Agenda 04/22/2025 Item #16G 2 (Approve Change Order No. 1 deducting $12,626.46 from Agreement No. 20-7806 with Bowman Gulf Coast, LLC for post-design services on the Bulk Aircraft Hangar at Marco Island Executive Airport)4/22/2025
Item # 16.G.2
ID# 2024-2345
Executive Summary
Recommendation to approve Change Order No. 1, deducting $12,626.46 from Agreement No. 20-7806 (Purchase Order
4500230969) with Bowman Gulf Coast, LLC., (previously Hole Montes, Inc.), for post design engineering services on
the “Bulk Aircraft Hangar at Marco Island Executive Airport” and authorize the Chairman to sign the attached Change
Order. (Project No. 33822)
OBJECTIVE: To have the Board of County Commissioners (the "Board"), approve deductive Change Order No. 1 on
Agreement No. 20-7806 with Bowman Gulf Coast, LLC., (previously Hole Montes) for post design services on the Bulk
Aircraft Hangar project at the Marco Island Executive Airport.
CONSIDERATIONS: On June 8, 2021 (Agenda Item 16.G.1), the Board approved Agreement No. 20-7806 (the
"Agreement") for “Airport Improvement Program” Professional Service for Airports. On February 13, 2024 (Agenda
Item 16.E.3, the board approved an Assumption Agreement assigning all rights, duties, benefits, and obligations to
Bowman Gulf Coast LLC, d/b/a Hole Montes, a Bowman Company. On April 10, 2024, the Division opened Purchase
Order 4500230969 with Bowman Gulf Coast LLC (“Bowman”) to provide post design services for the Marco Island
Airport Bulk Hanger (Project No. 33822) for $57,288.00.
Change Order No. 1 is necessary to address an error by the structural engineer subcontractor working for Bowman. The
error required the redesign of the foundations. The engineering redesign was accomplished by the responsible structural
engineer with no cost to the project. The redesign resulted in additional construction costs. The design engineer,
Bowman, has taken responsibility for the errors of their subcontractor. Deductive Change Order No. 1 will reduce the
contract’s cost by $12,626.46 to offset the increased cost for construction being performed by DEC Contracting Group,
Inc. An additional twelve (12) days are required to match the days added to the construction time.
This item is consistent with the Collier County Strategic Plan under Responsible Governance and safeguarding the
taxpayer money by promoting fiscal stewardship and sound budget oversight.
FISCAL IMPACT: Change Order No. 1 will result in a $12,626.46 decrease to Bowman Gulf Coast, LLC Purchase
Order 4500230969 under Agreement 20-7806 appropriated within Airport Grant (4093) and Grant Match (4094) Funds,
Project 33822.
GROWTH MANAGEMENT IMPACT: This item is consistent with Section B: Intermodal & Multimodal
Transportation, Subsection 2: Aviation of the Transportation Element of the Growth Management Plan.
LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney, is approved as to form and
legality and requires majority vote for approval. JAK
RECOMMENDATIONS: That the Board approve Change Order No. 1 on the Bowman Gulf Coast, LLC., Agreement
20-7806 (Purchase Order 4500228967), adding 12 days to the contract days from 396 to 408 days and reducing the same
contract by $12,626.46, from $57,288.00 to $44,661.54 for the “Bulk Aircraft Hangar at Marco Island Executive
Airport” Post Design Services and authorize the Chairman to sign the attached Change Order. (Project No. 33822).
PREPARED BY: Bryant Garrett, AAE - Executive Airports Manager
ATTACHMENTS:
1. Hole Montes - Bowman Gulf Coast, LLC Contract 20-7806 Exhibit A-5
2. Change Order #1 20-7806
3. Bowman affidavit regarding labor & services February 26, 2025 Notarized
4. Work Order-HM Post Design without checklist
5. 20-7802 Contract_Bowman changing from Hole Montes
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HuttonDarren Digitally signed by HuttonDarren
Date: 2023.10.27 11:44:37
-04'00'
ScottTrinity Digitally signed by ScottTrinity
Date: 2023.10.31 14:10:05
-04'00'
/ WORK ORDER/PURCHASE ORDER
Contract 20-7806 "Airport Improvement Program Professional Services for Airports (FAA Funded)
Category B: Architectural/Engineering Design Services" ✓
Contract Expiration Date: June 7, 2024 ✓
This Work Order is for professional Post-Design services for work known as:
Project Name: Marco Island Airport Bulk Hangar Construction
Project No: 33822 /
/
/
The work is specified in the proposal dated October 5, 2023 which is attached hereto and made a part
of this Work Order. In accordance with Terms and Conditions of the Agreement referenced above, this
Work Order/Purchase Order is assigned to: Hole Montes, Inc.
Scope of Work: As detailed in the attached proposal and the following:
* Task I Post Design Services ✓
* Task II Weekly Meetings and Site Visits .,,,,
* Task III Preparation of Closeout and Record Documents /
✓
Schedule of Work: Complete work within 396 days from the date of the Notice to Proceed which is
accompanying this Work Order. The Consultant agrees that any Work Order that extends beyond the
expiration date of Agreement# 20-7806 will survive and remain subject to the terms and conditions of
that Agreement until the completion or termination of this Work Order.
Compensation: In accordance with the Agreement referenced above, the County will compensate the
Firm in accordance with following method(s): □Negotiated Lump Sum (NLS) cg)Lump Sum Plus
Reimbursable Costs (LS+RC) OTime & Material (T &M) ( established hourly rate -Schedule A) D
Cost Plus Fixed Fee (CPFF), as provided in the attached proposal.
Task I $ 6,864.00 (LS) ✓
Task II $ 17,544.00 (LS) /
Task III $ 8,610.00 (LS) ,,,
Sub: Schenkel Shultz $ 24,270.00 /
TOTAL FEE $ 57,288.00 7
PREPAREDBY: C\_Q_~ \6 -() ~ -~.'.?)
Andrew Bennett, Executive Airports Manager Date
APPROVED BY: ______________ _
Darren Hutton, Division Director Date
APPROVED BY: _____________ _
~ Trinity Scott, Department Head Date
Page 1 of2
Page 5438 of 6355
By the signature below, the Firm (including employees, officers and/or agents) certifies, and hereby
discloses, that, to the best of their knowledge and b elief, all relevant facts concerning past, present, or
currently planned interest or activity (financial, contractual, organizational, or otherwise) which relates
to the proposed work; and bear on whether the Firm has a potential conflict have been fully disclosed.
Additionally, the Firm agrees to notify the Procurement Director, in writing within 48 hours of learning
of any actual or potential conflict of interest that arises during the Work Order and/or project duration.
ACCEPTED BY: Holec:2
Rick Brylandski, VP
1,o),~2o2,
1ate
{Remainder of page intentionally left blank)
Page 2 of2
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Collier County Airport Authority
Post Design Services for Marco Island
Airport Bulk Hangar
Contract #20-7806 ✓
Final I 10/5/2023 /
Hole Montes a Bowman Company
6200 Whiskey Creek Dr .
Fort Myers, FL 33919
United States of America
239 .985.1200
H ~
HOLEM
company
Page 5440 of 6355
Post Design Services for Marco Island Airport Bulk Hangar
Contract# 20-7806
H ~
HOLEM
comp.any
This scope of services covers construction phase services required for the Marco Executive Airport (MKY)
Bulk Hangar for the duration of construction.
Proiect Description
Under a previous task authorization , Collier County Airport Authority (COUNTY) commissioned HOLE
MONTES A BOWMAN COMPANY (CONSUL TANT) to perform design services for the MKY Bulk Hangar.
The intent of this scope is to perform post-design phase services necessary to support the various construction
elements associated with this project at MKY.
At the request of the COUNTY, HOLE MONTES A BOWMAN COMPANY has drafted this scope of services to
define the effort necessary to accomplish the Post-Design (Construction Phase Services) for the MKY Bulk
Hangar, excluding Construction Engineering and Inspection (CE!). This will consist of supp01t during
construction, in coordination with the CCAA and its (CE!), Atkins North America, and the preparation of
closeout documents and record drawings.
Obiective
The objective shall be the successful completion by the CONSULT ANT of project post design related services
necessary for the various construction elements associated with the Bulk Hangar located at MKY, which
excludes any Construction Inspection, as CCAA has retained the services of a separate consultant, Atkins North
America, for this work.
ScoQe
For the purposes of scope definition and CONSULT ANT fee development, the work has been divided into the
following tasks. Any modifications and/or revisions to these tasks will constitute a change in the project scope
and may require a revision to the compensation to be paid to the CONSUL TANT. These tasks will begin once the
COUNTY provides the CONSUL TANT with a written Notice to Proceed. These tasks will be complete once the
CONSULTANT provides the COUNTY with the closeout documents.
The CONSUL TANT shall provide technical support during construction along with the preparation of closeout
documents and record drawings. The Project Manager (PM) will be readily available to the project team and the
COUNTY to oversee necessary project related elements.
Task 1: Post Design Services
1.1) This task will include the CONSULT ANT' s review of shop drawings submitted by the Contractor as
stipulated in the Contract Documents. The Resident Project Representative (RPR/ OTHERS) will
collect and log shop drawings and transmit them to the Engineer. The CONSULT ANT will review
the shop drawings and return them to the RPR with necessary comments.
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H ~
HOLEM Cj)mpany
The CONSULT ANT' s review of shop drawings will be limited to general design concepts and
general compliance with the Contract Documents. Reviews by the CONSULT ANT will not relieve
the Contractor of the responsibility of compliance with the Contract Documents. The
CONSULTANT shall act as initial interpreter ofthe requirements ofthe Contract Documents and
judge of the acceptability of the work. The CONSULTANT shall have the authority to make
decisions related to the interpretation of the requirements of the Contract Documents pertaining to
the execution and progress of the work.
The CONSULT ANT will review and comment on each shop drawing or technical submittal a
maximum of three (3) times. Additional reviews shall be eligible for additional compensation.
1.2) Under this task, the CONSULTANT will prepare technical responses to the questions submitted by
the Contractor in the format of a Request for Information (RFI). The RPR will collect, log, and
distribute RFI's to the appropriate technical lead for responses and return the RFI responses to the
CONTRACTOR.
The CONSULTANT shall act as initial interpreter of the requirements of the Contract Documents
and judge of the acceptability of the work. The CONSULTANT shall have the authority to make
decisions related to the interpretation of the requirements of the Contract Documents pertaining to
the execution and progress of the work. The CONSULT ANT shall also provide technical support
and clarifications related to the construction documents and shall provide any required revisions or
supplemental information related to the contract documents that may be required during
construction.
Task 2: Weekly Construction Meetings and Site Visits
2.1) Under this task, the CONSULTANT's Project Manager and/or appropriate technical leads will
attend meetings ( either in-person or by phone) and make periodic visits to the site during
construction.
The CONSULT ANT will also conduct a Pre-Construction Conference before the Contractor is
provided with a construction Notice to Proceed. The purpose of this meeting will be to review
general administrative procedures of the contract, review technical requirements, begin the
submittal process, and other items as defined in the Contract Documents.
In addition, the CONSULT ANT's Project Manager and/or technical leads will attend the
Substantial Completion and Final Inspections.
Task 3: PreQaration of Closeout and Record Documents
3.1) Under this task, the CONSULTANT will take the Contractor's red lined and surveyed as-built
information and incorporate them into the Construction Drawings for the Airport's record
purposes. Also, under this task the CONSULT ANT will assist the RPR in preparing the technical
related project closeout documentation in accordance with COUNTY and FAA requirements.
Page 3 of 4
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H 3--
HOLE M comp ai ny
Schedule
Below is an estimate of the days required by the CONSULT ANT for each task specified in this scope of
services .
2.1
3.1
Construction Meetings/Site
Visits
Closeout and Record
Docum ents
396
396
The tasks above do not occur in sequential order and can occur concurrently . The estimated total number of days
required to complete the services listed in this scope is thus 396 days. /
Fee Estimate
The fee for this task is a lump sum amount. The fees include, but are not limited to, reimbursement for trips,
long distance telephone calls, facsimiles , direct expenses , postage delivery, computer plots and work printing.
The performance and payment for tasks are contingent on the written execution of a Task Authorization. Only
work identified under an approved Task Authorization shall be performed by and subsequently paid to the
CONSULTANT. /
Task Total Lump Sum $57,288.00 /
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-:;. 0'• .'{//,::: C=US ~~·-.. ~'loR,ot:.•·· ~ ~ Date; 2023.10.05 08:28:11 -0-IW ,.,, .r_,, '••-···~•c; ,$:-❖,. •ONA\..,,,, 111111111111111'
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SCHENKEL SHUL TZ
ARCHITECTURE
DATE: May 8, 2023
TO: Mr. Austin Brown, PE
Hole Montes, Inc.
