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#11-5722 (Thomas Marine Construction, Inc.)Purchasing Department 3327 Tamiami Trail East Naples, Florida 34112 Telephone: (239) 252 -8446 UPPE 10D FAX: (239) 252 -6697 Email: BrendaBrilhart(a.colliergov.net www.colliergov.neUpurchasing Memorandum Subject: Contract #11-5722 "Design -Build Golden Gate Bridge Improvements: 1) Golden Gate Canal and 2) Miller Canal (Project # 66066)" Date: February 15, 2012 From: Diana DeLeon for Brenda Brilhart, CPPB; Procurement Strategist To: Ray Carter, Manager Risk Finance This Contract was approved by the BCC on January 24, 2012 agenda item 10.D. The County is in the process of executing this contract with Thomas Marine Construction, Inc. Please review the Payment and Performance Bonds, and Insurance Certificate(s) for the referenced Contract. • If the insurance is not in order please contact the vendor /insurance company to obtain a proper certificate. Once you receive the proper certificate(s), please acknowledge your approval and send to the County Attorney's office via the attached Request for Legal Services. • If the insurance is in order please acknowledge your approval and send to the County Attorney's office via the attached Request for Legal Services. If you have any questions, please contact me at the above referenced information. I s a 4od B 6 zz_ Manager Risk Finance Signature Date RECEIVED R16K MANAGEMENT (Please route to County Attorney via attached Request for Legal Services) ti\ G /Acq u isitions /AgentFormsa nd Letters /RiskMgmtReviewofl n s u ra nce4/15/2010/16/09 DESIGN -BUILD AGREEMENT between Collier County Florida and Thomas Marine Construction, Inc. dated 2012 ion Contract 11 -5722 "Design -Build Golden Gate Bridge Improvements: 1) Golden Gate Canal and 2) Miller Canal (Project # 66066)" 100 DESIGN -BUILD AGREEMENT This Agreement is made this aq*\day of OLh a_ , 2012 between Thomas Marine Construction, Inc., a Florida corporation, authorized to do business in the State of Florida (hereinafter called "CONTRACTOR "), whose business address is 8999 High Cotton Lane, Fort Myers, Florida 33905 and the Board of County Commissioners for Collier County, Florida, a political subdivision of the State of Florida (hereinafter called the "OWNER. ") 1. CONTRACTOR'S SERVICES AND RESPONSIBILITIES 1.1 CONTRACTOR shall perform, or arrange for the performance of those architectural, engineering, surveying, hydrogeological, soils testing, procurement and construction, start -up, testing, training and warranty services ( "the Work ") necessary in connection with the design and construction of the OWNER's project (the "Project "). These services shall be as described in Exhibit A — "Project Scope and Services ", and this Article 1, including but not limited to, all labor, services, materials and equipment as may be required to complete the Work in compliance with the Contract Documents. 1.2 Design Professional Services 1.2.1 CONTRACTOR shall, consistent with applicable state licensing requirements, provide through qualified, licensed design professionals employed by CONTRACTOR, or procured from qualified, independent licensed design consultants, the necessary design services, including architectural, engineering surveying, hydrogeological and other design professional services, for the preparation of the required drawings, specifications and other design submittals to permit CONTRACTOR to complete the Work as described in Exhibit A- Project Scope and Services, and this Article 1. The design for the Project shall be set forth in the Construction Documents. All changes, supplements and additions to the Construction Documents shall be subject to OWNER's review and written approval, such approval to be obtained prior to the commencement of any portion of the Work relating thereto. 1.2.2 The standard of care for all design professional services performed by or arranged by CONTRACTOR shall be consistent with that degree of skill and care ordinarily exercised by members of the design profession practicing under similar circumstances and in the same or similar locality. CONTRACTOR shall use the services of those persons identified in the attached Exhibit M to provide all required professional design services for the Project ( "Design Professionals "). All changes to the list of Design Professionals set forth in attached Exhibit M must be approved in advance and in writing by OWNER. 1.2.3 CONTRACTOR and OWNER shall agree upon any interim design submissions that OWNER may wish to review, including design criteria, preliminary design reports, drawings, diagrams and specifications as set forth in the Project requirements. CONTRACTOR and OWNER shall meet and confer about the submissions and, following the meeting, OWNER shall review and approve the interim design submissions. 1.2.4 On the basis of the approved interim design submissions, CONTRACTOR shall prepare Contract Documents showing the scope, extent and character of the construction to be performed by CONTRACTOR. 2 100 1.2.5 CONTRACTOR shall provide such descriptions and data as are required for obtaining approvals, permits, licenses, etc., of such governmental authorities having jurisdiction to review or approve the final design of the Project, as noted in the Scope of Work. 1.3 Construction Services 1.3.1 After the Construction Documents have been sufficiently completed by the CONTRACTOR and approved by OWNER in writing for the Project (or such portions thereof as may be designated by OWNER in writing), OWNER shall authorize CONTRACTOR in writing to proceed with the Construction Phase Services. CONTRACTOR shall provide to itself or duly licensed and qualified subcontractors the necessary management, supervision, financing, labor, inspection, testing, start -up, materials, equipment, machinery, tools, fuel, temporary utilities, construction offices and /or other temporary facilities of every kind and type necessary to diligently, timely and fully perform and complete in a good and workmanlike manner the construction of the Project (or designated portions thereof) to permit CONTRACTOR to complete construction of the Project in accordance with all of the terms and conditions of the Contract Documents and as described in Exhibit A- Project Scope and Services, and this Article 1. 1.3.2 CONTRACTOR shall be solely responsible for the means, methods, techniques, sequences and procedures employed for the provision of the Work. CONTRACTOR shall be responsible for the completion of the Work in compliance with the Contract Documents and shall keep OWNER advised as to the progress of the Work by regular weekly written reports. 1.3.3 CONTRACTOR shall coordinate the activities of all Subcontractors. If OWNER performs other work on the Project or at the site with separate CONTRACTORs under OWNER's control, CONTRACTOR agrees to reasonably cooperate and coordinate its activities with those of such separate CONTRACTORs so that the Project can be completed in an orderly and coordinated manner without unreasonable disruption. 1.3.4 CONTRACTOR shall keep the site reasonably free from debris, trash and construction waste to permit CONTRACTOR to perform its construction services efficiently, safely and without interfering with the use of adjacent land areas. Upon Substantial Completion of the Work, or a portion of the Work, CONTRACTOR shall remove all debris, trash, construction wastes, materials, equipment, machinery and tools arising from the Work or applicable portions thereof to permit OWNER to occupy the Project or a portion of the Project for its intended use. 1.3.5 CONTRACTOR shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. CONTRACTOR shall be fully and solely responsible for safety and take all reasonable precautions for the safety of, and shall provide the reasonable protection to prevent damage, injury or loss to: a. All persons on the site or who may be affected by the Work; b. All Work and materials and equipment to be incorporated therein, whether in storage on or off the site; and C. Other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, utilities and underground facilities not designated for removal, relocation or replacement in the course of construction. 10D 1 1.3.6 CONTRACTOR shall comply with applicable laws and regulations of any public body having jurisdiction for safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguards for such safety and protection. CONTRACTOR shall hold regular weekly safety meetings with their staff and shall issue meeting minutes of same. CONTRACTOR's duties and responsibilities for safety and for protection of the construction shall continue until such time as all the Work is completed. 2. OWNER'S RESPONSIBILITIES 2.1 OWNER shall provide CONTRACTOR with an accurate description of the site where the Work is to be performed and will furnish CONTRACTOR with all available information, i.e., record as -built drawings and legal site descriptions if they are available, the physical characteristics, legal limitations and utility limitations at the site. OWNER will assist in establishing test or boring locations in cooperation with the design professional. 2.2 OWNER will provide for or arrange for a right of entry to CONTRACTOR, its agents, staff, or subcontractors, for the purpose of performing and with the right to perform all acts, studies, and research including, without limitation, the making of tests and evaluations, pursuant to the agreed Work. Subject to applicable law, OWNER will provide CONTRACTOR, its employees and subcontractors, reasonable access to the site. 2.3 OWNER shall designate in writing to CONTRACTOR, prior to the commencement of the Work, a representative who shall be fully acquainted with the Work and who has authority on behalf of OWNER to approve changes in the scope of the Work, approve any daily reports submitted by CONTRACTOR, render decisions promptly, and furnish information expeditiously and in time to meet the time schedule for completion of the Work. 2.4 OWNER recognizes that CONTRACTOR's Services may unavoidably alter the existing site conditions and affect the environment in the work area. 2.5 OWNER shall notify CONTRACTOR of any known health or safety hazard existing on or near the site where Work is to be or is being performed by CONTRACTOR or its subcontractors, with particular reference to utilities and hazardous substances or conditions. 2.6 OWNER shall provide CONTRACTOR with all relevant data and information in its possession relating to the site, the Work and the environmental, geologic and geotechnical conditions of the site and surrounding area and the location of subsurface structures, such as pipes, tanks, cables and utilities as known to OWNER. 