUNTY's rights against CONSULTANT.
ARTICLE TWELVE
TERMINATION OR SUSPENSION
12.1. CONSULTANT shall be considered in material default of this Agreement and such default will
be considered cause for the COUNTY to terminate this Agreement, in whole or in part, as further set
forth in this section, for any of the following reasons: (a) CONSULTANT's failure to begin services
under the Agreement within the times specified under the Notice(s)to Proceed, or(b) CONSULTANT's
failure to properly and timely perform the services to be provided hereunder or as directed by the
COUNTY, or (c) the bankruptcy or insolvency or a general assignment for the benefit of creditors by
CONSULTANT or by any of CONSULTANT's principals, officers or directors, or (d) CONSULTANT's
failure to obey any laws, ordinances, regulations or other codes of conduct, or (e) CONSULTANT's
failure to perform or abide by the terms and conditions of this Agreement, or (f) for any other just
cause. The COUNTY may so terminate this Agreement, in whole or in part, by giving the
CONSULTANT seven (7) calendar days written notice of the material default.
12.2. If, after notice of termination of this Agreement as provided for in paragraph 12.1 above, it is
determined for any reason that CONSULTANT was not in default, or that its default was excusable,
or that the COUNTY otherwise was not entitled to the remedy against CONSULTANT provided for in
paragraph 12.1, then the notice of termination given pursuant to paragraph 12.1 shall be deemed to
be the notice of termination provided for in paragraph 12.3, below, and CONSULTANT's remedies
against the COUNTY shall be the same as and be limited to those afforded CONSULTANT under
paragraph 12.3, below.
12.3. The COUNTY shall have the right to terminate this Agreement, in whole or in part, without
cause upon seven (7) calendar days written notice to CONSULTANT. In the event of such termination
for convenience, CONSULTANT'S recovery against the COUNTY shall be limited to that portion of
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the fee earned through the date of termination, together with any retainage withheld and any costs
reasonably incurred by CONSULTANT that are directly attributable to the termination, but
CONSULTANT shall not be entitled to any other or further recovery against the COUNTY, including,
but not limited to, anticipated fees or profits on work not required to be performed. CONSULTANT
must mitigate all such costs to the greatest extent reasonably possible.
12.4. Upon termination and as directed by the COUNTY, the CONSULTANT shall deliver to the
COUNTY all original papers, records, documents, drawings, models, and other material set forth and
described in this Agreement, including those described in Article 6, that are in CONSULTANT's
possession or under its control.
12.5. The COUNTY shall have the power to suspend all or any portions of the services to be provided
by CONSULTANT hereunder upon giving CONSULTANT 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
CONSULTANT'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 Four herein.
12.6. In the event (i) the COUNTY fails to make any undisputed payment to CONSULTANT within
forty-five (45) days after such payment is due or such other time as required by Florida's Prompt
Payment Act or(ii) the COUNTY otherwise persistently fails to fulfill some material obligation owed by
the COUNTY to CONSULTANT under this Agreement, and (ii) the COUNTY has failed to cure such
default within fourteen (14) days of receiving written notice of same from CONSULTANT, then
CONSULTANT may stop its performance under this Agreement until such default is cured, after giving
THE COUNTY a second fourteen (14) days written notice of CONSULTANT's intention to stop
performance under the Agreement. If the Services are so stopped for a period of one hundred and
twenty (120) consecutive days through no act or fault of the CONSULTANT or its subconsultant or
subcontractor or their agents or employees or any other persons performing portions of the Services
under contract with the CONSULTANT, the CONSULTANT may terminate this Agreement by giving
written notice to the COUNTY of CONSULTANT's intent to terminate this Agreement. If the COUNTY
does not cure its default within fourteen (14) days after receipt of CONSULTANT's written notice,
CONSULTANT may, upon fourteen (14) additional days'written notice to the COUNTY, terminate the
Agreement and recover from the COUNTY payment for Services performed through the termination
date, but in no event, shall CONSULTANT be entitled to payment for Services not performed or any
other damages from the COUNTY.
ARTICLE THIRTEEN
TRUTH IN NEGOTIATION REPRESENTATIONS
13.1. CONSULTANT warrants that CONSULTANT has not employed or retained any company or
person, other than a bona fide employee working solely for CONSULTANT, to solicit or secure this
Agreement and that CONSULTANT has not paid or agreed to pay any person, company, corporation,
individual or firm, other than a bona fide employee working solely for CONSULTANT, any fee,
commission, percentage, gift or any other consideration contingent upon or resulting from the award
or making of this Agreement.
13.2. In accordance with provisions of Section 287.055, (5)(a), Florida Statutes, the CONSULTANT
agrees to execute the required Truth-In-Negotiation Certificate, attached hereto and incorporated
herein as Schedule E, certifying that wage rates and other factual unit costs supporting the
compensation for CONSULTANT's services to be provided under this Agreement are accurate,
complete and current at the time of the Agreement. The CONSULTANT agrees that the original
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Agreement price and any additions thereto shall be adjusted to exclude any significant sums by which
the COUNTY 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 FOURTEEN
CONFLICT OF INTEREST
14.1. CONSULTANT represents that it presently has no interest and shall acquire no interest, either
direct or indirect, which would conflict in any manner with the performance of services required
hereunder. CONSULTANT further represents that no persons having any such interest shall be
employed to perform those services.
ARTICLE FIFTEEN
MODIFICATION
15.1. No modification or change in this Agreement shall be valid or binding upon either party unless
in writing and executed by the party or parties intended to be bound by it.
ARTICLE SIXTEEN
NOTICES AND ADDRESS OF RECORD
16.1. All notices required or made pursuant to this Agreement to be given by the CONSULTANT to
the COUNTY shall be in writing and shall be delivered by hand, email, or by United States Postal
Service Department, first class mail service, postage prepaid, addressed to the following the
COUNTY's address of record:
Board of County Commissioners for Collier County, Florida
Division Name: Capital Project Planning and Impact Fees Division
Division Director: Trinity Scott
Address: 2685 Horseshoe Drive S
Naples, FL 34104
Administrative Agent/PM: Richard Miller, P.E., Principal Project Manager
Telephone: 239) 252-5181
E-Mail(s): Richard.Miller(cr colliercountyfl.gov
16.2. All notices required or made pursuant to this Agreement to be given by the COUNTY to the
CONSULTANT shall be made in writing and shall be delivered by hand, email or by the United States
Postal Service Department, first class mail service, postage prepaid, addressed to the following
CONSULTANT's address of record:
Company Name:Hole Montes, Inc.
Address: 950 Encore Way
Naples, FL 34110
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Attention Name & Title: Richard E. Brylanski, Senior Vice President/Principal
Telephone: 239) 985-1242
E-Mail(s): RickBrylanski HMenq.com
16.3. Either party may change its address of record by written notice to the other party given in
accordance with requirements of this Article.
ARTICLE SEVENTEEN
MISCELLANEOUS
17.1. CONSULTANT, in representing the COUNTY, shall promote the best interests of the COUNTY
and assume towards the COUNTY a duty of the highest trust, confidence, and fair dealing.
17.2. No modification, waiver, suspension or termination of the Agreement or of any terms thereof
shall impair the rights or liabilities of either party.
17.3. This Agreement is not assignable, or otherwise transferable in whole or in part, by
CONSULTANT without the prior written consent of the COUNTY.
17.4. Waivers by either party of a breach of any provision of this Agreement shall not be deemed to
be a waiver of any other breach and shall not be construed to be a modification of the terms of this
Agreement.
17.5. The headings of the Articles, Schedules, Parts and Attachments as contained in this
Agreement are for the purpose of convenience only and shall not be deemed to expand, limit or
change the provisions in such Articles. Schedules, Parts and Attachments.
17.6. This Agreement, including the referenced Schedules and Attachments hereto, constitutes the
entire agreement between the parties hereto and shall supersede, replace and nullify any and all prior
agreements or understandings, written or oral, relating to the matter set forth herein, and any such
prior agreements or understanding shall have no force or effect whatever on this Agreement.
17.7. Unless otherwise expressly noted herein, all representations and covenants of the parties shall
survive the expiration or termination of this Agreement.
17.8. This Agreement may be simultaneously executed in several counterparts, each of which shall
be an original and all of which shall constitute but one and the same instrument.
17.9. The terms and conditions of the following Schedules attached hereto are by this reference
incorporated herein:
Schedule A SCOPE OF SERVICES
Schedule B BASIS OF COMPENSATION
Schedule C PROJECT MILESTONE SCHEDULE
Schedule D INSURANCE COVERAGE
Schedule E CCNA Projects: TRUTH IN NEGOTIATION CERTIFICATE
Schedule F KEY PERSONNEL
Schedule G Other: N/A
Solicitation # 21-7900 including all Attachment(s), Exhibit(s) & Addendum
Consultant's Proposal
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17.10. Grant Funded Projects (only applicable to Grant funded projects): In the event of any
conflict between or among the terms of any of the Contract Documents and/or the COUNTY's Board
approved Executive Summary, the terms of the Agreement shall take precedence over the terms of
all other Contract Documents, except the terms of any Supplemental Grant Conditions shall take
precedence over the Agreement. To the extent any conflict in the terms of the Contract Documents
cannot be resolved by application of the Supplemental Conditions, if any, or the Agreement, the
conflict shall be resolved by imposing the more strict or costly obligation under the Contract
Documents upon the CONSULTANT at the COUNTY's discretion.
ARTICLE EIGHTEEN
APPLICABLE LAW
18.1. This Agreement shall be governed by the laws, rules, and regulations of the State of Florida,
and by such laws, rules and regulations of the United States as made applicable to services funded
by the United States government. 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.
ARTICLE NINETEEN
SECURING AGREEMENT/PUBLIC ENTITY CRIMES
19.1. CONSULTANT warrants that CONSULTANT has not employed or retained any company or
person, other than a bona fide employee working solely for CONSULTANT, to solicit or secure this
Agreement and that CONSULTANT has not paid or agreed to pay any person, company, corporation,
individual or firm, other than a bona fide employee working solely for CONSULTANT, any fee,
commission, percentage, gift or any other consideration contingent upon or resulting from the award
or making of this Agreement. At the time this Agreement is executed, CONSULTANT shall sign and
deliver to the COUNTY the Truth-In-Negotiation Certificate identified in Article 13 and attached hereto
and made a part hereof as Schedule E. CONSULTANT's compensation shall be adjusted to exclude
any sums by which the COUNTY determines the compensation was increased due to inaccurate,
incomplete, or noncurrent wage rates and other factual unit costs.
19.2. By its execution of this Agreement, CONSULTANT acknowledges that it has been informed by
the COUNTY of and is in compliance with 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, proposal, or reply on
a contract to provide any goods or services to a public entity; may not submit a
bid, proposal, or reply on a contract with a public entity for the construction or
repair of a public building or public work; may not submit bids, proposals, or
replies 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; and may not transact business with any public
entity in excess of the threshold amount provided in s. 287.017 for CATEGORY
TWO for a period of 36 months following the date of being placed on the
convicted vendor list."
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II
ARTICLE TWENTY
DISPUTE RESOLUTION
20.1. 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 CONSULTANT with full
decision-making authority and by the COUNTY's staff person who would make the presentation of
any settlement reached during negotiations to the COUNTY 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 CONSULTANT with full decision-making authority and by the COUNTY's staff
person who would make the presentation of any settlement reached at mediation to the COUNTY'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.
20.2. 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.
ARTICLE TWENTY-ONE
IMMIGRATION LAW COMPLIANCE
21.1. By executing and entering into this agreement, the CONSULTANT is formally acknowledging
without exception or stipulation that it is fully responsible for complying with the provisions of the
Immigration Reform and Control Act of 1986 as located at 8 U.S.C. 1324, et seq. and regulations
relating thereto, as either may be amended, as well as the Florida state law requirements set forth
in Florida Statute, §448.095, as may be amended. Failure by the CONSULTANT 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.
Signature page to follow this page]
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IN WITNESS WHEREOF, the parties hereto have executed this Professional Services
Agreement the day and year first written above.
ATTEST: BOARD OF COUNTY COMMISSIONERS FOR
COLLIER COUNTY, FLORIDA
Crystal K. Kinzel, Clerk of the Circuit
Court.ehd C6 nptr.oller 1, •
By: BY C
f Willie, L. McDaniel, Jr.
Date:Chairman
App ov d to ;or nd gality:
County Attorney
Name
Consultant:
Hole Montes, Inc.
Consultant's Witnesses:
By:C(4i
jess 2
r cu. n Lo I ,
I`,Q 4•1/•P
Name and Title?{Q.,c.00rd ina"lr Name and Title1
itnes
Name and Title 4l 'tJ Ial4
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1r
SCHEDULE A
SCOPE OF SERVICES
following this page (pages
1
through
15 )
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Request for Professional Services (RPS) #21-7900
Design Services for Stormwater Improvements for the BCG & CC/CCN Areas"
SCHEDULE A
SCOPE OF SERVICES
GENERAL STATEMENT
In 2020, the County completed a feasibility study of needed stormwater improvements to serve
the area encompassed by both the Big Cypress Golf& Country Club (BCG&CC) and the
Country Club of Naples (CON). It was intended to be a single development, but subsequent
platting and sales separated the project area into the two distinct entities. The feasibility study,
prepared by Robau and Associates, P.A., analyzed various scenarios to address correcting the
current stormwater situation.
The Consultant will design, and permit stormwater projects briefly described as follows:
Phase 1: Design the necessary stormwater facilities needed to re-establish the primary
outfall system to jointly serve the Big Cypress Golf & Country Club and the Country
Club of Naples. BCG&CC comprises the residential areas and the CCN comprises the
golf course areas. For purposes of this Scope of Work, the entire area encompassed
by both the BCG&CC and CCN are considered as the Project Area.
Phase 2: Design the necessary stormwater facilities needed to re-establish the
roadside swale drainage system, address rear yard drainage improvements for the
BCG&CC and CCN interface, and direct this stormwater into the primary outfall
system.
BACKGROUND
The area encompassed by both the BCG&CC and the CCN were originally part of a single 60's era
golf course community. Platting of the BCG&CC occurred in 1963 and 1964.Although the BCG&CC
and CCN are separately owned areas, mapping information provided to the South Florida Water
Management District (SFWMD) in 1978 demonstrates that the entire area of both the BCG&CC and
CCN are intended to utilize a combined stormwater management system. Through the years there
have been various levels of maintenance and repairs that have not been coordinated into a single
operational system design. Currently, the Collier County Road Maintenance Division is responsible
for maintenance of the roads and swales traversing the BCG&CC. The streetsare:
Burning Tree Drive
Cypress Pointe Drive
Mel Jen Drive
The CCN is responsible for maintenance of the stormwater facilities within the property boundaries
of the CCN, including the primary outfalls exiting the roads that must drain through the CCN property.
The entire area has a long history of flooding during heavy rainfall events. During the summer of
2017 the flooding caused by Hurricane Irma was extensive and resulted in floodwaters entering
several houses. However, much of the CCN property did not flood since its ground elevations through
the years have been modified. Additionally, changes to the stormwater outfall systems on the CCN
property that do not align with the old, existing SFWMD permit appear to have produced a capacity
reduction in the outfall system at the time of Irma.The extremely high-water conditions in the Gordon
Page 1 of 15
Schedule A — Scope of Services
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Request for Professional Services (RPS)#21-7900
Design Services for Stormwater Improvements for the BCG & CC/CCN Areas"
River, the receiving water body, created tailwater that further impacted the ability to discharge
stormwater from Irma.
DETAILED SCOPE OF WORK
General Overview of Services:
Feasibility Study Alternatives Evaluation: The Consultant shall be responsible to evaluate the
completed Big Cypress Golf and Country Club Estates and Country Club of Naples Stormwater
Retrofit Feasibility Study prepared by Robau and Associates, P.A., This evaluation shall
determine if the recommendations of the feasibility study are adequate.The Consultant shall have
the ability to develop alternative design solutions if there is sufficient justification based upon
factors such as ease of construction, reduced cost, reduced maintenance effort, reduced impact
to the community, etc.
Desired Level of Service for Flood Protection: The stormwater system design shall provide a level
of service for stormwater protection for up to the 25-year/72-hour design storm event while
meeting the existing discharge limitations established by the existing SFWMD permit(Permit No.
11-00064-S).
Basic Points of Design: The basic points of design for this project entail but are not limited to the
following concepts:
The feasibility study identified a need to protect the BCG&CC and CCN from Gordon
River peak storm elevations by constructing a berm/retaining wall along the eastern
and southeastern boundaries of the CCN.
During those peak Gordon River stages, a stormwater pump system needs to be re-
established to provide a positive outfall. When the Gordon River is not at high stages
a gravity outfall system can operate sufficiently without requiring the pump to run. The
design will include a joint gravity and pump system with the proper automatic controls.
The stormwater connection at the junction of Burning Tree Drive and Solana Drive
needs to be modified to prevent stormwater reverse flowing from Solana into Burning
Tree and exacerbating the flooding of Burning Tree Drive.
The outfall systems need to be increased in capacity to get the stormwater to the
Gordon River.
The roadside swale and driveway culvert system needs to be properly designed for
reconstruction.
The CCN is currently in process of developing plans for total renovation of the golf
course. The Consultant must work with the CCN to coordinate designs with the
ultimate goal of providing a single outfall at the southeastern corner of the project site
and eliminating the northern outfall. The coordination will also include any new lakes,
swales, culverts, maintenance access/perimeter berm,vegetation, landscaping, or any
other item proposed for construction on the CCN properties.
The Consultant shall provide design and project management assistance including, but not limited
to, the following:
Overall project management expertise
Preliminary Design that includes evaluation of the feasibility study
Design
o Surveying
o Surface and subsurface locations and investigations of surface and underground
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Schedule A — Scope of Services
c,
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Request for Professional Services (RPS)#21-7900
Design Services for Stormwater Improvements for the BCG & CC/CCN Areas"
utilities and stormwater facilities
o Geotechnical investigations and analyses
o Stormwater system modeling (feasibility study utilized XPSWMM)
o Design and construction plans and report preparation
Stormwater pump station design
Stormwater weir design
Stormwater pipe/culvert/swale design
All other design required for the successful completion of the project
o Easement document preparation
Regulatory agency permitting, including environmental permitting, requiring mitigation
Post-design services
o related to bidding
o related to construction
Detailed Tasks:
Task 1 — Project Management
The Consultant's project management involvement with the County shall include the following:
1.01 Scheduling of Design Process: Consultant shall schedule the design of the Project to an
efficient and timely completion, including the availability of sufficiently experienced staffing,
equipment, software, etc. The intent of this RPS is to complete the design within six (6)
months. The design is to be fully permittable with all required local, State and Federal
agencies. While it is anticipated that environmental permitting shall be initiated within the
six (6) month time frame, it is understood that final permit approvals are not able to be
guaranteed by the Consultant and that permitting time may further extend the design
process.
1.02 Project Review Meetings: Consultant shall schedule, attend, and prepare minutes of
progress meetings with County and Community representatives, as requested by the
County's Project Manager.
These review meetings shall extend throughout the Project design phase to keep the
County and Community informed of the Project progress, to make certain that the
Consultant is productively conducting its services and to obtain input and direction as
required for outstanding project issues. Meeting objectives shall be to provide progress
updates and reach decisions on pertinent issues relative to the specific topics being
addressed.
It is anticipated that the Consultant shall prepare for and attend project review
meetings, and distribute agendas and minutes for each meeting
A total of 12 monthly review meetings are anticipated during the data collection, design
and permit submittal and request for information phase of the project.
1.03 Public Involvement. Establish a website for public outreach. Website may include uploading
of relevant plans, design reports, schedules and/or correspondence as County determines
is preferable for public notification.
1.03.A Coordinate an estimated three (3) public meetings for introduction as to the
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improvements and progress as to the proposed project, schedule, or request for
public input. It is anticipated one will be considered at the 30%design phase, one
prior to permit review, and one prior to start of construction. The costs associated
with the reserving or leasing a meeting place will be the responsibility of the
County. The Consultant will provide attendance with relevant design experts;
prepare graphics for public viewing and presentation of the project; assist with
advertising the project meetings and prepare documentation of public input
provided at the respective meetings.
Task 2—Preliminary Design
The Consultant shall complete an evaluation of the feasibility study and provide a conformed
alternative on developing a design for the stormwater system that address both low and high-
water levels in the Gordon River and Solana Road systems,water quality treatment improvements
for the old existing system, joint perimeter berm/access road along the Gordon River, and fully
automated stormwater discharge pumping system. Wetland delineations/impacts and floodplain
impacts shall be identified and become part of the preliminary design considerations performed
by the professional staff including the professional wetland scientist(s) and certified floodplain
manager(s).
Two (2) alternatives being evaluated should consider the implementation of one or two storm
water pumping stations; modifications required within private lands of the golf course; required
easements for County future operation and maintenance considerations; future golf course
modifications; parallel County projects underway for Solana Road outfall and Gordon River
improvements; and the anticipated costs and potential permitting challenges of the desired
options. The selected alternative by County staff and stakeholders will then be used as the basis
for the continuation of the primary storm water management system design. This task includes
attending two (2) meetings with County staff and stakeholders for presentation of the options and
benefits.
2.01 A One Pumping Station Alternative: Provide an analysis that includes golf course renovations
and drainage modifications obtained from golf course designers to analyze one storm
water pumping station located near the southeast corner of the project area and utilizes a
common outfall of the County project- Solana Road outfall improvements.
2.02 B Two Pumping Stations Alternative: Provide an analysis that includes golf course
renovations and drainage modifications obtained from golf course designers to analyze
two storm water pumping stations, with one located near the southeast corner of the
project area and utilizing a common outfall of the County project - Solana Road outfall
improvements; and another station to the northeast corner of the development.
Task 3— Design
Consultant's design shall consist of stormwater systems including fully automated stormwater
pumping station design. Design tasks include the following:
3.01 Rights-of-Way and Drainage Easement Survey: Consultant shall provide land surveying
services for Project design areas to include field surveying of the existing rights-of-way
corridor for the platted roadways being Mel Jen Drive, Burning Tree Drive and Cypress
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Pointe Drive, but not be limited to, the following:
3.01.A Research the public records for plats, deeds, and right-of-way maps to compile a
horizontal control search map for the field crew to utilize. Locate with Global
Position System (GPS)and traditional field surveying methods existing permanent
reference monuments, right-of-way control monuments, abutting property corners
and section corners/quarter corners within and adjacent to the Project Area.
Horizontal survey datum shall be NAD 1983.
3.01.B Set survey baselines in relation to the survey control found in Item 3.01.A above.
3.01.0 Establish vertical control by running a level loop along the Project baselines, setting
a benchmark at intervals not exceeding five hundred (500) feet distance. The
benchmarks shall be located to not be impacted by construction of the Project's
components. Vertical datum shall be NAVD 1988.
3.01.D Utilize the Sunshine State One-Call System to have the existing utilities located
and to determine utility ownership (water, wastewater, gas, oil, electric, telephone,
cable, etc.) prior to performing any field survey location efforts. Provide utility
locates utilizing Ground Penetrating Radar(GPR) and radio detection along areas
where construction of stormwater facilities designed by this project are to be
located. Paint and flag findings.
3.01.D.1 Perform soft digs utilizing vacuum excavation to locate the exact depths
of relevant utility crossings as part of the design effort between the 30%
and 60% design phases. These locations will be based upon the
proposed design when comparing the field surveying of painted utility
locations. Due to the unforeseen number of locations, an allowance has
been assumed of 40 individual locations.
3.01.E Infrastructure Location —locate existing features within and adjacent to the Project
Area to include, but not be limited to, the following:
Property boundaries specific rights-of-way, and easements adjacent to rights-
of-way.
All utilities (visible and below ground including water, gas, electric, telephone,
cable,force mains, etc.) including manholes,valve covers, meter boxes, power
poles, lines, pipelines, including invert elevations where applicable.
All stormwater facilities within the Project Area including swales, culverts, pipe
ends, storm drains, inlets, including invert elevations where applicable. Note
this includes the extensive golf course storm drain and lake system.
Edge of pavement and driveways extending 25 feet past right-of-way into lots.
Fences/bollards within 30 feet of the right-of-way limits encroaching into
adjacent lots
Trees and shrubs within 30 feet of the right-of-way limits encroaching onto
adjacent lots (within or overhanging the rights-of-way or easements)
Landscaping (code considerations) and Golf Course irrigation facilities
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The deliverable will be survey data that will be included within the design
documents.
3.01.E.1 Side Yard Drainage Easement Field Surveying
Obtain field surveying of existing platted 10' wide drainage easements
for the common lot lines of Lots 8-9, Block A, Lots 12-13 Block III; and
Lots 9-10 Block C of Big Cypress Golf and Country Club Estates. The
field surveying will locate all improvements within a 50-foot-wide
corridor centered on common lot line including: existing buildings or
other structures, landscaping, fences, storm sewer pipe, inlet and
related elevations and inverts.
The deliverable will be survey data that will be included within the design
documents.
3.01 E.2 Golf Course Field Surveying
Obtain field surveying of golf course topography, above ground
improvements, drainage structures, storm sewer pipe material, sizes
and inverts, and utilities that lie in the eastern and western section of
the golf course from the rear yards lot lines of the Big Cypress Golf&
Country Club Estates plat of subdivision Block III and Block C to the
western right-of-way limit of Gordon River and the northern right-of-way
of the Solana Road right-of-way and outfall drainage easement. The
intention of this task is to provide data collection to determine the
drainage interconnection of the golf course storm sewer system and
analysis of the future pump station(s) sites and future servicing,
operation and maintenance corridors and telemetry systems.
The deliverable will be survey data that will be included within the design
documents.