6200 Whiskey Creek Drive
Fort Myers, FL 33919
FROM: Gary F. Krueger, AIA
SCHENKELSHULTZ
PROJECT: New Multi-Use Aircraft Hangar at Marco Island Executive Airport
Naples, Florida
COMM NO: 2022711
Dear Austin,
proposal for professional services
SchenkelShultz is pleased to provide the following proposal. The scope of work and compensation for the project is described
below.
SCOPE OF WORK
Provide professional Architectural, Structural, Mechanical, Electrical, and Plumbing Engineering construction administration services
relative to the development of a new (approximately) 12,000sf, single story pre-engineered metal aircraft hangar building.
Civil Engineering Services to be provided by Hole Montes.
COMPENSATION
Compensation for services are as follows :
Construction Administration
■ Architecture
■ MEP
■ Structural
Expenses
FEE TOTAL:
ASSUMPTIONS
$14,550.00
$ 8,470.00
$ 1,000 .00
$ 250.00
$24,020.00
~ 250.00
$24,270.00
1. Professional design services anticipated for this project are limited to those disciplines listed above .
ADDITIONAL SERVICES
Other Additional Services required beyond basic scope, including but not limited to those listed Assumptions above shall be
negotiated on an as needed basis at which time a proposal for additional services will be provided .
If you find this proposal acceptable, please sign below and forward a copy to our office so that we may begin the process and engage
our Consultants
SCHENKELSHUL TZ
12553 New Britany Blvd • Fort Myers, Florida 33907
Phone 239-208-4826 • www.schenkelshultz .com • Architectural License AA-C000937
Page 5444 of 6355
./
Post Design Services for Marco Island Airport Bulk Hangar Fee Estimate
Collier County Contract #20-7806
of shop drawin s
iew
Site Visits**
Sub-Total Meetings and Site Visits
Record Drawings
3.2 Closeout assistance
Sub-Total Closeout and Record Documents 10 8 40
Sub-Total Manhours 66 26 132 8
Sub-Total $10,230 $4,420 $17 ,688 $680
TOT AL CA Services
TOT AL FEE EST T
Assumes 4 meetings during surcharge period and weekly 1-hour meetings after completion of surcharge (attended remotely)
Assumes 6 site visits throughout duration of project
Subconsultants
$24 ,270 .00
18.00
Page 5445 of 6355
;io--:rDO(s)
SCHEDULE B -ATTACHMENT 1
RATE SCHEDULE
.Title Hourly Rate
Principal $205
Senior Project Manaoer $195
Project Manager $155
Senior Enoineer $170
Enoineer $134
Senior Inspector $125
Senior Planner $170
Planner $122
Senior Desioner $118
Designer $115
Clerical/ Administrative $85
Surveyor and Maooer $173
CADD Technician $94
Senior GIS Specialist $95
The above hourly rates are applicable to Time and Materials task(s) only. The above list may not
be all inclusive. Hourly rates for additional categories required to provide pa11ic~lar project
services shall be mutually agreed upon by the County and firm, in Writing, on a project by project
basis, as needed, and will be set forth in the Work Order agreed upon by the parties.
[i] Grant Funded : The above hourly rates are for purposes of providing estimate(s), as required
by the granter agency.
Page 26 of33
PSA Fixed Tern, Cpntinuing Contract 2017 .009 Vcr.3
0
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3 E3
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
Page 5447 of 6355
16 E3
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
Page 5448 of 6355
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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
Page 5449 of 6355
16E3
Company's Witnesses: Bowman Gulf Coast LLC d/b/a Hole
Montes, a Bowman Company
pi Jill,0-41(
First Witness By: Signature
ti20rc.in , 1),ttn O ice„ 1 J /` /4-/-5EZ
INType/print witness name T Type/print name and title T
Secohd Witness
t-t'A"k1 111% Ka v
T Type/print witness name T
Page 4 of 13
Assumption Agreement CAO
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Exhibit"A-6"
Agreement No. 20-7802
General Professional Services for Airports (FDOT Funded)"
TO FOLLOW THIS PAGE
Page 10 of 13
Assumption Agreement C.
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16E3
PROFESSIONAL SERVICES AGREEMENT
FIXED TERM CONTINUING CONTRACT)
CCNA n NON-OC.NA
Contract# 20-7802
for
General Professional Services for Airports (FDOT Funded)
THIS AGREEMENT is made and entered into this \4e day of 549.14 t( , 20 21
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, FL 34110 hereinafter
referred to as the "CONSULTANT" and/or "CONTRACTOR").
WITNESSETH:
WHEREAS, the COUNTY desires to obtain the CONSULTANT'S services expeditiously
when a need arises in connection with a Collier County project; and
IS WHEREAS, Section 287.055, Florida Statutes, Consultant's Competitive Negotiation
Act, "CCNA", makes provisions for a fixed term contract with a firm to provide professional
services to a political subdivision, such as the County; and
II WHEREAS, the COUNTY has selected CONSULTANT in accordance with the
provisions of Section 287.055, Florida Statutes, to provide professional services on a fixed termbasisasdirectedbytheCOUNTYforsuchprojectsandtasksasmayberequiredfromtimeto
time by the COUNTY.
NOW, THEREFORE, in consideration of the mutual covenants and provisions contained
herein, the parties hereto agree as follows:
ARTICLE ONE
CONSULTANT'S RESPONSIBILITY
1.1. From time to time upon the written request or direction of the COUNTY as hereinafter
provided, CONSULTANT shall provide to the COUNTY professional services (hereinafter the
Services") as herein set forth. The term "Services" includes all Additional Services authorized by
written Amendment or Change Order as hereafter provided.
1.2. CONSULTANT acknowledges and agrees that services under this Agreement are to be
requested by the COUNTY on an as-needed basis only, and COUNTY makes no representation
or guarantee to CONSULTANT that the COUNTY will utilize CONSULTANT'S services
exclusively or at all.
Page 1 of 33
I'SA Fixed Term Continuing Contract 2017.009 Ver.3
Page 5452 of 6355
16 E3
1.3 All Services to be performed by the CONSULTANT pursuant to this Agreement shall be in
conformance with the scope of services, which shall be described in a Work Order issued pursuant
to the procedures described herein. The form of the Work Order is set forth in attached Schedule
A. Reference to the term "Work Order" herein, with respect to authorization of Services, includes
all written Amendments or Change Orders to any particular Work Order. The CONSULTANT
acknowledges and agrees that each individual Work Order shall not exceed $500,000 or the
maximum sum allowable by law under Florida's Consultants' Competitive Negotiation Act, Section
287.055, Florida Statutes, as amended, whichever is greater, and as agreed upon by the parties.
Work order assignments for CCNA contracts shall be made in accordance with the current
Procurement Ordinance, as amended.
1.4. FiMulti-Award) SELECTION OF CONSULTANT FOR WORK ORDERS. All
CONSULTANTS subject to this Agreement, including CONSULTANT, shall be placed on a
rotation list for professional service, as listed below.
1.4.1. Professional Services Library Rotation
a. Work assignments within each service category are awarded on a rotational basis
by the Airport Authority Division.
b. For each service category, the Airport Authority Division will place qualifying
firms in the Professional Services Library in the order they are ranked, with the
highest scoring firm placed in the first position in the rotation.
c. As each work assignment is identified the next firm in the rotation will be
offered the opportunity to negotiate that work assignment with the COUNTY's
Contract Administrative Agent/Project Manager.
d. Should a firm decline a work assignment, or be unable to reach a satisfactory
fee negotiation with the COUNTY within a reasonable time frame, the COUNTY
will contact the next firm on the list until the work assignment is successfully
negotiated.
e. Firms will have the option of rejecting one work assignment within each
service category within a twelve (12) month period without penalty. A second
work assignment rejection within any twelve (12) month period will cause the
firm to be skipped in the rotation. A firm who rejects three (3) work assignments
or is unable to satisfactorily negotiate 3 work assignments) in any twelve (12)
month period may be removed from the service category.
f. Firms wishing to reject a work assignment for any reason must complete a Work
Assignment Rejection Notification Form. A copy of this completed form must
be provided to the Procurement Division by the County's Contract Administrative
Agent/Project Manager.
g. Once a full rotation through all firms in a service category is complete, a method
that attempts to impart an equitable distribution of work among selected firms
will be based on prior dollars awarded; with the firm having received the least
amount of dollars being considered for the next work assignment.
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1.5. All Services must be authorized in writing by the COUNTY in the form of a Work Order.
The CONSULTANT shall not provide any Services to the COUNTY unless and to the extent they
are required in a written Work Order. Any Services provided by CONSULTANT without a written
Work Order shall be at CONSULTANT's own risk and the COUNTY shall have no liability for such
Services.
1.6. As the COUNTY identifies certain Services it wishes CONSULTANT to provide pursuant
to the terms of this Agreement, the COUNTY shall request a proposal from CONSULTANT for
such Services, said proposal to be in compliance with the terms of this Agreement. If the parties
reach an agreement with respect to such Services, including, but not limited to the scope,
compensation and schedule for performance of those Services, a Work Order shall be prepared
which incorporates the terms of the understanding reached by the parties with respect to such
Services; and if both parties are in agreement therewith, they shall jointly execute the Work Order.
Upon execution of a Work Order as aforesaid, CONSULTANT agrees to promptly provide the
Services required thereby, in accordance with the terms of this Agreement and the subject Work
Order.
1.7. It is mutually understood and agreed that the nature, amount and frequency of the Services
shall be determined solely by the COUNTY and that the COUNTY does not represent or
guarantee to CONSULTANT that any specific amount of Services will be requested or required of
CONSULTANT pursuant to this Agreement.
1.8. The CONSULTANT shall have no authority to act as the agent of the COUNTY under this
Agreement or any Work Order, or to obligate the COUNTY in any manner or way.
1.9. All duly executed Work Orders (including all written Amendments or Change Orders
thereto) are hereby incorporated into and made a part of this Agreement by reference.
1.10. 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.
1.11. 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 authorizationorotherformoflegalentitlementtopracticesuchservices, it shall employ and/or retain only
qualified personnel to provide such services to the COUNTY.
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1.12. The CONSULTANT designates Timothy J. Parker, P.E., C.M. 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. In each Work Order
CONSULTANT will designate a qualified licensed professional to serve as CONSULTANT's
project coordinator for the Services to be provided under that Work Order (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 the Work Order. Further, the Project
Coordinator has full authority to bind and obligate the CONSULTANT on all matters arising out of
or relating to the Work Order. The CONSULTANT agrees that the Principal in Charge and the
Project Coordinators shall devote whatever time is required to satisfactorily manage the services
to be provided and performed by the CONSULTANT under the Work Order. CONSULTANT
further agrees that the Principal in Charge and Project Coordinators shall not be removed by
CONSULTANT without the COUNTY's prior written approval, and if so removed must be
immediately replaced with a person acceptable to the COUNTY.
1.13. The 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, or any
applicable Work Order, said request may be made with or without cause. Any personnel so
removed must be immediately replaced with a person acceptable to the COUNTY.
1.14. 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:
Communication and Customer Relations Division
3299 Tamiami Trail East, Suite 102
Naples, FL 34112-5746
Telephone: (239) 252-8999
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The Contractor must specifically comply with the Florida Public Records Law to:
1. Keep and maintain public records required by the public agency to perform the
service.
2. Upon request from the public agency's custodian of public records, provide the
public agency with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed the cost
provided in this chapter or as otherwise provided by law.
3. Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law for
the duration of the contract term and following completion of the contract if the
Contractor does not transfer the records to the public agency.
4. Upon completion of the contract, transfer, at no cost, to the public agency all public
records in possession of the Contractor or keep and maintain public records
required by the public agency to perform the service. If the Contractor transfers all
public records to the public agency upon completion of the contract, the Contractor
shall destroy any duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements. If the Contractor keeps and
maintains public records upon completion of the contract, the Contractor shall meet
all applicable requirements for retaining public records. All records stored
electronically must be provided to the public agency, upon request from the public
agency's custodian of public records, in a format that is compatible with the
information technology systems of the public agency.
If Contractor observes that the Contract Documents are at variance therewith, it shall promptly
notify the COUNTY in writing. Failure by the Contractor to comply with the laws referenced herein
shall constitute a breach of this Agreement and the COUNTY shall have the discretion to
unilaterally terminate this Agreement immediately.
1.15. 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 COUNTY's 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.
1.16. 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 CONSULTANT 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.
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1.17. The 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.
1.18. 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 an Amendment or Change Order to a Work
Order, CONSULTANT shall furnish or obtain from others Additional Services beyond those
Services originally authorized in the Work Order. The agreed upon scope, compensation and
schedule for Additional Services shall be set forth in the Amendment or Change Order 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.
Except in an emergency endangering life or property, any Additional Services must be approved
in writing via an Amendment or Change Order to the subject Work Order 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 Services originally required of CONSULTANT under the subject Work Order.