2.7 OWNER shall, within seven (7) days of occurrence of any event hereinafter described, give CONTRACTOR written notice of any suspected failure of CONTRACTOR to adhere to either the contract terms or the standard of care described herein. 2.8 CONTRACTOR shall be responsible for acquiring all permits that are part of the Work, as noted in the Scope of Work, Exhibit A. OWNER will pay for all Collier County permits and fees applicable to the Project, including license fees, permit fees, impact fees or inspection fees applicable to this Work through an internal budget transfer(s). CONTRACTOR shall be responsible for the costs of obtaining all other required permits. OWNER will apply for permits that the CONTRACTOR can not obtain. 3. INSURANCE REQUIREMENTS 3.1 CONTRACTOR shall at its own expense, carry and maintain insurance coverage from responsible companies duly authorized to do business in the State of Florida as follows: 100 3.1.1 Workers' Compensation as required by the state where the Work is to be performed including Employer's Liability; Commercial General Liability including Contractual Liability and Explosion, Collapse and Underground, Comprehensive Automobile Liability, including Owned, Non -owned and Hired Vehicles. 3.1.2 Limits of Liability Provided: (a) Workers' Compensation in the statutory limits of Florida Statutes, Chapter 440 and all Federal Government Statutory Limits and Requirements. Policy must include Employers Liability with a limit of $1,000,000 each accident. b) Commercial General Liability: Bodily injury/Property damage $2,000,000 single limit per occurrence. C) Automobile Liability - Combined Single Limit $2,000,000 all autos. d) Professional Errors and Omissions - $1,000,000 per claim. 3.2 OWNER and CONTRACTOR waive against each other and OWNER's separate CONTRACTORs, Design Consultant, Subcontractors, agents and employees of each and all of them, all damages covered by property insurance provided herein, except such rights as they may have to the proceeds of such insurance. CONTRACTOR and OWNER shall, where appropriate, require similar waivers of subrogation from OWNER's separate CONTRACTORs, Design Consultants and Subcontractors and shall require each of them to include similar waivers in their contracts. 3.4 CONTRACTOR shall obtain and carry, at all times during its performance under the Contract Documents, insurance of the types and in the amounts set forth in this Article 3, and Exhibit B (if required), with certificates attached as Exhibit B to this Agreement. Certificates must identify the specific Project name, as well as the site location and address (if any). 3.5 All insurance policies, other than the Business Automobile and Workers Compensation policies, provided by CONTRACTOR to meet the requirements of this Agreement shall name Collier County, Florida, as an additional insured as to the operations of CONTRACTOR under this Agreement and shall contain a severability of interests provisions. 3.6 Collier County Board of County Commissioners shall be named as the Certificate Holder. NOTE - -The "Certificate Holder" should read as follows: Collier County Board of County Commissioners Naples, Florida 3.7.1 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 CONTRACTOR has any self- insured retentions or deductibles under any of the below listed minimum required coverages, CONTRACTOR must identify on the Certificate of Insurance the nature and amount of such self- insured retentions or deductibles and provide satisfactory evidence of financial responsibility for such obligations. All self- insured retentions or deductibles will be CONTRACTOR's sole responsibility. 3.8 Coverage's shall be maintained without interruption from the date of commencement of the Work until the date of completion and acceptance of the Project by the OWNER or as specified in this Agreement, whichever is longer. 100 3.9 The CONTRACTOR and /or its insurance carrier shall provide 30 days written notice to the OWNER of policy cancellation or non - renewal on the part of the insurance carrier or the CONTRACTOR. CONTRACTOR shall also notify OWNER, in a like manner, within twenty -four (24) hours after receipt, of any notices of expiration, cancellation, non - renewal or material change in coverages or limits received by CONTRACTOR from its insurer and nothing contained herein shall relieve CONTRACTOR of this requirement to provide notice. In the event of a reduction in the aggregate limit of any policy to be provided by CONTRACTOR hereunder, CONTRACTOR shall immediately take steps to have the aggregate limit reinstated to the full extent permitted under such policy. 3.10 Should at any time the CONTRACTOR not maintain the insurance coverage's required herein, the OWNER may terminate the Agreement or at its sole discretion shall be authorized to purchase such coverage's and charge the CONTRACTOR for such coverage's purchased. If CONTRACTOR fails to reimburse OWNER for such costs within thirty (30) days after demand, OWNER has the right to offset these costs from any amount due CONTRACTOR under this Agreement or any other agreement between OWNER and CONTRACTOR. The OWNER shall be under no obligation to purchase such insurance, nor shall it be responsible for the coverage's purchased or the insurance company or companies used. The decision of the OWNER to purchase such insurance coverage's shall in no way be construed to be a waiver of any of its rights under the Contract Documents. 3.12 If the initial or any subsequently issued Certificate of Insurance expires prior to the completion of the Work or termination of the Agreement, the CONTRACTOR shall furnish to the OWNER, renewal or replacement Certificate(s) of Insurance not later than ten (10) calendar days after to the date of their expiration. Failure of the CONTRACTOR to provide the OWNER with such renewal certificate(s) shall be considered justification for the OWNER to terminate the Agreement. 4. INDEMNIFICATION 4.1 To the maximum extent permitted by Florida law, CONTRACTOR shall indemnify and hold harmless OWNER and its officers and employees from any and all liabilities, claims, damages, penalties, demands, judgments, actions, proceedings, losses or costs, including, but not limited to, reasonable attorneys' fees and paralegals' fees, whether resulting from any claimed breach of this Agreement by CONTRACTOR or from personal injury, property damage, direct or consequential damages, or economic loss, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of CONTRACTOR, its Design Consultants, and its Subcontractors, anyone employed directly or indirectly by any of them or anyone employed or utilized by the CONTRACTOR in the performance of this Agreement. 4.2 The duty to defend under this Article 4 is independent and separate from the duty to indemnify, and the duty to defend exists regardless of any ultimate liability of the CONTRACTOR, OWNER and any indemnified party. The duty to defend arises immediately upon presentation of a claim by any party and written notice of such claim being provided to CONTRACTOR. CONTRACTOR's obligation to indemnify and defend under this Article 4 will survive the expiration or earlier termination of this Agreement until it is determined by final judgment that an action against the OWNER or an indemnified party for the matter indemnified hereunder is fully and finally barred by the applicable statute of limitations. 5. CONSEQUENTIAL DAMAGES Neither CONTRACTOR nor the OWNER shall be liable to the other for incidental or consequential damages, whether arising in contract, tort (including negligence), statute or strict liability. 11 6. LAWS AND REGULATIONS 6.1 CONTRACTOR will comply with applicable federal, state and local laws and regulations. 6.2 This Agreement shall be governed by the laws, rules, and regulations of the State of Florida. Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. 7. INDEPENDENT CONTRACTOR CONTRACTOR is an independent CONTRACTOR and the detailed means, manner and method of performing the Work are under the sole control of CONTRACTOR or its subcontractor(s). 8. CONTRACT AMOUNT In consideration of the faithful performance by CONTRACTOR of the covenants in this Agreement to the full satisfaction and acceptance of OWNER, OWNER agrees to pay, or cause to be paid, to CONTRACTOR the following amount (herein "Contract Amount "), in accordance with the terms of this Agreement: Design & Construction Phases. With respect to the Design and Construction Services to be provided by CONTRACTOR hereunder, OWNER shall pay CONTRACTOR for the Cost of the Work (as that term is defined hereafter), a total lump sum fee of the Base price of three million four hundred forty seven thousand seven hundred ninety four dollars ($3,447,794). The add alternate for the water main is dependent upon funding from the City of Naples of six hundred and one thousand one hundred fifty dollars ($601,150) for a total of four million forty eight thousand nine hundred ninety four dollars ($4,048,994). ( "CONTRACTOR'S Fee) for the entire Project. Payment terms for this sum are described in 8.1 below. 