3.01.E.3 Environmental land cover assessment and species survey report
Obtain environmental mapping of golf course land that lie in the
eastern section of the golf course from the rear yards of the Big
Cypress Golf& Country Club Estates plat of subdivision Block III and
Block C to the western right-of-way limit of Gordon River and the
Northern right-of-way of the Solana Road right-of-way and outfall
drainage easement. The intention of this task is to provide land cover
assessment to determine jurisdictional wetlands and or other surface
waters; and identify the presence of threatened or endangered listed
species pursuant to FCW and FWC criteria.
3.01.E.4 Obtain field surveying of flagged wetland locations
Based upon the field flagging by Environmental Consultant, obtain the
locations of flagging and relevant hydrological indicators established
by consultant.
3.02 Geotechnical: Consultant (or identified subconsultant) shall provide geotechnical
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investigations and analyses necessary for the design and preparation of construction
plans for this Project. A report shall be prepared with recommendations and pertinent soils
data, including the water table and rock depths, and shall be submitted to the County for
its record. The geotechnical investigations and analyses shall include, but not be limited
to, the following:
3.02A Field Operations — To define subsurface soil and groundwater conditions in the
areas proposed for the stormwater piping, stormwater pump station(s) and control
structure(s), perimeter berm/retaining wall, and stormwater conveyances, pond(s),
and anywhere else there will be a need for excavation or facility construction.
Consultant (or identified subconsultant) shall perform the following:
Mobilize drilling crew and equipment to perform Standard Penetration Test
SPT) borings advanced to a depth of at least twenty (20) feet or hard rock. If
hard rock is encountered at shallow depths where deeper excavation is
anticipated, the borings shall also extend sufficiently to determine the extent of
hard rock to be encountered by said excavation. One boring to be provided at
the proposed location of each storm water pumping station. Task includes
obtaining a vegetation removal permit for access. Task assumes that there will
not be any wetland impacts as part of the required vegetation removal.
Locate borings as close as reasonably feasible to proposed structure
foundation locations. Coordinate with all underground utility companies and the
CCN (avoid damage to the golf course) before drilling.
3.02E Laboratory Analysis — Representative samples obtained during the field
exploration program shall be examined to obtain more accurate descriptions of the
existing strata. Laboratory testing shall be performed on selected samples as
deemed necessary to aid in soil classification and to further define the engineering
properties of the encountered materials. The soil descriptions shall be based on
the visual classifications procedure in general accordance with the AASHTO Soil
Classification System (AASHTO M-145) and standard practice.
3.02C Geotechnical Report—The geotechnical report shall present the results of findings
as typed boring logs and an overview of subsurface conditions as encountered in
the test borings. The overview shall include the pertinent soils data results of the
laboratory analyses, water table elevation, rock depths (elevation) and
thicknesses, and specific recommendations needing to be brought to the attention
of and considered by the Consultant's design engineer.
3.03 Stormwater System Modeling — The feasibility study utilized the XPSTORM and
XPSWMM modeling software. XPSTORM is a reduced version of XPSWMM that focuses
solely on the stormwater components of the overall XPSWMM model.The Consultant shall
properly model all the existing and proposed stormwater components within the Project
Area, including the Gordon River receiving body. The modeling shall be used to identify
anticipated peak stages of stormwater for the various storm events to be modeled, peak
discharges, peak discharge rates, etc. The modeling shall also be used to produce
hydraulic grade line information for the proposed stormwater components todemonstrate
graphically that streets, yards, houses, and the golf course shall not be unduly negatively
impacted from flooding during the various rainfall events up to and including the 5 year,
24-hour and 25-yr/72-hr design storm events. It is understood that roads may be
temporarily partially inundated in the travel lanes, but the goal is to keep the centerline of
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the roads at or above the peak stage of the storm events. The golf course tees and greens
are to be above the peak stage of the storm events, and the majority of fairways and
private residence yards should not be inundated more than twelve (12) hours. The
stormwater system design should be sufficient to prevent flooding of the lowest floor, as
defined by the National Flood Insurance Program, of all residences, the CCN clubhouse,
and the CCN maintenance facility main building during the peak stage of the 1% annual
flood event for a 72-hr duration storm.
This task will be completed in two phases. The initial phase will be concurrently with task
2 in determining the conformed alternates of a single or dual storm water pumping station
and other primary storm sewer system improvements. Subsequently during the design of
the rights-of-way and other secondary drainage improvements. the model will be updated
with this additional information added.
The deliverable will serve as the drainage report which will be used for agency permit
review of the proposed improvements.
3.04 Design Report: The Consultant shall prepare a Design Report outlining the basis of design
for the Project's proposed improvements. This Design Report shall include, but not be
limited to, the following:
Proposed stormwater quality treatment concepts to be utilized if any.
Proposed stormwater quantity and attenuation concepts to be utilized
Wetland delineations and proposed impacts
Proposed standards and specifications to be used for the Project components, designs
and construction
Design calculations for stormwater facility components (e.g., inlet structures,
discharge structures, discharge spreaders, culverts, weirs, excavation volumes, slope
stability, nutrient loading (Harvey Harper), pump station design, electrical service
requirements, backup pump operating design during loss of electrical service,
foundation designs, structural designs, maintenance access road/perimeter
berm/retaining wall designs, etc.)
Vegetation design
Maintenance program recommendations
Hydrologic/hydraulic modeling results, link-nodal diagrams, input/output files, etc. (if
utilized)
Floodplain impacts to not raise and possibly lower regulated floodplain areas and base
flood elevations.
Technical specifications shall utilize current Florida Department of Transportation
FDOT) Standard Specifications for Road and Bridge Construction and current FDOT
Standard Indexes, when applicable.
In addition to technical specifications, the engineer shall coordinate with the County to
develop the necessary General Conditions, Supplemental Conditions, and Special
Provisions Specifications specifically for the Project.
3.05 Plans Preparation: Consultant shall prepare plan sets for permitting and construction
purposes to include:
Rights-of-way improvements to Mel Jen Drive, Burning Tree Drive and Cypress Pointe
Drive to include a new 5-foot-wide concrete sidewalk along one side of roadways,
improved roadside swales and grading, evaluation of driveway culverts and driveway
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restoration and/or reconstruction: and Golf Course storm water management system
modifications of the primary master lake interconnections and introduction of one or
possibly two storm water pumping stations and telemetry systems. as follows:
3.05.A Base Map — Consultant shall prepare a base map using survey information
obtained in Task 3.01. The intent is for the County to provide the imagery available
from the Collier County Property Appraiser (2016 or later). The base map shall
show existing topographic features in a format suitable for preparation of plan and
profile sheets.
3.05.B Utility Coordination — Consultant shall coordinate with utility service providers to
identify potential conflicts with all proposed improvements. City of Naples will be
responsible for resolution of conflicts with any potable water main distribution lines
or residential services. Consultant to identify these potential conflicts based upon
proposed storm sewer improvements and results of field location of existing utility
locations utilizing soft digs for pipe areas or based upon information obtained
directly from City of Naples.
3.05.0 30% Design Plans — Consultant shall prepare 30% design plans for the Project
that depict existing topographical features, existing right-of-way and easement
lines, and plan views of proposed stormwater treatment facilities and conveyance
facilities and maintenance access road/perimeter berm, and contain, but are not
limited to, the following:
Cover Sheet
Proposed typical section(s)
Existing/proposed corridor plan of proposed stormwater improvements and
maintenance access road/perimeter berm alignments, including major
connection points and major conflicts (if any)
Engineer's order of magnitude Opinion of Probable Cost (OPC) shall be
prepared for the cost of constructing the Project.
3.05.0 60% Design Plans — Consultant shall prepare 60% design plans for the Project
that depict existing topographical features, existing property, right-of-way and
easement lines, existing utilities and stormwater components, proposed easement
lines, plan and profile of proposed stormwater and maintenance access/perimeter
berm facilities, structure details, stormwater pump station/control structure
automation concepts, and contain, but are not limited to, the following:
Cover Sheet, Index and Key Map
Plan and profile view and cross sections of proposed stormwater treatment and
conveyance, and maintenance access/perimeter berm facilities
Stormwater pump station location layout and design components including, but
not necessarily limited to:
o Pump capacity, operation set points and point of discharge
o Pump station layout and cross sections
o Pump station power supply (electrical service)
o Details on the automated operational controls for the pump station (note
backup manually operated switching controls also provided)
o Details on the backup power supply (generator) sufficient to properly
operate the pump station, its controls, its automation features, and
preferably fueled by natural gas (Note one generator capable of operating
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both the pump station and the outfall weir slide gate may be considered in
lieu of separate generators)
o Pump station automation includes electrical service, motor operated control
mechanisms. communication service, video cameras, and real time water
level sensors. All features shall have remote monitoring and operating
capability. The automated system, known as Supervisor Controlled
Automatic Data Acquisition or SCADA, shall be designed to be comparable
and compatible with the remote monitoring and operating systems currently
used by the South Florida Water Management District.
Control Structure/outfall weir location layout and design components including,
but not necessarily limited to:
o Weir gravity flow capacity and point of discharge
o Weir layout and cross sections
o Automated slide gate activated to a closed position whenever the pump is
activated (note backup manually operated controls also provided)
o Details on the operational controls for the gravity outfall weir
o Details on the backup power supply (generator) sufficient to properly
operate the weir slide gate, its controls, its automation features, and
preferably fueled by natural gas (Note one generator capable of operating
both the pump station and the outfall weir slide gate may be considered in
lieu of separate generators)
o Outfall weir automation includes electrical service, motor operated control
mechanisms, communication service, video cameras, and real time water
level sensors. All features shall have remote monitoring and operating
capability. The automated system, known as Supervisor Controlled
Automatic Data Acquisition or SCADA, shall be designed to be comparable
and compatible with the remote monitoring and operating systems currently
used by the South Florida Water Management District.
Proposed details for stormwater treatment and conveyance components
Proposed details for the maintenance access/perimeter berm components to
be constructed adjacent to the west bank of the Gordon River
Land use and vegetation mapping, including wetland delineations and impacts
to wetlands that must be addressed as part of the environmental permitting
process
Floodplain impacts (areas of increase or decrease) that will need to be
addressed with the Federal Emergency Management Agency (FEMA) for
modifications to the Flood Insurance Rate Map
Project design component specifications
Project design component quantities sheet(s)
Landscaping details (coordinated with CCN)
Engineer's OPC based upon the 60% plans shall be prepared for the cost of
constructing the Project.
All existing and proposed ROW and Easements required to build and
maintain the Project improvements clearly delineated and identified.
3.05.E 90% Detailed Design Plans — Consultant shall address all review comments
provided for the 60% design plans and prepare 90% design plans for the Project
that depict existing topographical features, existing property, right-of-way and
easement lines, existing utilities and stormwater components, proposed easement
lines, plan/profile/cross sections of proposed stormwater and maintenance
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access/perimeter berm facilities, all structure construction details, stormwater
pump station/control structure automation details, and contain, but are not limited
to, the following:
Updates/revisions to all plan sheets included in the 60% design plans
Construction level details for all proposed structures (e.g., steel reinforcement
details and quantities for reinforced concrete structures, electrical
diagrams/schematics for all electrical components, details for all piping
components and connections, etc.)
Construction level details for all proposed stormwater treatment components,
stormwater conveyance components, maintenance access/perimeter berm
components, City of Naples utilities components impacted by the Project, and
road reconstruction/restoration for roads impacted by the Project.
Separate documents with sketches and legal descriptions prepared by a
licensed surveyor for all needed easements
Engineer's OPC based upon the 90% plans shall be prepared for the cost of
constructing the Project.
3.05.E.1 Existing Landscaping Evaluation: Evaluate collateral landscaping
outside of right-of-way limits which may be affected by proposed
improvements and or construction.A map will be provided for review
with residential lot owners, and impact areas to Golf Course
identifying the locations and extent of landscaping which may be
affected by work performed.
3.05.E.2 Identify new easements and rights-of-way (ROW) required for the
infrastructure improvement, to include but not limited to, temporary
construction easements, permanent easements, and permanent
new ROW
3.05.E.3 If directed by the County, prepare sketches and descriptions
for ROW and Easement acquisition.
3.05.F 100% Construction Documents - Consultant shall prepare 100% construction
documents for the Project that address comments or revisions to the 90%detailed
design plans and also incorporate permit conditions from permit agencies and
contain, but are not limited to, the following:
Assistance with Technical Specifications and Bid Documents-The Consultant
shall assist the County with preparation of technical specifications and bid
documents. The Consultant shall review the documents prepared by the
County and provide assistance with supplemental conditions, if appropriate.
Delivered Plans-The Consultant shall deliver the requested number of signed
and sealed construction plans to the County for the County's record, along with
requested set of electronic plans as needed for bid document distribution.
Additionally, the construction plans shall be delivered to the County in
electronic formats(DWG and PDF)scaled for printing at both 11 x17 and 24x36
sheet sizes.
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Task 4— Permitting
The Consultant shall be responsible for preparing and submitting all required applications and
other supportive information necessary to assist the County in obtaining all reviews, approvals
and permits, with respect to the Consultant's design, drawings and specifications required by any
governmental body having authority over the Project. Permitting tasks include the following:
South Florida Water Management District (SFWMD) environmental resource permitERP)
4.01 Prepare a preliminary stormwater design concept drawing and present it to
the SFWMD in a pre-application meeting to determine if a SFWMD
environmental resource permit (ERP) or modification will be required.
4.02 If the SFWMD determines that the ERP is required, the Consultant shall be
responsible for preparation of the permit application, including all drawings,
specifications and supporting backup information. Respond to all requests
for additional information (RAI) from the SFWMD. All permit fees shall be
paid by the County.
U.S. Army Corps of Engineers Section 404 or Nationwide environmental permit
4.03 Prepare a preliminary design concept drawing and present it to the U.S
Army Corps of Engineers (USACOE) or the Florida Department of
Environmental Protection (FDEP), whichever agency is correct, in a pre-
application meeting to determine if a Section 404 USACOE environmental
permit or modification or nationwide permit will be required.
4.04 If the USACOE/FDEP determines that the environmental permit is required,
the Consultant shall be responsible for preparation of the permit application,
including all drawings, specifications and supporting backup information.
Respond to all requests for additional information (RAI) from the
USACOE/FDEP or other federal agencies. All permit fees shall be paid by
the County.
Collier County right-of-way permit
4.05 If required, prepare applications for Right-of-Way permits from Collier County
Growth Management Department and respond to requests for additional
information. Prepare all other required permit applications. Permitting fees
shall be paid by the County.
Collier County excavation permit
4.06 If required, prepare the applications for excavation permits for construction
of the pond(s), if necessary, as determined by Growth Management
Department divisional staff and respond to requests for additional
information. Permitting fees shall be paid by the County.
4.07 Prepare all other required permit applications. Permitting fees shall be paid
by the County.
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Task 5— Post Design Services
Consultant shall assist the County with post design services that include, but are not necessarily
limited to, bid preparation and evaluation, Contractor recommendation, and construction
observation. Post Design Services tasks include the following:
5.01 Bid Preparation:
Consultant shall assist in the construction bidding process to include, but not necessarily
be limited to, the following:
Attend and participate in scheduling and presenting a pre-bid conference(meeting).
Assist in preparing addenda, as required, to interpret, clarify, or expand the bidding
documents.
Attend the bid opening, review, and evaluate the bids received and provide written
recommendations for consideration in the bid award.
Consult with and advise the County as to the acceptability of the Contractor and
subcontractors, suppliers and other persons and organizations proposed by the prime
Contractor for those portions of the work as to which such acceptability is required by
the bidding documents.
5.02 Construction Administration and Support
Note: This phase is not necessarily referring to Construction, Engineering, and
Inspection (CEI) Services. CEI responsibilities will be handled separately by the
County and may or may not involve the use of a separate firm.]
Consultant, as engineer of record, shall assist the County with construction observation,
administration, and support services. Construction Administration tasks include the
following:
5.02.A General Administration of Construction Contract — Consultant shall consult with
and advise the County regarding activities and issues that may arise during
construction of the Project and may be authorized by the County to act as the
County's representative as may be provided in the Standard General Conditions
of the construction contract documents.
5.02.B Site Visits and Observation of Construction — In connection with observations of
the work of the Contractor while the Project construction is in progress, the
Consultant shall make visits to the site at intervals appropriate to the various stages
of construction, as mutually agreed by the County and Consultant, in order to
observe as a design professional, the general progress and quality of the various
aspects of the Contractor's work. Such visits and observations are not intended to
be exhaustive or to extend to every aspect of the work in progress, or to involve
detailed inspections of the work. Based upon information obtained during such site
visits and observations, the Consultant shall endeavor to determine in general if
such work in proceeding in accordance with the design concept and the design
information shown in the construction contract documents. The Consultant shall
keep the County informed of the progress of such work.
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5.02.0 Clarifications and Interpretations for Work Change Directives/Change Orders —
The Consultant shall consult with the County on the need to issue necessary
clarifications and interpretations of the construction contract documents as
appropriate for the orderly completion of the work. Such clarifications and
interpretations shall be consistent with the intent of, and reasonably inferable from,
the construction contract documents. The Consultant shall advise the County on
the need or recommendation to issue work change directives and/or change orders
authorizing minor variations from the requirements of the construction contract
documents.
5.02.D Shop Drawings—The Consultant shall review and approve (or take other appropriate
action in respect of) shop drawings and samples and other data which the Contractor
is required to submit, but only for conformance with the design information provided
in the construction plans, technical specifications and/or construction contract
documents and compatibility with the design concept of the completed Project as a
functioning whole as indicated in the construction contract documents. Such reviews
and approvals, or other action, shall not extend to means, methods, techniques,
sequences or procedures of construction or to safety precautions and programs
incident thereto. This review shall not include review of the accuracy or completeness
of details such as quantities, fabrication processes, construction means or methods,
coordination of the work with other trades or construction safety precautions, all of
which are the sole responsibility of the Contractor. Review of a specific item shall not
indicate the Consultant has reviewed the entire assembly of which the item is a
component. The Consultant shall not be responsible for any deviations from the
construction contract documents not brought to the attention of the Consultant in
writing by the Contractor. The Consultant shall not be required to review partial
submissions or those for which submissions of correlated items have not been
received.
The Consultant shall provide the County with written approval (or other
appropriate action as needed) of shop drawings, samples, and other data
submitted for review by the Contractor. The County makes the ultimate
determination of acceptance or other appropriate action.
The Consultant shall provide the County written recommendations on the
evaluation and acceptability of substitute, or "or-equal" materials and
equipment proposed by the Contractor. The County makes the ultimate
determination of acceptance or other appropriate action.
5.02.E Inspections and Tests — The Consultant may require and observe special
inspections or tests of the work and shall receive and review all certificates of
inspections, tests and approvals required by laws, rules, regulations, ordinances,
codes, orders, or the construction contract documents. The Consultant's review of
such certificates shall be for the purpose of determining that the results certified
indicate compliance with the construction contract documents and shall not
constitute an independent evaluation that the content or procedures of such
inspections, tests or approvals comply with the requirements of the construction
contract documents. The Consultant shall be entitled to rely on the results of such
tests.
5.02.F Applications for Payment — Based upon the Consultant's on-site observations as
an experienced and qualified design professional, and upon review of the
applications for payment and the accompanying data and schedules, the
Consultant shall make a written recommendation to the County on the amounts
Page 14 of 15
Schedule A — Scope of Services
Page 554 of 2568
Request for Professional Services (RPS)#21-7900
Design Services for Stormwater Improvements for the BCG & CC/CCN Areas"
i 6 E 3
that the Contractor should be paid.
5.02.G Contractor's Completion Documents — The Consultant shall receive, review and
transmit to the County with written comments the maintenance and operating
instructions, schedules, guarantees, bonds, certificates or other evidence of
insurance required by the construction contract documents, certificates of
inspection, tests and approvals, and marked up record documents(including shop
drawings, samples and marked-up record drawings) which are to be assembled
by the Contractor in accordance with the construction contract documents to obtain
final payment. The Consultant's review of such documents shall only be to
determine generally to the best of the Consultant's knowledge, information, and
belief that their content complies with the requirements of (and in the case of
certificates of inspections, tests and approvals that the results certified indicate
compliance with) the construction contract documents.
5.02.H Substantial Completion — Following notice from the Contractor that the Contractor
considers the entire work ready for its intended use, the Consultant and County,
accompanied by the Contractor, shall conduct an inspection to determine if the
work is substantially complete. If, after discussing all identified issues of possible
objection with the County, the Consultant considers the work substantially
complete to the best of the Consultant's knowledge, information, and belief per the
conditions above, the Consultant shall deliver a certificate of substantial
completion to the County.
5.02.1 Final Notice of Acceptability of the Work — The Consultant shall conduct a final
inspection with the County to determine if the completed work of the Contractor is
acceptable so that the Consultant may recommend to the County, in writing, final
payment to the Contractor. Accompanying the recommendation for final payment,
the Consultant shall also provide a notice that the work is acceptable (subject to
the provisions of the preceding paragraphs) to the best of the Consultant's
knowledge, information and belief and based on and limited to the extent of the
services performed and furnished by the Consultant under the Consultant's
agreement with the County.
5.02.J Record Drawings — The Consultant, as engineer of record, shall prepare record
drawings based upon measurements and information he has obtained through
proper surveying and measurement methods during the course of construction,
and not relying solely on information provided by the Contractor.
5.02.K Project Certification—The Consultant shall prepare the appropriate documentation
to certify project completion to the various permitting agencies.
Page 15 of 15
Schedule A— Scope of Services
Page 555 of 2568
4 t '
SCHEDULE B 16 E 3
BASIS OF COMPENSATION
1. MONTHLY STATUS REPORTS
B.1.1. As a condition precedent to payment, CONSULTANT shall submit to the COUNTY as part of
its monthly invoice a progress report reflecting the Project status, in terms of the total work effort
estimated to be required for the completion of the Basic Services and any authorized Additional
Services, as of the last day of the subject monthly billing cycle. Among other things, the report shall
show all Service items and the percentage complete of each item.
2. COMPENSATION TO CONSULTANT
B.2.1. For the Basic Services provided for in this Agreement, the COUNTY agrees to make the
payments to CONSULTANT in accordance with the terms stated below. Payments will be made in
accordance with the following Schedule; however, the payment of any particular line item noted below
shall not be due until services associated with any such line item have been completed or partially
completed to the COUNTY's reasonable satisfaction. Lump sum payments will be made upon the
percentage complete. In no event shall such Time and Materials compensation exceed the amounts
set forth in the table below.
Tasks/Item Description Lump Sum Time and
Materials
Not-To-Exceed
1 Project Management 84,705.00
2 Preliminary Design 34,326.00
3 Design 355,031.60
4 Permitting 110,848.00
5 Post Design Services 204,220.00
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Page 556 of 2568
1b E3
i $
Total Lump Sum Fee
Total Time and Materials Fee 789,130.60
GRAND TOTAL FEE 789,130.60
B.2.2. El` Time and Material Fees: The fees noted in Section B.2.1. shall constitute the amounts to he
paid to CONSULTANT for the performance of the Basic Services. Direct Labor Costs mean the actual
salaries and wages(basic, premium and incentive) paid to CONSULTANT's personnel,with respect to this
Project, including all indirect payroll related costs and fringe benefits, all in accordance with and not in
excess of the rates set forth in the Attachment 1 to this Schedule B. With each monthly Application for
Payment, CONSULTANT shall submit detailed time records, and any other documentation reasonably
required by the COUNTY, regarding CONSULTANT's Direct Labor Costs incurred at the time of billing, to
be reviewed and approved by the COUNTY. There shall be no overtime pay without the COUNTY's prior
written approval.
B.2.2.1. Notwithstanding anything herein to the contrary, in no event may CONSULTANT's monthly
billings, on a cumulative basis, exceed the sum determined by multiplying the applicable not to exceed
task(s) limits by the percentage the COUNTY has determined CONSULTANT has completed such task as
of that particular monthly billing.
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PSA_CCNA Single Project Agreement 12022_ver.I
CAO
Page 557 of 2568
1bE3
p r
8.2.3. * Lump Sum Fees: The fees noted in ceetion 2.1—sshall-eonstitutc the lump cum euet-te-be
sic Services. There t
the COUNTY's prior written-approval-
B.2.3.1 CONSULTANT shall submit, with each of the monthly status reports provided for under
Section B.1.1 of this Schedule B, an invoice for fees earned in the performance of Basic Services and
Additional Services during the subject billing month.
B.2.4. For Additional Services provided pursuant to Article 2 of the Agreement, if any,the COUNTY agrees
to pay CONSULTANT a negotiated total fee and Reimbursable Expenses based on the services to be
provided and as set forth in the Amendment authorizing such Additional Services. The negotiated fee shall
be based upon the rates specified in Attachment 1 to this Schedule B and all Reimbursable Expenses shall
comply with the provision of Section 3.4.1 below. There shall be no overtime pay on Additional Services
without the COUNTY's prior written approval.
B.2.5. The compensation provided for under Section B.2.1 of this Schedule B, shall be the total and
complete amount payable to CONSULTANT for the Basic Services to be performed under the provisions
of this Agreement, and shall include the cost of all materials, equipment, supplies and out-of-pocket
expenses incurred in the performance of all such services.
B.2.6. Notwithstanding anything in the Agreement to the contrary, CONSULTANT acknowledges and
agrees that in the event of a dispute concerning payments for Services performed under this Agreement,
CONSULTANT shall continue to perform the Services required of it under this Agreement, as directed by
the COUNTY, pending resolution of the dispute provided that the COUNTY continues to pay to
CONSULTANT all amounts that the COUNTY does not dispute are due and payable.