2.2. If the COUNTY determines that a change in a Work Order is required because of the action
taken by CONSULTANT in response to an emergency, an Amendment or Change Order 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 the subject Work
Order.
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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 as set forth
in the Work Order;
b. The time the CONSULTANT is obligated to commence and complete all such services
as set forth in the Work Order; or
c. The amount of compensation the COUNTY is obligated or committed to pay the
CONSULTANT as set forth in the Work Order.
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 Services specified in the Work Order, 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 Services specified in the Work Order, including existing drawings,
specifications, shop drawings, product literature, previous reports and any other data
relative to the subject Work Order;
d. Arrange for access to and make all provisions for CONSULTANT to enter the site (if
any) set forth in the Work Order to perform the Services to be provided by
CONSULTANT under the subject Work Order; 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. Each Work Order will have a time schedule ("Schedule") for the performance of the
Services required under the subject Work Order. Said Schedule shall be in a form and content
satisfactory to the COUNTY. Services to be rendered by CONSULTANT shall be commenced,
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performed and completed in accordance with the Work Order and the Schedule. Time is of the
essence with respect to the performance of the Services under each Work Order.
4.2. Should CONSULTANT be obstructed or delayed in the prosecution or completion of the
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. Unless otherwise expressly provided in the Work Order, no interruption, interference,
inefficiency, suspension or delay in the commencement or progress of CONSULTANT's Services
from any cause whatsoever, including those for which 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 the 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.
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 under this Agreement (including any
and all Work Orders) 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 any particular Work Order 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.
4.6. The period of service shall be from the date of execution of this Agreement through
three (3 ) year(s) from that date, or until such time as all outstanding Work Orders issued
prior to the expiration of the Agreement period have been completed. The COUNTY may, at its
discretion and with the consent of the CONSULTANT, renew the Agreement under all of the terms
and conditions contained in this Agreement for two 2 ) additional one 1 )
year(s) periods. The COUNTY shall give the CONSULTANT written notice of the COUNTY's
intention to renew the Agreement term prior to the end of the Agreement term then in effect.
4.7. The County Manager, or his designee, may, at his discretion, extend the Agreement under
all of the terms and conditions contained in this Agreement for up to one hundred and eighty (180)
days. The County Manager, or his designee, shall give the CONSULTANT written notice of the
COUNTY's intention to extend the Agreement term prior to the end of the Agreement term then
in effect.
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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 each Work Order. The
Project Manager, or designee, reserves the right to request proposals from this agreement
utilizing any of the following Price Methodologies:
Lump Sum (Fixed Price): A firm fixed total price offering for a project; the risks are
transferred from the COUNTY to the CONSULTANT; and, as a business practice there are no
hourly or material invoices presented, rather, the CONSULTANT must perform to the satisfaction
of the COUNTY's Project Manager before payment for the fixed price contract is authorized.
Time and Materials: The COUNTY agrees to pay the contractor for the amount of labor
time spent by the 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, Attachment 1, Rate Schedule,
which is attached hereto, shall apply only to projects procured under the Time and Materials
pricing methodology specified in paragraph 5.1 above. • Grant Funded: The hourly rates as
set forth and identified in Schedule B, Attachment 1, Rate Schedule, which is attached hereto, are
for purposes of providing estimate(s), as required by the grantor agency.
ARTICLE SIX
OWNERSHIP OF DOCUMENTS
6.1. Upon the completion or termination of each Work Order, 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 the applicable Work Order ("Project Documents"). The COUNTY shall
specify whether the originals or copies of such Project Documents are to be delivered by
CONSULTANT. The CONSULTANT shall be solely responsible for all costs associated with
delivering to the COUNTY the Project Documents. The 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 with
respect to the applicable authorized project or task. The CONSULTANT warrants to the COUNTY
that it has full right and authority to grant this license to the COUNTY. Further, CONSULTANT
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consents to the COUNTY's use of the Project Documents to complete the subject project or task
following CONSULTANT'S termination for any reason or to perform additions to or remodeling,
replacement or renovations of the subject project or task. The 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.
ARTICLE SEVEN
MAINTENANCE OF RECORDS
7.1. The 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 this Agreement or
b) the date of the Work Order 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 defend, 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 paragraph 8.1.
8.1. To the extent that the Agreement 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 Section 725.08(1) & (2), Florida Statutes.
END OF ARTICLE EIGHT]
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ARTICLE NINE
INSURANCE
9.1. The 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 C 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.
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 coverages of CONSULTANT shall be primary to any insurance or self-
insurance program carried by the COUNTY, and the "Other Insurance" provisions of any policies
obtained by CONSULTANT shall not apply to any insurance or self-insurance program carried by
COUNTY.
9.3.4. The Certificates of Insurance, which are to be provided in an Occurrence Form
patterned after the current I.S.O. form with no limiting endorsements, must reference and identify
this Agreement.
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. The 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.
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ARTICLE TEN 1 6 L "
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 to each Work Order shall be a Schedule that lists all of the key personnel
CONSULTANT intends to assign to perform the Services required under that Work Order. Such
personnel shall be committed to the project or task specified in the Work in accordance with the
percentages noted in the attached schedule. CONSULTANT shall also identify in that Schedule
each subconsultant and subcontractor it intends to utilize with respect to the subject Work Order.
All personnel, subconsultants and subcontractors identified in the Schedule shall not be removed
or replaced without the COUNTY's prior written consent.
10.3. The 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 any
subsequently issued Work Order, and to assume toward the CONSULTANT all the obligations
and responsibilities which the CONSULTANT, by this Agreement and any subsequently issued
Work Order, assumes toward the COUNTY. Each subconsultant or subcontract agreement shall
preserve and protect the rights of the COUNTY under this Agreement, and any subsequently
issued Work Order, with respect to the Services to be performed by the subconsultant or
subcontractor so that the subconsulting 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. The 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. The CONSULTANT's acceptance of final payment for Services provided under any Work
Order shall constitute a full waiver of any and all claims, except for insurance company
subrogation claims, by it against the COUNTY arising out of the Work Order or otherwise related
to those Services, and except those previously made in writing in accordance with the terms of
this Agreement and identified by CONSULTANT in its final invoice for the subject Work Order as
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unsettled. Neither the acceptance of CONSULTANT's Services nor payment by the COUNTY
shall be deemed to be a waiver of any of COUNTY's rights against CONSULTANT.
ARTICLE TWELVE
TERMINATION OR SUSPENSION
12.1. This Agreement is a fixed term contract for the professional services of CONSULTANT. It
is agreed that either party hereto shall at any and all times have the right and option to terminate
this Agreement by giving to the other party not less than thirty (30) days prior written notice of
such termination. Upon this Agreement being so terminated by either party hereto, neither party
hereto shall have any further rights or obligations under this Agreement subsequent to the date
of termination, except that Services specified to be performed under a previously issued Work
Order, shall proceed to completion under the terms of this Agreement.
12.2. The CONSULTANT shall be considered in material default of this Agreement and such
default will be considered cause for the COUNTY to terminate this Agreement and any Work
Orders in effect, 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 any particular Work Order within
the times specified under that Work Order, 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 and any Work Orders in effect,
or (f) for any other just cause. The COUNTY may so terminate this Agreement and any Work
Orders in effect, in whole or in part, by giving the CONSULTANT seven (7) calendar days written
notice of the material default.
12.3. 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 12.2, then the notice of termination given pursuant to paragraph 12.2
shall be deemed to be the notice of termination provided for in paragraph 12.4, below, and
CONSULTANT's remedies against the COUNTY shall be the same as and be limited to those
afforded CONSULTANT under paragraph 12.4 below.
12.4. Notwithstanding anything herein to the contrary (including the provisions of paragraph 12.1
above), the COUNTY shall have the right to terminate this Agreement and any Work Orders in
effect, 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 the fee earned through the date of
termination, for any Work Orders so cancelled, 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 Services not required to be performed.
CONSULTANT must mitigate all such costs to the greatest extent reasonably possible.
12.5. 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
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and described in this Agreement. including those described in Article 6, that are in
CONSULTANT's possession or under its control arising out of or relating to this Agreement or any
Work Orders.
12.6. 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.
12.7. In the event (i) the COUNTY fails to make any undisputed payment to CONSULTANT
within forty-five (45) days after such payment is due as set forth in the Work Order 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
or subsequently issued Work Order, 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 the subject Work Order 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 applicable Work Order. 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 the subject Work Order by giving written notice to the COUNTY of CONSULTANT's
intent to terminate that Work Order. 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 subject Work Order 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. The 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 or any subsequent Work Order.
13.2. n CCNA Projects: 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 D, certifying that wage rates and other
factual unit costs supporting the compensation for CONSULTANT's services to be provided under
this Agreement and each subsequent Work Order issued hereafter, if any, are accurate, complete
and current at the time of the Agreement or such subsequent Work Order. The CONSULTANT
agrees that the original price as set forth in each subsequent issued Work Order, if any, and any
additions thereto shall be adjusted to exclude any significant sums by which the COUNTY
determines the price as set forth in the Work Order was increased due to inaccurate, incomplete,
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or non-current wage rates and other factual unit costs. All such adjustments shall be made within
one (1) year following the end of the subject Work Order.
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.
15.2. In the event that the need for changes to the Services under a Work Order may arise
during the course of the work, the associated tasks may be modified at the request of the Project
Manager or his designee. Written authorization from the Project Manager will be required in
accordance with the Procurement Ordinance, as amended, and Procedures. For any changes
that exceed an existing Work Order amount, the Work Order shall be modified to reflect the
increase prior to any related Services being performed.
15.3. All duly executed modifications to Work Orders (including all written modifications or
Changes thereto) are hereby incorporated into and made a part of this Agreement by reference.
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: Operations Support Divison (Airport Authority)
Division Director: Gene Shue
Address: 2885 Horseshoe Drive S
Naples, FL 34104
Administrative Agent/PM: Andrew Bennett, Executive Manager
Telephone: 239) 252-8425
E-Mail(s): Andrew.Bennett@colliercountyfl.gov
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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
Authorized Agent: Richard E. Brylanski, VP
Attention Name & Title: Timothy J. Parker, P.E.
Telephone: 239) 985-1200
E-Mail(s): RickBrylanski@HMeng.com
TimParker@HMeng.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. The 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.
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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 WORK ORDER
Schedule B RATE SCHEDULE
Schedule C INSURANCE
Schedule D CCNA Projects: TRUTH IN NEGOTIATION CERTIFICATE
Schedule E Other: Federal Contract Provisions, Certifications and Assurances
Solicitation # 20-7802 including all Attachment(s), Exhibit(s) and
Addendum/Consultant's Proposal
17.10. II 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.
17.11. Applicability. Sections corresponding to any checked box (NI ) expressly apply to the
terms of this Agreement.
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. The 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. 111 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 D.
The CONSULTANT's compensation as set forth in each subsequently issued Work Order, if any,
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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."
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. Failure by the CONSULTANT to
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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)
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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 Court &
Comptroller
By: A---By:
Date: PENNY TAYLOR Chair
Attest to Chairman's
signature'only
A proved a to Ft 7Le ahty:
County Attorney
re
Consultant:
SGe1) ews-1 Hole Montes, Inc.
Name
onsultant's Witne es:
By:
jtrase
Name and Title l Name and Title
a
itn-ems
Name and Title
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SCHEDULE A
WORK ORDER
Contract 00-0000"Name of Contract"
Contract Expiration Date:20
This Work Order is for professional(describe)services for work known as:
Project Name:
Project No:
The work is specified in the proposal dated ,20 which is attached hereto and made a part of this Work Order. In
accordance with Terms and Conditions of the Agreement referenced above,this Work Order is assigned to:Name of Firm
Scope of Work: As detailed in the attached proposal and the following:
Task l
Task ll
Task III
Schedule of Work: Complete work within days from the date of the Notice to Proceed which is accompanying this Work
Order. The Consultant agrees that any Work Order that extends beyond the expiration date of Agreement#00-0000 will survive
and remain subject to the terms and conditions of that Agreement until the completion or termination of this Work Order.
Compensation: In accordance with the Agreement referenced above,the County will compensate the Firm in accordance with
following method(s): ONegotiated Lump Sum (NLS) Lump Sum Plus Reimbursable Costs(LS+RC) Time & Material
T&M)(established hourly rate—Schedule A) OCost Plus Fixed Fee(CPFF), (define which method will be used for which
tasks)as provided in the attached proposal.
Task I
Task II
Task III
TOTAL FEE
PREPARED BY:
Name and Title Date
APPROVED BY:
Dept Name),Division Director Date
APPROVED BY:
type name,Department Head Date
By the signature below,the Firm(including employees,officers and/or agents)certifies,and hereby discloses,that,to the best of their knowledge and belief,all
relevant facts concerning past,present,or currently planned interest or activity(financial,contractual,organizational,or otherwise)which relates to the proposed
work;and bear on whether the Firm has a potential conflict have been fully disclosed.