8.1 Monthly Progress Payments — Construction Phase Services 8.1.1 The first Application for Payment shall be submitted no earlier than thirty (30) days after the Commencement Date. Prior to submitting its first monthly Application for Payment, CONTRACTOR shall submit to OWNER, for review and approval, a Risk Management Plan, Quality Assurance /Quality Control Plan, a Critical Path Method Schedule showing critical path, interdependencies and slack or float, a Hurricane Plan, and a schedule of values based upon the Contract Price, listing the major elements of the Work and the dollar value for each element. After its approval by the OWNER, this schedule of values shall be used as the basis for the CONTRACTOR's monthly Applications for Payment. This schedule shall be updated and submitted each month to the OWNER along with a completed copy of the Application for Payment form as prescribed in Exhibit D, signed by the CONTRACTOR's authorized representative and attached to the Agreement as Exhibit I. 8.1.2 If payment is requested on the basis of materials and equipment not incorporated into the Project, but delivered and suitably stored at the site or at another location agreed to by the OWNER in writing, the Application for Payment shall also be accompanied by a bill of sale, invoice or other documentation warranting that the OWNER has received the materials and equipment free and clear of all liens, charges, security interests and encumbrances, together with evidence that the materials and equipment are covered by appropriate property insurance and other arrangements to protect OWNER's 10D interest therein, all of which shall be subject to the OWNER's satisfaction. Thereafter, with each subsequent Application for Payment, CONTRACTOR also shall complete and submit to OWNER as part of its Application for Payment, the Stored Materials Record attached hereto and made a part hereof as Exhibit N. 8.1.3 CONTRACTOR shall submit four (4) copies of its monthly Application for Payment to the OWNER or his designee. The OWNER or his designee shall either: (1) Indicate its approval of the requested payment; (2) indicate its approval of only a portion of the requested payment, stating in writing its contractual basis therefore; or (3) return the Application for Payment to the CONTRACTOR indicating, in writing, the reason for refusing to approve payment. Payments of proper invoices shall be processed in accordance with Section 218.70, F.S. and the administrative procedures established by the County's Purchasing and Finance Departments respectively. In the event of a total denial and return of the Application for Payment by the OWNER or his designee, the CONTRACTOR may make the necessary corrections and re- submit the Application for Payment. 8.1.4 OWNER shall retain ten percent (10 %) of the gross amount of each monthly payment request or ten percent (10 %) of the portion thereof approved for payment, whichever is less. Such sum shall be accumulated and not released to CONTRACTOR until final payment is due unless otherwise agreed to by the OWNER in accordance with Florida Statute 255.078. The Project Manager shall have the discretion to establish, in writing, a schedule to periodically reduce the percentage of cumulative retainage held throughout the course of the Project schedule. At the point at which the OWNER has expended fifty percent (50 %) of the total cost of construction services as defined by OWNER, OWNER shall reduce the amount of the retainage withheld on each subsequent payment request to five percent (5 %) subject to the guidelines set forth in Florida Statute 255.078. 8.1.5 Monthly payments to the CONTRACTOR shall in no way imply approval or acceptance of CONTRACTOR's work. 8.1.6 Each Application for Payment, subsequent to the first pay application, shall be accompanied by a Release and Affidavit, in the form attached as Exhibit E, showing that all materials, labor, equipment and other bills associated with that portion of the Work payment is being requested on have been paid in full. For all payments subsequent to the first payment, the OWNER shall not be required to make payment until and unless these affidavits are furnished by the CONTRACTOR. 8.1.7 CONTRACTOR agrees and understands that funding limitations exist and that the expenditure of funds must be spread over the duration of the Project at regular intervals based on the Contract Amount and Progress Schedule. Accordingly, prior to submitting its first monthly Application for Payment, CONTRACTOR shall prepare and submit for OWNER's review and approval, a detailed Project Funding Schedule, which shall be updated as necessary and approved by OWNER to reflect approved adjustments to the Contract Amount and Contract Time. No voluntary acceleration or early completion of the Work shall modify the time of payments to the CONTRACTOR as set forth in the approved Project Funding Schedule. 8.1.8 Payments will be made for services furnished, delivered, and accepted, upon receipt and approval of invoices submitted on the date of services or within six (6) months after completion of contract. Any untimely submission of invoices beyond the specified deadline period is subject to non - payment under the legal doctrine of "laches" as rll untimely submitted. Time shall be deemed of the essence with respect to the timely submission of invoices under this agreement. 8.2 Payments Withheld 8.2.1 The OWNER may decline to approve any Application for Payment, or portions thereof, because of evidence or inspections that reveal non - compliance with the contract documents. The OWNER may nullify the whole or any part of any approval for payment previously issued and OWNER may withhold any payments otherwise due CONTRACTOR under this Agreement, to such extent as may be necessary in the OWNER's reasonable opinion to protect it from loss because of any of the following: (a) defective Work not remedied; (b) third party claims actually filed for which CONTRACTOR is required to indemnify OWNER; (c) failure of CONTRACTOR to make payment properly to subcontractors or for labor, materials or equipment not caused by the failure of the OWNER to make payments to the CONTRACTOR in a timely manner as provided herein; (d) reasonable doubt that the Work can be completed for the unpaid balance of the Contract Amount; (e) reasonable indication that the Work will not be completed within the Contract Time, except as provided in Article 15 of this Agreement; (f) unsatisfactory prosecution of the Work by the CONTRACTOR; or (g) any other material breach of the Contract Documents. 8.2.2 If the CONTRACTOR has not remedied or cured or commenced reasonable actions to remedy or cure the conditions described in 8.2.1. not later than receipt of seven (7) calendar days prior written notice OWNER may rectify the same at CONTRACTOR's expense. OWNER also may offset against any sums due CONTRACTOR the amount of any liquidated or non - liquidated obligations of CONTRACTOR to OWNER, whether relating to or arising out of this Agreement. 8.3 Final Payment 8.3.1 OWNER shall make final payment to CONTRACTOR within thirty (30) calendar days after the Work is finally inspected and accepted by the OWNER in accordance with Article 8.4 herein. Neither the final payment nor the retainage shall become due and payable until CONTRACTOR submits: (1) Receipt of CONTRACTOR's Final Application for Payment. (2) The Release and Affidavit in the form attached as Exhibit E. (3) Consent of surety to final payment. (4) Receipt of the final payment check list in the form attached as Exhibit H. (5) If required by OWNER, other data establishing payment or satisfaction of all obligations, such as receipts, releases and waivers of liens, arising out of the Contract Documents, to the extent and in such form as may be designated by OWNER. (6) OWNER reserves the right to inspect the Work and make an independent determination as to the Work's acceptability, even though the Design Professional may have issued its recommendations. Unless and until the OWNER is completely satisfied, neither the final payment nor the retainage shall become due and payable. 8.3.2 CONTRACTOR's acceptance of final payment shall constitute a full waiver of any and all claims for payment of compensation hereunder by CONTRACTOR against OWNER ,except those previously made in writing and identified by CONTRACTOR as unsettled at the time of the final Application for Payment. Neither the acceptance of the Work nor payment by OWNER shall be deemed to be a waiver of OWNER's right to enforce 100 any obligations of CONTRACTOR hereunder or to the recovery of damages for defective Work not discovered by the OWNER at the time of final inspection. 8.4 Substantial Completion 8.4.1 CONTRACTOR shall notify OWNER or his designee, when it believes the Work, or to the extent permitted in the Contract Documents, a portion of the Work, is substantially complete. Within five (5) days of OWNER's receipt of CONTRACTOR's notice, OWNER and CONTRACTOR will jointly inspect such Work to verify that it is substantially complete in accordance with the requirements of the Contract Documents. If OWNER agrees in its reasonable discretion that such Work is substantially complete, OWNER shall prepare and issue a Certificate of Substantial Completion attached as Exhibit G. that will set forth (i) the date of Substantial Completion of the Work or portion thereof, (ii) the remaining items of Work that have to be completed before final payment, (iii) provisions (to the extent not already provided in the Contract Documents) establishing OWNER's and CONTRACTOR's responsibility for the Project's security, maintenance, utilities and insurance pending final payment and (iv) an acknowledgment that warranties commence to run on the date of Substantial Completion, except as may otherwise be noted in the Certificate of Substantial Completion. 8.4.2 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, OWNER shall release to CONTRACTOR any retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion. 8.4.3 OWNER, at its option, may use a portion of the Work which has been determined to be substantially complete, provided, however, that (i) a Certificate of Substantial Completion has been issued for the portion of Work addressing the items set forth in Section 8.4.1 above, and (ii) OWNER and CONTRACTOR agree that OWNER's use or occupancy will not interfere with CONTRACTOR's completion of the remaining Work. 8.5 Contract Time and Liquidated Damages 8.5.1 Time is of the essence in the performance of the Work under this Agreement. Because the Work is to be completed in two phases (i.e. Design Phase and Construction Phase), the timely completion of the first phase is critical to the timely completion of the second phase and, therefore, completion of the entire Project. Accordingly, CONTRACTOR agrees to provide the Design Phase Services in accordance with the design schedule attached hereto as Exhibit I. The "Commencement Date" shall be established in the written Notice to Proceed to be issued by the OWNER. CONTRACTOR shall commence the Design Phase of the Work within five (5) calendar days from receipt of the notice of the Design Phase Commencement Date. No Work shall be performed at the Project site prior to the Commencement Date. Any Work performed by CONTRACTOR prior to the Design Phase Commencement Date shall be at the sole risk of CONTRACTOR. 8.5.2 With respect to the Construction Phase Services, Exhibit I shall include the date that portion of the Work associated with the Construction Phase Services must be substantially completed by CONTRACTOR. The "Commencement Date" shall be established in the written Notice to Proceed to be issued by the OWNER. CONTRACTOR shall commence the Construction Phase of the Work within five (5) calendar days from receipt of the notice of the Construction Phase Commencement 10 100 Date. That Substantial Completion date shall be established in terms of calendar days after the Construction Phase Commencement Date. 8.5.3 The Work shall be substantially completed within five hundred and forty (540) calendar days from the Construction Phase Commencement Date. The date of substantial completion of the Work (or designated portions thereof) shall be the date certified by the OWNER, in its reasonable discretion, that construction is sufficiently complete and in accordance with the Contract Documents, so that OWNER can occupy or utilize the Work (or designated portions thereof) for the use(s) for which it is intended. 