3. SCHEDULE OF PAYMENTS
B.3.1. Notwithstanding anything herein to the contrary, the CONSULTANT shall submit no more than one
invoice per month for all fees earned that month for both Basic Services and Additional Services. Invoices
shall be reasonably substantiated, identify the services rendered and must be submitted in triplicate in a
form and manner required by the COUNTY.
B.3.1.1 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"'aches" as untimely submitted. Time shall be deemed of the essence with respect to
the timely submission of invoices under this Agreement.
B.3.2. Invoices not properly prepared (mathematical errors, billing not reflecting actual work done, no
signature, etc.) shall be returned to CONSULTANT for correction. Invoices shall be submitted on
CONSULTANT's letterhead and must include the Purchase Order Number and Project name and shall not
be submitted more than one time monthly.
B.3.3. Payments for Additional Services of CONSULTANT as defined in Article 2 hereinabove and for
reimbursable expenses will be made monthly upon presentation of a detailed invoice with supporting
documentation.
B.3.4. Unless specific rates have been established in Attachment 1, attached to this Schedule B,
CONSULTANT agrees that, with respect to any subconsultant or subcontractor to be utilized by
CONSULTANT for this Agreement or Additional Services, CONSULTANT shall be limited to a maximum
markup of five percent (5(3/0) on the fees and expenses associated with such subconsultants and
subcontractors.
B.3.4.1 Reimbursable Expenses must comply with §112.061, Fla. Stat., or as set forth in the
Agreement, be charged without mark-up by the CONSULTANT, and shall consist only of the following
items:
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Page 558 of 2568
r •7 I •
16E3
B.3.4.1.1. Cost for reproducing documents that exceed the number of documents
described in this Agreement and postage and handling of Drawings and Specifications.
B.3.4.1.2. Travel expenses reasonably and necessarily incurred with respect to Project
related trips, to the extent such trips are approved by the COUNTY. Such expenses, if approved by the
COUNTY, may include coach airfare, standard accommodations and meals, all in accordance with
112.061, Fla. Stat. Further, such expenses, if approved by the COUNTY, may include mileage for trips
that are from/to destinations outside of Collier or Lee Counties. Such trips within Collier and Lee Counties
are expressly excluded.
B.3.4.1.3. Permit Fees required by the Project.
B.3.4.1.4. Expense of overtime work requiring higher than regular rates approved in
advance and in writing by the COUNTY.
B.3.4.1.5. Expense of models for the County's use.
B.3.4.1.6. Other items on request and approved in writing by the COUNTY.
B.3.4.1.7. The CONSULTANT shall bear and pay all overhead and other expenses,except
for authorized reimbursable expenses, incurred by CONSULTANT in the performance of the Services.
B.3.4.1.8. Records of Reimbursable Expenses shall be kept on a generally recognized
accounting basis.
B.3.5. The CONSULTANT shall obtain the prior written approval of the COUNTY before incurring any
reimbursable expenses, and absent such prior approval, no expenses incurred by CONSULTANT will be
deemed to be a reimbursable expense.
END OF SCHEDULE B]
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0
Page 559 of 2568
SCHEDULE B—ATTACHMENT 1 16 E 3
CONSULTANT'S HOURLY RATE SCHEDULE
Title Hourly Rate
Senior Principal Engineer IX 220
Principal Engineer VIII 205
Engineer VI 170
Engineer IV 140
Engineer II 115
Engineer I 105
Permitting Coordinator 110
Senior Designer 125
Designer 115
Senior Contract Administrator 125
Contract Administrator 110
Senior Construction Field Representative 105
Construction Field Representative 95
Landscape Architecture Director 170
Landscape Architecture II 105
Principal Surveyor 180
Senior Surveyor 145
2 Person Survey Crew 140
3 Person Survey Crew 175
4 Person Survey Crew 195
Technician IV 80
Technician II 55
Subconsultants Value of Work
The above hourly rates are applicable to Time and Materials task(s) only. The above list may not be
all inclusive. Additional hourly rates for other personnel may be added via an Amendment upon mutual
agreement in advance and in writing by the parties. For Grant Funded Projects, the above hourly
rates are for purposes of providing estimate(s), as required by the grantor agency.
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Page 560 of 2568
SCHEDULE C
L
PROJECT MILESTONE SCHEDULE
1 V E 3
Number of Calendar Days
For Completion of Task
Task/Item from Date of Notice to
Description Proceed
1 Project Management 365
2 Preliminary Design 45
3 Design 180
4 Permitting 365
5 Post Design Services 1 Bid Phase Assumed(15 Months Construction Schedule)
Page 23 o)30
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Page 561 of 2568
Ar 1
SCHEDULE D
INSURANCE COVERAGE
1 L E 3
1. 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 CONSULTANT has any self-insured retentions or deductibles under any of the below
listed minimum required coverages, CONSULTANT 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
CONSULTANT's sole responsibility.
2. The insurance required by this Agreement shall be written for not less than the limits specified
herein or required by law, whichever is greater.
3.Coverages shall be maintained without interruption from the date of commencement of the
services until the date of completion and acceptance of the Project by the COUNTY or as specified in
this Agreement, whichever is longer.
4. Certificates of insurance acceptable to the COUNTY shall be filed with the COUNTY within ten
10) calendar days after Notice of Award is received by CONSULTANT evidencing the fact that
CONSULTANT has acquired and put in place the insurance coverages and limits required hereunder.
In addition, certified, true and exact copies of all insurance policies required shall be provided to the
COUNTY, on a timely basis, if requested by the COUNTY. Such certificates shall contain a provision
that coverages afforded under the policies will not be canceled or allowed to expire until at least thirty
30) days prior written notice has been given to the COUNTY. CONSULTANT shall also notify the
COUNTY, 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 CONSULTANT from
its insurer, and nothing contained herein shall relieve CONSULTANT of this requirement to provide
notice. In the event of a reduction in the aggregate limit of any policy to be provided by CONSULTANT
hereunder, CONSULTANT shall immediately take steps to have the aggregate limit reinstated to the
full extent permitted under such policy.
5. All insurance coverages of the CONSULTANT shall be primary to any insurance or self-
insurance program carried by the COUNTY applicable to this Project.
6. The acceptance by the COUNTY of any Certificate of Insurance does not constitute approval
or agreement by the COUNTY that the insurance requirements have been satisfied or that the
insurance policy shown on the Certificate of Insurance is in compliance with the requirements of this
Agreement.
7. CONSULTANT shall require each of its subconsultants to procure and maintain, until the
completion of the subconsultant's services, insurance of the types and to the limits specified in this
Section except to the extent such insurance requirements for the subconsultant are expressly waived
in writing by the COUNTY.
8. Should at any time the CONSULTANT not maintain the insurance coverages required herein,
the COUNTY may terminate the Agreement or at its sole discretion shall be authorized to purchase
such coverages and charge the CONSULTANT for such coverages purchased. If CONSULTANT fails
to reimburse the COUNTY for such costs within thirty (30) days after demand, the COUNTY has the
right to offset these costs from any amount due CONSULTANT under this Agreement or any other
agreement between the COUNTY and CONSULTANT. The COUNTY shall be under no obligation to
Page 24 0t30
PSA_CCNA Single Project Agreement[2022_ver.1
Page 562 of 2568
E3
N " 4--
purchase such insurance, nor shall it be responsible for the coverages purchased or the insurance
company or companies used. The decision of the COUNTY to purchase such insurance coverages
shall in no way be construed to be a waiver of any of its rights under the Agreement.
9. If the initial, or any subsequently issued Certificate of Insurance expires prior to the completion
of the services required hereunder or termination of the Agreement, the CONSULTANT shall furnish
to the COUNTY, in triplicate, renewal or replacement Certificate(s) of Insurance not later than three
3) business days after the renewal of the policy(ies). Failure of the Contractor to provide the COUNTY
with such renewal certificate(s) shall be deemed a material breach by CONSULTANT and the
COUNTY may terminate the Agreement for cause.
Sections checked ( ) are required by this Agreement.
10. • WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY. Workers' Compensation
and Employers' Liability Insurance shall be maintained by the CONSULTANT during the term of this
Agreement for all employees engaged in the work under this Agreement in accordance with the laws
of the State of Florida. The amounts of such insurance shall not be less than:
a. Worker's Compensation - Florida Statutory Requirements
b. Employers' Liability-The coverage must include Employers' Liability with a minimum limit of
1,000,000 for each accident.
The insurance company shall waive all claims rights against the COUNTY and the policy shall be so
endorsed.
1- llnite4-State s# rbec-WefIce ' tairled
R
12. Maritime Coverage (Jones Act) shall be maintained where applicable to the completion of
the work. Coverage shall have minimum limits of$ Per Claim/Occurrence.
13. n COMMERCIAL GENERAL LIABILITY.
A. Commercial General Liability Insurance, written on an "occurrence" basis, shall be
maintained by the CONSULTANT. Coverage will include, but not be limited to, Bodily Injury, Property
Damage, Personal Injury, Contractual Liability for this Agreement, Independent Contractors, Broad
Form Property Damage including Completed Operations and Products and Completed Operations
Coverage. Products and Completed Operations coverage shall be maintained for a period of not less
than five (5) years following the completion and acceptance by the COUNTY of the work under this
Agreement. Limits of Liability shall not be less than the following:
Coverage shall have minimum limits of $1,000,000 Per Occurrence, $2,000,000
aggregate.
B. The General Aggregate Limit shall apply separately to this Project and the policy shall be
endorsed using the following endorsement wording. "This endorsement modifies insurance provided
under the following: Commercial General Liability Coverage Part. The General Aggregate Limit under
LIMITS OF INSURANCE applies separately to each of your projects away from premises owned by
or rented to you." Applicable deductibles or self-insured retentions shall be the sole responsibility of
CONSULTANT. Deductibles or self-insured retentions carried by the CONSULTANT shall be subject
to the approval of the Risk Management Director or his/her designee.
Page 25 or30
PSA_CCNA Single Project Agreement[2022_ver.l)
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Page 563 of 2568
ib_ E3
14. Collier County Board of County Commissioners shall be listed as the Certificate Holder and
included as an"Additional Insured"on the Insurance Certificate for Commercial General Liability where
required. The 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. Contractor shall ensure that all subcontractors comply with the same
insurance requirements that the Contractor is required to meet.
15. Watercraft liability. Coverag T or the
S-UBCONS II TANT- in limits of not lest than the—Commercial General Liability limit shown in
e—Sef ices rider-this Agreement.
Air-Graft--Liability:—Coverage shall be--carried—by—the CONSULTANT or—the
SUBCONSULTANT in limits of not less than $5,000,000 each occurrence if applicable to the
completion of the Services under this Agreement.
17. Ti BUSINESS AUTOMOBILE LIABILITY INSURANCE. 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-The ownership.
18. TECHNOLOGY ERRORS-AND-OMISSIONS-INSURANOE—Coverage shall-have
f}i{ti ,u•.,,, tiinit Per Oc rrence.
Li GttBER-INSURANCE--Coverage Per
O6eurrenee-
20. UMBRELLA—LIABILITY,
A.— r-el}ined as part of the liabili ULT-ANT
and, if so, such policy ,
Autemobile-Liability-eeveragc required herei e-all-coverages on a "fellowing-fer-re"
basis
ffo t th t in +h f th ha sties of any
wing-limit due to the payment of claims, the Umbrela-peliey-willAl-rep-dewr te-apply-as-primary
iRsufaese
21. U PROFESSIONAL LIABILITY INSURANCE.
A. Professional Liability: Shall be maintained by the CONSULTANT to ensure its legal
liability for claims arising out of the performance of professional services under this Agreement.
CONSULTANT waives its right of recovery against COUNTY as to any claims under this insurance.
Such insurance shall have limits of not less than $2,000,000 each claim and aggregate.
B. Any deductible applicable to any claim shall be the sole responsibility of the
CONSULTANT. Deductible amounts are subject to the approval of the COUNTY.
C. The CONSULTANT shall continue this coverage for this Project for a period of not less
than five (5) years following completion and acceptance of the Project by the COUNTY.
D. The policy retroactive date will always be prior to the date services were first performed
by CONSULTANT or the COUNTY, and the date will not be moved forward during the term of this
Agreement and for five years thereafter. CONSULTANT shall promptly submit Certificates of
Page 26 of 30
I'SA_CCNA Single Project Agreement 12022_ver.I I
Page 564 of 2568
16E3
Insurance providing for an unqualified written notice to the COUNTY of any cancellation of coverage
or reduction in limits, other than the application of the aggregate limits provision. in addition,
CONSULTANT shall also notify the COUNTY by certified mail, within twenty-four (24) hours after
receipt, of any notices of expiration, cancellation, non-renewal or material change in coverages or
limits received by CONSULTANT from its insurer. In the event of more than a twenty percent (20%)
reduction in the aggregate limit of any policy, CONSULTANT shall immediately take steps to have the
aggregate limit reinstated to the full extent permitted under such policy. CONSULTANT shall promptly
submit a certified, true copy of the policy and any endorsements issued or to be issued on the policy
if requested by the COUNTY.
22. VALUABLE PAPERS INSURANCE.
In the sole discretion of the COUNTY, CONSULTANT may be required to purchase valuable
papers and records coverage for plans, specifications, drawings, reports, maps, books, blueprints,
and other printed documents in an amount sufficient to cover the cost of recreating or reconstructing
valuable papers or records utilized during the term of this Agreement.
23. PROJECT PROFESSIONAL LIABILITY.
A. If the COUNTY notifies CONSULTANT that a project professional liability policy will be
purchased, then CONSULTANT agrees to use its best efforts in cooperation with the COUNTY and
the COUNTY's insurance representative, to pursue the maximum credit available from the
professional liability carrier for a reduction in the premium of CONSULTANT's professional liability
policy. If no credit is available from CONSULTANT's current professional policy underwriter, then
CONSULTANT agrees to pursue the maximum credit available on the next renewal policy, if a renewal
occurs during the term of the project policy (and on any subsequent professional liability policies that
renew during the term of the project policy). CONSULTANT agrees that any such credit will fully
accrue to the COUNTY. Should no credit accrue to the COUNTY, the COUNTY and CONSULTANT,
agree to negotiate in good faith a credit on behalf of the COUNTY for the provision of project-specific
professional liability insurance policy in consideration for a reduction in CONSULTANT's self-insured
retention and the risk of uninsured or underinsured consultants.
B. The CONSULTANT agrees to provide the following information when requested by the
COUNTY or the COUNTY's Project Manager:
1. The date the professional liability insurance renews.
2. Current policy limits.
3. Current deductibles/self-insured retention.
4. Current underwriter.
5. Amount (in both dollars and percent) the underwriter will give as a credit if the policy is
replaced by an individual project policy.
6. Cost of professional insurance as a percent of revenue.
7. Affirmation that the design firm will complete a timely project errors and omissions
application.
C. If the COUNTY elects to purchase a project professional liability policy, CONSULTANT
to be insured will be notified and the COUNTY will provide professional liability insurance, naming
CONSULTANT and its professional subconsultants as named insureds.
END OF SCHEDULE D]
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A(1
Page 565 of 2568
1 6 E 3
SCHEDULE E
TRUTH IN NEGOTIATION CERTIFICATE
In compliance with the Consultants' Competitive Negotiation Act, Section 287.055, Florida
Statutes, Hole Montes, Inc. company's name)
hereby certifies that wages, rates and other factual unit costs supporting the compensation for the
services of the CONSULTANT to be provided under the Professional Services Agreement, concerning
Design Services for Stormwater Improvements for the BCG & CC/CCN Areas
project" is
accurate, complete and current as of the time of contracting.
BY: Iw1.14ED T9 l LA114s-i
TITLE: 4R.vteoc. f 1 PST
DATE: 31 141ZO77..,.
Page 28 of 30
PSA_CCNA Single Project Agreement[2022_ver.l]
CA()
Page 566 of 2568
n ry-'
SCHEDULE F
i p E 3
KEY PERSONNEL
Name Personnel Category Percentage of
Time
2 Person Survey Crew(52A) 8.7
3 Person Survey Crew(53A) 3
Jackelyn Lopez Technician IV(60A) 6
Tom M. Murphy Principal Surveyor(49A) 2.6
Valentin Zdravkov/Kevin Payne/Jarrod K.Harriott Senior Designer(22A) 25.9
Richard E. Brylanski/David Schmitt Principal Engineer VIII (10E) 10.9
Paulette D. Charbonneau Permitting Coordinator(45A) 5.9
John C. Baker/Tyler Bonnough Engineer IV(12D) 18.1
Ben Nowell Designer(22B) 7
William Prysi Landscape Architect(35B) 2.4
John Holtsclaw Landscape Architecture II 3.5
Mike Roddis Senior Contract Administrator 15
Page 29 of 30
PSA_CCNA Single Project Agreement[2022_vcr.I]
Page 567 of 2568
SCHEDULE G 1 6 E 3
Other:
Description)
following this page (pages through )
this schedule is not applicable
Page 30 of 30
PSA_CCNA Single Project Agreement[2022_ver.I
Page 568 of 2568
16 E34
Exhibit"B"
Articles of Merger and Agreement and Plan of Merger
TO FOLLOW THIS PAGE
Page 12 of 13
CAOAssumptionAgreement
Page 569 of 2568
16 E V'
COVER LETTER
TO: Amendment Section
Division of Corporations
SUBJECT: Bowman Gulf Coast LLC
Name of Surviving Party
The enclosed Certificate of Merger and fee(s)are submitted for filing.
Please return all correspondence concerning this matter to:
Kathryn Williams
Contact Person
Bowman
Firm/Company
12355 Sunrise Valley Dr., Ste 520
Address
Reston, VA 20191
City, State and Zip Code
kathrynwilliams@bowman.com
E-mail address: (to be used for future annual report notification)
For further information concerning this matter, please call:
Kathryn Williams at(703 )4649462
Name of Contact Person Area Code Daytime Telephone Number
O Certified copy(optional)$30.00
STREET ADDRESS: MAILING ADDRESS:
Amendment Section Amendment Section
Division of Corporations Division of Corporations
Clifton Building P. O. Box 6327
2661 Executive Center Circle Tallahassee, FL 32314
Tallahassee, FL 32301
CR2E080(2/20)
Page 570 of 2568
i6 E3
Articles of Merger
For
Florida Limited Liability Company
The following Articles of Merger is submitted to merge the following Florida Limited Liability Company(ies) in accordance
with s.605.1025. Florida Statutes.
FIRST: The exact name. form/entity type,and jurisdiction for each merging party arc as follows:
Name Jurisdiction Form/F,ntityType
Hole Montes, Inc. Florida Corporation
44-q riSO\
SECOND: The exact name, form/entity type.and jurisdiction of the surviving party are as follows:
Name Jurisdiction Form/Entity Type
Bowman Gulf Coast LLC Florida LLC
L23OOcW!riI I
THIRD: The merger was approved by each domestic merging entity that is a limited liability company in accordance with
ss.605.102I-605.1026:by each other merging entity in accordance with the laws of its jurisdiction:and by each member of
such limited liability company who as a result of the merger will have interest holder liability under s.605.1023(1)(b).
M1y47
I,. . rn
c -
I%)
rn
i CD C3
r1
N =
N -.;m
Page 571 of 2568
6 E3
FOURTH: Please check one of the boxes that apply to surviving entity: (if applicable)
This entity exists before the merger and is a domestic filing entity, the amendment. ifanv to its public organic record
arc attached.
This entity is created by the merger and is a domestic filing entity, the public organic record is attached.
This entity is created by the merger and is a domestic limited liability limited partnership or a domestic limited
liability partnership, its statement of qualification is attached.
This entity is a foreign entity that does not have a certificate of authority to transact business in this state.The
mailing address to which the department may send any process served pursuant to s.605.01 17 and Chapter 4S,
Florida Statutes is:
FIFTII: This entity agrees to pay any members with appraisal rights the amount.to which members are entitled under
ss.605.1006 and 605.1061-605.1072, P.S.
SIXTH: If other than the date of filing, the delayed effective date of the merger. which cannot be prior to nor more than 90
days after the date this document is tiled by the Florida Department of State:
Note: If the date inserted in this block does not meet the applicable statutory filing requirements,this date will not be listed
as the document's effective date on the Department of State's records.
SEVENTH: Signature(s) for Each Party:
Typed or Printed
Name of Entity/Organization:Signature(s): Name of Individual:
Hole Montes, Inc. r 1 Robert.I. Mulhere. Pres.
Bowman Gulf Coast LLC Robert Hickey, Manager
Corporations: Chairman, Vice Chairman, President or Officer
If mr directors.selected,signature of incorporator)
General partnerships: Signature of a general partner or authorized person
Florida Limited Partnerships: Signatures of all general partners
Non-Florida Limited Partnerships: Signature of a general partner
Limited Liability Companies: Signature of an authorized person
Fees: For each Limited Liability Company: 25.00 For each Corporation: 35.00
For each Limited Partnership: 52.50 For each General Partnership: 25.00
For each Other Business Entity: S25.00 Certified Copy(optionall: 30.00
Page 572 of 2568
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BOWMAN CONSULTING GROUP LTD.
BOWMAN GULF COAST LLC.
HOLE MONTES,INC.
HOLE MONTES HOLDING COMPANY,INC.
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER(the"Agreement"), dated May 16, 2023, (the
Execution Date")by and among Bowman Consulting Group Ltd., a Delaware corporation
Bowman"), Bowman Gulf Coast LLC, a Florida limited liability company and wholly-owned
subsidiary of Bowman("Bowman Gulf Coast"or the"Surviving Company"), Hole Montes,
Inc., a Florida corporation(the "Merged Company"), Hole Montes Holding Company,Inc., a
Florida corporation (the "Holding Company"), and Thomas Murphy,William Cole,Robert
Mulhere,Richard Brylanski,David Schmitt, Charles Kreb, and June T. Sapp,each a
shareholder of the Holding Company (collectively the"Shareholders" and individually a
Shareholder").
WITNESSETH
WHEREAS,the Merged Company is engaged in the business of providing site
development, aviation engineering,planning and zoning,property and homeowner association,
surveying and mapping,transportation engineering, water resources, landscape architectural
design, 3D graphics and digital design and related services from its offices in Naples, Florida
and Fort Myers, Florida(the"Business");
WHEREAS, as of the date hereof the Shareholders own all of issued and outstanding
shares of common stock of the Holding Company (the "Holding Company Shares");
WHEREAS, as of the date hereof the Holding Company owns all of issued and
outstanding shares of common stock of the Merged Company (the "Merged Company Shares");
WHEREAS, Bowman, is the sole Manager and sole Member of Bowman Gulf Coast, and
as such is the sole owner of Bowman Gulf Coast;
WHEREAS,the Board of Directors and Shareholders of the Merged Company have
determined that the merger of Merged Company with and into Bowman Gulf Coast is in the best
interests of the Holding Company,the Shareholders and the Merged Company and they have
approved the merger in accordance with applicable Florida law and accordingly have agreed to
effect the merger provided for herein upon the terms and subject to the conditions set forth
herein;
WHEREAS, Bowman, has for itself and in its capacity as the sole Manager and sole
Member of Bowman Gulf Coast, determined that the merger of Merged Company with and into
Bowman Gulf Coast is in the best interests of Bowman, Bowman Gulf Coast and the Merged
Company and they have approved the merger in accordance with applicable Florida law and
accordingly have agreed to effect the merger provided for herein upon the terms and subject to
the conditions set forth herein
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WHEREAS,the parties intend that: (a)the Merged Company will merge with and into
Bowman Gulf Coast in a forward triangular merger(the "Merger" or "Transaction"); and (b)
Bowman Gulf Coast will be the surviving entity (the "Surviving Entity") of the Merger. When
the Merger is effective all outstanding capital stock of the Merged Company will be cancelled
and the Shareholders of Holding Company will receive a combination of capital stock of
Bowman, cash, and Bowman's promissory note, all as more fully set forth herein. Each of these
events will be subject to and carried out pursuant to the terms and conditions of this Agreement
and Articles of Merger substantially in the form of Exhibit A and the applicable provisions of
Florida law;
WHEREAS,the Merger is intended to be treated for Federal income tax purposes as a
tax-free reorganization pursuant to the provisions of Section 368(a)(1)(A) of the Internal
Revenue Code of 1986, as amended(the "Code"), by virtue of the provisions of Section
368(a)(1)(A) of the Code and specifically as a forward triangular merger as provided for in
Section 368(a)(2)(D) of the Code;
WHEREAS, Bowman, Bowman Gulf Coast,the Shareholders,the Holding Company and
the Merged Company desire to make certain representations and warranties and other agreements
in connection with the Transaction; and
WHEREAS, as a condition of Closing hereunder the Shareholders shall be required to
execute documents regarding their employment and post-employment activities.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth and
other good and valuable consideration,the receipt and adequacy of which are hereby
acknowledged,the parties hereby agree as follows:
Article 1
DEFINITIONS
1.1 Certain Matters of Construction
A reference to an Article, Section, Exhibit or Schedule shall mean an Article of, a Section in, or
Exhibit or Schedule to,this Agreement unless otherwise expressly stated. The titles and
headings herein are for reference purposes only and shall not in any manner limit the
construction of this Agreement which shall be considered as a whole. The words "include,"
includes" and"including"when used herein shall be deemed in each case to be followed by the
words "without limitation."