Additionally,the Firm agrees to notify the Procurement Director,in writing within 48 hours of learning of any actual or potential conflict of interest that arises
during the Work Order and/or project duration.
ACCEPTED BY: (Firm Name)
Name&Title of Authorized Officer Date
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SCHEDULE B
BASIS OF COMPENSTATION
1. SERVICES
B.1.1. As the COUNTY identifies certain Services it wishes CONSULTANT to provide pursuant
to the terms of this Agreement, the COUNTY shall request a proposal from CONSULTANT for
such Services, said proposal to be in compliance with the terms of this Agreement. If the parties
reach an agreement with respect to such Services, including, but not limited to the scope,
compensation and schedule for performance of those Services, a Work Order shall be issued
which incorporates the terms of the understanding reached by the parties with respect to such
Services.
B.1.1.1. The COUNTY may request that CONSULTANT in writing advise the COUNTY of
i) the estimated time of CONSULTANT's personnel and the estimated fees thereof for the
proposed work to be specified in the Work Order; and (ii) the estimated charge to the COUNTY
for the reimbursable expenses applicable to the contemplated Services to be performed by
CONSULTANT under the proposed Work Order. CONSULTANT shall promptly supply such
estimate to the COUNTY based on CONSULTANT's good faith analysis.
B.1.2. All Services to be performed by CONSULTANT pursuant to this Agreement shall be in
conformance with the scope of services, which shall be described in a Work Order issued pursuant
to the procedures described herein. Reference to the term Work Order herein, with respect to
authorization of Services, includes all written Work Order Modifications or Amendments.
B.1.3. All Services must be authorized in writing by the COUNTY in the form of a Work Order.
CONSULTANT shall not provide any Services to the COUNTY unless and to the extent they are
required in a written Work Order. Any Services provided by CONSULTANT without a written
Work Order shall be at CONSULTANT's own risk and the COUNTY shall have no liability for such
Services.
B.1.4. Upon issuance of a Work Order as aforesaid, CONSULTANT agrees to promptly provide
the Services required thereby, in accordance with the terms of this Agreement and the subject
Work Order.
2. COMPENSATION TO CONSULTANT
B.2.1. Payments for Basic Services and Additional Basic Services as set forth herein or the Work
Order shall be made upon presentation of the CONSULTANT's invoice approved by the
COUNTY.
B.2.2. 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.
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B.2.3. For the Services provided for in this Agreement, the COUNTY agrees to make payments
to CONSULTANT based upon CONSULTANT's Direct Labor Costs and Reimbursable Expenses
or as a Lump Sum.
B.2.4. I Time and Material Fees: Direct Labor Costs mean the actual salaries and wages (basic,
premium and incentive) paid to CONSULTANT's personnel, with respect to this Agreement,
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.2.4.1. 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 B.3.4.1
below. There shall be no overtime pay on Additional Services without the COUNTY's prior written
approval.
B.2.4.2. 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.
B.2.5. Lump Sum Fees: The fees noted in the Work Order shall constitute the lump sum
amount to be paid to CONSULTANT for the performance of the Services. CONSULTANT shall
submit to the COUNTY as part of its monthly invoice a progress report reflecting the status, in
terms of the total work effort estimated to be required for the completion of the Services authorized
under the Work Order and any then-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. There shall be no overtime pay without the COUNTY's prior
written approval.
B.2.6. For Additional Services provided pursuant to Article 2 of the Agreement, 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 provisions of Section 3 below. There shall
be no overtime pay on Services or Additional Services without COUNTY's prior written approval.
B.2.7. 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 a particular Work Order or Additional Services, CONSULTANT shall be limited
to a maximum markup of five percent (5%) on the fees and expenses associated with such
subconsultants and subcontractors.
B.2.8. The CONSULTANT agrees to furnish to the COUNTY, after the end of each calendar
month, or as specified in the Work Order, statement of charges for the Services performed and
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rendered by CONSULTANT during that time period, and for any the COUNTY authorized
reimbursable expenses as herein below defined, incurred and/or paid by CONSULTANT during
that time period. The monthly statement shall be in such form and supported by such
documentation as may be required by the COUNTY. Notwithstanding anything herein to the
contrary, the CONSULTANT shall submit no more than one (1) invoice per month for both Basic
Services and Additional Services. Invoices shall be reasonably substantiated, identify the
services rendered and must be submitted in a form and manner required by the COUNTY.
B.2.9. 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.2.10. 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. REIMBURSABLE EXPENSES
B.3.1. Payments for Additional Services of CONSULTANT as defined in Section 2 hereinabove
and for reimbursable expenses will be made monthly upon presentation of a detailed invoice with
supporting documentation.
B.3.2. 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.
B.3.3. The COUNTY agrees to reimburse CONSULTANT for all necessary and reasonable
reimbursable expenses incurred or paid by CONSULTANT in connection with CONSULTANT's
performance of the Services, at its direct cost with no markup; to the extent such reimbursement
is permitted in the Work Order and in accordance with Section 112.061, F.S., or as set forth in
this Agreement. Reimbursable expenses shall be invoiced for the expenditures incurred by the
CONSULTANT as stated below.
5.3.3.1. Cost for reproducing documents that exceed the number of documents described
in this Agreement and postage and handling of Drawings and Specifications including duplicate
sets at the completion of each Work Order for the COUNTY's review and approval.
5.3.3.2. 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 Section 112.061, F.S. 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.
5.3.3.3. Expense of overtime work requiring higher than regular rates approved in advance
and in writing by the COUNTY.
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5.3.3.4. Permit Fees required by the Project.
5.3.3.5. Expense of models for the COUNTY's use.
5.3.3.6. Fees paid for securing approval of authorities having jurisdiction over the Work
Order required under the applicable Work Order.
5.3.3.7. Other items on request and approved in writing by the COUNTY.
5.3.4. 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.
5.3.5. Records of Reimbursable Expenses shall be kept on a generally recognized accounting
basis.
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SCHEDULE B -ATTACHMENT 1
RATE SCHEDULE
Title Hourly Rate
Principal 205
Senior Project Manager 195
Project Manager 140
Senior Engineer 170
Engineer 134
Senior Inspector 125
Senior Planner 170
Planner 122
Senior Designer 118 --
Designer 115
Clerical/Administrative 85
Surveyor and Mapper 173
CADD Technician 94
Senior GIS Specialist 95
The above hourly rates are applicable to Time and Materials task(s) only. The above list may not
be all inclusive. Hourly rates for additional categories required to provide particular project
services shall be mutually agreed upon by the County and firm, in writing, on a project by project
basis, as needed, and will be set forth in the Work Order agreed upon by the parties.
n Grant Funded: The above hourly rates are for purposes of providing estimate(s), as required
by the grantor agency.
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SCHEDULE C
INSURANCE COVERAGE 16 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,
Page 27 of 33
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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 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.
10. WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY.
Required by this Agreement? Yes n No
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.
11. United States Longshoreman's and Harbor Worker's Act coverage shall be maintained
where applicable to the completion of the work. Required by this Agreement? Yes No
12. Maritime Coverage (Jones Act) shall be maintained where applicable to the completion
of the work.
Required by this Agreement? Yes 111 No
13. COMMERCIAL GENERAL LIABILITY.
Required by this Agreement? (I Yes I I No
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
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161- .
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.
14. Collier County Board of County Commissioners, OR, Board of County Commissioners in
Collier County, OR, Collier County Government shall be listed as the Certificate Holder and
included as an "Additional Insured" on the Insurance Certificate for Commercial General Liability
where required. 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 coverage shall be carried by the CONSULTANT or the
SUBCONSULTANT in limits of not less than the Commercial General Liability limit shown in
subparagraph (1) above if applicable to the completion of the Services under this Agreement.
Required by this Agreement? Yes • No
16. Aircraft 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.
Required by this Agreement? [ Yes • No
17. AUTOMOBILE LIABILITY INSURANCE.
Required by this Agreement? i111• Yes No
Business Auto Liability: Coverage shall have minimum limits of $ 1,000,000 Per
Occurrence, Combined Single Limit for Bodily Injury Liability and Property Damage Liability. This
shall include: Owned Vehicles, Hired and Non-Owned Vehicles and Employee Non-The
ownership.
18. TECHNOLOGY ERRORS and OMISSIONS INSURANCE.
Required by this Agreement? Yes III No
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Technology Errors and Omissions Insurance: Coverage shall have minimum limits of
Per Occurrence.
19. POLLUTION INSURANCE.
Required by this Agreement? Yes U No
Pollution Insurance: Coverage shall have minimum limits of$ Per Occurrence.
20. UMBRELLA LIABILITY.
A. Umbrella Liability may be maintained as part of the liability insurance of the
CONSULTANT and, if so, such policy shall be excess of the Employers' Liability, Commercial
General Liability, and Automobile Liability coverages required herein and shall include all
coverages on a "following form" basis.
B. The policy shall contain wording to the effect that, in the event of the exhaustion of any
underlying limit due to the payment of claims, the Umbrella policy will "drop down" to apply as
primary insurance.
21. PROFESSIONAL LIABILITY INSURANCE.
Required by this Agreement? Yes No
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 $ 1,000,000 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 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.
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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 C
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16E3
this schedule is not applicable
SCHEDULE D
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 "General Professional Services for Airports(FDOT Funded)
project is accurate, complete and current as of the time of contracting.
BY: 20LcV
TITLE: V P.
DATE: W002-I
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SCHEDULE E
Other: Federal Contract Provisions, Certifications and Assurances
Description)
IJ following this page (page/s
1
through
23
this schedule is not applicable
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Page 5484 of 6355
16 E3
EXHIBIT IA—FEDERAL CONTRACT PROVISIONS (FAA)
FAA Funded Airport Improvement Program Projects(AIP) Grants
CFDA 20.106
CONTRACTOR COMPLIANCE REQUIREMENT OVERVIEW
The services performed by the awarded Contractor shall be in compliance with all applicable FAA
regulations/requirements, and additional requirements specified in this document. It shall be the awarded
Contractor's responsibility to acquire and utilize the necessary manuals and guidelines that apply to the
work required to complete this project.In general,
1) The contractor(including all subcontractors) must insert these contract provisions in each lower
tier contracts(e.g.subcontract or sub-agreement);
2) The contractor(or subcontractor) must incorporate the applicable requirements of these contract
provisions by reference for work done under any purchase orders, rental agreements and other
agreements for supplies or services;
3) The prime contractor is responsible for compliance with these contract provisions by any
subcontractor, lower-tier subcontractor or service provider.
CONTRACT AND SOLICITATION CLAUSES(1-15)
1. ACCESS TO RECORDS AND REPORTS
2 CFR§200.333; 2 CFR§200.336; FAA Order 5100.38
Contract Clause A1.3 also applies to subcontracts.)
CONTRACT CLAUSE A1.3 (Access to Records and Reports): The Contractor must maintain an
acceptable cost accounting system. The Contractor agrees to provide the sponsor, the Federal Aviation
Administration, and the Comptroller General of the United States or any of their duly authorized
representatives, access to any books, documents, papers, and records of the contractor which are directly
pertinent to the specific contract for the purpose of making audit,examination,excerpts and transcriptions.
The Contractor agrees to maintain all books, records and reports required under this contract for a period
of not less than three years after final payment is made and all pending matters are closed.
2. BREACH OF CONTRACT TERMS
2 CFR§200 Appendix II(A)
Applies to contracts =/>$150,000.)
CONTRACT CLAUSE A3.3 (Breach of Contract Terms): Any violation or breach of terms of this
contract on the part of the Contractor or Consultant or its subcontractors may result in the suspension or
termination of this contract or such other action that may be necessary to enforce the rights of the parties of
this agreement. The County will provide the Contractor or Consultant written notice that describes the
nature of the breach and corrective actions the Contractor or Consultant must undertake in order to avoid
termination of the contract. County reserves the right to withhold payments to Contractor until such time
the Contractor corrects the breach or the County elects to terminate the contract.The County's notice will
identify a specific date by which the Contractor or Consultant must correct the breach. County may proceed
with termination of the contract if the Contractor or Consultant fails to correct the breach by deadline
indicated in the County's notice. The duties and obligations imposed by the Contract Documents and the
rights and remedies available there under are in addition to,and not a limitation of,any duties,obligations,
rights and remedies otherwise imposed or available by law.