8.5.4 The work shall reach final completion and be ready for final acceptance by OWNER within five hundred and seventy (570) calendar days from the Construction Phase Commencement Date (herein "Contract Time "). 8.5.5 OWNER and CONTRACTOR recognize that, since time is of the essence for this Agreement, OWNER will suffer financial loss if the Work is not substantially completed within the time specified above, as said time may be adjusted as provided for herein. Should CONTRACTOR fail to substantially complete the Work within the time period noted above, OWNER shall be entitled to assess, as liquidated damages, but not as a penalty, one thousand nine hundred and fourteen dollars ($1,914.00) for each calendar day thereafter until substantial completion is achieved. Further, in the event Substantial Completion is reached, but the CONTRACTOR fails to reach Final Completion within the required time period, OWNER shall also be entitled to assess and CONTRACTOR shall be liable for all actual damages incurred by OWNER as a result of CONTRACTOR failing to timely achieve Final Completion. The Project shall be deemed to be substantially completed on the date the OWNER's Project Manager or his designee issues a Certificate of Substantial Completion pursuant to the terms hereof. CONTRACTOR hereby expressly waives and relinquishes all rights which it may have to seek to characterize the above noted liquidated damages as a penalty, which the parties agree represents fair and reasonable estimates of the OWNER's actual damages at the time of contracting if CONTRACTOR fails to substantially complete or finally complete the Work as scheduled. 8.5.6 CONTRACTOR agrees to promptly pay any and all fines and /or penalties that may be imposed upon Collier County by the State of Florida and /or any agency (or agencies) of the State of Florida arising as a result of CONTRACTOR's failure to substantially complete the scope of work within the time limits specified in this Agreement. CONTRACTOR is hereby authorized on behalf of Collier County to contest and /or otherwise dispute any and all such fines and /or penalties should any be threatened to be imposed 8.5.7 No interruption, interference, inefficiency, suspension or delay in the commencement or progress of the Work from any cause whatever, including those for which OWNER may be responsible, in whole or in part, shall relieve CONTRACTOR of its duty to perform or give rise to any right to damages or additional compensation from OWNER. CONTRACTOR expressly acknowledges and agrees that it shall receive no damages for delay. CONTRACTOR's sole remedy, if any, against OWNER will be the right to seek an extension to the Contract Time; provided, however, the granting of any such time extension shall not be a condition precedent to the aforementioned "No Damage For Delay" provision. This paragraph shall expressly apply to claims for early completion, as well as to claims based on late completion. 8.5.8 The OWNER shall have the power to suspend all or any portions of the services to be provided by CONTRACTOR hereunder upon giving CONTRACTOR two (2) calendar 11 100 days prior written notice of such suspension. If all or any portion of the services to be rendered hereunder are so suspended, the CONTRACTOR'S sole and exclusive remedy shall be to seek an extension of time to its schedule in accordance with the procedures set forth in Article Eight herein. 8.5.9 When any period of time is referenced herein by "days ", the days shall be computed to exclude the first day and to include the last day of such time period. If the last day of any such period falls on a Saturday or Sunday or on a legal holiday in Collier County by Federal or Florida Law, each such day shall be omitted from the computation, and the last day shall become the next succeeding business day which is not a Saturday, Sunday or legal holiday in Collier County, Florida. A day shall be a legal holiday in Collier County only if the government of Collier County recognizes that holiday by giving that day off from work by most of its employees or the CONTRACTOR recognizes that day as a legal holiday and thereby gives the majority of its workers the day off from work. 8.5.10 For all contracts, regardless of whether the Contract Time is stipulated in calendar days or working days, the OWNER will count default days as "calendar days." 8.5.11 In the event CONTRACTOR defaults on any of its obligations under the Agreement and OWNER elects to complete the Work, in whole or in part, through another contractor or its own forces, the CONTRACTOR and /or its surety shall continue to be liable for the liquidated damages under the Agreement until OWNER achieves Substantial and Final Completion of the Work. OWNER will not charge liquidated damages for any delay in achieving Substantial or Final Completion as a result of any unreasonable action or delay on the part of the OWNER. 8.5.12 The OWNER has the right to apply any amounts due CONTRACTOR under this Agreement or any other agreement between OWNER and CONTRACTOR, as payment on such damages due under this Agreement in OWNER's sole discretion. 8.5.13 Notwithstanding anything herein to the contrary, The OWNER does not waive its right to damages due under the Contract by allowing the CONTRACTOR to continue and to finish the work, or any part of it, after the expiration of the Contract Time including granted time extensions. 8.5.14 In the case of a default of the Contract by the CONTRACTOR and the completion of the work by the OWNER, the CONTRACTOR and his surety are liable for the damages under the Contract, but the OWNER will not charge damages for any delay in the Final Completion of the OWNER's performance of the work due to any unreasonable action or delay on the part of the OWNER. 8.5.15 The OWNER considers the Contract complete when the CONTRACTOR has completed in its entirety all of the work and the OWNER, in its reasonable discretion, has accepted all of the work and notified the CONTRACTOR in writing that the work is complete. The OWNER will then release the CONTRACTOR from further obligation except as set forth in his bond and except as provided in the Contract. 8.5.16 Recovery of Damages Suffered by Third Parties. CONTRACTOR shall be liable to OWNER to the extent OWNER incurs damages from a third party as a result of CONTRACTOR'S failure to fulfill all of its obligations under the Contract Documents. OWNER's recovery of any delay related damages under this Agreement through the liquidated damages does not preclude OWNER from recovering from CONTRACTOR any other non -delay related damages that may be owed to it arising out of or relating to this Agreement. 12 ion 9. CHANGES IN THE WORK. 9.1. OWNER shall have the right at any time during the progress of the Work to increase or decrease the Work. Promptly after being notified of a change, CONTRACTOR shall submit an itemized estimate of any cost or time increases or savings it foresees as a result of the change. Except in an emergency endangering life or property, or as expressly set forth herein, no addition or changes to the Work shall be made except upon mutual written agreement of the parties, and OWNER shall not be liable to the CONTRACTOR for any increased compensation without such written order. No officer, employee or agent of OWNER is authorized to direct any extra or changed work orally. OWNER will not be responsible for the costs of any changes commenced without OWNER's express prior written approval. Failure to obtain such prior written approval for any changes will be deemed: (i) a waiver of any claim by Design Builder for such items and (ii) an admission by CONTRACTOR that such items are in fact not a change but rather are part of the Work required of CONTRACTOR hereunder. 9.2. A Change Order, in the form attached as Exhibit F to this Agreement, shall be issued and executed promptly after an agreement is reached between CONTRACTOR and OWNER concerning the requested changes. CONTRACTOR shall promptly perform changes authorized by duly executed Change Orders. The Contract Amount and Contract Time shall be adjusted in the Change Order in the manner as OWNER and CONTRACTOR shall mutually agree. 9.3. If OWNER and CONTRACTOR are unable to agree on a Change Order for the requested change, CONTRACTOR shall nevertheless promptly perform the change as directed by OWNER in a written Work Directive Change in the forms attached as Exhibit F -1. In that event, the Contract Amount and Contract Time shall be adjusted as directed by OWNER. If CONTRACTOR disagrees with the OWNER's adjustment determination, CONTRACTOR must make a claim pursuant to and in strict compliance with Section 10 of these General Conditions or else be deemed to have waived any claims with regard to that adjustment or those adjustments. 9.4 In the event a requested change results in an increase to the Contract Amount, the amount of the increase shall be limited to the CONTRACTOR's reasonable labor and material costs and reasonable actual equipment costs as a direct result of the change (including allowance for labor overhead costs) plus a maximum ten percent (10 %) markup for profit, provided also that the respective increase(s) (including those below as to Subcontractors, etc.,) would not have been incurred but for those specific change(s). In the event such change Work is performed by a Subcontractor, a maximum ten percent (10 %) markup for all overhead and profit for all Subcontractors' and sub - subcontractors' direct labor and material costs and actual equipment costs shall be permitted, with a maximum five percent (5 %) markup thereon by the CONTRACTOR for all of its overhead and profit, for a total maximum markup of fifteen percent (15 %). No markup shall be placed on sales tax, shipping or subcontractor markup. All compensation due CONTRACTOR and any Subcontractor or sub subcontractor for field and home office overhead is included in the markups noted above. CONTRACTOR's and Subcontractor's bond costs associated with any change order shall be included in the overhead and profit expenses and shall not be paid as a separate line item. 9.5 OWNER shall have the right to conduct an audit of CONTRACTOR's books and records to verify the accuracy of the CONTRACTOR's claim(s) with respect to CONTRACTOR's costs associated with any Change Order. The OWNER shall have authority to order minor changes in the Work not involving an adjustment to the Contract Amount or an extension to the Contract Time that is not inconsistent with the intent of the Contract Documents. Such 13 10D changes may be effected by Field Order or by other written order. Such changes shall be binding on the CONTRACTOR. 