1.2 Cross References
The following terms defined elsewhere in this Agreement in the Sections set forth below shall
have the respective meanings therein defined:
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Term Definition
Acquisition Proposals Section 7.1
Agreement Preamble
Bowman Preamble
Bowman Indemnified Parties Section 7.3
Bowman Stock Consideration Section 2.4.2
Bowman Gulf Coast Preamble
Business Preamble
Cash Consideration Section 2.4.3
Closing Section 2.1
Closing Date Preamble
Closing Date Balance Sheet Section 2.7
Earn-Out Consideration Section 2.4.6
Deficit Equity Section 2.5.1
Employee List Section 4.10
Excess Equity Section 2.5.1
Excluded Assets Section 2.2
Excluded Obligations Section 4.6.1
First Promissory Note Section 2.4.4
Holding Company Preamble
Merger Preamble
Merged Company Preamble
Merged Company Financial Statements Section 4.6.1
Merged Company Insurance Contracts Section 4.15
Merged Company Plans Section 4.9.1
Merged Company Shares Preamble
Merger Consideration Section 2.4
Permits Section 4.2
Second Promissory Note Section 2.4.5
Shareholder Preamble
Shareholder Indemnified Parties Section 7.3
Shareholder Pro Rata Share Section 3.5
Surviving Company Preamble
Third Party Claim Section 7.3.6
Transaction Preamble
1.3 Certain Definitions
As used herein,the following terms shall have the following meanings:
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Accounting Principles: shall mean GAAP, and to the extent not inconsistent with GAAP,
sound accounting practices,principles,policies,procedures, classifications,judgments,
valuations and estimates.
Accounts Receivable: shall mean amounts owed to the Merged Company by its clients
and evidenced by invoices issued through the Closing Date which reflect only services
rendered and contractual billing milestones met through the Closing Date; it being
understood that the Holding Company on behalf of the Merged Company shall complete,
transmit and account for all of its Accounts Receivable within twenty (20) Business Days
after the Closing Date. For avoidance of doubt, any amounts reflected on invoices that
reflect contractual billing milestones greater than the amount of services actually
rendered through the Closing Date shall not be included in Accounts Receivable as
defined and used herein.
Accrued Payroll: shall mean wages due to Merged Company employees, incurred in the
Ordinary Course of Business plus the employer portion of payroll taxes due thereon, and
subject to the following limitations (A)Accrued Payroll shall not exceed two (2)weeks
of wages and payroll taxes, (B)Accrued Payroll shall not include any obligation to pay
accrued bonus or other incentive payments above base compensation rates; and(c)
Accrued Payroll shall not include the employer portion of payroll taxes that was deferred
under the CARES Act. A schedule of such Accrued Payroll as of May 16, 2023 is set
forth on Schedule 2.7.a,to be updated in the Closing Date Balance Sheet.
Accrued Assumed PTO: shall mean accrued vacation, holiday and sick leave for Merged
Company employees hired by Bowman all incurred in the Ordinary Course of Business.
A schedule of such Accrued Assumed PTO as of May 16, 2023 is set forth on Schedule
2.7.b, to be updated in the Closing Date Balance Sheet.
Advance Billed Amount: shall mean the dollar amount, if any,by which amounts contained
on invoices issued prior to the Closing Date reflect contractual billing milestones greater
than the dollar amount of services actually rendered through the Closing Date, including
without limitation amounts determined pursuant to the application of ASC Topic 606
issued by the Financial Accounting Standards Board.
Affiliate: with respect to any Person, any Person which, directly or indirectly, controls, is
controlled by, or is under common control with, such Person.
Average Stock Price: shall mean the average (mean) closing price of Bowman's common
stock on Nasdaq for the twenty (20)trading days prior to the Closing Date, weighted by
volume for each such trading day. At the end of the Lock-Up Period (as defined in the
Lock-Up Agreement)the applicable period shall be the twenty (20)trading days prior to
the end of the Lock-Up Period. In the case of Earn-Out Stock Consideration the
applicable period shall be the twenty (20)trading days prior to the end of the third
EBITDA Measurement Period.
Backlog: shall mean the value of work to be performed after the Closing Date on behalf
of Merged Company clients pursuant to client contracts.
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Bowman Material Adverse Effect: any materially adverse change in or effect on the
financial condition,business, operations, assets,properties, results of operations or
prospects of Bowman;provided, however,that none of the following shall be deemed,
either alone or in combination,to constitute, and there shall not be taken into account in
determining whether there has been a Bowman Material Adverse Effect any adverse
effect arising from or attributable or relating to: (a) conditions affecting (I)the industries
in which Bowman operates or participates, or(II)the U.S. or global economy or financial
markets; (b)the legal, accounting, investment banking or other fees or expenses incurred
I) in connection with the Transaction contemplated by this Agreement, and (II) in
connection with the process of the purchase of the Merger; (c)the execution, delivery or
announcement of this Agreement or the announcement,pendency or anticipated
consummation of the Transaction; (d) any natural disaster or any acts of terrorism,
sabotage,military action or war or any escalation or worsening thereof; (e) any event,
occurrence, development or state of circumstances disclosed in or incorporated by
reference in the exhibits or schedules attached to this Agreement; (f)the taking of any
action or failure to act contemplated by this Agreement or with the written consent of
Merged Company; (g) changes in applicable laws or GAAP, (h) any conditions which
abate or are cured by Bowman prior to Closing such that there no longer is a Bowman
Material Adverse Effect; (i) epidemic outbreak(including COVID-19); or(j)a significant
failure to meet internal or published projections, estimates or forecasts of revenues,
earnings, or other measures of financial or operating performance for any period.
Bowman Transaction Expenses: means all fees, costs, expenses and obligations
including any attorneys', accountants', consultants', financial advisory, brokers',
investment bankers', and finder's fees) incurred by or otherwise approved by Bowman or
Bowman Gulf Coast in connection with any of the following that remain unpaid as of the
Closing Date: (i)the due diligence conducted by Bowman or Bowman Gulf Coast in
connection with the transaction contemplated by this Agreement; (ii)the structuring,
negotiation or consummation of the Transaction contemplated by this Agreement and the
Transaction documents, including the preparation and review of this Agreement
including the disclosure schedules), and the Transaction documents; (iii)the preparation
and submission of any filing or notice required to be made or given in connection with
the transactions contemplated by this Agreement and obtaining any consent required to
be obtained in connection with the Transaction; or(iv)transaction bonuses, discretionary
bonuses, change-of-control payments, severance payments,phantom equity payouts,
stay put"or other compensatory amounts payable to any employee, independent
contractor, director or other service provider of Bowman as a result of the Transaction
including the employer-paid portion of any employment or payroll Taxes that become
payable in connection with payment thereof).
Business Day: any day other than (a) Saturday or Sunday or(b) any other day on which
banks in the State of Florida are permitted or required to be closed.
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Client Prepayments: shall mean payments received in the Ordinary Course of Business
by the Merged Company from its clients in the form of retainers and other prepayments
against fees to be earned, as identified on the Closing Date Balance Sheet.
COBRA: the provisions of Section 4980B of the Code and Part 6 of Title I of ERISA.
Code: the U.S. Internal Revenue Code of 1986, as amended from time to time.
Commercial Software: those Merged Company assets that consist of packaged
commercial software programs generally available to the public through retail dealers or
authorized resellers in computer software or directly from the manufacturer which have
been licensed to the Merged Company and which are used in the Business but are in no
way a component of or incorporated in or specifically required to develop any of the
Merged Company's products and related trademarks, and technology.
Computer Hardware: shall mean the computer, information technology, and data
processing equipment owned by the Merged Company.
Contingent Consideration Time Frame: shall mean the period beginning on April 1, 2023
and ending on September 30, 2024.
Current Liabilities: shall mean the sum of Accrued Payroll, Accrued Assumed PTO,
Advance Billed Amount, Trade Accounts Payable, and Client Prepayments, as set forth
on the Closing Date Balance Sheet.
EBITDA Measurement Period: shall mean each period of four consecutive EBITDA
Measurement Quarters that occurs during the Contingent Consideration Time Frame. As
an example,the first EBITDA Measurement Period shall be April 1, 2023 through March
31, 2024 and the second EBITDA Measurement Period shall be July 1, 2023 through
June 30, 2024
EBITDA Measurement Quarter: shall mean each of calendar quarters during the
Contingent Consideration Time Frame.
Encumbrances: shall mean all options, proxies,voting trusts, voting agreements,
judgments,pledges, charges, escrows, rights of first refusal or first offer,transfer
restrictions, liens, claims, mortgages, security interests, indentures, equities, covenants,
rights of way, and other encumbrances of every kind and nature whatsoever, including
any arrangements or obligations to create any such encumbrance, whether arising by
agreement, operation of law or otherwise.
Environmental Claim: any actual notice alleging potential liability (including,without
limitation,potential liability for investigatory costs, cleanup costs, response or
remediation costs, natural resources damages,property damages,personal injuries, fines
or penalties) arising out of, based on or resulting from (a)the presence, or release of any
Materials of Environmental Concern at any location, operated by or under the control of
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the Merged Company, or(b) circumstances forming the basis of any violation, or alleged
violation, of any Environmental Law.
Environmental Law: any and all Federal, state or local statutes, regulations and
ordinances relating to the protection of public health, safety or the environment.
ERISA: the Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate: with respect to a party, any member(other than that party) of a
controlled group of corporations, group of trades or businesses under common control or
affiliated service group that includes that party (as defined for purposes of Section
414(b), (c) and(m)of the Code).
Fundamental Representations and Warranties: in the case of the Shareholders those
representations and warranties contained in Sections 3.1, 3.2, 3.5, 4.1, 4.8, and 4.11; and
in the case of Bowman and Bowman Gulf Coast those representations and warranties
contained in Sections 5.1, 5.2, 6.1, and 6.2.
GAAP: generally accepted accounting principles for financial reporting in the United
States, applied on a consistent basis.
Governing Documents: with respect to any particular entity, (a) if a corporation,the
articles or certificate of incorporation and the bylaws; (b) if a general partnership,the
partnership agreement and any statement of partnership; (c) if a limited partnership, the
limited partnership agreement and the certificate of limited partnership; (d) if a limited
liability company, the articles of organization and operating agreement; (e) if another
type of Person, any other charter or similar document adopted or filed in connection with
the creation, formation or organization of the Person; (f) all equity-holders' agreements,
voting agreements, voting trust agreements,joint venture agreements, registration rights
agreements or other agreements or documents relating to the organization, management
or operation of any Person or relating to the rights, duties and obligations of the equity-
holders of any Person; and (g) any amendment or supplement to any of the foregoing.
Governmental Entity: any governmental or public body or authority of the Federal
government of the United States, or of any state, municipality, or other political
subdivision located therein.
Hole Montes Business EBITDA: shall mean the EBITDA of the Hole Montes Business
Unit as determined using the example set forth on Exhibit E. For purposes of illustration
and not limitation (a)Hole Montes Business EBITDA shall not include the current level
of contribution to EBITDA from any current Bowman business that may become part of
the Hole Montes Business Unit after Closing, but shall include increases thereto after
Closing; and(b)Bowman shall not make any general allocation of Bowman corporate
overhead expenses to the Hole Montes Business Unit, but (i)may allocate specific
expenses, such as a share of Bowman's professional liability insurance or other insurance
premiums attributable to the Hole Montes Business Unit to the Hole Montes Business
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Unit, and (ii) all bonus expenses of the Hole Montes Business Unit, including bonus paid
to any of the Shareholders or Key Employees pursuant to the terms of their respective
Employment Agreements or otherwise, shall be an expense of the Hole Montes Business
Unit.
Hole Montes Business Unit: shall mean the business unit within the structure of Bowman
that conducts the Business after the Closing Date.
Indebtedness: shall mean: (a)the aggregate principal amount of, and accrued interest and
prepayment penalties,premiums or breakage fees with respect to, all debt for borrowed
money of Merged Company and all obligations of Merged Company evidenced by notes,
debentures, bonds or similar instruments; (b) all obligations of Merged Company in
respect of deferred purchase price for property or services, including capital leases,
conditional sale agreements and other title retention agreements; (c) all obligations of
Merged Company under conditional sale or other title retention agreements; (d) all
obligations of Merged Company in respect of letters of credit, acceptances or similar
obligations and any reimbursement agreements with respect thereto; (e) all obligations of
Merged Company under interest rate cap agreements, interest rate swap agreements,
foreign currency exchange contracts or other hedging contracts (including breakage costs
with respect thereto); (f) all obligations of Merged Company in respect of transaction
bonuses, change-in-control payments, severance rights, deferred compensation payments,
withdrawal liability under multiemployer plans and similar obligations triggered by the
Transaction contemplated herein; and (g)any guaranty by Merged Company of the
obligations of any Person with respect to any obligations of the type described in clauses
a)through (f).
Key Employees: shall mean the following employees of the Merged Company: John
Baker, Tyler Bonnough, Austin Brown, Jeremie Chastain, Kevin Dowty, John Hilton,
Jared Mellein, and Ellen Summers.
Knowledge of the Shareholders or Shareholders'Knowledge: shall mean the current
actual knowledge of any of the Shareholders after having conducted a reasonable inquiry.
Knowledge of Bowman: shall mean the current actual knowledge of Gary Bowman,
Michael Bruen, Bruce Labovitz, Robert Hickey, and Timothy Vaughn after having
conducted a reasonable inquiry.
Lock-Up Average Stock Price: shall mean the average (mean) closing price of Bowman's
common stock on Nasdaq for the twenty(20)trading days prior to the last day of the
Lock-Up Period(as defined in the Lock-Up Agreement)weighted by volume for each
such trading day; provided, however that in no event shall the Lock-Up Average Stock
Price be more than Ten Dollars ($10.00)per share less than the Average Stock Price on
the Closing Date nor shall the Lock-Up Average Stock Price be more than Ten Dollars
10.00)per share more than the Average Stock Price on the Closing Date.
Losses: shall means all actions, lawsuits,proceedings, hearings, investigations, charges,
complaints, Third Party Claims, demands, injunctions,judgments, Orders, liabilities,
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decrees, rulings, dues, obligations, Taxes, liens, assessments, levies, losses, lost profits,
diminution in value, fines,penalties, damages, costs, fees and expenses, including
reasonable attorneys', accountants', investigators', and experts' fees and expenses
incurred by any Indemnified Party in investigating or defending any of the foregoing or
in connection with the enforcement of the Indemnified Party's rights under this
Agreement or any agreement entered into in connection herewith. For purposes of
determining the amount of Loss, the amount of any Loss shall be reduced by any
insurance proceeds received in respect thereof(in each case net of costs of recovery).
Materials of Environmental Concern: petroleum and its by-products and any and all
other substances or constituents to the extent that they are regulated by, or form the basis
of liability under, any Environmental Law.
Maximum Indemnity Amount: shall mean Two Million Four Hundred Eighty Thousand
Dollars ($2,480,000.00).
Maximum Fundamental Indemnity Amount: shall the total amount of Merger
Consideration paid or payable under this Agreement.
Merged Company Material Adverse Effect: any materially adverse change in or effect on
the financial condition, Business, operations, Merged Company assets,properties,results
of operations or prospects of the Merged Company;provided, however,that none of the
following shall be deemed, either alone or in combination, to constitute, and there shall
not be taken into account in determining whether there has been a Merged Company
Material Adverse Effect: any adverse effect arising from or attributable or relating to:
a) conditions affecting (I)the industries in which the Merged Company operates or
participates, or(II)the U.S. or global economy or financial markets; (b)the legal,
accounting, investment banking or other fees or expenses incurred (I) in connection with
the Transaction contemplated by this Agreement, and(II) in connection with the process
of the Merger; (c)the execution, delivery or announcement of this Agreement or the
announcement,pendency or anticipated consummation of the Transaction; (d) any natural
disaster or any acts of terrorism, sabotage, military action or war or any escalation or
worsening thereof; (e) any event, occurrence, development or state of circumstances
disclosed in or incorporated by reference in the exhibits or schedules attached to this
Agreement; (f)the taking of any action or failure to act contemplated by this Agreement
or with the written consent of Bowman; (g) changes in applicable laws or GAAP; (h)
epidemic outbreak(including COVID-19); (i) any conditions which abate or are cured by
Merged Company prior to Closing such that there no longer is a Merged Company
Material Adverse Effect; or(j) a significant failure to meet internal or published
projections, estimates or forecasts of revenues, earnings, or other measures of financial or
operating performance for any period.
Merged Company Transaction Expenses: means all fees, costs, expenses and obligations
including any attorneys', accountants', consultants', financial advisory,brokers',
investment bankers', and finder's fees) incurred by or otherwise approved by the
Shareholders or the Merged Company in connection with any of the following that
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remain unpaid as of the Closing Date: (i)the due diligence conducted by the Merged
Company or the Shareholders in connection with the transaction contemplated by this
Agreement; (ii)the structuring, negotiation or consummation of the Transaction
contemplated by this Agreement and the Transaction documents, including the
preparation and review of this Agreement(including the disclosure schedules), and the
Transaction documents; (iii)the preparation and submission of any filing or notice
required to be made or given in connection with the Transaction and obtaining any
consent required to be obtained in connection with the Transaction; or(iv) Transaction
bonuses, discretionary bonuses, change-of-control payments, severance payments,
phantom equity payouts, "stay put" or other compensatory amounts payable to any
employee, independent contractor, director or other service provider of the Merged
Company as a result of the Merger(including the employer-paid portion of any
employment or payroll Taxes that become payable in connection with payment thereof).
Minimum Indemnity Amount: shall mean One Hundred Thousand Dollars ($100,000.00).
Office Leases: means the real estate leases for the Merged Company's offices in Naples,
Florida and Fort Myers, Florida.
Order: any order, injunction,judgment, decree, ruling, assessment or arbitration award of
any Governmental Entity or arbitrator.
Ordinary Course of Business: an action taken by a Person will be deemed to have been
taken in the Ordinary Course of Business only if that action: is consistent in nature, scope
and magnitude with the past practices of such Person and is taken in the ordinary course
of the normal, day-to-day operations of such Person; does not require authorization by the
board of directors or shareholders of such Person (or by any Person or group of Persons
exercising similar authority) and does not require any other separate or special
authorization of any nature.
PCAOB Standards: means the then current auditing standards adopted by the Public
Company Accounting Oversight Board.
Permitted Encumbrances: (a) liens on personal property leased under operating leases
disclosed to Bowman and(b) such imperfections or minor defects of title, easements,
rights-of-way and other similar restrictions (if any) as are insubstantial in character,
amount or extent, do not materially detract from the value or interfere with the present or
proposed use of the properties or assets of the party subject thereto or affected thereby,
and do not otherwise adversely affect or impair the business or operations of such party.
Person: an individual, a corporation, an association, a limited liability company, a
partnership, a limited liability partnership, an estate, a trust, a Governmental Entity, and
any other entity or organization.
Prepaid Expenses: shall be a prepaid expense as defined by GAAP.
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Subsidiary(or Subsidiaries): means with respect to any Person (the "Owner"), any
corporation or other Person of which securities or other interests having the power to
elect a majority of that corporation's or other Person's board of directors or similar
governing body, or otherwise having the power to direct the business and policies of that
corporation or other Person(other than securities or other interests having such power
only upon the happening of a contingency that has not occurred), are held by the Owner
and/or one or more of its Subsidiaries.
Taxes: means all taxes, levies and other assessments, including all income, sales, use,
goods and services, value added, capital, capital gains, net worth,transfer,profits,
withholding,payroll, employer health, excise, real property and personal property taxes,
and any other taxes, assessments or similar charges in the nature of a tax, including
unemployment insurance payments and workers compensation premiums,together with
any installments with respect thereto, and any interest, fines and penalties, imposed by
any Governmental Entity (including federal, state, municipal and foreign Governmental
Entities), and whether disputed or not.
Tax Returns: means all returns, declarations, reports, statements and other documents
filed or required to be filed in respect of Taxes, and the term Tax Return means any one
of the foregoing Tax Returns.
Trade Accounts Payable: shall mean amounts owed by the Merged Company to third-
party vendors incurred in the Ordinary Course of Business, but obligations to
subcontractors and subconsultants shall be included in Trade Accounts Payable only if(i)
the associated invoice from the Merged Company to the Merged Company client has
been issued on or before the Closing Date and is reflected in Accounts Receivable, and
ii)the subcontractor or subconsultant is on a"pay if paid"basis. For purposes of clarity
Trade Accounts Payable shall not include Merged Company Transaction Expenses.
Work in Process: shall mean the value of services performed and earned by the Merged
Company for its clients through the Closing Date but in the Ordinary Course of Business
is not yet invoiced to its clients nor reflected in Accounts Receivable.
Work in Process Receivable: shall mean amounts owed to the Surviving Company with
respect to Work in Process and evidenced by invoices issued by the Surviving Company
to clients of the Business after the Closing Date.
Working Capital: shall mean the dollar amount of Accounts Receivable less the dollar
amount of Current Liabilities.
Article 2
THE PLAN OF MERGER
2.1 The Merger
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Subject to and upon the terms and conditions of this Agreement and the Articles of Merger, and
on the basis of the representations,warranties, covenants, and agreements herein contained, at
the closing of the Transaction contemplated by this Agreement(the "Closing"),the Merged
Company will merge with and into Bowman Gulf Coast in accordance with the applicable
provisions of Florida law. The Closing shall take place at the offices of Bowman in Reston,
Virginia, or remotely by exchange of documents and signatures (or their electronic counterparts),
on May 16, 2023 (the "Closing Date"). If all of the conditions to the obligations of the parties to
consummate the transactions contemplated hereby, including those contained in Article 7 below
have not been satisfied by May 16, 2023, then Bowman shall have the unilateral right to extend
the Closing Date for additional days through June 12, 2023, and Bowman, Bowman Gulf Coast,
Holding Company, Merged Company and Shareholders shall use reasonable and good faith
efforts to timely satisfy such conditions. The Closing shall be effective as of 11:59 p.m. on the
Closing Date. The Merger shall become effective once Articles of Merger have been filed with
and accepted by the Florida Secretary of State on the Closing Date. On the Closing Date (i)the
Merged Company will merge with and into Bowman Gulf Coast,which will be the Surviving
Entity and the separate existence of the Merged Company will thereupon cease; (ii)each share of
common stock of Merged Company outstanding immediately prior to the Closing Date will be
cancelled; (iii)the Governing Documents of Bowman Gulf Coast as of the Closing Date in the
form attached hereto as Exhibit K will remain the Governing Documents of the surviving entity;
iv)the board of directors and officers of the Merged Company immediately prior to the Closing
Date will resign; and (v)the Merger will, from and after the Closing Date, have all of the effects
provided by applicable law. As a result of the Merger Bowman Gulf Coast will own all of the
assets used in the Merged Company's Business (the "Merged Company Assets"), subject only to
the Assumed Liabilities and excluding the Excluded Assets identified on Schedule 2.2. The
Merged Company Assets shall include:
a) All contracts, contract rights, service agreements, employment
relationships and business relationships related to the Business.
b) All past,present and prospective customers, customer lists, list of
prospective customers, files and records and rights under contracts, goodwill (including all trade
names,the Merged Company name, domain names and telephone numbers) and all other
intangible assets (including advertising, trade secrets,trademarks, and copyrights)related to the
Business.
c) All Accounts Receivable generated in connection with the Business
through the Closing Date and all Work in Process through the Closing Date.
d) All technology used, licensed or created by the Merged Company in
connection with the Business.
e) All fixed assets of Merged Company used in connection with the
Businesses including without limitation computer hardware and software, computer systems,
furniture, fixtures, vehicles,machinery,plant or other equipment, and survey equipment.
Attached hereto as Schedule 2.1(e) is a schedule of all Merged Company vehicles and drones and
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any single item of field equipment having a replacement cost of Three Hundred Thousand
Dollars ($300,000.00) or more, but excluding any vehicle that is an Excluded Asset.
f) All supplies, and inventory.
g) All security deposits or prepayments made by Merged Company
h) All intangible assets and intellectual property of the Company or
otherwise related to any of the items in this Section 2.1, including documents, computer and
digital files, records, information, and intellectual property rights (including rights to works
made for hire by Company employees and independent contractors), all trademarks, copyrights,
goodwill (including any trade names,the name "Hole Montes&Associates", "Hole Montes" or
similar names related to the Business and associated goodwill),the website address ("url") for
www.holemontes.com and any other url owned by the Company, and all website content
included therein or associated therewith, all technology used, licensed to or created by Company
or otherwise related to the Business, all rights to telephone and fax numbers, and to all Company
project history and all other intangible assets derived from or otherwise related to the Business or
in any way related to any of the other items in this Section 2.1.
i) All documents, computer files, records and information related to the
items specified in (a)through (h) above.
2.2 Excluded Assets.
The Merged Company Assets shall not include the following Excluded Assets, which shall be
distributed by the Merged Company to the Holding Company on or prior to Closing:
a) The Merged Company's cash on hand, cash equivalents, and marketable
securities.
b) Personal assets and vehicles of Shareholders as agreed upon by the
Shareholders and Bowman and set forth on Schedule 2.2(b).
2.3 Capital Structure of the Constituent Companies and Bowman.
a) Merged Company and Holding Company. The Merged Company is a
Florida corporation,the authorized capitalization of the Merged Company consists of 7,500
shares of Common Stock with par value of$1.00 per share, of which 3,352 shares are issued and
outstanding as of the date hereof, all of which are owned by the Holding Company. The Holding
Company is a Florida corporation,the authorized capitalization of the Merged Company consists
of 7,500 shares of Common Stock with par value of$1.00 per share, of which 3,352 shares are
issued and outstanding as of the date hereof, all of which are owned by the Shareholders.
b) Bowman Gulf Coast. Bowman Gulf Coast is a Florida limited liability
company whose sole member and Manager is Bowman.
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c) Bowman. Bowman is a Delaware corporation, the authorized
capitalization of which consists of 30,000,000 authorized shares of common stock par value of
01 per share, of which 13,556,550 are outstanding as of December 31,2022, and 5,000,000
authorized shares of preferred stock par value of$.01 per share, of which-0-are issued and
outstanding as of December 31, 2022.