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EXHIBIT 1A—FEDERAL CONTRACT PROVISIONS(FAA)
FAA Funded Airport Improvement Program Projects(AIP) Grants
CFDA 20.106
3. CIVIL RIGHTS - GENERAL
49 USC§47123
CONTRACT CLAUSE A5.3.1 (General Civil Rights Provisions): The contractor agrees to comply with
pertinent statutes,Executive Orders and such rules as are promulgated to ensure that no person shall,on the
grounds of race,creed,color, national origin, sex, age,or disability be excluded from participating in any
activity conducted with or benefiting from Federal assistance. This provision binds the Contractor and
subcontractors from the bid solicitation period through the completion of the contract.This provision is in
addition to that required of Title VI of the Civil Rights Act of 1964.
1. CIVIL RIGHTS - TITLE VI ASSURANCE
SOLICITATION CLAUSE A6.3.1 (Title VI Solicitation Notice): Collier County, in accordance
with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 U.S.C. §§ 2000d to
2000d-4) and the Regulations, hereby notifies all bidders or offerors that it will affirmatively ensure
that any contract entered into pursuant to this advertisement, disadvantaged business enterprises will
be afforded full and fair opportunity to submit bids in response to this invitation and will not be
discriminated against on the grounds of race,color,or national origin in consideration for an award.
CONTRACT CLAUSES A6.4.1 (Title VI Clauses for Compliance with Nondiscrimination
Requirements): During the performance of this contract, the contractor, for itself, its assignees,and
successors in interest(hereinafter referred to as the"contractor")agrees as follows:
I) Compliance with Regulations: The contractor(hereinafter includes consultants)will comply
with the Title VI List of Pertinent Nondiscrimination Acts and Authorities, as they may be
amended from time to time,which are herein incorporated by reference and made a part of this
contract.
2) Nondiscrimination: The contractor, with regard to the work performed by it during the
contract,will not discriminate on the grounds of race,color, or national origin in the selection
and retention of subcontractors, including procurements of materials and leases of equipment.
The contractor will not participate directly or indirectly in the discrimination prohibited by the
Nondiscrimination Acts and Authorities, including employment practices when the contract
covers any activity,project,or program set forth in Appendix B of 49 CFR part 21.
3) Solicitations for Subcontracts, including Procurements of Materials and Equipment: In
all solicitations,either by competitive bidding,or negotiation made by the contractor for work
to be performed under a subcontract, including procurements of materials, or leases of
equipment, each potential subcontractor or supplier will be notified by the contractor of the
contractor's obligations under this contract and the Nondiscrimination Acts and Authorities on
the grounds of race,color,or national origin.
4) Information and Reports: The Contractor will provide all information and reports required
by the Acts,the Regulations, and directives issued pursuant thereto and will permit access to
its books, records, accounts, other sources of information, and its facilities as may be
determined by the sponsor or the Federal Aviation Administration to be pertinent to ascertain
compliance with such Nondiscrimination Acts and Authorities and instructions. Where any
information required of a contractor is in the exclusive possession of another who fails or
refuses to furnish the information,the Contractor will so certify to the sponsor or the Federal
Aviation Administration, as appropriate, and will set forth what efforts it has made to obtain
the information.
5) Sanctions for Noncompliance: In the event of a Contractor's noncompliance with the Non-
discrimination provisions of this contract,the sponsor will impose such contract sanctions as it
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EXHIBIT IA—FEDERAL CONTRACT PROVISIONS(FAA)
FAA Funded Airport Improvement Program Projects(AIP) Grants
CFDA 20.106
or the Federal Aviation Administration may determine to be appropriate, including, but not
limited to:
a. Withholding payments to the Contractor under the contract until the Contractor complies;
and/or
b. Cancelling,terminating,or suspending a contract, in whole or in part.
6) Incorporation of Provisions: The Contractor will include the provisions of paragraphs one
through six in every subcontract,including procurements of materials and leases of equipment,
unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The
Contractor will take action with respect to any subcontract or procurement as the sponsor or
the Federal Aviation Administration may direct as a means of enforcing such provisions
including sanctions for noncompliance. Provided, that if the contractor becomes involved in,
or is threatened with litigation by a subcontractor, or supplier because of such direction, the
contractor may request the sponsor to enter into any litigation to protect the interests of the
sponsor. In addition, the Contractor may request the United States to enter into the litigation
to protect the interests of the United States.
CONTRACT CLAUSES A6.4.5 (Title VI List of Pertinent Nondiscrimination Acts and
Authorities): During the performance of this contract, the contractor, for itself, its assignees, and
successors in interest(hereinafter referred to as the"contractor")agrees to comply with the following
non-discrimination statutes and authorities; including but not limited to:
Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq., 78 stat. 252), (prohibits
discrimination on the basis of race,color,national origin);
49 CFR part 21 (Non-discrimination in Federally-Assisted Programs of The Department of
Transportation—Effectuation of Title VI of The Civil Rights Act of 1964);
The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42
U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been
acquired because of Federal or Federal-aid programs and projects);
Section 504 of the Rehabilitation Act of 1973,(29 U.S.C. § 794 et seq.),as amended, (prohibits
discrimination on the basis of disability);and 49 CFR part 27;
The Age Discrimination Act of 1975, as amended, (42 U.S.C. § 6101 et seq.), (prohibits
discrimination on the basis of age);
Airport and Airway Improvement Act of 1982, (49 USC § 471, Section 47123), as amended,
prohibits discrimination based on race,creed,color,national origin,or sex);
The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and
applicability of Title VI of the Civil Rights Act of 1964,The Age Discrimination Act of 1975 and
Section 504 of the Rehabilitation Act of 1973,by expanding the definition of the terms"programs
or activities"to include all of the programs or activities of the Federal-aid recipients,sub-recipients
and contractors,whether such programs or activities are Federally funded or not);
Titles II and III of the Americans with Disabilities Act of 1990,which prohibit discrimination on
the basis of disability in the operation of public entities, public and private transportation systems,
places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131 — 12189) as
implemented by Department of Transportation regulations at 49 CFR parts 37 and 38;
The Federal Aviation Administration's Nondiscrimination statute(49 U.S.C. §47123)(prohibits
discrimination on the basis of race,color,national origin,and sex);
Executive Order 12898, Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations, which ensures non-discrimination against minority
populations by discouraging programs, policies, and activities with disproportionately high and
adverse human health or environmental effects on minority and low-income populations;
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EXHIBIT 1A—FEDERAL CONTRACT PROVISIONS (FAA)
FAA Funded Airport Improvement Program Projects (AIP) Grants
CFDA 20.106
Executive Order 13166, Improving Access to Services for Persons with Limited English
Proficiency,and resulting agency guidance,national origin discrimination includes discrimination
because of limited English proficiency(LEP). To ensure compliance with Title VI,you must take
reasonable steps to ensure that LEP persons have meaningful access to your programs (70 Fed.
Reg.at 74087 to 74100);
Title IX of the Education Amendments of 1972, as amended, which prohibits you from
discriminating because of sex in education programs or activities(20 U.S.C. 1681 et seq).
4. CLEAN AIR AND WATER POLLUTION CONTROL
2 CFR§200,Appendix II(G)
Applies to all contracts and subcontracts that exceed $150,000.)
CONTRACT CLAUSE A7.3 (Clean Air and Water Pollution Control): Contractor agrees to comply
with all applicable standards,orders,and regulations issued pursuant to the Clean Air Act(42 U.S.C.§740-
7671q)and the Federal Water Pollution Control Act as amended(33 U.S.C. § 1251-1387).The Contractor
agrees to report any violation to the County immediately upon discovery. The County assumes
responsibility for notifying the Environmental Protection Agency (EPA) and the Federal Aviation
Administration.Contractor must include this requirement in all subcontracts that exceed$150,000.
5. DEBARMENT AND SUSPENSION
2 CFR part 180(Subpart C); 2 CFR part 1200; DOT Order 4200.5
Applies to contracts and subcontracts of$25,000 or more.)
SOLICITATION CLAUSE A11.3; A11.3.1 (Certification of Offerer/Bidder Regarding Debarment):
By submitting a bid/proposal under this solicitation, the bidder or offeror certifies that neither it nor its
principals are presently debarred or suspended by any Federal department or agency from participation in
this transaction.
LOWER TIER CONTRACT CERTIFICATION A11.3.2 (Certification of Lower Tier Contractors
Regarding Debarment): The Contractor, by administering each lower tier subcontract that exceeds
25,000 as a"covered transaction",must verify each lower tier participant of a"covered transaction"under
the project is not presently debarred or otherwise disqualified from participation in this federally assisted
project. The successful bidder will accomplish this by:
i. Checking the System for Award Management at website: http://www.sam.gov.
ii. Collecting a certification statement similar to the Certification of Offerer /Bidder Regarding
Debarment,above.
iii. Inserting a clause or condition in the covered transaction with the lower tier contract.
If the Federal Aviation Administration later determines that a lower tier participant failed to disclose to a
higher tier participant that it was excluded or disqualified at the time it entered the covered transaction,the
FAA may pursue any available remedies, including suspension and debarment of the non-compliant
participant.
6. DISADVANTAGED BUSINESS ENTERPRISE
49 CFR part 26;49 CFR§26.53
REQUIRED PROVISIONS Al2.3; SOLICITATION LANGUAGE Al2.3.1 (Solicitations that
include a Project Goal):
Information Submitted as a Matter of Bidder Responsiveness
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16E3
EXHIBIT 1A—FEDERAL CONTRACT PROVISIONS(FAA)
FAA Funded Airport Improvement Program Projects(AIP) Grants
CFDA 20.106
The County's award of this contract is conditioned upon Bidder or Offeror satisfying the good faith effort
requirements of 49 CFR §26.53. As a condition of bid responsiveness,the Bidder or Offeror must submit
the following information with its proposal on the forms provided herein:
1) The names and addresses of Disadvantaged Business Enterprise(DBE) firms that will participate
in the contract;
2) A description of the work that each DBE firm will perform;
3) The dollar amount of the participation of each DBE firm listed under(a.)
4) Written statement from Bidder or Offeror that attests their commitment to use the DBE firm(s)
listed under(a.)to meet the Owner's project goal;and
5) If Bidder or Offeror cannot meet the advertised project DBE goal, evidence of good faith efforts
undertaken by the Bidder or Offeror as described in appendix A to 49 CFR part 26.
Information Submitted as a Matter of Bidder Responsibility
The County's award of this contract is conditioned upon Bidder or Offeror satisfying the good faith effort
requirements of 49 CFR §26.53. The successful Bidder or Offeror must provide written confirmation of
participation from each of the DBE firms the Bidder or Offeror lists in its commitment within five days
after bid opening.
1) The names and addresses of Disadvantaged Business Enterprise(DBE) firms that will participate
in the contract;
2) A description of the work that each DBE firm will perform;
3) The dollar amount of the participation of each DBE firm listed under(f.)
4) Written statement from Bidder or Offeror that attests their commitment to use the DBE firm(s)
listed under(f.)to meet the County's project goal;and
5) If Bidder or Offeror cannot meet the advertised project DBE goal, evidence of good faith efforts
undertaken by the Bidder or Offeror as described in appendix A to 49 CFR part 26.
SOLICITATION LANGUAGE Al2.3.2(Race/Gender Neutral Means): The requirements of 49 CFR
Part 26,Regulations of the U.S. Department of Transportation,apply to this contract. It is the policy of the
Collier County Airport Authority, as owner of the Collier County General Aviation Airports, to practice
nondiscrimination based on race,color,sex,or national origin in the award or performance of this contract.
Collier County encourages participation by all firms qualifying under this solicitation regardless of business
size or ownership.All firms qualifying under this solicitation are encouraged to submit bids/proposals.
Award of this contract will be conditioned upon satisfying the requirements of this bid specification.These
requirements apply to all bidders, including those who qualify as a DBE. A DBE contract goal of 4.2
percent has been established for this contract. The bidder shall make good faith efforts, as defined in
Appendix A, 49 CFR Part 26, to meet the contract goal for DBE participation in the performance of this
contract. The bidder will be required to submit the following information with their proposal on the forms
provided herein:
1) The names and addresses of DBE firms that will participate in the contract;
2) A description of the work that each DBE firm will perform;
3)The dollar amount of the participation of each DBE firm participating;
4)Written documentation of the bidder's commitment to use a DBE subcontractor whose participation
it submits to meet the contract goal;
5) Written confirmation from the DBE that it is participating in the contract as provided in the
commitment made under(4);
6)If the contract goal is not met,evidence of good faith efforts.
FAA Guidelines for Contract Provisions for Obligated Sponsors and;III'Projects:Issued on June 19,20/8.Page 5
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1 6 E 3
EXHIBIT 1A—FEDERAL CONTRACT PROVISIONS (FAA)
FAA Funded Airport Improvement Program Projects(AIP)Grants
CFDA 20.106
PRIME CONTRACTS Al2.3.3(Projects Covered by a DBE Program)
Contract Assurance(§26.13)
The Contractor or subcontractor shall not discriminate on the basis of race,color,national origin,or sex in
the performance of this contract.The contractor shall carry out applicable requirements of 49 CFR Part 26
in the award and administration of DOT assisted contracts. Failure by the contractor to carry out these
requirements is a material breach of this contract, which may result in the termination of this contract or
such other remedy,as the recipient deems appropriate,which may include,but is not limited to:
1) Withholding monthly progress payments;
2) Assessing sanctions;
3) Liquidated damages;and/or
4) Disqualifying the Contractor from future bidding as non-responsible.