9.6 Any modifications to this Contract shall be in compliance with the County Purchasing Policy and Administrative Procedures in effect at the time such modifications are authorized. 10. DISPUTE RESOLUTION 10.1 A claim is a demand or assertion by one of the parties seeking an adjustment or interpretation of the terms of the Contract Documents, payment of money, extension of time or other relief with respect to the terms of the Contract Documents. The term "Claim" also includes other disputes and matters in question between Owner and CONTRACTOR arising out of or relating to the Contract Documents. The responsibility to substantiate a Claim shall rest with the party making the Claim. 10.2 Claims by the CONTRACTOR shall be made in writing to the Project Manager within forty -eight (48) hours from when the Design Builder knew or should have known of the event giving rise to such Claim or else the Design Builder shall be deemed to have waived the Claim. Written supporting data shall be submitted to the Project Manager within fifteen (15) calendar days after the occurrence of the event, unless the Owner grants additional time in writing, or else the CONTRACTOR shall be deemed to have waived the Claim. 10.3 The CONTRACTOR shall proceed diligently with its performance as directed by the Owner, regardless of any pending Claim, action, suit or administrative proceeding, unless otherwise agreed to by the Owner in writing. Owner shall continue to make payments in accordance with the Contract Documents pending resolution of any Claim. 10.4 Prior to the initiation of any action or proceeding permitted by this Agreement to resolve disputes between the parties, the parties shall make a good faith effort to resolve any such disputes by negotiation. The negotiation shall be attended by representatives of CONTRACTOR with full decision - making authority and by OWNER's staff person who would make the presentation of any settlement reached during negotiations to OWNER for approval. Failing resolution, and prior to the commencement of depositions in any litigation between the parties arising out of this Agreement, the parties shall attempt to resolve the dispute through Mediation before an agreed -upon Circuit Court Mediator certified by the State of Florida. The mediation shall be attended by representatives of CONTRACTOR with full decision - making authority and by OWNER's staff person who would make the presentation of any settlement reached at mediation to OWNER's board for approval. Should either party fail to submit to mediation as required hereunder, the other party may obtain a court order requiring mediation under section 44.102, Fla. Stat. 11. ASSIGNMENT CONTRACTOR shall not assign this Agreement or any part thereof without prior expressed written consent of OWNER, which shall not be unreasonably withheld. Any attempt to assign or otherwise transfer this Agreement, or any part herein, without such OWNER's consent, shall be void. If CONTRACTOR does, with approval, assign this Agreement or any part thereof, it shall require that its assignee be bound to it and to assume toward CONTRACTOR all of the obligations and responsibilities that CONTRACTOR has assumed toward OWNER. 12. HAZARDOUS CONDITIONS 12.1 Unless otherwise expressly provided in the Contract Documents to be part of the Work, CONTRACTOR is not responsible for any Hazardous Conditions encountered at the site. 14 11 Upon encountering any Hazardous Conditions, CONTRACTOR will stop Work immediately in the affected area and duly notify OWNER. 12.2 Upon receiving notice of the presence of suspected Hazardous Conditions, OWNER shall take the necessary measures required to ensure that the Hazardous Conditions are remedied or rendered harmless. Such necessary measures shall include OWNER retaining qualified independent experts to (i) ascertain whether Hazardous Conditions have actually been encountered, and, if they have been encountered, (ii) prescribe the remedial measures that OWNER must take either to remove the Hazardous Conditions or render the Hazardous Conditions harmless. 12.3 CONTRACTOR shall be obligated to resume Work at the affected area of the Project only after OWNER's expert provides it with written certification that (i) the Hazardous Conditions have been removed or rendered harmless and (ii) all necessary approvals have been obtained from all government and quasi - government entities having jurisdiction over the Project or site. 12.4 CONTRACTOR will be entitled, in accordance with these General Conditions of Contract, to an adjustment in its Contract Price and /or Contract Time(s) to the extent CONTRACTOR's cost and /or time of performance have been adversely impacted by the presence of Hazardous Conditions. 13. DIFFERING SITE CONDITIONS 13.1 Notwithstanding anything in the Contract Documents to the contrary, if conditions are encountered at the Project site which are (i) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (ii) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, and which reasonably should not have been discovered by CONTRACTOR as part of its scope of site investigative services required pursuant to the terms of the Contract Documents, then CONTRACTOR shall provide OWNER with prompt written notice thereof before conditions are disturbed and in no event later than three (3) calendar days after first observance of such conditions. OWNER and Design Professional shall promptly investigate such conditions and, if they differ materially and cause an increase or decrease in CONTRACTOR's cost of, or time required for, performance of any part of the Work, OWNER will acknowledge and agree to an equitable adjustment to CONTRACTOR's compensation or time for performance, or both, for such Work. If OWNER determines that the conditions at the site are not materially different from those indicated in the Contract Documents or not of an unusual nature or should have been discovered by CONTRACTOR as part of its investigative services, and that no change in the terms of the Agreement is justified, OWNER shall so notify CONTRACTOR in writing, stating its reasons. Claims by CONTRACTOR in opposition to such determination by OWNER must be made within seven (7) calendar days after CONTRACTOR's receipt of OWNER's written determination notice. If OWNER and CONTRACTOR cannot agree on an adjustment to CONTRACTOR's cost or time of performance, the dispute resolution procedure set forth in the Contract Documents shall be complied with by the parties. 14. PERFORMANCE OF WORK AND REMEDY 14.1 CONTRACTOR shall obtain and assign to OWNER all express warranties given to CONTRACTOR or any subcontractor(s) by any material men supplying materials, equipment or fixtures to be incorporated into the Project. CONTRACTOR warrants to OWNER that any materials and equipment furnished under the Contract Documents shall be new except to the extent, if any, expressly specified otherwise, and that all Work shall be of good quality, free from all material defects and in conformance with the Contract Documents. CONTRACTOR 15 100 further warrant to OWNER that all materials and equipment furnished under the Contract Documents shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturers, fabricators, suppliers or processors except as otherwise provided for in the Contract Documents. If, within one (1) year after substantial completion, any Work is found to be defective or not in conformance with the Contract Documents, CONTRACTOR shall correct it promptly after receipt of written notice from OWNER. CONTRACTOR shall also be responsible for and pay for replacement or repair of adjacent materials or Work, which may be damaged as a result of such replacement or repair. These warranties are in addition to those implied warranties to which OWNER is entitled as a matter of law. 14.2. No later than thirty (30) days prior to expiration of the warranty, the Project Manager, or any other representative of the OWNER, shall conduct an inspection of the warranted work to verify compliance with the requirements of the Agreement. The CONTRACTOR's Representative shall be present at the time of inspection and shall take remedial actions to correct any deficiencies noted in the inspection. Failure of the CONTRACTOR to correct the cited deficiencies shall be grounds for the County to disqualify the CONTRACTOR from future County bid opportunities. 15. FORCE MAJEURE 15.1 Not withstanding anything to the contrary contained herein, if CONTRACTOR is delayed at any time in the progress of the Work contemplated hereunder by any act of the OWNER, by act of force majeure, by any act of CONTRACTOR, of OWNER or a third party, by adverse weather conditions not reasonably anticipated, or by unavoidable casualties, or by any other cause beyond CONTRACTOR's control, or by delay authorized by OWNER, the time for completion of the Work shall be extended for a time equal to the time of such delay, and CONTRACTOR shall be compensated for changes in the Work necessitated by such force majeure event provided, however, that the delay would not have occurred but for the act or the force majeure. 15.2 In the event either party to this agreement is rendered unable, either wholly or in part, by an act or force majeure as described hereinabove, to carry out its obligation under this Agreement, other than its obligations to make payments when due, then the party affected by such act or force majeure, as described hereinabove, shall give written notice with clear explanation to the other party within five (5) business days of discovery of the act or force majeure. Following such notice, the effective obligations of the party giving notice shall be suspended only during the continuance of the act or force majeure, provided good faith due diligence is demonstrated in seeking remedy to the cause. 