2.4 Exchange of Stock and Merger Consideration
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2.6 Additional Actions. If, at any time after the Closing Date,any further action is
necessary or desirable to carry out the purposes of this Agreement or to vest,perfect or confirm
in Bowman title to or ownership or possession of the Business Assets acquired pursuant to this
Agreement, the Holding Company and Bowman are fully authorized in their name and in the
name of their respective corporations or otherwise to take, and will take, all such lawful and
necessary action, so long as such action is consistent with this Agreement. The Holding
Company shall have reasonable access to the documents, files and records referred to in Section
2.2 above for purposes of litigation,responding to claims, and similar needs.
2.7 Closing Date Balance Sheet.
Within the earlier to occur of(i)thirty(30)days after the Closing Date or(ii)the last day of the
calendar quarter during which the Closing Date occurs, the Holding Company shall deliver to
Bowman the Merged Company's general ledger and such other accounting information
reasonably requested by Bowman to produce a Closing Date Balance Sheet and Closing Date
Income Statement in compliance with GAAP and PCAOB Standards. The general ledger and
other accounting information shall be current as of the Closing Date, and if prior to the Closing
Date the Merged Company's fmancial records did not comply with GAAP, such general ledger
and other accounting information shall be prepared and delivered in accordance with the
Accounting Principles. Within forty-five(45)days after receipt of all such information Bowman
shall prepare and deliver to the Holding Company a Closing Date Balance Sheet reflecting assets
and liabilities on the Closing Date(including all amounts necessary to compute Working Capital
hereunder)and a Closing Date Income Statement reflecting actual fmancial performance during
the period from January 1, 2023 through the Closing Date. The Closing Date Balance Sheet
shall include a schedule listing by client,project, and dollar amount the Work in Process,
Backlog,Accounts Receivable, and Current Liabilities on the Closing Date. Within ten(10)
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Business Days after the receipt of such Closing Date Balance Sheet, the Holding Company will
propose to Bowman any changes to such Closing Date Balance Sheet and its schedule(s) (and in
the event no such changes are proposed in writing to Bowman within such time period, Holding
Company will be deemed to have agreed to, and accepted, the Closing Date Balance Sheet and
its schedule(s)). The Holding Company and Bowman will endeavor in good faith to resolve any
differences with respect to the Closing Date Balance Sheet and its schedule(s)within ten (10)
Business Days after Bowman's receipt of written notice of objection from the Holding Company,
unless extended by mutual agreement of Bowman and the Holding Company. If Holding
Company and Bowman are unable to timely resolve differences with respect to the Closing Date
Balance Sheet and/or any amount related thereto then either Bowman or Holding Company may
invoke the Disputed Accounting Matter provisions in Section 11.9 below with respect to such
determination.
Article 3
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders, severally, and not jointly hereby make the following representations and
warranties to Bowman and Bowman Gulf Coast:
3.1 Capacity; Power and Authority.
The Shareholders have the full power and authority,to execute and perform this Agreement and
all the other Transaction documents to be executed or delivered by the Shareholders in
connection with the Transaction contemplated by this Agreement. No other proceedings are
necessary on the part of Shareholders to authorize the execution, delivery and performance of
this Agreement and the other Transaction documents by the Shareholders and the consummation
by the Shareholders of the Transaction contemplated herein and therein.
3.2 Enforceability.
This Agreement has been duly authorized, executed and delivered by the Shareholders and
constitutes a legal, valid and binding agreement of the Shareholders, enforceable against the
Shareholders in accordance with its terms, except to the extent enforcement may be affected by
laws relating to bankruptcy, reorganization, insolvency and creditors' rights and by the
availability of injunctive relief, specific performance and other equitable remedies. At the
Closing,the Transaction documents to be executed and delivered by the Shareholders will be
duly executed and delivered by the Shareholders and will constitute valid and binding
obligations of the Shareholders, enforceable in accordance with their terms, except to the extent
enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and
creditors' rights and by the availability of injunctive relief, specific performance and other
equitable remedies.
3.3 Consents; Non-contravention.
The Shareholders do not need to give any notice to, make any filing with or obtain any
authorization, consent, order or approval of any Person in connection with the Shareholders'
execution and delivery of this Agreement and the other Transaction documents or the
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consummation of the Transaction contemplated herein and therein. Neither the execution,
delivery and performance of this Agreement and the other Transaction documents, nor the
consummation of the transactions contemplated herein and therein: (a)will conflict with, result
in a breach of, or constitute a default or an event creating rights of acceleration, termination,
modification or cancellation or a loss of rights under, any unsatisfied material contract to which
the Shareholders are a party, subject or otherwise bound; (b)will, to the Knowledge of the
Shareholders, violates any law or order to which any Shareholder or any of Shareholder's assets
or businesses is subject or otherwise bound; or(c) will, to the Knowledge of the Shareholders,
result in the creation or imposition of any Encumbrance upon any of the assets or businesses of a
Shareholder.
3.4 No Acquisitions.
Except for this Agreement no Shareholder is a party to or bound by any agreement, undertaking
or commitment with respect to any purchase, sale, share exchange, merger, reorganization,
consolidation or similar transaction involving the Shareholders or their Holding Company
Shares, or the Merged Company Shares owned by the Holding Company.
3.5 Title to Merged Company Shares; Capitalization.
a) The Shareholders own the Holding Company Shares free and clear of
all Encumbrances, except for restrictions on transfer under state and federal securities
laws. No Person other than the Shareholders own or possess any equity securities or
rights to acquire equity securities of the Holding Company, or any equity appreciation
rights,phantom equity interests, or similar equity based-rights with respect to the Holding
Company. The Shareholders do not have any agreements or understandings with respect
to the sale or issuance of any equity securities of the Holding Company. Schedule 3.5
sets forth the name of each Shareholder and the respective number of Holding Company
Shares owned by such Shareholder, and their pro rata ownership in the Holding Company
vis a vis each other Shareholder(the "Shareholder Pro Rata Share"), all as of the Closing
Date. The Shareholders hold of record and own beneficially all of the issued and
outstanding equity interests of the Holding Company and the Holding Company holds of
record and owns beneficially all of the issued and outstanding equity interests of the
Merged Company.
b) The Holding Company owns the Merged Company Shares free and
clear of all Encumbrances, except for restrictions on transfer under state and federal
securities laws. No Person other than the Holding Company owns or possesses any
equity securities or rights to acquire equity securities of the Merged Company, or any
equity appreciation rights,phantom equity interests, or similar equity based-rights with
respect to the Merged Company. The Holding Company does not have any agreements
or understandings with respect to the sale or issuance of any equity securities of the
Merged Company.
3.6 Litigation.
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There is no litigation, arbitration, action, suit,judgment, order, injunction,proceeding or
investigation pending or,to the Knowledge of Shareholders,threatened against one or more
Shareholders with respect to the Transaction contemplated by this Agreement or which would
reasonably be excepted to have a material impact on the ability of the Shareholders,the Holding
Company or the Merged Company to consummate the Transaction contemplated by this
Agreement.
3.7 Investment Representations and Warranties
a) The Bowman Stock Consideration is being obtained by the Holding
Company for its own account for investment purposes, and not with a view toward or for offer or
resale in connection with any distribution thereof, or with any present intention of offering,
distributing, or selling. Holding Company acknowledges that the Bowman Stock Consideration
has not been registered under the securities laws of any jurisdiction, including the U.S. Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder(the "Securities
Act"), or any state securities laws, and agrees that the Bowman Stock Consideration may not be
sold,transferred, offered for sale,pledged, hypothecated or otherwise disposed of unless the
Bowman Stock Consideration is registered under any such laws or unless an exemption from
such registration is available under such laws.
b) Holding Company (either alone or together with its advisor) (i)has had
access to and continues to have access to information from Bowman concerning Bowman and
the Shareholders' investment, (ii)has had the opportunity to discuss the business of Bowman
with the management of Bowman, including the opportunity to ask questions of and receive
answers from Bowman and(ii)has had the opportunity to obtain any and all additional
information necessary to verify the accuracy of information that the Holding Company deems
relevant to make an informed investment decision as to the acquisition of the Bowman Stock
Consideration.
c) Holding Company(either alone or together with its advisor) has sufficient
knowledge and experience in financial and business matters so as to be capable of evaluating the
merits and risks of its investment in the Bowman Stock Consideration and is capable of bearing
the economic risks of such investment. Holding Company is an Accredited Investor as defined
in Rule 501 of Regulation D promulgated under the Securities Act.
d) Holding Company agrees that the Bowman Stock Consideration shall bear
the following restrictive legend:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT'), OR THE SECURITIES LAWS OF
ANY STATE OR OTHER JURISDICTION. THE SECURITIES MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
1)PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
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SECURITIES ACT OR(2) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS
AND THE SECURITIES LAWS OF OTHER JURISDICTIONS,AND IN THE
CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS
BOWMAN HAS RECEIVED AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT
REQUIRE REGISTRATION UNDER THE SECURITIES ACT AND SUCH
APPLICABLE LAWS."
Article 4
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS WITH RESPECT To THE
HOLDING COMPANY AND THE MERGED COMPANY
The Shareholders hereby make the following representations and warranties to Bowman and
Bowman Gulf Coast with respect to the Merged Company:
4.1 Organization,Authority for Agreement; Enforceability.
a) The Merged Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Florida, with the requisite
power to own, operate and lease its properties and to carry on the Business as now being
conducted. On the Closing Date the Merged Company shall have no Subsidiaries. The
Merged Company has qualified as a foreign corporation, and is in good standing, under
the laws of all jurisdictions where the nature of its business or the nature or location of its
assets require such qualification. The Merged Company is duly licensed in each
jurisdiction in which it conducts business and in which it is required to be licensed.
During the past three calendar years and during the current year,the Merged Company
has not received any correspondence from any Governmental Entity having jurisdiction
over the Merged Company which, after any applicable cure period or reasonable period
of time to address, could reasonably be expected to lead to a Merged Company Material
Adverse Effect. The Merged Company has the requisite power and authority to enter into
this Agreement and to consummate the Transaction contemplated hereby to the extent of
its obligations hereunder. This Agreement has been approved by the Merged Company's
board of directors and Shareholders,the Holding Company, as required by the Merged
Company's Governing Documents and applicable law, and the Person executing this
document on behalf of the Merged Company has been validly authorized to do so. This
Agreement has been duly authorized, executed and delivered by the Merged Company
and constitutes a legal, valid and binding agreement of the Merged Company, enforceable
against the Merged Company in accordance with its terms, except to the extent
enforcement may be affected by laws relating to bankruptcy,reorganization, insolvency
and creditors' rights and by the availability of injunctive relief, specific performance and
other equitable remedies. At the Closing,the Transaction documents to be executed and
delivered by the Merged Company (including without limitation the Articles of Merger)
will be duly executed and delivered by the Merged Company and will constitute valid
and binding obligations of the Merged Company, enforceable in accordance with their
terms, except to the extent enforcement may be affected by laws relating to bankruptcy,
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reorganization, insolvency and creditors' rights and by the availability of injunctive
relief, specific performance and other equitable remedies. All of the outstanding shares
of Merged Company Common Stock have been duly authorized and validly issued, were
not issued in violation of any person's preemptive rights, and are fully paid and non-
assessable. There are no outstanding subscriptions, options,warrants, conversion rights or
other rights, securities, agreements or commitments obligating the Merged Company to
issue, sell or otherwise dispose of shares of its capital stock, or any securities or
obligations convertible into, or exercisable or exchangeable for, any shares of its capital
stock. There are no voting trusts or other agreements or understandings to which the
Merged Company, or any Shareholder is a party with respect to voting the shares of
Merged Company common stock.
b) The Holding Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Florida, with the requisite
power to own, operate and lease its properties and to carry on the Business as now being
conducted. On the Closing Date the Holding Company shall have no Subsidiaries other
than the Merged Company. The Holding Company has qualified as a foreign corporation,
and is in good standing, under the laws of all jurisdictions where the nature of its business
or the nature or location of its assets require such qualification. The Holding Company is
duly licensed in each jurisdiction in which it conducts business and in which it is required
to be licensed. During the past three calendar years and during the current year, the
Holding Company has not received any correspondence from any Governmental Entity
having jurisdiction over the Holding Company which, after any applicable cure period or
reasonable period of time to address, could reasonably be expected to lead to a Merged
Company Material Adverse Effect. The Holding Company has the requisite power and
authority to enter into this Agreement and to consummate the Transaction contemplated
hereby to the extent of its obligations hereunder. This Agreement has been approved by
the Holding Company's board of directors and Shareholders as required by the Holding
Company's Governing Documents and applicable law, and the Person executing this
document on behalf of the Holding Company has been validly authorized to do so. This
Agreement has been duly authorized, executed and delivered by the Holding Company
and constitutes a legal,valid and binding agreement of the Holding Company,
enforceable against the Holding Company in accordance with its terms, except to the
extent enforcement may be affected by laws relating to bankruptcy, reorganization,
insolvency and creditors' rights and by the availability of injunctive relief, specific
performance and other equitable remedies. At the Closing, the Transaction documents to
be executed and delivered by the Holding Company will be duly executed and delivered
by the Holding Company and will constitute valid and binding obligations of the Holding
Company, enforceable in accordance with their terms, except to the extent enforcement
may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors'
rights and by the availability of injunctive relief, specific performance and other equitable
remedies. All of the outstanding shares of Holding Company Common Stock have been
duly authorized and validly issued, were not issued in violation of any person's
preemptive rights, and are fully paid and non-assessable. There are no outstanding
subscriptions, options,warrants, conversion rights or other rights, securities, agreements
or commitments obligating the Holding Company to issue, sell or otherwise dispose of
shares of its capital stock, or any securities or obligations convertible into, or exercisable
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or exchangeable for, any shares of its capital stock. There are no voting trusts or other
agreements or understandings to which the Holding Company, or any Shareholder is a
party with respect to voting the shares of Holding Company common stock.
4.2 Compliance with Governing Documents and Applicable Law
The Merged Company has all requisite licenses,permits and certificates from all Governmental
Entities (collectively, "Permits") necessary to conduct the Business as currently conducted, and
to own, lease and operate its properties in the manner currently held and operated. All of the
Merged Company's Permits are in full force and effect. This Agreement will not violate any
provision of the Merged Company's Governing Documents or the Holding Company's
Governing Documents. All personnel of the Merged Company who are required to be licensed
are duly licensed by the appropriate Governmental Entity.
4.3 Litigation and Investigations.
4.3.1 Except as set forth on Schedule 4.3 there is (a) no investigation by any
Governmental Entity with respect to the Merged Company or the Holding Company pending or,
to the Knowledge of the Shareholders,threatened, nor has any Governmental Entity indicated to
the Merged Company or Holding Company an intention to conduct the same; (b)there is no
claim, action, suit, arbitration or proceeding pending or, to the Knowledge of the Shareholders,
threatened against or involving the Merged Company or the Holding Company, or any of its
respective assets or properties, at law or in equity,that, if adversely determined, would have a
Merged Company Material Adverse Effect or would prevent or materially delay the
consummation of the transactions contemplated hereby; and (c)there are no judgments, decrees,
injunctions or Orders of any Governmental Entity or arbitrator outstanding against either the
Merged Company or the Holding Company.
4.3.2 There is no bankruptcy proceeding currently filed with the Merged
Company or the Holding Company as debtor or debtor in possession, and to the Knowledge of
the Shareholders none is contemplated or threatened. With respect to any matter described on
Schedule 4.3, the Merged Company and the Holding Company have given proper and timely
notice to their applicable insurance carrier(s) and such carrier(s)have not denied coverage or
issued a reservation of rights letter except as set forth on Schedule 4.3.
4.3.3 Notwithstanding that a matter is listed on Schedule 4.3, neither Merged
Company, Bowman Gulf Coast, nor Bowman shall have any liability with respect to such matter
after the Closing Date.
4.4 No Broker's or Finder's Fees
Other than the fee due Benchmark International,to be borne solely by Holding Company,neither
the Merged Company nor the Holding Company are obligated to pay any fee or commission to
any broker, finder, financial advisor or intermediary in connection with the transactions
contemplated by this Agreement which is, or could become, an obligation of Bowman Gulf
Coast or Bowman.
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4.5 Condition
To the Knowledge of the Shareholders all material facilities, equipment and personal property
owned by the Merged Company and regularly used in the Business are in good operating
condition and repair, ordinary wear and tear excepted.
4.6 Financial Statements and Backlog.
4.6.1 The Merged Company and the Holding Company have previously
furnished Bowman with accurate and complete copies of: the unaudited balance sheet and
income statement of the Merged Company as of (i)December 31, 2018, (ii)December 31, 2019,
iii) December 31, 2020, (iv)December 31, 2021, and(v) September 30, 2022 (collectively the
Merged Company Financial Statements"). To the Knowledge of the Shareholders the Merged
Company Financial Statements (including any related notes)fairly present in all material
respects the financial position and operations of the Merged Company as of the dates thereof,
and(ii)the each of the Merged Company Financial Statements (including any related notes) are
prepared in accordance with the Accounting Principles. The Merged Company has no
Indebtedness other than that which is fully reflected or provided for as a liability on, or disclosed
in the notes to,the balance sheets included in the Merged Company Financial Statements. The
Merged Company Indebtedness at Closing shall consist only of the Assumed Liabilities. After
the Closing Date neither the Merged Company, Bowman Gulf Coast, nor Bowman shall be liable
for any of the following obligations (the"Excluded Obligations"):
a) Obligations of Holding Company or Merged Company for Taxes of any
type; or for or with respect to any ERISA or benefit plans for any period up to and including the
Closing Date, and specifically including any Taxes resulting from the Transaction.
b) Obligations of Holding Company or Merged Company for any Company
Transaction Expenses.
c) Obligations of Holding Company or Merged Company relating to
employees or former employees of either the Holding Company or the Merged Company for any
reason, except for Accrued Payroll and Accrued Assumed PTO set forth on Schedule 4.6.1.c.
d) Obligations of Holding Company or Merged Company for any claims,
investigations, lawsuits or violations of law for any period ending on or before the Closing Date.
e) Obligations to clients for any actions or failures to act, errors, omissions,
negligence or willful misconduct by Holding Company, the Merged Company, or any Holding
Company or Merged Company employee or agent for any period ending on or before the Closing
Date.
f) Obligations secured by one or more Excluded Assets.
g) Obligations of Holding Company with respect to any non-qualified
deferred compensation plan.
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4.6.2 Attached hereto as Schedule 4.6.2 is a listing of Merged Company
Backlog by client,project, and projected dollar value of services to be performed. To the
Knowledge of the Shareholders such Backlog is expected to be performed and invoiced in the
Ordinary Course of Business, except as otherwise set forth on Schedule 4.6.2, or except as may
be modified by the respective client in accordance with the applicable Client Contract after the
Closing Date.
4.7 Pledge of Merged Company Assets.
On the Closing Date the Merged Company Assets shall not be subject to any Encumbrances
other than the Permitted Encumbrances.
4.8 Tax Matters.
4.8.1 The Holding Company and Merged Company have timely filed, or will
prepare and file, all federal, state, local and foreign income, information and other Tax Returns
that were required to be filed by it on or prior to the Closing Date. No material issues have been
raised by or,to the Shareholders' Knowledge, are currently pending with any Governmental
Authority with respect to any such Tax. No extension of time to file any such Tax Return has
been requested from or granted by any Governmental Entity.
4.8.2 The Holding Company and Merged Company have timely paid all Taxes
imposed upon either of them or for which either of them is liable,whether to Governmental
Entities or other Persons (such as, for example, under tax allocation agreements),with respect to
all taxable periods or portions of periods ending on or before the Closing Date, other than Taxes
that are not yet due and payable and Taxes that are being contested in good faith by Holding
Company and/or Merged Company. The unpaid Taxes of the Holding Company and/or Merged
Company that are not yet due and payable do not exceed the reserve for Tax liability (excluding
any reserve for deferred Taxes established to reflect timing differences between book and Tax
income) set forth or included in the Closing Date Balance Sheet, as adjusted for the passage of
time through the Closing Date, in accordance with the past practices of the Holding Company
and Merged Company.
4.8.3 To the Knowledge of the Shareholders neither Holding Company nor
Merged Company has been the subject of any tax audit or tax investigation by any Governmental
Entity with respect to any taxable periods or portions of periods ending on or before the Closing
Date. To the Knowledge of the Shareholders no claim has ever been made by any Governmental
Entity in a jurisdiction where either the Holding Company or Merged Company does not file Tax
Returns that either the Holding Company or Merged Company is or may be subject to taxation
by that jurisdiction, and the Merged Company is not subject to taxation in any jurisdiction other
than the jurisdictions in which the Merged Company has been operating.
4.8.4 All Taxes required to be withheld by or on behalf of either Holding
Company or the Merged Company in connection with amounts paid or owing to any employee,
independent contractor, creditor or other Person have been properly withheld, and all such Taxes
either have been duly and timely paid to the proper Governmental Entities or, in circumstances
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where such Taxes have not yet become due and payable, have been set aside in segregated
accounts to be paid to the proper Governmental Entity, and the Holding Company and Merged
Company have maintained complete, correct and up-to-date records that comply with all
applicable Tax Laws with respect to such withholdings.
4.8.5 Neither Holding Company nor Merged Company is a party to or bound by
any tax indemnity agreement,tax sharing agreement,tax allocation agreement or any similar
arrangement for the sharing of Tax liabilities or benefits. Neither Holding Company nor Merged
Company is or could be liable to pay, reimburse or indemnify any Person(including a tax
authority) in respect of the Tax liability of another Person, whether or not as a consequence of
such third person failing to discharge such liability.
4.8.6 The Holding Company validly elected to be an "S corporation"within the
meaning of Code Section 1361(a)(1) for U.S. federal income tax purposes as of January 1, 2018,
and has maintained its status as an S corporation at all times since such date and prior to the
Closing Date. The Holding Company has validly elected to be an S corporation in all state and
local jurisdictions that allow such election where such entities are required to file tax returns, and
has maintained its status as an S corporation in such jurisdictions at all times thereafter.No tax
authority has asserted or threatened in writing to assert that the Holding Company does not or
may not qualify as an S corporation for U.S. federal income tax purposes or for the purposes of
any state or local jurisdiction in which such company is required to file a tax return. To the
Knowledge of the Shareholders there is no basis in fact or law that by which the Holding
Company is ineligible for such"S"corporation status, either currently or at any time while the S
election has been in effect. The Holding Company has not,within the past ten(10)years, (i)
acquired assets from another corporation in a transaction in which its Tax basis for the acquired
assets was determined, in whole or in part, by reference to the Tax basis of the acquired assets
or any other property) in the hands of the transferor; or(ii) acquired the stock of any corporation
that is a"qualified subchapter S subsidiary"within the meaning of Section 1361 of the Code.
The Holding Company will not be obligated to pay Tax under Section 1374 of the Code or any
similar provision of state or local law in connection with the Transaction contemplated by this
Agreement. The Holding Company validly elected for Merged Company to be a"qualified
subchapter S subsidiary (QSub)"within the meaning of Code Section 1361(b)(3)(b) for U.S.
federal income tax purposes as of June 27, 2019, and Merged Company has maintained its status
as a QSub at all times prior to the Closing Date. The Merged Company has validly elected to be
a QSub in all state and local jurisdictions that allow such election where such entities are
required to file tax returns, and has maintained its status as a QSub in such jurisdictions at all
times thereafter.No tax authority has asserted or threatened in writing to assert that the Merged
Company does not or may not qualify as a QSub for U.S. federal income tax purposes or for the
purposes of any state or local jurisdiction in which such company is required to file a tax return.
To the Knowledge of the Shareholders there is no basis in fact or law that by which the Merged
Company is ineligible for such QSub status, either currently or at any time while the QSub
election has been in effect.
4.9 Employee Benefit Plans.
4.9.1 List of Plans. A correct and complete list of all pension,profit sharing,
retirement, deferred compensation, welfare, legal services, medical, dental or other employee
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benefit or health insurance plans, life insurance or other death benefit plans, disability, stock
option, stock purchase, stock compensation, bonus, vacation pay, severance pay and other
similar plans, programs or agreements, and every material written personnel policy, relating to
any persons employed by the Merged Company or in which any person employed by the Merged
Company is eligible to participate and which is currently maintained or that was maintained at
any time in the last five calendar years by the Holding Company,the Merged Company or any
ERISA Affiliate(collectively,the"Merged Company Plans") is attached hereto as Schedule 4.9.
4.9.2 ERISA. The Merged Company Plans are in compliance with ERISA.
Neither the Merged Company nor any ERISA Affiliate of the Merged Company, nor any of their
directors, officers, employees or agents, nor any trustee or administrator of any trust created
under the Merged Company Plans, has engaged in or been a party to any"prohibited transaction"
as defined in Section 4975 of the Code and Section 406 of ERISA which could subject the
Merged Company or its Affiliates, directors or employees or the Merged Company Plans or the
trusts relating thereto or any party dealing with any of the Merged Company Plans or trusts to
any tax or penalty on"prohibited transactions" imposed by Section 4975 of the Code.
4.9.3 Plan Determinations. The form of each Merged Company Plan intended to
qualify under Section 401(a) of the Code has been determined by the Internal Revenue Service to
so qualify, and the trusts created thereunder have been determined to be exempt from tax under
Section 501(a) of the Code; and,to the Knowledge of the Shareholders,nothing has occurred
since the date of any such determination which might cause the loss of such qualification or
exemption. With respect to each Merged Company Plan which is a qualified profit sharing plan,
all employer contributions accrued prior to the Closing under the Merged Company Plan terms
and applicable law have been made.