Prompt Payment Mechanisms(§26.29)
The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory
performance of its contract no later than thirty (30) days from the receipt of each payment the prime
contract receives from the Authority. The prime contractor agrees further to return retainage payments to
each subcontractor within thirty(30)days after the subcontractor's work is satisfactorily completed. Any
delay or postponement of payment from the above referenced time frame may occur only for good cause
following written approval of the Authority.This clause applies to both DBE and non-DBE subcontracts.
Florida Department of Transportation DBE Certification Requirements for FAA Grant Funded Projects
Directory(§26.31)
The Authority uses the Florida Unified Certification Program(FL UCP)DBE Directory,maintained by the
Florida Department of Transportation(FDOT).The Directory lists the firm's name,address,phone number,
date of the most recent certification,and the type of work the firm has been certified to perform as a DBE.
In addition, the Directory lists each type of work for which a firm is eligible to be certified by using the
most specific NAICS code available to describe each type of work.
The Florida Department of Transportation updates the Directory at least annually, and periodically, as
necessary. The Directory is available for review by contacting: Justin Lobb, Airport Manager, Collier
County Airport Authority,2005 Mainsail Drive, Suite 1,Naples,FL 34114,239-642-7878.The Directory
may be found at http://www.dot.state.fl.us/equalopportunitvoffice/
Certification Process(§26.61 —26.73)
The Authority will refer all matters pertaining to certification to the Florida Department of Transportation
in accordance with the Florida UCP program. The Florida Department of Transportation will use the
certification standards of Subpart D of Part 26 to determine the eligibility of firms to participate as DBEs
in USDOT-assisted contracts. To be certified as a DBE, a firm must meet all certification eligibility
standards.The Florida Department of Transportation will make all certification decisions based on the facts
as a whole.
For further information about the certification process or to apply for certification,firms should contact:
Florida Department of Transportation(FOOT)
Equal Opportunity Office
605 Suwannee St. MS 65
Tallahassee, Florida 32399-0450
850)414-4747
Equal Opportunity Office
http://www.dot.state.fl.us/eq ualopportunityoffice/
FAA Guidelines for Contract Provisions for Obligated Sponsors and AIP Projects;Issued on June 19,2018.Page 6
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EXHIBIT 1A—FEDERAL CONTRACT PROVISIONS (FAA)
FAA Funded Airport Improvement Program Projects(AIP) Grants
CFDA 20.106
County Administrative Reconsideration(§26.53(d))
Within ten (10) days of being informed by the Authority that it is not responsive because it has not
documented sufficient good faith efforts, a bidder may request administrative reconsideration. Bidders
should make this request in writing to the following reconsideration official: Gene Shue, Operations
Support Director, Collier County Airport Authority, 2885 S. Horseshoe Drive, Naples, FL 34104,
239-252-5169.The reconsideration official will not have played any role in the original determination that
the bidder did not document sufficient good faith efforts.
As part of this reconsideration, the bidder will have the opportunity to provide written documentation or
argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so.The
bidder will have the opportunity to meet in person with the Authority's administrative reconsideration
official to discuss the issue of whether it met the goal or made adequate good faith efforts to do. The
Authority will send the bidder a written decision on reconsideration, explaining the basis for finding that
the bidder did or did not meet the goal or make adequate good faith efforts to do so. The result of the
reconsideration process is not administratively appealable to the US Department of Transportation.
7. DISTRACTED DRIVING
Executive Order 13513,DOT Order 3902.10
Applies to all AIP funded contracts and subcontracts exceeding $3,500.)
CONTRACT CLAUSE A13.3 (Texting When Driving): In accordance with Executive Order 13513,
Federal Leadership on Reducing Text Messaging While Driving" (10/1/2009) and DOT Order 3902.10
Text Messaging While Driving" (12/30/2009),the FAA encourages recipients of Federal grant funds to
adopt and enforce safety policies that decrease crashes by distracted drivers, including policies to ban text
messaging while driving when performing work related to a grant or subgrant.
In support of this initiative,the County encourages the Contractor to promote policies and initiatives for its
employees and other work personnel that decrease crashes by distracted drivers,including policies that ban
text messaging while driving motor vehicles while performing work activities associated with the project.
The Contractor must include the substance of this clause in all sub-tier contracts exceeding $3,500 and
involve driving a motor vehicle in performance of work activities associated with the project.
8. ENERGY CONSERVATION REQUIREMENTS
2 CFR§200,Appendix II(H)
Applies to subcontracts.)
CONTRACT CLAUSE A14.3 (Energy Conservation Requirements): Contractor and Subcontractor
agree to comply with mandatory standards and policies relating to energy efficiency as contained in the
state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (42
U.S.C.6201 et seg).
9. FEDERAL FAIR LABOR STANDARDS ACT (FEDERAL MINIMUM WAGE)
29 U.S.C.§201,et seq
SOLICITATION CLAUSE A17.3: All contracts and subcontracts that result from this solicitation
incorporate by reference the provisions of 29 CFR part 201,the Federal Fair Labor Standards Act(FLSA),
with the same force and effect as if given in full text. The FLSA sets minimum wage, overtime pay,
recordkeeping,and child labor standards for full and part time workers. The Contractor or Consultant has
full responsibility to monitor compliance to the referenced statute or regulation. The Contractor or
FAA Guidelines for Contract Provisions for Obligated Sponsors and AIP Projects;Issued on June 19,2018.Page 7
CA-;)
Page 5491 of 6355
EXHIBIT 1A—FEDERAL CONTRACT PROVISIONS(FAA) 1 6 E 3
FAA Funded Airport Improvement Program Projects(AIP) Grants
CFDA 20.106
Consultant must address any claims or disputes that arise from this requirement directly with the U.S.
Department of Labor—Wage and Hour Division
10. LOBBYING AND INFLUENCING FEDERAL EMPLOYEES
31 U.S.C.§ 1352—Byrd Anti-Lobbying Amendment; 2 CFR part 200; Appendix II(J);
49 CFR part 20; Appendix A
Applies to contracts and subcontracts =/>$100,000.)
CONTRACT CLAUSE A18.3(Certification Regarding Lobbying): The Bidder or Offeror certifies by
signing and submitting this bid or proposal,to the best of his or her knowledge and belief,that:
1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the Bidder or
Offeror, 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 sub-awards at all tiers (including subcontracts, sub-grants, and contracts under
grants, loans, and cooperative agreements) and that all sub-recipients 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 section 1352, title 31, U.S. Code. 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.
11. OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
20 CFR part 1910
Applies to contracts and subcontracts.)
CONTRACT CLAUSE A20.3:All contracts and subcontracts that result from this solicitation incorporate
by reference the requirements of 29 CFR Part 1910 with the same force and effect as if given in full text.
The employer,hereinafter known as"the Contractor,"must provide a work environment that is free from
recognized hazards that may cause death or serious physical harm to the employee.The Contractor retains
full responsibility to monitor its compliance and their subcontractor's compliance with the applicable
requirements of the Occupational Safety and Health Act of 1970 (20 CFR Part 1910). Contractor must
address any claims or disputes that pertain to a referenced requirement directly with the U.S. Department
of Labor—Occupational Safety and Health Administration.
12. TAX DELINQUENCY AND FELONY CONVICTIONS
Sections 415 and 416 of Title IV, Division L of the Consolidated Appropriations Act,2014 (Pub. L.
113-76),and similar provisions in subsequent appropriations acts.
DOT Order 4200.6
FAA Guidelines for Contract Provisions for Obligated Sponsors and AIP Projects,Issued on June 19,20/8.Page 8
Page 5492 of 6355
16E3
EXHIBIT IA—FEDERAL CONTRACT PROVISIONS (FAA)
FAA Funded Airport Improvement Program Projects(AIP) Grants
CFDA 20.106
Applies to all contracts funded in whole or part with AIP.)
CONTRACT CLAUSE A24.3 (Certification of Offeror/Bidder Regarding Tax Delinquency and
Felony Convictions): The Contractor must complete the following two certification statements. (SEE
SEPARATE CERTIFICATION DOCUMENT) The applicant must indicate its current status as it relates
to tax delinquency and felony conviction by inserting a checkmark()in the space following the applicable
response. (A separate form is provided for the certification.)The applicant agrees that,if awarded a contract
resulting from this solicitation, it will incorporate this provision for certification in all lower tier
subcontracts.
Certifications
I) The applicant represents that it is( )is not( )a corporation that has any unpaid Federal tax liability that
has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed,
and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for
collecting the tax liability.
2) The applicant represents that it is( ) is not( ) is not a corporation that was convicted of a criminal
violation under any Federal law within the preceding 24 months.
Note
If an applicant responds in the affirmative to either of the above representations,the applicant is ineligible
to receive an award unless the sponsor has received notification from the agency suspension and debarment
official (SDO)that the SDO has considered suspension or debarment and determined that further action is
not required to protect the Government's interests. The applicant therefore must provide information to the
owner about its tax liability or conviction to the Owner, who will then notify the FAA Airports District
Office, which will then notify the agency's SDO to facilitate completion of the required considerations
before award decisions are made.
Term Definitions
Felony conviction: Felony conviction means a conviction within the preceding twenty-four (24)
months of a felony criminal violation under any Federal law and includes conviction of an offense
defined in a section of the U.S. code that specifically classifies the offense as a felony and
conviction of an offense that is classified as a felony under 18 U.S.C. § 3559.
Tax Delinquency: A tax delinquency is any unpaid Federal tax liability that has been assessed, for
which all judicial and administrative remedies have been exhausted,or have lapsed,and that is not
being paid in a timely manner pursuant to an agreement with the authority responsible for collecting
the tax liability.
13. TERMINATION OF CONTRACT
2 CFR§200 Appendix II(B); FAA Advisory Circular 150/5370-10; Section 80-09
Applies to all contracts and subcontracts =/>$10,000.)
CONTRACT CLAUSE A25.3,A25.3.1 Termination for Convenience:
TERMINATION FOR CONVENIENCE(PROFESSIONAL SERVICES)
The County may, by written notice to the Consultant, terminate this Agreement for its convenience and
without cause or default on the part of Consultant. Upon receipt of the notice of termination, except as
explicitly directed by the County,the Contractor must immediately discontinue all services affected.
Upon termination of the Agreement,the Consultant must deliver to the County all data, surveys, models,
drawings, specifications, reports, maps, photographs, estimates, summaries, and other documents and
materials prepared by the Engineer under this contract,whether complete or partially complete.
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Page 5493 of 6355
EXHIBIT 1A—FEDERAL CONTRACT PROVISIONS(FAA)
FAA Funded Airport Improvement Program Projects(AIP) Grants
CFDA 20.106
County agrees to make just and equitable compensation to the Consultant for satisfactory work completed
up through the date the Consultant receives the termination notice. Compensation will not include
anticipated profit on non-performed services.
County further agrees to hold Consultant harmless for errors or omissions in documents that are incomplete
as a result of the termination action under this clause.
TERMINATION FOR DEFAULT(PROFESSIONAL SERVICES)
Either party may terminate this Agreement for cause if the other party fails to fulfill its obligations that
are essential to the completion of the work per the terms and conditions of the Agreement. The party
initiating the termination action must allow the breaching party an opportunity to dispute or cure the
breach.
The terminating party must provide the breaching party [7] days advance written notice of its intent to
terminate the Agreement. The notice must specify the nature and extent of the breach, the conditions
necessary to cure the breach,and the effective date of the termination action. The rights and remedies in
this clause are in addition to any other rights and remedies provided by law or under this agreement.
a) Termination by County: The County may terminate this Agreement in whole or in part, for the
failure of the Consultant to:
1. Perform the services within the time specified in this contract or by County approved extension;
2. Make adequate progress so as to endanger satisfactory performance of the Project;or
3. Fulfill the obligations of the Agreement that are essential to the completion of the Project.
Upon receipt of the notice of termination, the Consultant must immediately discontinue all services
affected unless the notice directs otherwise. Upon termination of the Agreement,the Consultant must
deliver to the County all data, surveys, models,drawings, specifications, reports, maps, photographs,
estimates,summaries,and other documents and materials prepared by the Engineer under this contract,
whether complete or partially complete.
County agrees to make just and equitable compensation to the Consultant for satisfactory work
completed up through the date the Consultant receives the termination notice. Compensation will not
include anticipated profit on non-performed services.
County further agrees to hold Consultant harmless for errors or omissions in documents that are
incomplete as a result of the termination action under this clause.