15.3 The term "force majeure" as employed herein shall mean acts of Nature, acts of public enemy, war, blockade, insurrection, riot, act of terrorism, epidemic, landslide, lightning, earthquake, fire, storm, flood, washout, civil disturbance, explosion, labor dispute, inability with reasonable diligence to obtain material(s) and /or any other substantially similar cause(s) not within the reasonable control of the party claiming a suspension despite that party's due diligence. 16. CHANGE IN LAW CONTRACTOR shall be compensated for changes in the Work and the time for completion of the Work shall be extended as necessitated by the occurrence of any of the following on or subsequent to the Agreement Date: (a) the enactment, adoption, promulgation, modification, repeal, or formal change in interpretation of any federal, state or local law or regulation having the force of law; (b) the issuance or modification of an order, decree, or judgment of any federal, state or local court, administrative agency or governmental officer or body, acting in a judicial or quasi - judicial capacity, if the issuance or modification of any such order, decree, or 16 10 judgment is not also the result of CONTRACTOR's negligent or willful action or failure to act.; or (c) the delay in the review, issuance or renewal of or suspension, termination, interruption, denial, failure to issue or failure to renew any legal requirement, permit or approval, or the imposition of a term, condition or requirement which is more stringent or burdensome than that required by the Project Scope, if such act is not also the result of CONTRACTOR's negligent or willful action or failure to act. 17. TERMINATION FOR CAUSE 17.1. CONTRACTOR shall be considered in material default of the Agreement and such default shall be considered cause for OWNER to terminate the Agreement, in whole or in part, as further set forth in this Section, if CONTRACTOR: either fails to begin the Work under the Contract Documents within the time specified herein; or (2) fails to properly and timely perform the Work as directed by the Project Manager, or as provided for in the approved Progress Schedule; or (3) performs the Work unsuitably, or neglects or refuses to remove materials, or fails to correct or replace such Work as may be rejected by OWNER (or OWNER's representative) as being unacceptable or unsuitable; or (4) discontinues prosecution of the Work; or (5) fails to resume Work that has been suspended within a reasonable time after being notified to resume the Work, or (6) becomes insolvent or is declared bankrupt, or commits any act of bankruptcy; or (7) makes an assignment for the benefit of creditors; or (8) fails to obey any then applicable codes, laws, ordinances, rules or regulations with respect to the Work; or (9) materially breaches any other provision of the Contract Documents. Termination of the Agreement pursuant to subparagraphs (6) and (7) herein is allowed to the extent not prohibited by then applicable law. 17.2. OWNER shall notify CONTRACTOR in writing of CONTRACTOR's default(s). If OWNER determines that CONTRACTOR has not remedied and cured the default(s) or commenced reasonable actions to effect a remedy or cure, within seven (7) calendar days following receipt by CONTRACTOR of said written notice, then OWNER, at its option, without releasing or waiving any of its rights and remedies against CONTRACTOR's sureties and without prejudice to any other right or remedy it may be entitled to hereunder or by law, may terminate CONTRACTOR's right to proceed under the Agreement, in whole or in part, and may take possession of all or any portion of the Work, may take assignments of any of CONTRACTOR's subcontracts and purchase orders, and may complete all or any portion of CONTRACTOR's Work by whatever lawful means, method or agency which OWNER, in its sole discretion, may choose. 17.3. If OWNER deems any of the foregoing remedies necessary; CONTRACTOR agrees that it shall not be entitled to receive any further payments hereunder until after the Project is completed. All moneys expended and all of the costs, losses, damages and extra expenses, including all management, administrative and other overhead and other direct and indirect expenses (including Design Professional and reasonable attorneys' fees, including appeals) or damages incurred by OWNER incident to such completion, shall be deducted from the Contract Amount, and if such expenditures exceed the unpaid balance of the Contract Amount, CONTRACTOR agrees to pay promptly to OWNER on demand the full amount of such excess, including costs of collection, reasonable attorneys' fees (including appeals) with interest thereon (compounded monthly until paid in full) at the Prime Rate as published daily in the Wall Street Journal. If the unpaid balance of the Contract Amount exceeds all such costs, expenditures and damages incurred by the OWNER to complete the Work, such excess with such interest shall be paid to the CONTRACTOR. The amount to be paid to the CONTRACTOR or OWNER, as the case may be, shall be approved by the OWNER, upon application, and this obligation for payment shall survive termination of the Agreement. 17 ion 1-04 17.4. The liability of CONTRACTOR hereunder shall extend to and include the full amount of any and all sums paid, expenses and losses incurred, damages sustained, and obligations assumed by OWNER in good faith under the belief that such payments or assumptions were necessary or required, in completing the Work and providing labor, materials, equipment, supplies, and other items therefore or re- letting the Work, and in settlement, discharge or compromise of any claims, demands, suits, and judgments pertaining to or arising out of the Work hereunder. 17.5. If, after notice of termination of CONTRACTOR's right to proceed pursuant to this Section, it is determined for any reason that CONTRACTOR was not in default, or that its default was excusable, or that OWNER is not entitled to the remedies against CONTRACTOR provided herein, then CONTRACTOR's remedies against OWNER shall include all costs and expenses incurred by the CONTRACTOR as a result of the OWNER's actions, including reasonable attorney's fees. 17.6. The OWNER shall use all reasonable and diligent, good faith efforts to mitigate any of its damages against the CONTRACTOR. 18. TERMINATION FOR CONVENIENCE 18.1. OWNER shall have the right to terminate this Agreement without cause upon seven (7) calendar days written notice to CONTRACTOR. In the event of such termination for convenience, CONTRACTOR's recovery against OWNER shall be limited to that portion of the Contract Amount earned through the date of termination, together with any retainage withheld and reasonable termination expenses incurred, but CONTRACTOR shall not be entitled to any other or further recovery against OWNER, including, but not limited to, damages or any anticipated profit on portions of the Work not performed. 18.2 OWNER shall have the right to suspend all or any portions of the Work upon giving CONTRACTOR not less than five (5) calendar days' prior written notice of such suspension. If all or any portion of the Work is so suspended for an aggregate of thirty (30) calendar days or less, CONTRACTOR's sole and exclusive remedy shall be to seek an extension of time to its schedule in accordance with the procedures set forth in the Contract Documents. If the aggregate suspension is more than thirty (30) calendar days, the CONTRACTOR be entitled to a reasonable extension of time and additional compensation. Provided, however, if the ordered suspension exceeds six (6) months, the CONTRACTOR shall have the right to terminate the Agreement with respect to that portion of the Work which is subject to the ordered suspension. 19. PERFORMANCE BOND AND PAYMENT BOND 19.1 CONTRACTOR shall provide Performance and Payment Bonds, in the forms prescribed in Exhibit J, in the amount of 100% of the Contract Amount, the costs of which to be paid by CONTRACTOR. The Performance and Payment Bonds shall be underwritten by a surety authorized to do business in the State of Florida and otherwise acceptable to OWNER, provided, however, the surety shall meet the requirements of the Department of the Treasury Fiscal Service, "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsurance Companies" circular. This circular may be accessed via the web at www .fms.treas.gov /c570 /c570.html #certified. Moreover, the surety shall be rated as "A -" or better as to general policy holders rating and Class V or higher rating as to financial size category and the amount required shall not exceed 5% of the reported policy holders surplus, all as reported in the most current Best Key Rating Guide, published by A.M. Best Company, Inc. of 75 Fulton Street, New York, New York 10038. Should the contract 18 r 1 Il amount be less than $500,000, the requirements of Section 287.0935, Florida Statutes shall govern the rating and classification of the surety. 19.2 If the surety for any bond furnished by CONTRACTOR is declared bankrupt, becomes insolvent, its right to do business is terminated in the State of Florida, or it ceases to meet the requirements imposed by the Contract Documents, the CONTRACTOR shall, within fourteen (14) calendar days thereafter, substitute another bond and surety, both of which shall be subject to the OWNER's approval. 19.3 At the time CONTRACTOR executes this Agreement, CONTRACTOR shall deliver to OWNER proof, reasonably acceptable to OWNER, of CONTRACTOR'S ability to deliver the Performance and Payment bonds required hereunder 20. TITLE TO WASTE At no time will CONTRACTOR take title, constructive or express, to any hazardous or toxic substance or constituent, to any waste, or to any asbestos or asbestos containing - materials. 21. SAMPLES Test specimens or samples generally are consumed or substantially altered during testing and are disposed of immediately upon completion of tests. Drilling samples and other specimens are disposed of thirty (30) days after CONTRACTOR's submission of its report. NON - HAZARDOUS SAMPLES. At OWNER's written request, CONTRACTOR will retain preservable test specimens or the residue there from for thirty (30) days after submission of CONTRACTOR's report free of storage charges. HAZARDOUS OR POTENTIALLY HAZARDOUS SAMPLES. In the event that samples contain hazardous constituents, CONTRACTOR will return such samples to OWNER, or using a manifest signed by OWNER as generator, CONTRACTOR will have such samples transported to a location selected by OWNER for final disposal. OWNER agrees to pay all costs associated with the storage, transport, and disposal of samples. OWNER recognizes and agrees that CONTRACTOR acts as a bailee and at no time assumes title to said materials. 