4.9.4 Funding. Except as set forth on Schedule 4.9:
a)to the Knowledge of the Shareholders, all contributions,premiums
or other payments due or required to be made to the Merged Company Plans as of the date hereof
have been made as of the date hereof and will be made as of the Closing Date;
b)to the Knowledge of the Shareholders,there are no actions, liens,
suits or claims (other than routine claims for benefits)pending or threatened with respect to any
Merged Company Plan;
c)to the Knowledge of the Shareholders each Merged Company Plan
that is a"group health plan" (as defined in Section 607(1) of ERISA) has been operated at all
times in substantial compliance with the provisions of COBRA and any applicable, similar state
law; and
d)with respect to any Merged Company Plan that is qualified under
Section 401(k) of the Code, individually and in the aggregate to the Knowledge of the
Shareholders, no event has occurred,there exists no condition or set of circumstances in
connection with which the Merged Company could be subject to any liability (except liability for
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benefits claims and funding obligations payable in the Ordinary Course of Business)that is
reasonably likely to have a Merged Company Material Adverse Effect under ERISA,the Code or
any other applicable law.
e)Notwithstanding that a matter is listed on any Schedule 4.9 neither
Bowman, Bowman Gulf Coast, nor Merged Company shall have any liability to any party with
respect to such matter or plan after the Closing Date.
4.10 Employment-Related Matters; Compliance with Laws.
4.10.1 The Merged Company has heretofore delivered to Bowman a list(the
Employee List") dated as of May 16,2023 containing the name of each employee of the
Merged Company and each such employee's position, starting employment date, annual salary or
hourly rate, date of most recent salary or hourly increase and whether the Merged Company
deems such Employee an Exempt Employee or a Non-Exempt Employee. The Employee List is
correct and complete as of the date of the Employee List. The Merged Company is not a party to
any collective bargaining agreement or other contract or agreement with any labor organization
or other representative of any of the employees of the Merged Company. All salaries,wages,
vacation pay, bonuses, commissions and other compensation due from the Merged Company to
the employees of the Merged Company before the most recent Merged Company payroll date
before the Closing Date have been paid.
4.10.2 Except for matters which, individually or in the aggregate,would not have
a Merged Company Material Adverse Effect, there are no past or present actions or activities by
the Merged Company, or any circumstances, conditions, events or incidents,with respect to its
employment of any person that could reasonably form the basis of any employment related claim
against the Merged Company. The Merged Company funds its payroll not less frequently than
bi-monthly. No third party has asserted any claim, or, to the Knowledge of the Shareholders, has
any reasonable basis to assert any valid claim, against the Merged Company that either the
continued employment by, or association with, the Merged Company of any of the present
officers or employees of, or consultants to,the Merged Company contravenes any agreements or
laws applicable to unfair competition, trade secrets or proprietary information.
4.11 Environmental Compliance.
4.11.1 Environmental Laws. Except for matters which, individually or in the
aggregate,would not have a Merged Company Material Adverse Effect,to the Knowledge of the
Shareholders (a)the Holding Company and Merged Company are in compliance with all
applicable Environmental Laws in effect on the date hereof; (b)neither the Holding Company
nor the Merged Company have received any written communication that alleges that either of
them is not in compliance in all material respects with all applicable Environmental Laws in
effect on the date hereof; (c)to the Knowledge of the Shareholders,there are no circumstances
that may prevent or interfere with compliance in the future with all applicable Environmental
Laws; (d) all material Permits and other governmental authorizations currently held by the
Merged Company pursuant to the Environmental Laws are in full force and effect, to the
Knowledge of the Shareholders the Merged Company is in compliance with all of the terms of
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such Permits and authorizations, and no other Permits or authorizations are required by the
Merged Company for the conduct of the Business on the date hereof; and (e)the management,
handling, storage, transportation,treatment, and disposal by the Merged Company of all
Materials of Environmental Concern has been in compliance with all applicable Environmental
Laws.
4.11.2 Environmental Claims. To the Knowledge of the Shareholders there is no
Environmental Claim pending or, to the Knowledge of the Shareholders, threatened against or
involving either the Holding Company or Merged Company or against any person or entity
whose liability for any Environmental Claim the Holding Company or the Merged Company
have or may have retained or assumed either contractually or by operation of law.
4.11.3 No Basis for Claims. Except for matters which, individually or in the
aggregate, would not have a Merged Company Material Adverse Effect,to the Knowledge of the
Shareholders there are no past or present actions or activities by the Holding Company or
Merged Company, or any circumstances, conditions, events or incidents, including the storage,
treatment, release, emission, discharge, disposal or arrangement for disposal of any Material of
Environmental Concern, whether or not by the Holding Company or Merged Company,that
could reasonably form the basis of any Environmental Claim against the Holding Company or
Merged Company or against any person or entity whose liability for any Environmental Claim
the either the Holding Company or Merged Company may have retained or assumed either
contractually or by operation of law, including, without limitation,the storage,treatment, release,
emission, discharge, disposal or arrangement for disposal of any Material of Environmental
Concern or any other contamination or other hazardous condition, related to the premises at any
time occupied by the Holding Company or Merged Company.
4.12 Leases and Compliance with Laws. Schedule 4.12 sets forth as of the
date hereof all Office Leases by location, start date, end date of term (not including any
unexercised extensions) and current monthly rent(including all taxes, insurance, maintenance
and similar fees related thereto). The Merged Company has provided Bowman with true,
accurate and complete copies of the Office Leases and any operating or capital leases related to
the Business, and the Merged Company's obligations under such leases shall be fully paid up to
the Closing Date. The Office Leases are in full force and effect and are binding and enforceable
against each of the parties thereto in accordance with their respective terms. Except as set forth
on Schedule 4.12, neither the Merged Company nor,to the Knowledge of the Shareholders, any
other party to an Office Lease, has committed a material breach or default under any Office
Lease, nor has there occurred any event that with the passage of time or the giving of notice or
both would constitute such a breach or default,nor,to the Knowledge of the Shareholders, are
there any facts or circumstances that would reasonably indicate that the Merged Company is
likely to be in material breach or default thereunder. All leasehold improvements and fixtures, or
parts thereof, used by the Merged Company in the conduct of its business are in good operating
condition and repair, ordinary wear and tear excepted, and are insured with coverage that is usual
and customary for similar properties and similar businesses or are required, pursuant to the terms
of the Offices Leases,to be insured by third parties. Other than pursuant to the Office Leases the
Merged Company is not the lessee under any lease of real property, and is not the owner of any
real property. The Merged Company and each of its properties and assets are and have at all
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times since January 1, 2017 been in compliance in all material respects with all federal, state,
local and foreign laws, rules, regulations,policies, rulings, zoning or other classifications,
interpretations, guidelines, circulars,judgments, Orders, decrees or other directives of any kind
of any Governmental Authority, agency or instrumentality and are not currently and have not
since January 1, 2017 been charged with, received any notice of or, to the Shareholders'
Knowledge, been under or threatened with any investigation or audit with respect to, any alleged
default under, violation of or nonconformity with any laws.
4.13 Agreements, Contracts and Commitments.
4.13.1 Merged Company Agreements. Merged Company has supplied true and
complete copies of all contracts,purchase orders, invoicing and payment history,project files
and data for any ongoing projects with expected post-Closing revenue of Twenty-Five Thousand
Dollars ($25,000) or more, and as of the Closing Date such ongoing projects have not been"pre-
billed" and the amount of remaining contracted fee to be invoiced accurately reflects the amount
of work remaining to complete each project. Except as set forth on Schedule 4.13.1, no client
contract with expected post-closing revenue of Twenty-Five Thousand Dollars ($25,000) or more
will treat the Transaction as a deemed assignment or otherwise require the consent of any third
party for Bowman or Bowman Gulf Coast to continue to perform on such contract following the
Closing. The Merged Company has provided to Bowman prior to Closing true and accurate
copies of the following agreements to which the Merged Company is a party, if applicable:
a) any bonus, deferred compensation,pension, severance,
profit-sharing, stock option, employee stock purchase or retirement plan, contract or arrangement
or other employee benefit plan or arrangement;
b) any employment agreement with any present or former employee,
officer, member or consultant where there remains after the date hereof obligations to be
performed by the Merged Company;
c) any agreement for personal services or employment with a term of
service or employment specified in the agreement or any agreement for personal services which
extends beyond the Closing Date;
d) any agreement of guarantee or indemnification in an amount that is
material to the Merged Company taken as a whole;
e) any agreement or commitment containing a covenant limiting or
purporting to limit the freedom of the Merged Company to compete with any Person in any
geographic area or to engage in any line of business;
f) any lease other than the Office Leases or operating leases related to
the Business under which the Merged Company is lessee that involves, in the aggregate,
payments of One Thousand Dollars ($1,000) or more per annum or is material to the conduct of
the Business of the Merged Company;
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g) any joint venture, teaming or profit-sharing agreement;
h) any loan or credit agreements providing for the extension of credit
to the Merged Company or any instrument evidencing or related in any way to indebtedness
incurred in the acquisition of companies or other entities or indebtedness for borrowed money by
way of direct loan, sale of debt securities,purchase money obligation, conditional sale,
guarantee, or otherwise that individually is in the amount of Ten Thousand Dollars ($10,000) or
more; and
i) any agreement not described above that was not made in the
Ordinary Course of Business and that is material to the financial condition, business, operations,
assets, results of operations or prospects of the Merged Company.
4.13.2 Validity. As of the date hereof and as of the Closing Date, all contracts,
leases, instruments, licenses and other agreements required to be provided to Bowman pursuant
to Section 4.13.1 above are valid and in full force and effect,the Merged Company has not, nor,
to the Knowledge of the Shareholders, has any other party thereto, breached any provision of, or
defaulted under the terms of any such contract, lease, instrument, license or other agreement,
except for any breaches or defaults that, in the aggregate,would not be expected to have a
Merged Company Material Adverse Effect or have been cured or waived, and, as of the date
hereof,the Merged Company has not received any"notice to cure"or a similar notice from any
Governmental Entity requesting performance under any contract, instrument or other agreement
between the Merged Company and such Governmental Entity.
4.14 Intellectual Property and Commercial Software
4.14.1 The term "Intellectual Property Assets"means all intellectual property
owned or licensed (as licensor or licensee)by Merged Company in which Merged Company has
a proprietary interest, including: (a) Merged Company's name, all assumed fictional business
names, trade names, registered and unregistered trademarks, service marks and applications
collectively, "Marks"); (b) all patents,patent applications and inventions and discoveries that
may be patentable (collectively, "Patents"); (c)all registered and unregistered copyrights in both
published works and unpublished works (collectively, "Copyrights"); (d) all know-how,trade
secrets, confidential or proprietary information, customer lists, Software,technical information,
data,process technology,plans, drawings and blue prints (collectively, "Trade Secrets"); and(e)
all rights in internet web sites and internet domain names presently used by Merged Company
collectively"Domain Names"). The Merged Company is the owner or licensee of all right,title
and interest in and to each of the Intellectual Property Assets, free and clear of all Encumbrances,
and has the right to use without payment to a third party all of the Intellectual Property Assets,
other than in respect of Commercial Software licenses listed in Schedule 4.14.
4.14.2 Schedule 4.14 sets forth as of the date hereof all Commercial Software.
The Commercial Software has been acquired and used by the Merged Company on the basis of
and in accordance with a valid license from the manufacturer or the dealer authorized to
distribute such Commercial Software, free and clear of any claims or rights of any third parties.
As of the date hereof the Merged Company is not in material breach of any of the terms and
conditions of any such license and has not been infringing upon any rights of any third parties in
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connection with its acquisition or use of the Commercial Software, and the Merged Company
has fully paid licenses and renewals to all Commercial Software that resides on Merged
Company owned Computer Hardware.
4.15 Insurance Contracts
Schedule 4.15 hereto lists all contracts of insurance and indemnity in force at the date hereof
with respect to the Merged Company (the"Merged Company Insurance Contracts"). As of the
Closing Date, all of the Merged Company Insurance Contracts are in full force and effect, with
no default thereunder by the Merged Company which could permit the insurer to deny payment
of claims thereunder. The Merged Company has not received or given a notice of cancellation
with respect to any of the Merged Company Insurance Contracts.
4.16 Banking
No misrepresentation or omission of a material fact was made by Holding Company, Merged
Company or the Shareholders in connection with the application, administration or repayment of
any Paycheck Protection Program loan. Schedule 4.16 hereto shows the names and locations of
all banks and trust companies in which the Merged Company has accounts or safety deposit
boxes and, with respect to each account or safety deposit box,the names of all persons
authorized to draw thereon or to have access thereto.
4.17 No Omission.
No representation or warranty or other statement made by the Shareholders in this Agreement, or
in any Transaction document delivered in connection with the Transaction contemplated by this
Agreement, contains any untrue statement or omits to state a material fact necessary in order to
make any of them, in light of the circumstances in which it was made, not misleading.
Article 5
REPRESENTATIONS AND WARRANTIES OF BOWMAN WITH RESPECT To BOWMAN GULF
COAST
Bowman and Bowman Gulf Coast hereby make the following representations and warranties to
Merged Company, Holding Company, and the Shareholders:
5.1 Status of Bowman
Bowman Gulf Coast is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Florida,with the requisite corporate power to own,
operate and lease its properties and to carry on its business as now being conducted
5.2 Authority for Agreement
Bowman Gulf Coast has the power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby to the extent of its obligations hereunder. The
Managers and officers of Bowman Gulf Coast executing this document are validly authorized to
do so.
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5.3 Litigation and Investigations
Except as set forth on Schedule 5.3 there is (a)no investigation by any Governmental Entity with
respect to Bowman Gulf Coast pending or,to the Knowledge of Bowman, threatened, nor has
any Governmental Entity indicated to Bowman Gulf Coast an intention to conduct the same; (b)
there is no claim, action, suit, arbitration or proceeding pending or,to the Knowledge of
Bowman, threatened against or involving Bowman Gulf Coast, or any of its assets or properties,
at law or in equity,that, if adversely determined, would have a Bowman Material Adverse Effect
or would prevent or materially delay the consummation of the Transaction contemplated hereby;
and(c)there are no judgments, decrees, injunctions or orders of any Governmental Entity or
arbitrator outstanding against Bowman Gulf Coast. There is no bankruptcy proceeding currently
filed with Bowman Gulf Coast as debtor or debtor in possession, and to the Knowledge of
Bowman none is contemplated or threatened.
5.4 No Broker's or Finder's Fees
Bowman Gulf Coast has not become obligated to pay any fee or commission to any broker,
finder, financial advisor or intermediary in connection with the transactions contemplated by this
Agreement which is or could become an obligation of the Shareholders.
5.5 Tax Returns.
Bowman has prepared and filed on a timely basis with all appropriate Governmental Entities all
returns in respect of Taxes that it is required to file on or prior to the Closing, and has paid in full
all Taxes due on or before Closing.
Article 6
REPRESENTATIONS AND WARRANTIES OF BOWMAN
Bowman represents and warrants to the Shareholders as follows:
6.1 Status of Bowman
Bowman is a corporation duly incorporated, validly existing and in good standing under the laws
of the State of Delaware,with the requisite corporate power to own, operate and lease its
properties and to carry on its business as now being conducted
6.2 Authority for Agreement
Bowman has the corporate power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby to the extent of its obligations hereunder. The officers of
Bowman executing this document are validly authorized to do so.
6.3 Litigation and Investigations
Except as set forth on Schedule 6.3 there is (a)no investigation by any Governmental Entity with
respect to Bowman pending or,to the Knowledge of Bowman,threatened, nor has any
Governmental Entity indicated to Bowman an intention to conduct the same; (b)there is no
claim, action, suit, arbitration or proceeding pending or,to the Knowledge of Bowman,
threatened against or involving Bowman, or any of its assets or properties, at law or in equity,
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that, if adversely determined,would have a Bowman Material Adverse Effect or would prevent
or materially delay the consummation of the transactions contemplated hereby; and(c)there are
no judgments, decrees, injunctions or orders of any Governmental Entity or arbitrator
outstanding against Bowman. There is no bankruptcy proceeding currently filed with Bowman
as debtor or debtor in possession, and to the Knowledge of Bowman none is contemplated or
threatened.
6.4 No Broker's or Finder's Fees
Bowman has not become obligated to pay any fee or commission to any broker, finder, financial
advisor or intermediary in connection with the Transaction contemplated by this Agreement
which is or could become an obligation of the Holding Company or the Shareholders.
6.5 Bowman Financial Statements
The audited balance sheets and income statements of Bowman as of December 31, 2020, 2021,
and 2022, and the unaudited balance sheet and income statement for the period ended March 31,
2023 are available at the Securities and Exchange Commission's website
https://www.sec.gov/edgar/searchedgar/companysearch.html) using the ticker symbol
BWMN". Collectively, the balance sheets and income statements referred to in the
immediately preceding sentence are sometimes referred to herein as the "Bowman Financial
Statements" Each of the Bowman Financial Statements (including any related notes)fairly
presents in all material respects the financial position and operations of Bowman as of its date, in
each case (and except as noted therein) in accordance with GAAP, and in the case of the
unaudited balance sheet and income statement for the period ended March 31, 2023, subject to
year-end and audit adjustments.
6.6 Tax Returns.
Bowman has prepared and filed on a timely basis with all appropriate Governmental Entities all
returns in respect of Taxes that it is required to file on or prior to the Closing, and has paid in full
all Taxes due on or before Closing. Bowman has made an election on behalf of Bowman Gulf
Coast for Bowman Gulf Coast to be treated as an association taxable as a corporation effective as
of March 30, 2023, in furtherance of Code Section 368(a)(1)(A)treatment of the Transaction for
Federal income tax purposes.
6.7 SEC Filings.
Bowman has filed with, or furnished to,the Securities and Exchange Commission all reports,
schedules, forms, statements,prospectuses, registration statements and other documents required
to be filed or furnished by Bowman (collectively, together with any exhibits and schedules
thereto and other information incorporated therein, "Bowman SEC Documents"). As of its filing
date (and as of the date of any amendment), each Bowman SEC Document complied as to form
in all material respects with the applicable requirements of the 1933 Act and the 1934 Act, as the
case may be.
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Article 7
ADDITIONAL AGREEMENTS
7.1 Exclusivity
From and after the Effective Date of this Agreement until the earlier of the Closing Date or the
termination of this Agreement in accordance with Article 9 hereof, but in any event at least
ninety (90) days after the date of the Letter of Intent, neither the Merged Company nor the
Shareholders will, directly or indirectly, through their respective affiliates, agents, officers and
directors, directly or indirectly, solicit, initiate, or participate in discussions or negotiations or
otherwise cooperate in any way with, or provide any information to, any corporation,
partnership, person, or other entity or group concerning any tender offer, exchange offer, merger,
business combination, sale of substantial assets, sale of shares of capital stock, or similar
transaction involving the Company (all such transactions being referred to herein as "Acquisition
Proposals").
7.2 Expenses.
As between the parties hereto, the Holding Company shall be responsible for the Merged
Company Transaction Expenses and Bowman shall be responsible for Bowman Transaction
Expenses.
7.3 Indemnification
7.3.1 Indemnification for Bowman's Benefit. Subject to the terms of this
Section 7.3, Bowman and its directors, officers, employees, representatives, successor and
assigns (collectively the "Bowman Indemnified Parties") shall be entitled to payment and
reimbursement from the Shareholders,to the extent of their respective Shareholder Pro Rata
Share, as the case may be, for the full amount of Losses suffered, incurred or paid by any
Bowman Indemnified Party: (i)by reason of, in whole or in part, the breach of this Agreement
or any misrepresentation or inaccuracy in, or breach of, any representation or warranty by the
Shareholders in this Agreement or any Exhibits or Schedules hereto or the certificates delivered
by him pursuant to this Agreement; (ii) by reason of any Indebtedness or Company Transaction
Expenses that are not paid or satisfied in full at or before the Closing; or(iii)by reason of any
Taxes arising out of or relating to (a) any Pre-Closing Tax Period or Pre-Closing Straddle Period
of Company (including any Taxes arising out of, or relating to, any invalid Subchapter S
election), or(b)any change in accounting method with respect to any item or items arising in a
Pre-Closing Tax Period or Pre-Closing Straddle Period of Company.
7.3.2 Indemnification for Shareholder' Benefit. Subject to the terms of this
Section 7.3,the Shareholders and their representatives, successors and assigns (collectively, the
Shareholder Indemnified Parties") shall be entitled to payment and reimbursement from
Bowman for the full amount of Losses suffered, incurred or paid by any Shareholder
Indemnified Party by reason of, in whole or in part: (i)any misrepresentation or inaccuracy in, or
breach of this Agreement or any representation,warranty or covenant made by Bowman or
Bowman Gulf Coast in this Agreement or any Exhibits or Schedules hereto or the certificates
delivered by Bowman or Bowman Gulf Coast pursuant to this Agreement; or(ii) any Assumed
Obligation.
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7.3.3 Right of Set-Off. Amounts due to Bowman Indemnified Parties shall first
be made by a set off of the amount of any claim for indemnification or payment of Losses to
which Bowman Indemnified Parties are entitled under this Agreement against any amounts
payable by Bowman pursuant to the First Promissory Note and then the Second Promissory
Note. Thereafter, amounts for indemnification owed to Bowman Indemnified Parties shall be
the obligation of the Shareholders in accordance with their respective Shareholder's Pro Rata
Share.
7.3.4 Limits on Indemnification. Notwithstanding anything to the contrary
contained herein, except in the case of fraud, criminal activity, willful misconduct or breach of a
Fundamental Representation and Warranty or covenant, (a)the Shareholders shall not be
required to indemnify and hold harmless Bowman Indemnified Parties in the aggregate for
Losses more than the Maximum Indemnity Amount; (b)the Shareholders shall not be required to
indemnify and hold harmless Bowman Indemnified Parties in the aggregate for the first Losses
until the Minimum Indemnity Amount has been met,provided that once the Minimum Indemnity
Amount has been met,the indemnity obligation shall be the full amount of Losses in excess of
the Minimum Indemnity Amount, but subject to the Maximum Indemnity Amount and the
Maximum Fundamental Indemnity Amount, as the case may be and as provided in this Section
7.3; (c)Bowman shall not be required to indemnify and hold harmless the Shareholder
Indemnified Parties in the aggregate for Losses more than the Maximum Indemnity Amount; or
d) Bowman shall not be required to indemnify and hold harmless the Shareholder Indemnified
Parties in the aggregate for the Minimum Indemnity Amount,provided that once the Minimum
Indemnity Amount has been met,the indemnity obligation shall be the full amount of Losses in
excess of the Minimum Indemnity Amount, but subject to the Maximum Indemnity Amount and
the Maximum Fundamental Indemnity Amount, as the case may be and as provided in this
Section 7.3. Notwithstanding anything to the contrary contained herein, in the case of a breach
of a Fundamental Representation and Warranty, (a)the Shareholders shall not be required to
indemnify and hold harmless Bowman Indemnified Parties in the aggregate for Losses more than
the Maximum Fundamental Indemnity Amount; and (b)Bowman shall not be required to
indemnify and hold harmless the Shareholder Indemnified Parties in the aggregate for Losses
more than the Maximum Fundamental Indemnity Amount.
7.3.5 Claims for Indemnification. Upon obtaining knowledge of any facts, claim
or demand which has given rise to, or could reasonably give rise to, a claim for indemnification
hereunder(referred to herein as an "Indemnification Claim"), the party seeking indemnification
the "Indemnified Party") shall give timely written notice of such facts, claim or demand
Notice of Claim")to the party or parties from whom indemnification is sought(the
Indemnifying Party"). So long as the Notice of Claim is given by the Indemnified Party in the
Claims Period specified in Section 7.3.7, no failure or delay by the Indemnified Party in the
giving of a Notice of Claim shall reduce or otherwise affect the Indemnified Party's right to
indemnification except to the extent that the Indemnifying Party has been prejudiced thereby.
7.3.6 Participation in Defense by Indemnifying Party; Effect of Investigation.
In the event of a claim or demand asserted by a third party (a"Third Party Claim"),the
Indemnifying Party, shall have the right, but not the obligation, exercisable by written notice to
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the Indemnified Party within ten(10) days of the date of the Notice of Claim concerning the
commencement or assertion of any Third Party Claim,to participate in,but not control,the
defense of such Third Party Claim at the Indemnifying Party's sole cost and expense. The
Indemnified Party shall not settle such Third Party Claim without the prior written consent of the
Indemnifying Party,which consent shall not be unreasonably withheld or delayed. The
representations,warranties and covenants of the Indemnifying Party, and the Indemnified Party's
right to indemnification with respect thereto, shall not be affected or deemed waived by reason of
any investigation made by or on behalf of the Indemnified Party (including by any of its
representatives)or by reason of the fact that the Indemnified Party or any of its representatives
knew or should have known that any such representation or warranty is,was or might be
inaccurate.
7.3.7 Claims Period.Any claim for indemnification under Section 7.3 must be
asserted by written notice on or before the expiration of the applicable survival period for such
claim,which survival periods are set forth in Article 10 of this Agreement.
7.3.8 Treatment for Tax Purposes. All indemnification payments pursuant to
this Section 7.3 shall be treated as adjustments to the Purchase Price for all Tax purposes unless
otherwise required by applicable Law.
7.3.9 Materiality. Notwithstanding anything contained herein to the contrary,
for purposes of determining whether there has been a breach and the amount of any Losses that
are the subject matter of a claim for indemnification or reimbursement hereunder, each
representation and warranty in this Agreement or any certificate delivered at the Closing shall be
read without regard and without giving effect to any materiality qualifier contained in such
representation or warranty which has the effect of making such representation and warranty less
likely to be breached(as if such word or words were deleted from such representation and
warranty).
7.3.10 No Right of Contribution. The Shareholders shall not have any right of
contribution against the Merged Company with respect to any obligation of the Shareholders to
indemnify the Bowman Indemnified Parties.