If,after finalization of the termination action,the County determines the Consultant was not in default
of the Agreement,the rights and obligations of the parties shall be the same as if the County issued the
termination for the convenience of the County.
b) Termination by Consultant: The Consultant may terminate this Agreement in whole or in part, if
the Owner:
I. Defaults on its obligations under this Agreement;
2. Fails to make payment to the Consultant in accordance with the terms of this Agreement;
3. Suspends the Project for more than [180] days due to reasons beyond the control of the
Consultant.
Upon receipt of a notice of termination from the Consultant, County agrees to cooperate with
Consultant for the purpose of terminating the agreement or portion thereof, by mutual consent. If
County and Consultant cannot reach mutual agreement on the termination settlement,the Consultant
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EXHIBIT 1A—FEDERAL CONTRACT PROVISIONS(FAA)
FAA Funded Airport Improvement Program Projects (AIP) Grants
CFDA 20.106
may,without prejudice to any rights and remedies it may have,proceed with terminating all or parts
of this Agreement based upon the County's breach of the contract.
In the event of termination due to County breach, the Engineer is entitled to invoice County and to
receive full payment for all services performed or furnished in accordance with this Agreement and
all justified reimbursable expenses incurred by the Consultant through the effective date of
termination action. County agrees to hold Consultant harmless for errors or omissions in documents
that are incomplete as a result of the termination action under this clause.
14. TRADE RESTRICTION CERTIFICATION
49 USC§50104; 49 CFR part 30
Applies to all AIP funded projects.)
SOLICITATION CLAUSE A26.3 (Trade Restriction Certification): By submission of an offer, the
Offeror certifies that with respect to this solicitation and any resultant contract,the Offeror--
1) is not owned or controlled by one or more citizens of a foreign country included in the list of
countries that discriminate against U.S.firms as published by the Office of the United States Trade
Representative(U.S.T.R.);
2) has not knowingly entered into any contract or subcontract for this project with a person that is a
citizen or national of a foreign country included on the list of countries that discriminate against
U.S.firms as published by the U.S.T.R;and
3) has not entered into any subcontract for any product to be used on the Federal on the project that is
produced in a foreign country included on the list of countries that discriminate against U.S. firms
published by the U.S.T.R.
This certification concerns a matter within the jurisdiction of an agency of the United States of America
and the making of a false,fictitious,or fraudulent certification may render the maker subject to prosecution
under Title 18,United States Code,Section 1001. The Offeror/Contractor must provide immediate written
notice to the County if the Offeror/Contractor learns that its certification or that of a subcontractor was
erroneous when submitted or has become erroneous by reason of changed circumstances. The Contractor
must require subcontractors provide immediate written notice to the Contractor if at any time it learns that
its certification was erroneous by reason of changed circumstances. Unless the restrictions of this clause
are waived by the Secretary of Transportation in accordance with 49 CFR 30.17, no contract shall be
awarded to an Offeror or subcontractor:
1) who is owned or controlled by one or more citizens or nationals of a foreign country included on
the list of countries that discriminate against U.S. firms published by the U.S.T.R.or
2) whose subcontractors are owned or controlled by one or more citizens or nationals of a foreign
country on such U.S.T.R. list or
3) who incorporates in the public works project any product of a foreign country on such U.S.T.R.
list;
Nothing contained in the foregoing shall be construed to require establishment of a system of records in
order to render, in good faith,the certification required by this provision. The knowledge and information
of a contractor is not required to exceed that which is normally possessed by a prudent person in the ordinary
course of business dealings.
The Offeror agrees that, if awarded a contract resulting from this solicitation, it will incorporate this
provision for certification without modification in in all lower tier subcontracts. The contractor may rely
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Page 5495 of 6355
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EXHIBIT 1A—FEDERAL CONTRACT PROVISIONS(FAA)
FAA Funded Airport Improvement Program Projects(AIP) Grants
CFDA 20.106
on the certification of a prospective subcontractor that it is not a firm from a foreign country included on
the list of countries that discriminate against U.S. firms as published by U.S.T.R, unless the Offeror has
knowledge that the certification is erroneous.
This certification is a material representation of fact upon which reliance was placed when making an
award. If it is later determined that the Contractor or subcontractor knowingly rendered an erroneous
certification, the Federal Aviation Administration may direct through the County cancellation of the
contract or subcontract for default at no cost to the County or the FAA.
15. VETERAN'S PREFERENCE
49 USC§47112(c)
CONTRACT CLAUSE A27.3(Veteran's Preference): In the employment of labor(excluding executive,
administrative,and supervisory positions),the contractor and all sub-tier contractors must give preference
to covered veterans as defined within Title 49 United States Code Section 47112. Covered veterans include
Vietnam-era veterans, Persian Gulf veterans, Afghanistan-Iraq war veterans, disabled veterans,and small
business concerns (as defined by 15 U.S.C. 632) owned and controlled by disabled veterans. This
preference only applies when there are covered veterans readily available and qualified to perform the work
to which the employment relates.
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Page 5496 of 6355
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EXHIBIT 1A—FEDERAL CONTRACT PROVISIONS (FAA)
FAA Funded Airport Improvement Program Projects (AIP)Grants
CFDA 20.106
on the certification of a prospective subcontractor that it is not a firm from a foreign country included on
the list of countries that discriminate against U.S. firms as published by U.S.T.R, unless the Offeror has
knowledge that the certification is erroneous.
This certification is a material representation of fact upon which reliance was placed when making an
award. If it is later determined that the Contractor or subcontractor knowingly rendered an erroneous
certification, the Federal Aviation Administration may direct through the County cancellation of the
contract or subcontract for default at no cost to the County or the FAA.
15. VETERAN'S PREFERENCE
49 USC§47112(c)
CONTRACT CLAUSE A27.3(Veteran's Preference):In the employment of labor(excluding executive,
administrative, and supervisory positions),the contractor and all sub-tier contractors must give preference
to covered veterans as defined within Title 49 United States Code Section 47112. Covered veterans include
Vietnam-era veterans, Persian Gulf veterans, Afghanistan-Iraq war veterans, disabled veterans, and small
business concerns (as defined by 15 U.S.C. 632) owned and controlled by disabled veterans. This
preference only applies when there are covered veterans readily available and qualified to perform the work
to which the employment relates.
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Page 5497 of 6355
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EXHIBIT 1.B GRANT CERTIFICATIONS AND ASSURANCES
THE FOLLOWING DOCUMENTS NEED TO BE RETURNED WITH SOLICIATION
DOCUMENTS BY DEADLINE TO BE CONSIDERED RESPONSIVE.
Page Certification and Form
GCA-2 Certification Regarding Debarment,Suspension,and Other Responsibility Matters—
Primary Covered Transactions
GCA-3:6 Disadvantaged Business Enterprise(DBE)Utilization(Forms 1-4)
GCA-7 Collier County Conflict of Interest Certification
GCA-8 Certification of Offerer/Bidder Regarding Tax Delinquency and Felony Convictions
GCA-9 GCA-Certi fication Regarding Lobbying
GCA-10 Acknowledgement of Grant Terms and Conditions
GCA-I
r:\
Page 5498 of 6355
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EXHIBIT 1.13 GRANT CERTIFICATIONS AND ASSURANCES
COLLIER COUNTY
Certification Regarding Debarment,Suspension,and Other Responsibility Matters
Primary Covered Transactions
I) The prospective primary participant certifies to the best of its knowledge and belief, that it and its
principals:
a) Arc not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily
excluded from covered transactions by any Federal department or agency;
b) Have not within a three-year period preceding this proposal been convicted of or had a civil
judgment rendered against them for commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or
contract under a public transaction; violation of Federal or State antitrust statutes or commission of
embezzlement, theft, forgery, bribery, falsification or destruction of records, making false
statements,or receiving stolen property;
c) Arc not presently indicted for or otherwise criminally or civilly charged by a governmental entity
Federal, State or local) with commission of any of the offenses enumerated in paragraph (1)(b) of
this certification;and
d) Have not within a three-year period preceding this application/proposal had one or more public
transactions(Federal,State or local)terminated for cause or default.
2) Where the prospective primary participant is unable to certify to any of the statements in this
certification,such prospective participant shall attach an explanation to this proposal.
Richard E. Brylanski, P.E. General Professional Services for Airports (FDOT Funded)
Name Project Name
Vice President 20-7802
Title Project Number
Hole Montes, Inc. 59-1518838
Firm Tax ID Number
124843178
DUNS Number
6200 Whiskey Creek Dr., Fort Myers, FL 33919
Street s, r , tate,Zip
Signature
GCA-2
Page 5499 of 6355
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EXHIBIT 1.13 GRANT CERTIFICATIONS AND ASSURANCES
COLLIER COUNTY AIRPORT AUTHORITY
Disadvantaged Business Enterprise(DBE) Utilization
FORM 1
The undersigned bidder/offerer has satisfied the requirements of the bid specification in the
following manner(please check the appropriate space):
X The bidder is committed to a minimum of 4.2 % DBE utilization on this contract.
The bidder (if unable to meet the applicable DBE goal of 4.2%) is committed to a
minimum of DBE utilization on this contract and has submitted
documentation demonstrating good faith efforts.
Name of bidder's firm: Hole Montes, Inc.
State Registr ion"No. ' "`59782
By Vice President
Signature) Richard E. Brylanski Title
GCA-3
Page 5500 of 6355
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EXHIBIT I.B GRANT CERTIFICATIONS AND ASSURANCES
COLLIER COUNTY AIRPORT AUTHORITY
Disadvantaged Business Enterprise(DBE)Utilization
LETTER OF INTENT
FORM 2
Submit this page for each DBE subcontractor.)
Name of bidder's firm: Hole Montes, Inc.
Address: 6200 Whiskey Creek Dr.
City:Fort Myers
State:
FL
Zip:
33919
Name of DBE firm: Sandra Walters Consultants, Inc., dba SWC
Address: 1745 Jefferson Avenue
City: Fort Myers State: FL Zip: 33901
Telephone: 305-294-1238
Description of work to be performed by DBE firm:
Environmental evaluations and design input for avoiding and minimizin.s impacts
to protected habitats and species, development of mitigation plans, coordinating
with-Stafe aridfederal resource and regulatory agencies, preparation and
pr_acessir]g of enviconroental permit applications..Assistance..witb.p.ublic
outreach and information efforts.
The bidder is committed to utilizing the above-named DBE firm for the work described above.
The estimated dollar value of this work is $ TBD
Affirmation
The above-named DBE firm affirms that it will perform the portion of the contract for the
estimated dollar value as stated above.
By-President
Signature)Title)
If the bidder does not receive award of the prime contract, any and all representations in
this Letter of Intent and Affirmation shall be null and void.
GCA-4
Page 5501 of 6355
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EX11113IT 1.13 GRANT CERTIFICATIONS AND ASSURANCES
COLLIER COUNTY AIRPORT AUTHORITY
Disadvantaged Business Enterprise(DBE) Utilization
LETTER OF INTENT
FORM 2
Submit this page for each DBE subcontractor.)
Name of bidder's firm: Hole Montes, Inc.
Address: 6200 Whiskey Creek Dr.
City:
Fort Myers State:
FL
Zip:
33919
Name of DBE firm: E.F. Gaines Surveying Services, Inc.
Address: 5235 Ramsey Way, Ste. 10
City: Fort Myers State: FL Zip: 33907
Telephone: 239-418-0126
Description of work to be performed by DBE firm:
Surveying
The bidder is committed to utilizing the above-named DBE firm for the work described above.
The estimated dollar value of this work is $ TBD
Affirmation
The above-named DBE firm affirms that it will perform the portion of the contract for the
estimated dollar value as stated above.
Elizabeth Gaines
By
Date:2020.12.0808:48:47-OS'00' President
Signature)Title)
If the bidder does not receive award of the prime contract, any and all representations in
this Letter of Intent and Affirmation shall be null and void.
GCA-4
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EX111131'I' I.13 GRANT CERTIFICATIONS AND ASSURANCES
COLLIER COUNTY AIRPORT AUTHORITY
Disadvantaged Business Enterprise(DBE)Utilization (MIWBE)
GOOD FAITH EFFORTS
FORM 3
Prior to an award, all bidders/proposers will be required to document a "Good Faith Effort" to
secure disadvantaged, minority/women-owned and/or businesses as subcontractors/sub-
consultants/suppliers. In the case of some construction projects, this documentation may be
submitted after award of the contract, for those subcontract areas occurring later in the
construction process.
Fulfillment of the"good faith effort"can be accomplished by:
1. Attendance of pre-bid/pre-proposal conference, as scheduled by the County.
2. Efforts to follow-up initial solicitation of interest by contacting disadvantaged/minority/women-
owned firms to determine with certainty whether these firms are interested.