22. DOCUMENTS 22.1 All documents, including but not limited to, drawings, specifications, reports, boring logs, field notes, laboratory test data, calculations and estimates, prepared by CONTRACTOR as instruments of service pursuant to this Agreement, shall be OWNER's sole property, upon payment of all compensation due to the CONTRACTOR hereunder. OWNER agrees that all documents of any nature furnished to OWNER or OWNER's agents or designees, if not paid for, will be returned upon demand and will not be used by OWNER for any purpose whatsoever. 22.2 Upon the completion or termination of this Agreement, as directed by OWNER, CONTRACTOR shall deliver to OWNER copies or originals of all records, documents, drawings, notes, tracings, plans, Auto CADD files, specifications, maps, evaluations, reports and other technical data, other than working papers, prepared or developed by or for CONTRACTOR under this Agreement ( "Project Documents "). OWNER shall specify whether the originals or copies of such Project Documents are to be delivered by CONTRACTOR. CONTRACTOR shall be solely responsible for all costs associated with delivering to OWNER 19 lOD the Project Documents. CONTRACTOR, at its own expense, may retain copies of the Project Documents for its files and internal use. 22.3 CONTRACTOR shall keep such full and detailed records as may be reasonably necessary to reflect: a) proper financial management under this Agreement; and b) the Services performed, including, when applicable, testing, sampling and investigatory services performed by CONTRACTOR. Such records will be subject to review by OWNER on the condition that OWNER identifies, in writing, those documents requested. Documents will be available for inspection at mutually agreeable times for a period of two (2) years after the Services have been completed, or longer where required by law. 22.4 Notwithstanding anything in this Agreement to the contrary and without requiring OWNER to pay any additional compensation, CONTRACTOR hereby grants to OWNER a nonexclusive, irrevocable license in all of the Project Documents for OWNER's use on this Project. CONTRACTOR warrants to OWNER that it has full right and authority to grant this license to OWNER. Further, CONTRACTOR consents to OWNER's use of the Project Documents to complete the Project following CONTRACTOR'S termination for any reason or to perform additions to or remodeling, replacement or renovations of the Project. CONTRACTOR also acknowledges OWNER may be making Project Documents available for review and information to various third parties and hereby consents to such use by OWNER. 23. CONFIDENTIALITY 23.1 CONTRACTOR shall treat as confidential property and not disclose to others, any information (including any technical information, experience or date) regarding OWNER's plans, programs, plants, processes, products, costs, equipment, operations or customers which may come within the knowledge of CONTRACTOR, its officers or employees, agents or consultants in the performance of this Agreement, including any data gathered and reports prepared by CONTRACTOR, without in each instance securing the prior written consent of OWNER. 23.2 Nothing contained herein, shall prevent CONTRACTOR from disclosing to others or using in any manner information which it can show: a. Has been published and has become part of the public domain other than by the acts, omissions or fault of CONTRACTOR its employees, agents or consultants; b. Has been furnished or made known to CONTRACTOR by third parties (other than those acting directly or indirectly for or on behalf of CONTRACTOR or OWNER) as a matter of legal right without restrictions on its disclosure; c. Was in CONTRACTOR's possession prior to the disclosure thereof by OWNER tc CONTRACTOR; d. Was independently developed by CONTRACTOR; or e. Was required to be disclosed by law. Provided, however, CONTRACTOR shall not release, or cause or allow the release of, information to the communications media, except as required by law, concerning the existence or terms of this Agreement. The foregoing obligations shall survive the termination or expiration of this Agreement for a period of two (2) years from the completion of Services. 24. SEVERABILITY In the event any provision or part herein shall be deemed invalid or unenforceable, the other provisions or parts hereof shall remain in full force and effect, and binding upon the parties hereto. 20 100 25. SURVIVAL All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating responsibility or liability between OWNER and CONTRACTOR shall survive the completion of the Services and the termination of this Agreement. 26. EXHIBITS INCORPORATED The following documents are expressly agreed to be incorporated by reference and made a part of this Agreement. Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Exhibit F -1 Exhibit F -2 Exhibit G: Exhibit H: Exhibit I: Exhibit J -1: Exhibit J -2: Exhibit K: Exhibit L: Exhibit M: Exhibit N: 27. NOTICES Project Scope and Services Insurance Requirements Schedule of Values Application for Payment Form Release and Affidavit Form Change Order Form Work Directive Change Certificate of Substantial Completion Form Final Payment Checklist Schedule Performance Bond Form Payment Bond Form Permits Truth in Negotiation Certificate Staffing Stored Materials Record Any notices required to be given under the terms of this agreement shall be provided in writing and posted in regular mail, postage prepaid, to the following addresses: CONTRACTOR Thomas Marine Construction 8999 High Cotton Lane Fort Myers, FL 33905 (239) 337 -0008 OWNER Collier County Purchasing Department 3327 Tamiami Trail East Naples, Florida 34112 ATTN: Stephen Y. Carnell, Purchasing & General Services Director (239) 252 -8371 For the purposes of this Agreement, notices shall be deemed to have been received upon three (3) days time after posting of the written notice in the U.S. Mail. 28. DIRECT PURCHASE 28.1 The OWNER reserves the right to require CONTRACTOR to assign some or all of its agreements with material suppliers directly to the OWNER. Any such goods and /or materials purchased by the OWNER pursuant to such an assignment of a material supply agreement shall be referred to as "OWNER Furnished Materials" and the responsibilities of both the OWNER and the CONTRACTOR relating to said materials shall be governed by the terms and conditions of this Agreement which shall take precedence over other conditions and terms of this Agreement where inconsistencies or conflicts exist. 21 11 Additionally, the OWNER; at its sole option; may choose to purchase some or all of the goods and /or materials from other suppliers. In either instance the OWNER may require the following information from the CONTRACTOR: 1. Required quantities of material. 2. Specifications relating to goods and /or materials required for job including brand and /or model number or type if applicable 3. Pricing and availability of goods and /or materials provided under CONTRACTOR's agreements with material suppliers 28.2 Purchasing Upon receipt of a proper requisition (including appropriate backup material(s), the Purchasing Department shall issue a Purchase Order for the material required. Each Purchase Order shall contain the OWNER's certificate of exemption number. The Purchase order shall be given to the Project Manager for completion of the ordering process. Unless the following items were included in the quote provided by the vendor to the Project Manager, the Purchase Order shall also provide for reimbursement of the cost to the supplier for: A. Shipping and handling B. Insurance costs C. Performance Bond 28.3 General Terms and Conditions A. CONTRACTOR shall be required to maintain records of all OWNER- furnished materials that it incorporates into the project from the stock of OWNER- furnished materials in its possession. Such records shall be furnished monthly to the Project Manager or their designee and shall include information on materials that have 1.) Been delivered into the CONTRACTOR's possession and /or 2.) been incorporated into the project. B. Notwithstanding the transfer of OWNER- furnished materials by the OWNER to the CONTRACTOR's possession, the OWNER shall retain legal and equitable title to any and all OWNER- furnished materials. C. The transfer of possession of OWNER- furnished materials from the OWNER to the CONTRACTOR shall constitute a bailment for the mutual benefit of the OWNER and the CONTRACTOR. The OWNER shall be considered the bailor, and the CONTRACTOR the bailee for the OWNER- furnished materials. OWNER- furnished materials shall be considered returned to the OWNER for purposes of their bailment at such time as they are incorporated into the Project. D. The OWNER shall purchase and maintain insurance sufficient to protect against any loss or damage to OWNER- furnished materials. Such insurance shall cover the replacement cost of any OWNER- furnished materials not yet incorporated into the Project during the period between the time the OWNER first takes title to any such materials and the time when the last of said materials are incorporated into the project. E. The OWNER shall be liable for any interruption or delays in the project, for any defects or other problems with the project, or for any additional costs resulting from any delay in the delivery of, or defects in, OWNER- furnished materials. F. Nothing herein contained shall create or be construed as creating a partnership between the OWNER and the CONTRACTOR or to constitute the CONTRACTOR as an agent of the OWNER. 22 10 29. CAPTIONS AND HEADINGS The captions and headings throughout this Agreement are for convenience and reference only, and the words contained therein shall in no way be held or deemed to define, limit, describe, explain, modify, amplify, or add to the interpretation, construction or meaning of any provision of, or scope of intent of, this Agreement nor in any way affect this Agreement. 30. VENDOR PERFORMANCE EVALUATION Collier County has implemented a Vendor Performance Evaluation System for all contracts awarded in excess of $25,000. To this end, vendors will be evaluated on their performance upon completion /termination of agreement. 