7.4 Public Disclosure
Except as otherwise required by law, any press release or other public disclosure of information
regarding the proposed Transaction(including the negotiations with respect to the Transaction
and the terms and existence of this Agreement) shall be developed by Bowman, subject to the
Holding Company's review and approval,not to be unreasonably withheld, conditioned or
delayed.
7.5 Further Assurances
Subject to terms and conditions herein provided and to the fiduciary duties of the board of
directors, board of managers, and officers or representatives of any party, each of the Parties
agrees to use its commercially reasonable efforts to take, or cause to be taken, all action and to
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do, or cause to be done, all things necessary,proper or advisable under applicable laws and
regulations to consummate and make effective this Agreement and the Transaction contemplated
hereby. In case at any time any further action, including,without limitation, the obtaining of
waivers and consents under any agreements, material contracts or leases and the execution and
delivery of any licenses or sublicenses for any software, is necessary,proper or advisable to
carry out the purposes of this Agreement,the proper officers and directors or representatives of
each Party to this Agreement are hereby directed and authorized to use commercially reasonable
efforts to effectuate all required action. Each party agrees to use its best reasonable efforts to
effect the novation of each Material Contract that may require novation under its terms or under
applicable laws or regulations, and further agrees to provide all documentation necessary to
effect each such novation, including,without limitation, all instruments, certifications, requests,
legal opinions, audited financial statements, and other documents required by any Governmental
Entity.
7.6 Professional Liability Coverage.
Reserved.
7.7 Termination of Merged Company Plans.
It is understood that none of the Merged Company Plans are being merged or combined with any
ERISA or other benefit plan of Bowman or Bowman Gulf Coast, and that the Holding Company
shall be responsible for terminating all Merged Company Plans simultaneously with Closing and
all costs and fees in connection therewith shall be deemed a Merged Company Transaction
Expense.
Article 8
POST-CLOSING UNDERTAKINGS AND OBLIGATIONS
In order to induce the Holding Company, Merged Company and the Shareholders to enter into
the within Merger Agreement, Bowman covenants that it will fulfill and perform the
undertakings and obligations set forth in this Article 8. Bowman acknowledges that the Holding
Company and Shareholders are relying on Bowman's affirmative undertakings in entering into
this Merger Agreement. In order to induce Bowman and Bowman Gulf Coast to enter into the
within Merger Agreement,the Holding Company and Shareholders covenant that they will fulfill
and perform the undertakings and obligations set forth in this Article 8. The Holding Company
and Shareholders acknowledge that Bowman and Bowman Gulf Coast are relying on the
Holding Company's and Shareholders' affirmative undertakings in entering into this Merger
Agreement. The undertakings and obligations of this Article 8 shall expressly survive Closing.
8.1 Assumption of Assumed Liabilities.
Effective on the Closing Date,Bowman shall assume all payment obligations of the Merged
Company with respect to the Assumed Liabilities, and no other liabilities, and Bowman shall
indemnify and hold harmless the Holding Company and Shareholders pursuant to Section 7.3
hereof from and against any liability for the Assumed Liabilities.
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8.2 Payment of Accrued PTO.
The Accrued Assumed PTO for Merged Company exempt employees retained by Bowman shall
be paid to such exempt employees by Bowman bi-weekly during the nine (9) month period
following the Closing Date, beginning with the pay period that is close in time to two (2)months
after the Closing Date, except that all such amounts will be paid upon termination of any such
employee with Surviving Company or Bowman. After the Closing Date exempt employees
retained by Bowman or the Surviving Company will be subject to Bowman's individual leave
policy whereby leave for sickness, vacation and holidays is approved based upon factors which
do not include any accrued leave balance. Non-Exempt Company employees retained by
Bowman or the Surviving Company will accrue leave post-Closing pursuant to Bowman's stated
policy, as the same may be changed from time to time. Other than the Accrued Payroll and
Accrued Assumed PTO any and all obligations of Merged Company to its employees for any
period prior to the Closing Date shall not be assumed by Bowman or Surviving Company but
shall be and remain the obligation of Holding Company.
8.3 Preparation and Filing of Tax Returns and Related Matters. The Holding
Company shall prepare or cause to be prepared and file or cause to be filed all Tax Returns of the
Holding Company and Merged Company for all taxable periods ending on or prior to the Closing
Date. If requested by Bowman, the Shareholders shall allow Bowman's employee or
independent tax advisor to review and comment on each such income Tax Return prepared or
caused to be prepared by the Shareholders (to the extent such income Tax Return could affect
any obligation of Bowman or Bowman Gulf Coast) at Bowman' sole cost and expense. The
Shareholders shall consider in good faith all reasonable comments of Bowman or its tax advisor
with respect to such income Tax Returns prior to filing. Immediately upon written demand from
Bowman,the Shareholders shall reimburse Bowman for all Taxes of the Merged Company for
any Tax period ending on or before the Closing Date (a"Pre-Closing Tax Period") and for
Shareholders' portion (as determined below) of all Taxes of the Merged Company for any
Straddle Period. Bowman shall be responsible for all Taxes of Merged Company for any Tax
period that begins after the Closing Date (a"Post-Closing Tax Period") and for its portion (as
determined below) of all Taxes of Merged Company for any Straddle Period. With respect to
any period that straddles the Closing Date (a"Straddle Period"),the Taxes attributable to such
Straddle Period shall be apportioned between the period of the Straddle Period that begins on the
first day of the Straddle Period and ends on the Closing Date (the "Pre-Closing Straddle
Period"), which portion shall be the responsibility of the Shareholders, and the period of the
Straddle Period that begins on the day after the Closing Date and ends on the last day of the
Straddle Period("Post-Closing Straddle Period"),which portion shall be the responsibility of
Bowman. The portion of the Tax allocated to the Pre-Closing Straddle Period shall (a) in the
case of any ad valorem or similar property Taxes, be deemed to be the amount of such Tax for
the entire Taxable period multiplied by a fraction the numerator of which is the number of days
in the Taxable period ending on the Closing Date and the denominator of which is the number of
days in the entire Taxable period; and(b) in the case of any other Taxes, be deemed equal to the
amount that would be payable if the relevant Taxable period ended on the Closing Date. The
portion of the Tax allocated to the Post-Closing Straddle Period shall equal the balance of the
Tax attributable to the Straddle Period. Bowman and the Shareholders shall cooperate fully, as
and to the extent reasonably requested by the other party, in connection with the preparation and
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filing of any Tax Return or claim for refund and any audit, litigation or other proceeding with
respect to Merged Company's Taxes. Upon request,Bowman and Holding Company shall
provide each other with the information that either party is required to report pursuant to the
Code. Without the prior written consent of the Holding Company, Bowman shall make no
amendments to any tax returns of Merged Company for any tax year within the Pre-Closing Tax
Period. Bowman, Bowman Gulf Coast,the Holding Company and the Shareholders agree to file
tax returns and take such other actions as are necessary or appropriate for the Transaction be
treated for Federal income tax purposes as a tax-free reorganization pursuant to the provisions of
Section 368(a)(1)(A) of the Code , by virtue of the provisions of Section 368(a)(1)(A) of the
Code and specifically as a forward triangular merger as provided for in Section 368(a)(2)(D) of
the Code. Bowman, Bowman Gulf Coast,the Holding Company and the Shareholders further
agree to take actions and make tax return filings consistent with the treatment of the Transaction
as such a tax-free reorganization.
Article 9
CONDITIONS PRECEDENT
9.1 Conditions Precedent to the Obligations of Each Party
The obligations of the parties hereto to effect the Transaction shall be subject to the fulfillment at
or prior to the Closing of the following conditions, any of which conditions may be waived in
writing prior to Closing by the party for whose benefit such condition is imposed:
9.1.1 No Illegality. There shall not have been any action taken, and no statute,
rule or regulation shall have been enacted, by any state, federal or other government agency
since the Execution Date of this Agreement that would prohibit or materially restrict the
Transaction or any other material transaction contemplated hereby.
9.1.2 No Injunction.No injunction or restraining or other order issued by a court
of competent jurisdiction that prohibits or materially restricts the consummation of the
Transaction contemplated hereby shall be in effect(each party agreeing to use all reasonable
efforts to have any injunction or other order immediately lifted), and no action or proceeding
shall have been commenced or threatened in writing seeking any injunction or restraining or
other order that seeks to prohibit, restrain, invalidate or set aside consummation of the
Transaction contemplated hereby.
9.1.3 Approvals of Transaction. This Agreement shall have been approved by
the Holding Company,the Merged Company, Bowman and Bowman Gulf Coast, and to the
extent required by applicable law and their respective Governing Documents.
9.2 Conditions Precedent to Obligation of Bowman and Bowman Gulf Coast to
Consummate the Transaction
The obligation of Bowman and Bowman Gulf Coast to consummate the Transaction shall be
subject to the fulfillment at or prior to the Closing of the following additional conditions, any of
which conditions may be waived in writing by Bowman or Bowman Gulf Coast prior to Closing:
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9.2.1 Representations and Warranties. The representations and warranties of the
Shareholders contained in Articles 3 and 4 and elsewhere in this Agreement shall be true and
correct in all material respects on and as of the Closing Date, except for changes contemplated
by this Agreement and except for those representations and warranties which address matters
only as of a particular date(which shall remain true and correct as of such date), with the same
force and effect as if made on and as of the Closing Date, except in all such cases, for such
breaches, inaccuracies or omissions of such representations and warranties which have neither
had nor reasonably would be expected to have a Merged Company Material Adverse Effect; and
the Shareholders shall have delivered to Bowman a certificate to that effect, dated the Closing
Date and signed by the Shareholders.
9.2.2 Agreements and Covenants. The Holding Company, Merged Company
and Shareholders shall have performed in all material respects all of their respective agreements
and covenants set forth herein that are required to be performed at or prior to the Closing Date
and no Merged Company Material Adverse Effect shall have occurred.
9.2.3 Certificate of Good Standing. Each of Merged Company and Holding
Company shall deliver a Certificate of Good Standing issued by the Florida Secretary of State
not earlier than 30 days prior to the Closing Date.
9.2.4 Closing Documents. The Shareholders shall have delivered to Bowman
the Holding Company and Merged Company closing certificates described hereafter in this
paragraph and such other closing documents as Bowman shall reasonably request. The Holding
Company and Merged Company closing certificates, dated as of the Closing Date, duly executed
by the secretary of each company, shall certify as to (i)the signing authority, incumbency and
specimen signature of the signatories of this Agreement and other documents signed on behalf of
the Merged Company in connection herewith, and (ii)the resolutions adopted by the board of
directors and shareholders of each company authorizing and approving the execution, delivery
and performance of this Agreement and the other documents executed in connection herewith
and the consummation of the transactions contemplated hereby and thereby and state that such
resolutions have not been modified, amended,revoked or rescinded and remain in full force and
effect.
9.2.5 Third Party Consents. All required third party consents or approvals shall
have been obtained by the Holding Company and Merged Company and shall be effective and
shall not have been suspended, revoked, or stayed by action of any such third party.
9.2.6 Diligence Review. Bowman and its accountants and attorneys shall have
conducted a diligence investigation of all matters related to the business of the Merged Company
deemed relevant by Bowman or its accountants and attorneys to such diligence investigation, and
the results of such diligence investigation shall have been satisfactory to Bowman.
9.2.7 Agreements with Shareholders and Employees. Each Shareholder shall
have entered into written Employment Agreement and Non-Competition and Non-Disclosure
Agreement with Bowman in the respective form attached as Exhibits F and G. Each Key
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Employee listed on Schedule 9.2.7 shall have entered into the written Employment Letter and
Non-Solicitation and Non-Disclosure Agreement in the respective forms attached as Exhibits H
and I. Also set forth on Schedule 9.2.7 is a schedule of the dollar amount of Bowman common
stock to be issued to each Key Employee at Closing,the number of shares to be determined by
dividing the dollar amount for each recipient by the Average Stock Price, and rounding up to the
nearest whole share. The common stock issued to the Key Employees shall be issued pursuant to
Bowman's 2021 Omnibus Equity Incentive Plan, and each Key Employee shall be required to
execute Bowman's Restricted Stock Award Agreement in the form attached hereto as Exhibit J.
Substantially all employees of Merged Company offered post-Closing employment by Bowman
shall have accepted such employment offer and executed Bowman's customary employment
documents. The Holding Company shall have entered into the Subordination Agreement in the
form attached hereto as Exhibit E.
9.2.8 Office Lease. Bowman shall have obtained any required consent from the
Company's current landlords of the Office Leases.
9.2.10 No Material Adverse Change. There shall not have occurred any event that
gives rise to a Merged Company Material Adverse Effect.
9.2.11 Professional Liability Coverage. The Merged Company shall have taken
steps required of it pursuant to Section 7.6.
9.3 Conditions Precedent for Shareholders,Holding Company and Merged
Company.
The obligations of the Holding Company, Merged Company and the Shareholders to
consummate the Transaction shall be subject to the fulfillment at or prior to the Closing of the
following additional conditions, any of which may be waived in writing by the Holding
Company, Merged Company or the Shareholders prior to Closing:
9.3.1 Representations and Warranties. The representations and warranties of
Bowman and Bowman Gulf Coast contained in this Agreement shall be true and correct in all
material respects on and as of the Closing Date, except for changes contemplated by this
Agreement and except for those representations and warranties which address matters only as of
a particular date (which shall remain true and correct as of such date), with the same force and
effect as if made on and as of the Closing Date, except in all such cases, for such breaches,
inaccuracies or omissions of such representations and warranties which have neither had nor
reasonably would be expected to have a Bowman Material Adverse Effect; and Bowman shall
have delivered to the Holding Company and Shareholders a certificate to that effect, dated the
date of the Closing and signed on behalf of Bowman by the Secretary of Bowman.
9.3.2 Agreements and Covenants. Bowman and Bowman Gulf Coast shall have
performed in all material respects all of their agreements and covenants set forth herein that are
required to be performed at or prior to the Closing Date and no Bowman Material Adverse Effect
shall have occurred. Bowman shall have executed each of the Employment Letters,Non-
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Competition and Non-Disclosure Agreements, and/or Non-Solicitation and Non-Disclosure
Agreements referred to in Section 9.2.7 above.
9.3.3 Certificate of Good Standing. Bowman Gulf Coast shall have delivered its
Certificate of Good Standing or Certificate of Organization issued by the Florida Secretary of
State not earlier than 30 days prior to the Closing Date, and Bowman shall have delivered its
Certificate of Good Standing issued by the Delaware Secretary of State not earlier than 30 days
prior to the Closing Date.
9.3.4 Tender of Merger Consideration. Bowman shall have tendered to the
Holding Company the Merger Consideration pursuant to the provisions of Section 2.4. hereof.
Article 10
SURVIVAL OF REPRESENTATIONS
10.1 The Shareholders' Representations
All representations and warranties made by the Shareholders in this Agreement, or any certificate
or other writing delivered by the Company pursuant hereto or in connection herewith shall
survive the Closing and any investigation at any time made by or on behalf of Bowman and shall
terminate on the date which is 24 months after the Closing Date; except that(i) claims related to
Fundamental Representations and Warranties shall terminate on the date which is 36 months
after the Closing Date, and (ii) Indemnified Party claims pending on either such date shall
continue until resolved. The covenants made by the Holding Company,the Merged Company or
the Shareholders in this Agreement or any certificate or other writing delivered by the Company,
the Holding Company, the Merged Company, or the Shareholders pursuant hereto or in
connection herewith shall survive the Closing.
10.2 Bowman's Representations
All representations and warranties made by Bowman and Bowman Gulf Coast in this Agreement
or any certificate or other writing delivered by Bowman, Bowman Gulf Coast or any of their
respective Affiliates pursuant hereto or in connection herewith shall survive the Closing and any
investigation at any time made by or on behalf of the Holding Company or the Shareholders shall
terminate on the date that is 24 months after the Closing Date; except that (i)claims related to
Fundamental Representations and Warranties shall terminate on the date which is 36 months
after the Closing Date, and(ii) Indemnified Party claims pending on either such date shall
continue until resolved. The covenants made by Bowman and Bowman Gulf Coast in this
Agreement or any certificate or other writing delivered by Bowman, Bowman Gulf Coast and
their respective Affiliates pursuant hereto or in connection herewith shall survive the Closing.
Article 11
OTHER PROVISIONS
11.1 Termination Events
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This Agreement may be terminated and the Transaction abandoned at any time prior to the
Closing Date upon the following events; provided however that upon any such termination the
surviving obligations of the Parties under the Letter of Intent shall continue in full force and
effect in accordance with the terms of the Letter of Intent:
11.1.1 by mutual written consent of Bowman and the Merged Company;
11.1.2 by Bowman if there has been a breach of any representation,warranty,
covenant or agreement contained in this Agreement on the part of the Holding Company,the
Merged Company or the Shareholders and such breach has not been cured within ten business
days after written notice to the Merged Company (provided,that neither Bowman nor Bowman
Gulf Coast is in material breach of the terms of this Agreement, and provided further, that no
cure period shall be required for a breach which by its nature cannot be cured) such that any of
the conditions set forth in Section 9.2 hereof will not be satisfied;
11.1.3 by the Merged Company if there has been a breach of any representation,
warranty, covenant or agreement contained in this Agreement on the part of Bowman or
Bowman Gulf Coast and such breach has not been cured within ten business days after written
notice to Bowman (provided,that none of the Holding Company,the Merged Company or the
Shareholders is in material breach of the terms of this Agreement, and provided further, that no
cure period shall be required for a breach which by its nature cannot be cured) such that any of
the conditions set forth in Section 9.3 hereof will not be satisfied;
11.1.4 by any party hereto if: (i)there shall be a final, non-appealable order of a
federal or state court in effect preventing consummation of the Transaction; (ii)there shall be
any final action taken, or any statute, rule, regulation or order enacted,promulgated or issued or
deemed applicable to the Transaction by any Governmental Entity which would make
consummation of the Transaction illegal or which would prohibit Bowman's or Bowman Gulf
Coast's ownership or operation of all or a material portion of the Business, or compel Bowman
or Bowman Gulf Coast to dispose of or hold separate all or a material portion of the Business or
assets of the Merged Company as a result of the Transaction; or
11.1.5 by any party hereto if the Transaction shall not have been consummated
by May 31, 2023 for any reason, including the failure of a condition precedent contained in
Article 7 for the benefit of such party,provided that the right to terminate this Agreement under
this Section 9.1(e) shall not be available to any party whose failure to fulfill any material
obligation under this Agreement has been the cause of, or resulted in,the failure of the Closing
Date to occur on or before such date.
11.2 Notices
All notices and other communications hereunder shall be in writing and shall be deemed given if
delivered by hand sent via a reputable nationwide courier service or mailed by registered or
certified mail (return receipt requested)to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice) and shall be deemed given on the date on
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which so hand-delivered or on the third business day following the date on which so mailed or
sent:
To Bowman and Bowman Gulf Coast (and to the Merged Company after Closing):
Bowman Consulting Group Ltd.
12355 Sunrise Valley Drive; Suite 520
Reston, VA 20191
Attention: Robert A. Hickey, Chief Legal Officer
To the Shareholders and Holding Company (or to the Merged Company before Closing):
Hole Montes, Inc.
950 Encore Way
Naples, FL 34110
Attention: Robert Mulhere, President
with copies to:
Michael Coleman, Esquire
Coleman, Hazzard, Taylor, Klaus, Doupe, & Diaz, P.A.
MidWestOne Bank Building
4099 Tamiami Trail N. Suite 201
Naples, FL 34103
11.3 Entire Agreement
Unless otherwise herein specifically provided,this Agreement and the documents and
instruments and other agreements among the Parties hereto as contemplated by or referred to
herein constitute the entire agreement among the Parties with respect to the subject matter hereof
and supersede all other prior agreements and understandings, both written and oral, between the
Parties with respect to the subject matter hereof, including the Letter of Intent. Each Party hereto
acknowledges that, in entering this Agreement and completing the Transaction contemplated
hereby, such Party is not relying on any representation, warranty, covenant or agreement not
expressly stated in this Agreement or in the agreements among the Parties contemplated by or
referred to herein. This Agreement shall inure only to the benefit of the Parties hereto and their
respective successors and assigns. Notwithstanding any other provisions to the contrary herein,
except with respect to such successors and assigns,this Agreement is not intended and shall not
be construed for the benefit of any third party or any person not a signatory hereto.
11.4 Assignability
This Agreement is not intended to confer upon any person other than the Parties hereto any rights
or remedies hereunder, except as otherwise expressly provided herein. Neither this Agreement
nor any of the rights and obligations of the Parties hereunder shall be assigned or delegated,
whether by operation of law or otherwise,without the written consent of all Parties hereto.
11.5 Validity
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The invalidity or unenforceability of any provisions of this Agreement shall not affect the
validity or enforceability of any other provisions of this Agreement, each of which shall remain
in full force and effect.
11.6 Specific Performance
The Parties hereto acknowledge that damages alone may not adequately compensate a Party for
violation by another party of this Agreement. Accordingly, in addition to all other remedies that
may be available hereunder or under applicable law, any Party shall have the right to any
equitable relief that may be appropriate to remedy a breach or threatened breach by any other
Party hereunder, including the right to enforce specifically the terms of this Agreement by
obtaining injunctive relief in respect of any violation or non-performance hereof.
11.7 Governing Law
This Agreement shall be interpreted in accordance with, and the rights of the Parties hereto shall
be determined by the laws of the State of Florida. Each of the Parties agree to the personal
jurisdiction and venue of any federal court for Collier County, Florida as may be necessary for
any Party hereto to enforce any of its rights in this Agreement.
11.8 Custody of Company Corporate Records.
Bowman shall not destroy any minute books, stock records and corporate seals of the Merged
Company before the fourth (4th) anniversary of the Closing and only after giving of sixty (60)
days prior notice to the Holding Company of its intention to do so; provided, however,that the
Holding Company shall have access to such books and records, from time to time, as is
reasonably necessary after Closing during regular business hours and upon reasonable notice.
11.9 Disputed Accounting Matters
If the Holding Company and Bowman are unable to come to an agreement as to the
determination of First Promissory Note adjustments under Section 2.5,the amount of Earn-Out
Consideration, or the Closing Date Balance Sheet, in each case within the time period specified
with respect thereto, either Bowman or the Holding Company may, by notice to the other party,
designate such issue as a"Disputed Accounting Matter"to be resolved as provided herein. The
resolution of a Disputed Accounting Matter shall be made by a nationally or regionally
recognized accounting firm agreed to by the parties,provided such accounting firm has not
provided accounting services to either party during the prior five (5)years (the "Independent
Accountants"),who shall apply principles,policies and practices consistent with GAAP and this
Agreement, or if the parties cannot agree upon by the parties,by BDO USA LLP. If a Disputed
Accounting Matter is submitted to the Independent Accountants for resolution, (i)Holding
Company and Bowman shall furnish or cause to be furnished to the Independent Accountants
such work papers and other documents and information relating to the disputed issues as the
Independent Accountants may request and are available to that party or its agents and shall be
afforded the opportunity to present to the Independent Accountants any material relating to the
46 -
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16E3
Disputed Accounting Matter and to discuss the issue(s)with the Independent Accountants; (ii)
the determination by the Independent Accountants, shall be set forth in a Notice to be delivered
to both Holding Company and Bowman within thirty(30)Business Days of the submission of
the Disputed Accounting Matter to the Independent Accountants, (iii) such determination by the
Independent Accountants shall be final,binding and conclusive on the parties and shall be used
in the calculation of any amounts due hereunder; and(iv)Holding Company and Bowman will
each bear fifty percent(50%) of the fees and costs of the Independent Accountants for such
determination
11.10 Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original,but all of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF,the parties have duly executed this Agreement and Plan of Merger
under seal as of the date first above written.
Bowman Consulting Group Ltd.
1
By:
Title: Chie.() fgre-cr
Bowman Gulf Coast LLC
By.
Title:GLvted ' )C..ccertIVe. Oqicer
Hole Montes, Inc.
By:
Robert Mulhere,President
Hole Montes Holding Company, Inc.
By:
Robert Mulhere,President
47 -
Page 619 of 2568
DocuSign Envelope ID:899D20FF-D47F-4F6F-83B4-044774618D04
1 6 E 3
Disputed Accounting Matter and to discuss the issue(s)with the Independent Accountants; (ii)
the determination by the Independent Accountants, shall be set forth in a Notice to be delivered
to both Holding Company and Bowman within thirty(30) Business Days of the submission of
the Disputed Accounting Matter to the Independent Accountants, (iii) such determination by the
Independent Accountants shall be final, binding and conclusive on the parties and shall be used
in the calculation of any amounts due hereunder; and (iv) Holding Company and Bowman will
each bear fifty percent(50%) of the fees and costs of the Independent Accountants for such
determination
11.10 Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF,the parties have duly executed this Agreement and Plan of Merger
under seal as of the date first above written.
Bowman Consulting Group Ltd.
By:
Title:
Bowman Gulf Coast LLC
By:
Title:
Hole Montes, Inc.
DocuSigned by:
U
By: rakrt , Attk ,YZ,
OCDDAD7C04F4F2...
Robert Mulhere, President
Hole Montes Holding Company,Inc.
i—DocuSigned by:
h,.''..',rokyt
C9C0DA07C641-412...