3. Efforts made to select portions of the work proposed to be performed by
disadvantaged/minority/women-owned firms in order to increase the likelihood of achieving
participation (including, where appropriate, breakdown of subcontracts into economically feasible
units to facilitate participation).
4. Documenting each disadvantaged/minority/woman-owned firm contacted the conclusion or
decision regarding inclusion and reasons for the conclusions.
5. Efforts to assist the disadvantaged/minority/women-owned firms contacted that needed
assistance in obtaining bonding, lines of credit or insurance.
6. Efforts that demonstrate that the contractor effectively used the services of available community
organizations, contractor's groups, local, state and federal agencies, small businesses,
disadvantaged/minority/women business assistance offices and other organizations that provide
assistance and placement of disadvantaged/minority/woman-owned businesses.
Company Name: Hole Montes, Inc.
Printed Name: Richard E. Brylanski, P.E.
Vice President_,
Title: l
Signed:
Date: 12/10/2020
CA-s
Page 5503 of 6355
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EXHIBIT 1.13 GRANT CERTIFICATIONS AND ASSURANCES
COLLIER COUNTY AIRPORT AUTHORITY
Disadvantaged Business Enterprise(DBE) Utilization (M/WBE)
OPPORTUNITY LIST
FORM 4
Prime Contractor/Consultant Hole Montes, Inc.
Address/Phone Number 6200 Whiskey Creek Dr., Fort Myers, FL 33919 239.985.1200
Procurement Number 20-7802
Disadvantaged businesses and minority vendors, as defined in the Federal Code of Federal Regulations or Florida
State Statutes must have the opportunity to participate on contracts with federal and/or state grant assistance.
FIRM INFORMATION FIRM TYPE ANNUAL GROSS RECEIPTS
FEDERAL TAX ID# 59-3154723 DBE(Disadvantaged) LESS THAN$1 MIILION
FIRM NAME Tierra MBE(Minority) BETWEEN $1-$5 MIILION
PHONE 813.989.1354 WBE(Women) BETWEEN $5-$10 MIILION
STREET ADDRESS 7351 Temple Terrace Hwy. X NON-DBE BETWEEN $10-$15 MIILION
CITY,STATE,ZIP Tampa,FL 33637 X MORE THAN$15 MIILION
YEAR FIRM EST.1992
FIRM INFORMATION FIRM TYPE ANNUAL GROSS RECEIPTS
FEDERAL TAX ID# 65-0975585 X DBE(Disadvantaged) X LESS THAN$1 MIILION
FIRM NAME Sandra Walters Consultants MBE(Minority) BETWEEN $1-$5 MIILION
PHONE 305.294.1238 WBE(Women) BETWEEN $5-$10 MIILION
STREET ADDRESS 4790 S.Cleveland Ave.Suite 2102 NON-DBE BETWEEN $10-$15 MIILION
CITY,STATE,ZIP Fort Myers.FL 33907 MORE THAN$15 MIILION
YEAR FIRM EST.2000
FIRM INFORMATION FIRM TYPE ANNUAL GROSS RECEIPTS
FEDERAL TAX ID# 04-3653931 X DBE(Disadvantaged) X LESS THAN$1 MIILION
FIRM NAME E.F.Gaines Surveying Services,Inc. MBE(Minority) BETWEEN $1-$5 MIILION
PHONE 239.418.0126 WBE(Women) BETWEEN $5-$10 MIILION
STREET ADDRESS 5235 Ramsey Way,Suite 10 NON-DBE BETWEEN $10-$15 MIILION
CITY,STATE,ZIP Fort Myers,FL 33907 MORE THAN$15 MIILION
YEAR FIRM EST.2002
FIRM INFORMATION FIRM TYPE ANNUAL GROSS RECEIPTS
FEDERAL TAX ID# DBE(Disadvantaged) LESS THAN$1 MIILION
FIRM NAME MBE(Minority) BETWEEN $1-$5 MIILION
PHONE WBE(Women) BETWEEN $5-$10 MIILION
STREET ADDRESS NON-DBE BETWEEN $10-$15 MIILION
CITY,STATE,ZIP MORE THAN$15 MIILION
YEAR FIRM EST.
FIRM INFORMATION FIRM TYPE ANNUAL GROSS RECEIPTS
FEDERAL TAX ID# DBE(Disadvantaged) LESS THAN$1 MIILION
FIRM NAME MBE(Minority) BETWEEN $1-$5 MIILION
PHONE WBE(Women) BETWEEN $5-$10 MIILION
STREET ADDRESS NON-DBE BETWEEN $10-$15 MIILION
CITY,STATE,ZIP MORE THAN$15 MIILION
YEAR FIRM EST.
FIRM INFORMATION FIRM TYPE ANNUAL GROSS RECEIPTS
FEDERAL TAX ID# DBE(Disadvantages — LESS THAN$1 MIILION
FIRM NAME MBE(Minority) BETWEEN $1-$5 MIILION
PHONE WOE(Women) BETWEEN $5-$10 MIILION
STREET ADDRESS NON-DBE BETWEEN $10-$15 MIILION
CITY,STATE,ZIP MORE THAN$15 MIILION
YEAR FIRM EST.
GCA-6
Page 5504 of 6355
16 E3
EXI I113IT 1.13 GRANT CERTIFICATIONS AND ASSURANCES
COLLIER COUNTY
Conflict of Interest Certification
20-7802
Collier County Solicitation No.
I Richard E. Brylanski
hereby certify that to the best of my knowledge,
neither I nor my spouse, dependent child,general partner,or any organization for which i am serving as an
officer, director, trustee, general partner or employee, or any person or organization with whom I am
negotiating or have an arrangement concerning prospective employment has a financial interest in this
matter.
I further certify to the best of my knowledge that this matter will not affect the financial interests of any
member of my household.Also,to the best of my knowledge,no member of my household;no relative with
whom i have a close relationship; no one with whom my spouse, parent or dependent child has or seeks
employment; and no organization with which I am seeking a business relationship nor which I now serve
actively or have served within the last year arc parties or represent a party to the matter.
I also acknowledge my responsibility to disclose the acquisition of any financial or personal interest as
described above that would be affected by the matter,and to disclose any interest I,or anyone noted above,
has in any person or organization that does become involved in,or is affected at a later date by,the conduct
of this matter.
Richard E. Brylanski, P.E.
Name Signature
Vice President 12/10/2020
Position Date
Privacy Act Statement
Title 1 of the Ethics in Government Act of 1978 (5 U.S.C. App.), Executive Order 12674 and 5 CFR Part
2634, Subpart i require the reporting of this information.The primary use of the information on this form is
for review by officials of The Justice Department to determine compliance with applicable federal conflict
of interest laws and regulations.Additional disclosures of the information on this report may be made:(1)to
a federal, state or local law enforcement agency if the Justice Department becomes aware of a violation or
potential violation of law or regulations; (2) to a court or party in a court or federal administrative
proceeding if the government is a party or in order to comply with a judge-issued subpoena;(3)to a source
when necessary to obtain information relevant to a conflict of interest investigation or decision; (4) to the
National Archives and Records Administration or the General Services Administration in records
management inspections; (5) to the Office of Management and Budget during legislative coordination on
private relief legislation;and(6) in response to a request for discovery or for the appearance of a witness in
a judicial or administrative proceeding, if the information is relevant to the subject matter. This confidential
certification will not be disclosed to any requesting person unless authorized by law. See also the
OGE/GOVT-2 executive branch-wide Privacy Act system of records.
1CA-7
Page 5505 of 6355
16 E3
EXHIBIT 1.B GRANT CERTIFICATIONS ANI)ASSURANCES
COLLIER COUNTY
Certification of Offeror/Bidder Regarding Tax Delinquency and Felony Convictions
The Contractor must complete the following two certification statements. The applicant must indicate its
current status as it relates to tax delinquency and felony conviction by inserting a checkmark (/) in the
space following the applicable response. The applicant agrees that, if awarded a contract resulting from
this solicitation,it will incorporate this provision for certification in all lower tier subcontracts.
Certifications
a) The applicant represents that it is ( ) is not (X ) a corporation that has any unpaid Federal tax
liability that has been assessed, for which all judicial and administrative remedies have been
exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement
with the authority responsible for collecting the tax liability.
b) The applicant represents that it is( )is not(X)is not a corporation that was convicted of a criminal
violation under any Federal law within the preceding 24 months.
Term Definitions
Felony conviction: Felony conviction means a conviction within the preceding twenty-four
24)months of a felony criminal violation under any Federal law and includes
conviction of an offense defined in a section of the U.S.code that specifically classifies
the offense as a felony and conviction of an offense that is classified as a felony under 18
U.S.C. §3559.
Tax Delinquency:A tax delinquency is any unpaid Federal tax liability that has been assessed,for
which all judicial and administrative remedies have been exhausted,or have lapsed,and that is not
being paid in a timely manner pursuant to an agreement with the authority responsible for collecting
the tax liability.
Richard E. Brylanski, P.E. Vice President
Name Title
Hole Montes, Inc.
Firm
c..---
Signature
ccA-s
Page 5506 of 6355
16 E3
EXHIBIT 1.13 GRANT CERTIFICATIONS AND ASSURANCES
COLLIER COUNTY
Certification Regarding Lobbying
Federal and Stale)
The undersigned 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, Hole Montes, Inc. 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 el seq.,apply to this certification and disclosure,if any.
In addition,the Contractor understands and agrees that the provisions of 11.062, Florida Statutes., apply to
this ce cation an 'sclosure,if any.
Signature of Contractor's Authorized Official
Richard E. Brylanski, P.E. -Vice Pres.Name of Authorized Official and Title
12/10/2020
Date
GCA-9
CAO
Page 5507 of 6355
16E3
EXHIBIT 1.B GRANT CERTIFICATIONS AND ASSURANCES
COLLIER COUNTY
Acknowledgement of Terms,Conditions and Grant Clauses
Flow Down of Terms and Conditions from the Grant Agreement
Subcontracts: If the vendor subcontracts any of the work required under this Agreement, a copy of the
signed subcontract must be available to the Department for review and approval. The vendor 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 Department and 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.
The recipient shall document in the quarterly report the subcontractor's progress in performing its work
under this agreement. For each subcontract, the Recipient shall provide a written statement to the
Department as to whether the subcontractor is a minority vendor as defined in Section 288.703,Fla. Stat.
Certification
On behalf of my firm, I acknowledge, and agree to perform all of the specifications and grant
requirements identified in this solicitation document(s).
Vendor/Contractor Name Hole Montes, Inc. Date 12/10/2020
Authorized Signature
Address 6200 Whiskey Creek Dr., Fort Myers, FL 33919
Solicitation/Contract ii 20-7802
GCA-10
CAO
Page 5508 of 6355
16 E34
Exhibit"B"
Articles of Merger and Agreement and Plan of Merger
TO FOLLOW THIS PAGE
Page 12 of 13
CAOAssumptionAgreement
Page 5509 of 6355
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 5510 of 6355
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
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Page 5511 of 6355
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 5512 of 6355
i6 E3
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
Page 5513 of 6355
i6 E3
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:
2 -
Page 5514 of 6355
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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:
3 -
Page 5515 of 6355
16 E3
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.
4 -
Page 5516 of 6355
16E3
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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Page 5517 of 6355
t6E3
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 5559 of 6355
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,
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Robert Mulhere, President
Hole Montes Holding Company,Inc.
i—DocuSigned by:
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C9C0DA07C641-412...
Robert Mulhere, President
47 -
Page 5560 of 6355
Uocuslgn Envelope IL):8991)201-F-U47F-4F6F-83B4-0447746181J04
16 E3
Shareholders
C---DocuSigned by:
k..—ecCFB7F0AB23430..-
Thomas Murphy
William Cole
le---
DocuSigned by:
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Robert Mulhere
DocuSigned by:
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Richard B rvlanski
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David Schmitt
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DocuSigned by:
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Charles Kreb
r-LDocuSlgned
by:
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June T. Sapp
48 -
Page 5561 of 6355
UocuSign Envelope ID:899U201-F-U4/F-4F6F-83134-U44//45113004
I 6 E 3
Shareholders
Thomas Murphy
4/'VY(/./Pe?`6)-eg_
William Cole
Robert Mulhere
roocuS
dipn. by:
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Richard Brylanski
David Schmitt
Charles Kreb
ooaospn.a by:
3WAASff
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June T. Sapp
48 -
Page 5562 of 6355
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
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16 E341
Exhibit"C"
FEDERAL CONTRACT PROVISIONS AND ASSURANCES
TO FOLLOW THIS PAGE
Page 13 of 13 CA4
Assumption Agreement
Page 5564 of 6355
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 5565 of 6355
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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 5566 of 6355
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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
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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
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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
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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
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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 5571 of 6355
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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
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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
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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
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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 5575 of 6355