Robert Mulhere, President
47 -
Page 620 of 2568
Uocuslgn Envelope IL):8991)201-F-U47F-4F6F-83B4-0447746181J04
16 E3
Shareholders
C---DocuSigned by:
k..—ecCFB7F0AB23430..-
Thomas Murphy
William Cole
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Robert Mulhere
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48 -
Page 621 of 2568
UocuSign Envelope ID:899U201-F-U4/F-4F6F-83134-U44//45113004
I 6 E 3
Shareholders
Thomas Murphy
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William Cole
Robert Mulhere
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Richard Brylanski
David Schmitt
Charles Kreb
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June T. Sapp
48 -
Page 622 of 2568
16 E3
List of Exhibits and Schedules
Exhibit Description
A Articles of Merger
B Form of Lock-Up Agreement
C Form of First Promissory Note
D Form of Second Promissory Note
E Form of Subordination Agreement
F Form of Employment Letter—Shareholders
G Form of Non-Competition and Non-Disclosure Agreements—Shareholders
H Form of Employment Letter—Key Employees
I Form of Non-Solicitation and Non-Disclosure Agreements—Key Employees
J Form of Restricted Stock Award Agreement—Key Employees
K Governing Documents of Bowman Gulf Coast
Schedule Description
2.1.e Vehicles, Drones and Certain Field Equipment of Merged Company
2.2.b Personal Assets and vehicles of Shareholders
3.5 Shareholder Pro-Rata Share
4.3 Merged Company Litigation and Investigations
4.6.1.c Accrued Payroll and Accrued PTO
4.6.2 Merged Company Backlog
4.9 Merged Company Plans
4.12 Office Lease
4.13.1 Merged Company Agreements
4.14 Commercial Software
4.15 Insurance Contracts
4.16 Merged Company Banking Relationships
5.3 Bowman Litigation and Investigations
9.2.7 Key Employee Stock
50 -
Page 623 of 2568
16 E341
Exhibit"C"
FEDERAL CONTRACT PROVISIONS AND ASSURANCES
TO FOLLOW THIS PAGE
Page 13 of 13 CA4
Assumption Agreement
Page 624 of 2568
16 E3
EXHIBIT I
FEDERAL CONTRACT PROVISIONS AND ASSURANCES
FEDERAL EMERGENCY MANAGEMENT AGENCY
PUBLIC ASSISTANCE
The supplemental conditions contained in this section are intended to cooperate with, to supplement, and
to modify the general conditions and other specifications. In cases of disagreement with any other section
of this contract,the Supplemental Conditions shall govern.This is an acknowledgement that FEMA financial
assistance will be used to fund all or a portion of the contract.
Pursuant uniform requirements of federal awards (2 CFR Part 200.23)the definition of CONTRACTOR is
an entity that receives a Contract/Purchase Order.
Compliance with Federal Law, Regulations and Executive Orders:The Sub-Recipient(County)agrees
to include in the subcontract that (i) the subcontractor is bound by the terms of the Federally-Funded
Subaward and Grant Agreement, (ii) the subcontractor is bound by all applicable state and Federal laws
and regulations, and (iii) the subcontractor shall hold the Division and Sub-Recipient harmless against all
claims of whatever nature arising out of the subcontractor's performance of work under this Agreement, to
the extent allowed and required by law.
Specifically, the Contractor shall be responsible for being knowledgeable and performing any and all
services under this contract in accordance with the following governing regulations along with all applicable
Federal law, regulations, executive orders, FEMA policies, procedures, and directives.
O 2 C.F.R. Part 200 Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards
O 44 C.F.R. Part 206
o The Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 93-
288, as amended, 42 U.S.C. 5121 et seq., and Related Authorities
o FEMA Public Assistance Program and Policy Guide
EXHIBIT I-1
Page 625 of 2568
16 E3
EXHIBIT I
FEDERAL CONTRACT PROVISIONS AND ASSURANCES
Access to Records: The contractor agrees to provide the County, the Florida Department of Emergency
Management, the FEMA Administrator, the Comptroller General of the United States, or any of their
authorized representative's access to any books, documents, papers, and records of the Contractor which
are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and
transcriptions. (2)The Contractor agrees to permit any of the foregoing parties to reproduce by any means
whatsoever or to copy excerpts and transcriptions as reasonably needed. (3) The contractor agrees to
provide the FEMA Administrator or his authorized representatives' access to construction or other work
sites pertaining to the work being completed under the contract. (4)In compliance with section 1225 of the
Disaster Recovery Act of 2018,the County and the Contractor acknowledge and agree that no language in
this contract is intended to prohibit audits or internal reviews by the FEMA Administrator or the Comptroller
General of the United States.
Affirmative Socioeconomic Steps: If subcontracts are to be let, the prime contractor is required to take
all necessary steps identified in 2 C.F.R. §200.321(b)(1)-(5)to ensure that small and minority businesses,
women's business enterprises, and labor surplus area firms are used when possible.
Changes: To be allowable under a FEMA grant or cooperative agreement award, the cost of any contract
change, modification, amendment, addendum, change order, or constructive change must be necessary,
allowable, allocable, within the scope of the grant or cooperative agreement, reasonable for the scope of
work, and otherwise allowable.
DHS Seal,Logo,and Flags: The contractor shall not use the DHS seal(s), logos, crests, or reproductions
of flags or likenesses of DHS agency officials without specific FEMA pre-approval. The contractor shall
include this provision in any subcontracts.
Domestic Preference for Procurements: As appropriate and to the extent consistent with law, the non-
Federal entity should, to the greatest extent practicable under a Federal award, provide a preference for
the purchase, acquisition, or use of goods, products, or materials produced in the United States (including
but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of
this section must be included in all subawards including all contracts and purchase orders for work or
products under this award.
For purposes of this section: "Produced in the United States" means, for iron and steel products, that all
manufacturing processes,from the initial melting stage through the application of coatings, occurred in the
United States. "Manufactured products" means items and construction materials composed in whole or in
part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl
chloride pipe;aggregates such as concrete; glass, including optical fiber; and lumber.
License and Delivery of Works Subject to Copyright and Data Rights: The Contractor grants to the
County, a paid-up, royalty-free, nonexclusive, irrevocable, worldwide license in data first produced in the
performance of this contract to reproduce, publish, or otherwise use, including prepare derivative works,
distribute copies to the public, and perform publicly and display publicly such data. For data required by
the contract but not first produced in the performance of this contract,the Contractor will identify such data
and grant to the County or acquires on its behalf a license of the same scope as for data first produced in
the performance of this contract. Data, as used herein, shall include any work subject to copyright under
17 U.S.C. § 102, for example, any written reports or literary works, software and/or source code, music,
choreography,pictures or images,graphics,sculptures,videos,motion pictures or other audiovisual works,
sound and/or video recordings,and architectural works. Upon or before the completion of this contract,the
Contractor will deliver to the County data first produced in the performance of this contract and data
required by the contract but not first produced in the performance of this contract in formats acceptable by
the County.
No Obligation by Federal Government:The Federal Government is not a party to this contract and is not
subject to any obligations or liabilities to the non-Federal entity, contractor, or any other party pertaining to
any matter resulting from the contract.
EXHIBIT I-2
Page 626 of 2568
16 E3
EXHIBIT I
FEDERAL CONTRACT PROVISIONS AND ASSURANCES
Prohibition on Covered Telecommunications Equipment or Services:
a) Definitions.As used in this clause, the terms backhaul; covered foreign country; covered
telecommunications equipment or services; interconnection arrangements; roaming; substantial or
essential component; and telecommunications equipment or services have the meaning as defined in
FEMA Policy,#405-143-1 Prohibitions on Expending FEMA Award Funds forcovered
Telecommunications Equipment or Services As used in this clause—
b) Prohibitions.
1) Section 889(b) of the John S. McCain National Defense Authorization Act for Fiscal Year2019, Pub. L.
No. 115-232, and 2 C.F.R. § 200.216 prohibit the head of an executive agency on or after Aug.13, 2020,
from obligating or expending grant, cooperative agreement, loan, or loan guarantee funds on certain
telecommunications products or from certain entities for national security reasons.
2) Unless an exception in paragraph (c) of this clause applies, the contractor and its subcontractors may
not use grant, cooperative agreement, loan, or loan guarantee funds from the Federal Emergency
Management Agency to:
i) Procure or obtain any equipment, system, or service that uses covered telecommunications
equipment or services as a substantial or essential component of any system, or as critical technology
of any system;
ii) Enter into, extend, or renew a contract to procure or obtain any equipment, system, or service that
uses covered telecommunications equipment or services as a substantial or essential component of
any system, or as critical technology of any system;
iii)Enter into,extend,or renew contracts with entities that use covered telecommunications equipment
or services as a substantial or essential component of any system, or as critical technology as part of
any system; or
iv) Provide, as part of its performance of this contract, subcontract, or other contractual instrument,
any equipment, system, or service that uses covered telecommunications equipment or services as a
substantial or essential component of any system, or as critical technology as part of any system.
c)Exceptions.
1)This clause does not prohibit contractors from providing—(i).A service that connects to the facilities of
a third-party, such as backhaul, roaming, or interconnection arrangements; or (ii). Telecommunications
equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that
such equipment transmits or otherwise handles.
2) By necessary implication and regulation, the prohibitions also do not apply to: (i). Covered
telecommunications equipment or services that: i.Are not used as a substantial or essential component of
any system; and ii. Are not used as critical technology of any system. (ii). Other telecommunications
equipment or services that are not considered covered telecommunications equipment or services.
d)Reporting requirement.
1) In the event the contractor identifies covered telecommunications equipment or services used as a
substantial or essential component of any system, or as critical technology as part of any system, during
contract performance, or the contractor is notified of such by a subcontractor at any tier or by any other
source, the contractor shall report the information in paragraph (d)(2) of this clause to the recipient or
subrecipient, unless elsewhere in this contract are established procedures for reporting the information.
2) The Contractor shall report the following information pursuant to paragraph (d)(1) of this clause: (i)
Within one business day from the date of such identification or notification:The contract number;the order
number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial
and Government Entity (CAGE) code (if known); brand; model number (original equipment manufacturer
EXHIBIT I-3
Page 627 of 2568
16E3
EXHIBIT I
FEDERAL CONTRACT PROVISIONS AND ASSURANCES
number, manufacturer part number, or wholesaler number); item description; and any readily available
information about mitigation actions undertaken or recommended. (ii)Within 10 business days of submitting
the information in paragraph (d)(2)(i) of this clause: Any further available information about mitigation
actions undertaken or recommended. In addition, the contractor shall describe the efforts it undertook to
prevent use or submission of covered telecommunications equipment or services,and any additional efforts
that will be incorporated to prevent future use or submission of covered telecommunications equipment or
services.
e) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph(e), in
all subcontracts and other contractual instruments.
Program Fraud and False or Fraudulent Statements or Related Acts: The Contractor acknowledges
that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the
contractor's actions pertaining to this contract.
Rights to Inventions Made Under a Contract or Agreement: Exempt from FEMA Public Assistance
Funding
Suspension and Debarment: (1) This contract is a covered transaction for purposes of 2 C.F.R. pt. 180
and 2 C.F.R. pt. 3000.As such the contractor is required to verify that none of the contractor, its principals
defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2
C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). (2) The contractor must comply with 2
C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with
these regulations in any lower tier covered transaction it enters into. (3) This certification is a material
representation of fact relied upon by the County. If it is later determined that the contractor did not comply
with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the
County, the Federal Government may pursue available remedies, including but not limited to suspension
and/or debarment. (4)The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt. 180,
subpart C and 2 C.F.R. pt. 3000,subpart C while this offer is valid and throughout the period of any contract
that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such
compliance in its lower tier covered transactions.
Procurement of Recovered Materials (§200.323) (Over$10,000): In the performance of this contract,
the Contractor shall make maximum use of products containing recovered materials that are EPA-
designated items unless the product cannot be acquired—Competitively within a timeframe providing for
compliance with the contract performance schedule; Meeting contract performance requirements; or At a
reasonable price. Information about this requirement, along with the list of EPA-designated items, is
available at EPA's Comprehensive Procurement Guidelines webpage:
https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program.
The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid
Waste Disposal Act.
Termination for Cause and Convenience(over$10,000): See Standard Purchase Order and/or Contract
Terms and Conditions
Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352 (as amended) (over$100,000): Contractors who
apply or bid for an award of$100,000 or more shall file the required certification. Each tier certifies to the
tier above that it will not and has not used Federal appropriated funds to pay any person or organization for
influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer
or employee of Congress, or an employee of a member of Congress in connection with obtaining any
Federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any
lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such
disclosures are forwarded from tier to tier up to the recipient."
EXHIBIT I-4
Page 628 of 2568
l6 E3
EXHIBIT I
FEDERAL CONTRACT PROVISIONS AND ASSURANCES
Contractors must sign and submit a certification to the County with each bid or offer exceeding $100,000.
See Certifications and Assurances and the end of this document.
Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708) (over $100,000): Where
applicable, all contracts awarded by the solicitor in excess of $100,000 that involve the employment of
mechanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as
supplemented by Department of Labor regulations(29 CFR Part 5).
1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work
which may require or involve the employment of laborers or mechanics shall require or permit any such
laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of
forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less
than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such
workweek.
2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause
set forth in paragraph (1) of this section the contractor and any subcontractor responsible therefor shall be
liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United
States(in the case of work done under contract for the District of Columbia or a territory,to such District or
to such territory),for liquidated damages.Such liquidated damages shall be computed with respect to each
individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set
forth in paragraph (1)of this section, in the sum of$27 for each calendar day on which such individual was
required or permitted to work in excess of the standard workweek of forty hours without payment of the
overtime wages required by the clause set forth in paragraph (1) of this section.
3) Withholding for unpaid wages and liquidated damages. The County or FEMA shall upon its own
action or upon written request of an authorized representative of the Department of Labor withhold or cause
to be withheld,from any moneys payable on account of work performed by the contractor or subcontractor
under any such contract or any other Federal contract with the same prime contractor, or any other
federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by
the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of
such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set
forth in paragraph(2) of this section.
4) Subcontracts.The contractor or subcontractor shall insert in any subcontracts the clauses set forth
in paragraph (1) through (4) of this section and a clause requiring the subcontractors to include these
clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any
subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this
section."
For contracts that are only subject to Contract Work Hours and Safety Standards Act and are not subject
to the other statutes in 29 C.F.R. § 5.1 "Further Compliance with the Contract Work Hours and Safety
Standards Act.
1) The contractor or subcontractor shall maintain payrolls and basic payroll records during the course of
the work and shall preserve them for a period of three years from the completion of the contract for all
laborers and mechanics, including guards and watchmen, working on the contract. Such records shall
contain the name and address of each such employee, social security number, correct classifications,
hourly rates of wages paid, daily and weekly number of hours worked, deductions made,and actual wages
paid.
2)Records to be maintained under this provision shall be made available by the contractor or subcontractor
for inspection, copying, or transcription by authorized representatives of the Department of Homeland
Security, the Federal Emergency Management Agency, and the Department of Labor, and the contractor
or subcontractor will permit such representatives to interview employees during working hours on the job.
EXHIBIT I-5
Page 629 of 2568
1.. 6 E 3
EXHIBIT I
FEDERAL CONTRACT PROVISIONS AND ASSURANCES
Clean Air Act(over$150,000): 1. The contractor agrees to comply with all applicable standards, orders
or regulations issued pursuant to the Clean Air Act,as amended,42 U.S.C.§7401 et seq. 2.The contractor
agrees to report each violation to the County and understands and agrees that the County will, in turn,
report each violation as required to assure notification to the Federal Emergency Management Agency,and
the appropriate Environmental Protection Agency Regional Office. 3. The contractor agrees to include
these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal
assistance provided by FEMA.
Federal Water Pollution Control Act (over $150,000): 1. The contractor agrees to comply with all
applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as
amended, 33 U.S.C. 1251 et seq. 2. The contractor agrees to report each violation to the County and
understands and agrees that the County will, in turn, report each violation as required to assure notification
to the Federal Emergency Management Agency, and the appropriate Environmental Protection Agency
Regional Office. 3. The contractor agrees to include these requirements in each subcontract exceeding
150,000 financed in whole or in part with Federal assistance provided by FEMA.
Administrative, Contractual, or Legal Remedies (over $250,000): Unless otherwise provided in this
contract, all claims, counter-claims, disputes and other matters in question between the local
government and the contractor,arising out of or relating to this contract,or the breach of it,will be decided
by arbitration, if the parties mutually agree, or in a Florida court of competent jurisdiction.
CONSTRUCTION ACTIVITIES
Equal Employment Opportunity Clause (§60-1A): Except as otherwise provided under 41 C.F.R. Part
60, all contracts that meet the definition of"federally assisted construction contract" in 41 C.F.R. § 60-1.3
must include the equal opportunity clause provided under 41 C.F.R. §60- 1.4.
During the performance of this contract, the contractor agrees as follows:
1)The contractor will not discriminate against any employee or applicant for employment because of race,
color, religion, sex,sexual orientation,gender identity, or national origin.The contractor will take affirmative
action to ensure that applicants are employed, and that employees are treated during employment without
regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action
shall include, but not be limited to the following:
Employment, upgrading, demotion,or transfer; recruitment or recruitment advertising; layoff or termination;
rates of pay or other forms of compensation; and selection for training, including apprenticeship. The
contractor agrees to post in conspicuous places, available to employees and applicants for employment,
notices to be provided setting forth the provisions of this nondiscrimination clause.
2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the
contractor, state that all qualified applicants will receive consideration for employment without regard to
race, color, religion, sex, sexual orientation, gender identity, or national origin.
3)The contractor will not discharge or in any other manner discriminate against any employee or applicant
for employment because such employee or applicant has inquired about, discussed, or disclosed the
compensation of the employee or applicant or another employee or applicant.This provision shall not apply
to instances in which an employee who has access to the compensation information of other employees or
applicants as a part of such employee's essential job functions discloses the compensation of such other
employees or applicants to individuals who do not otherwise have access to such information, unless such
disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding,
hearing, or action, including an investigation conducted by the employer, or is consistent with the
contractor's legal duty to furnish information.
4)The contractor will send to each labor union or representative of workers with which he has a collective
bargaining agreement or other contract or understanding, a notice to be provided advising the said labor
EXHIBIT I-6
Page 630 of 2568
1b E3
EXHIBIT I
FEDERAL CONTRACT PROVISIONS AND ASSURANCES
union or workers'representatives of the contractor's commitments under this section, and shall post copies
of the notice in conspicuous places available to employees and applicants for employment.
5)The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of
the rules, regulations, and relevant orders of the Secretary of Labor.
6)The contractor will furnish all information and reports required by Executive Order 11246 of September
24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will
permit access to his books, records, and accounts by the administering agency and the Secretary of Labor
for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
7)In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with
any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in
whole or in part an the contractor may be declared ineligible for further Government contracts or federally
assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of
September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in
Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or
as otherwise provided by law.
8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the
provisions of paragraphs(1)through(8)in every subcontract or purchase order unless exempted by rules,
regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246
of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The
contractor will take such action with respect to any subcontract or purchase order as the administering
agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:
Provided, however,that in the event a contractor becomes involved in, or is threatened with, litigation with
a subcontractor or vendor as a result of such direction by the administering agency, the contractor may
request the United States to enter into such litigation to protect the interests of the United States.
Davis Bacon Act: Exempt under FEMA Public Assistance Funding
Copeland Anti-Kickback Act: Exempt under FEMA Public Assistance Funding
EXHIBIT I-7
Page 631 of 2568
16 E3 4.
EXHIBIT I
FEDERAL CONTRACT PROVISIONS AND ASSURANCES
Compliance with Federal Law, Regulations,And Executive Orders
and Acknowledgement of Federal Funding
Certification
This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion of the
contract. The contractor will comply with all applicable Federal law, regulations, executive orders, FEMA
policies, procedures, and directives.
If the Contractor subcontracts any of the work required under this Agreement, a copy of the signed
subcontract must be available to the County for review and approval. The Contractor agrees to include in
the subcontract that(1)the subcontractor is bound by the terms of this Agreement, (ii)the subcontractor is
bound by all applicable state and federal laws and regulations, and (iii) the subcontractor shall hold the
County and the Grantor Agency harmless against all claims of whatever nature arising out of the
subcontractor's performance of work under this Agreement,to the extent allowed and required by law. The
County may document in the quarterly report the Contractor's progress in performing its work under this
agreement.
On behalf of my firm, I acknowledge,the grant requirements identified in this document.
Vendor/Contractor Name Hole Montes. a Bowman company
Date January 17, 2024
Authorized Signature . v
EXHIBITI-8
Page 632 of 2568
16E3
EXHIBIT I
FEDERAL CONTRACT PROVISIONS AND ASSURANCES
CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY
and VOLUNTARY EXCLUSION
Contractor Covered Transactions
1) The prospective subcontractor of the Sub-recipient, Collier County, certifies, by submission of this
document, that neither it nor its principals is presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department
or agency.
2) Where the Sub-recipient's subcontractor is unable to certify to the above statement,the prospective
contract shall attach an explanation to this form.
CONTRACTOR
Hole Montes, a Bowman company
By: / 27/7' `-7
Signature
Robert Mulhere, FAICP
Name and Title
950 Encore Way
Street Address
Naples, FL 34110
City, State, Zip
P98HKXYNA6M9
UEI Unique Entity Identifier(for SAM.gov verification)
January 17, 2024
Date
Sub-Recipient Name: Collier County Board of County Commissioners
DEM Contract Number: TBD
FEMA Project Number: TBD
EXHIBIT I-9
Page 633 of 2568
16 E3
EXHIBIT I
FEDERAL CONTRACT PROVISIONS AND ASSURANCES
COLLIER COUNTY
ANTICIPATED DISADVANTAGED, MINORITY,WOMEN OR VETERAN PARTICIPATION STATEMENT
Status will be verified. Unverir`able statuses will require the PR ME to either prciade a revised statement or provide source documentation that validates a
status.
A. PRIME VENDOR/CONTRACTOR INFORMATION
PRIME NAME PRIME FED NUMBER CONTRACT DOLLAR AMOUNT
Hole Montes, a Bowman company 92-2421024 TBD
IS THE PRIME A FLORIDA-CERTIFIED DISADVANTAGED. VETERAN y N IS THE ACTIVITY OF THIS CONTRACT...
MINORITY OR WOMEN BUSINESS ENTERPRISE% DBE? Y ra CONSTRUCTION? Y
IDEE%t.1BE/y,BE)OR HAVE A SMALL DISADVANTAGED
BUSINESS EA CERTIFICATION FROM THE SMALL BUSINESS MBE? Y N CONSULTATION? O M
ADMINISTRATION? A SERVICE DISABLED VETERAN? WEE? Y OTHER? YO N
SOS EA? Y 0
IS TN S SUBM.ISS"ON A REVISION? Y tJ F YES,REVISION NUMBED.
B. IF PRIME HAS SUBCONTRACTOR OR SUPPLIER WHO IS A DISADVANTAGED MINORITY,WOMEN-OWNED,SMALL
BUSINESS CONCERN OR SERVICE DISABLED VETERAN,PRIME IS TO COMPLETE THIS NEXT SECTION
DBE M/WBE SUBCONTRACTOR OR SUPPLIER TYPE OF WORK OR ETHNICITY CODE SUB/SUPPLIER PERCENT OF CONTRACT
VETERAN NAME SPECIALTY (See Below) DOLLAR AMOUNT DOLLARS
N/A N/A N/A N/A N/A N/A
AL
C. SECTION TO BE COMPLETED BY PRIME VENDOR/CONTRACTOR
NAME OF SUBMITTER DATE TITLE OF SUBMITTER
Robert Mulhere, FAICP 1/17/2024 Senior Vice President
EMAIL ADDRESS OF PRIME(SUBMrTTER) TELEPHONE NUMBER FAX NUMBER
RMulherecbowman.com 239.254.2000 239.254.2098
NOTE:This information is used to track and report anticipated DBE or MBE participation in federally-funded contracts. The anticipated DBE or
MBE amount is voluntary and will not become part of the contractual terms. This form must be submitted at time of response to a
solicitation. If and when awarded a County contract,the prime will be asked to update the information for the grant compliance files.
ETHNICITY CODE
Black American BA
Hispanic American FA
Native American NA
Subcont.Asian American
Asian-Pacific American APA
Non-Minority Women N?.`w
Other:not of any other group listed 0
D.SECTION TO BE COMPLETED BY COLLIER COUNTY
DEPARTMENT NAME CC LL:EF.CO'ITF.:.CT ni;FB;AFP or PO/RED; GRANT PROGRAM/CONTRACT
ACCEPTED BY:
DATE
EXHIBIT I-10
Page 634 of 2568
16 E3
EXHIBIT I
FEDERAL CONTRACT PROVISIONS AND ASSURANCES
LOBBYING CERTIFICATION
To be submitted with each bid or offer exceeding$100,000)
The undersigned [Contractor]certifies,to the best of his or her knowledge, that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned,to any person
for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer
or employee of Congress,or an employee of a Member of Congress in connection with the awarding of any Federal
contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative
agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant,
loan, or cooperative agreement.
2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing
or attempting to influence an officer or employee of any agency, a Member of Congress,an officer or employee of
Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or
cooperative agreement, the undersigned shall complete and submit Standard Form- LLL, "Disclosure Form to
Report Lobbying," in accordance with its instructions.
3. The undersigned shall require that the language of this certification be included in the award documents for all
subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative
agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was
made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction
imposed by 31, U.S.C. § 1352(as amended by the Lobbying Disclosure Act of 1995).Any person who fails to file
the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000
for each such failure.
The Contractor certifies or affirms the truthfulness and accuracy of each statement of its certification and
disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. § 3801 et
seq., apply to this certification and disclosure, if any.
Hole Montes, a Bowman company
Contractor(Firm Name)
Signature of Contractor's Authorized Official
Robert Mulhere, FAICP / Senior Vice President
Name and Title of Contractor's Authorized Official
January 17, 2024
Date
EXHIBIT I-11
Page 635 of 2568