31. TRUTH IN NEGOTIATION CERTIFICATE In accordance with provisions of Section 287.055, (5)(a), Florida Statutes, the CONTRACTOR agrees to execute the required Truth -In- Negotiation Certificate, attached hereto and incorporated herein as Schedule L, certifying that wage rates and other factual unit costs supporting the compensation for CONTRACTOR'S Design Professional services to be provided under this Agreement are accurate, complete and current at the time of the Agreement. The CONTRACTOR agrees that the original Agreement price and any additions thereto shall be adjusted to exclude any significant sums by which the OWNER determines the Agreement price was increased due to inaccurate, incomplete, or non - current wage rates and other factual unit costs. All such adjustments shall be made within one (1) year following the end of this Agreement. 32. ENTIRE AGREEMENT 32.1 This Agreement, and any attachments or other documents incorporated by reference herein, supersede any previous written or oral contracts or negotiations and this Agreement shall constitute the complete Agreement between the parties hereto and is subject to change only by an instrument in writing and signed by OWNER and CONTRACTOR. No third party beneficiary is anticipated or intended by this Agreement. 32.2 The Parties agree that the provisions of these terms and conditions shall control over and govern as to any form writings signed by the Parties, such as Purchase Orders, Work Orders, or other Order, and that such forms may be issued by OWNER to CONTRACTOR as a matter of convenience to the Parties without altering any of the terms or provisions hereof, regardless of the language appearing on such Order which may be contrary. In case of conflict, the terms of this Agreement shall govern. 33. SUBJECT TO APPROPRIATION. It is further understood and agreed by and between the parties herein that this agreement is subject to appropriation by the Board of County Commissioners. 23 10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above and continuing for one year from that date unless terminated earlier by mutual agreement or as described herein: ATTEST: r Corporate Secretary/Witness /, / ✓ICI Gv 60 li �h Printed Name cti- 9, or , S cond Witness MC11rL D. maiae Printed Name Date: ATTEST:..... { • VApo` . clerk . Out A rk �ttst rn f {11111"-40 1_ Approved As To Form r a Legal Sufficiency: Z� Ste, rZ e� "ssi t— County Attorney Thomas Marine Construction, Inc. "CONTRACTOR" By: �e6 io%� OWNER: BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY FLORIDA BY: C4 Fred W. Coyle , Chairman 24 100 EXHIBIT A PROJECT SCOPE AND SERVICES PROJECT INFORMATION A. Introduction The purpose of this Exhibit is to describe the scope of work and the responsibilities of the Design -Build (DB) firm in connection with the preparation of a Request for Proposal package for the design and preparation of a complete set of construction plans and special provisions, if necessary, for: • Bridge /structural improvements for the structures identified herein, and the • Roadway improvements to the transportation facility described herein. In December of 2008, a design was completed for the 6 -lane widening of Golden Gate Boulevard (CR 876) from Wilson Boulevard to DeSoto Boulevard. Due to budget constraints and long range transportation needs projections, the County decided that Golden Gate Boulevard would only need four lanes. It was further decided that Transportation Engineering (TE) department would pursue a redesign of the project to four lanes in a four -lane right -of- way section. The redesign would be taken to 60% plans and all permits so that the County may, at a future date, pursue final design plans, or construct the project as a Design /Build, when construction funding becomes available. By March 2010, the 60% redesign was completed; however, the environmental resource permit for the project is still pending. The original design and subsequent 60% re- designed included the replacement of three bridges: 1) the Golden Gate Main Canal (Bridge #034026), 2) Miller Canal (Bridge #034028), and 3) the Faka Union Canal (Bridge #034030). Bridges No. 034026 and 034028 are currently posted for a 29 Ton -load limit. Although the roadway widening project is unfunded in the current 5 -year work program; there is an immediate need to correct the load capacity and other physical elements on these bridges that cannot wait. The County performed a detailed condition assessment of Bridges #034026 and #034028 to investigate repair or replacement alternatives that would allow the load restrictions to be removed. The final Condition Assessment Report (dated March 2011) preferred recommendation is to replace the existing two -lane bridges with two lane- structures within the existing rights -of -way footprint with minimal roadway reconstruction. B. DB Responsibilities The DB will be expected to work in cooperation with the County and its designees, including private /public utilities and stormwater systems that will be affected by the work and must be considered with the services provided. The DB shall provide design services to accomplish the work contained in this solicitation. The DB may retain subconsultants for various design tasks; however, the DB will be solely responsible for all coordination and interface with the County. The DB shall be the single point of contract for all design services. The DB shall obtain such additional geotechnical and surveying related information that it deems necessary for the performance of the work. The DB will be expected to provide the following tasks: 1. Design Services for Final Design of 4 -lane Bridges The DB shall complete the 4 -lane design of bridges #034026 and #034028 utilizing the 60% design documents that will be provided by the County and shall provide signed and sealed plans, calculations, and technical specifications. The DB shall familiarize itself 25 100 thoroughly with these 60% design documents and follow the development of design to produce the final structures plans for these two bridges. The DB shall provide progress review sets of design documents at 90% and 100 %. The design shall conform to design criteria already established within the 60% design package. 2. Design Services for Final Design, Permitting and Construction of 2 -lane Bridges a. The DB shall provide final 2 -lane design and construction services for bridges #034026 and #034028 utilizing the previous 4 -lane design documents that were completed in Task 1. All work shall be accomplished within the existing rights -of- way easement for the final construction of these two bridges. The DB shall provide progress review sets at 30 %, 60 %, 90% and 100% before initiating construction of that phase. The DB shall ensure the constructability of the project during the design and review process. b. The 2 -lane roadway section shall include sidewalks meeting AASHTO standards and bike lanes meeting the Collier County Land Development Code. c. Upon completion of the construction documents for each phase, the DB shall perform a specific review thereof and shall include a complete cost estimate and critical path method schedule. The DB shall submit to the County a written review covering alternative analyses, suggestions and recommendations. The design may be subject to an independent analysis as determined by the County. The DB shall specifically address long lead procurement items and conditions characteristic of the County that may impede construction and take appropriate action. Historically, it has been the experience of the County with projects constructed within this general geographic area, that rock will be encountered during underground installations. Therefore the DB should consider the increased cost of all underground work activities while preparing this bid. Further, no extra compensation or time extension will be allowed for additional work directly associated with the pile driving, piling drilling, splitting, excavation, crushing and disposal, replacement of displaced volume of extracted rock with fill material or special handling of rock. 3. Property Acquisition The County may request the DB to assist with providing legal sketches and descriptions for temporary construction easement acquisition for the 2 -lane Bridge project. 4. Permitting The DB shall prepare all applications, data, and agencies and shall be responsible for obtaining required fees. The current Environmental Resource design project may need to be completed in order t lane Bridges. The DB may also elect to pursue expedite and fast -track the project delivery schedule. 5. Construction drawings required by permitting all necessary permits, including Permit application for the 4 -lane permit the construction of the 2- i alternate permitting concept to The DB shall be responsible for performing the traditional duties of a General Contractor throughout the performance of the work and warranty periods. 26 N 1 li The DB shall coordinate and ensure all work is in accordance with the design documents provided by the designer and as approved by the County. The DB will resolve and be responsible for conflicts between the design and actual on -site conditions. The DB is to ensure that the project is completed in accordance with the plans and specifications and requirements of the Florida Department of Transportation (FDOT) and Collier County. The DB will be responsible to the County Transportation Engineering Director or his designee for all aspects of the project. 6. Quality Control /Quality Assurance /Inspections The DB will solely be responsible for daily inspections of the project. The DB is to develop a quality control /quality assurance program. Final acceptance of each project and quality assurance will be provided by the County and based on the DB's certifications, environmental permit close -out requirements, as- builts documentation and all other required close out documents. 7. Project Management Information The DB shall establish, with the full concurrence of the County, procedures for organizing and accomplishing the management control of the project including safety and traffic control. The DB shall design, implement and utilize a Project Management Information System (PMTS) to facilitate the rapid and accurate exchange and monitoring of information between all parties. The PMIS shall include as a minimum the following: • Narrative reporting, on a monthly basis • Schedule control, on a monthly basis • Cost Control, and estimating • Project accounting • Action reports • Complaint Log • Daily Quality Control /Inspection Reports • Change Order Log All reports, documents and data to be provided shall represent an accurate assessment of the current status of the project and of the work remaining to be accomplished. The information provided shall provide a sound basis for identifying variances and problems and shall include recommendations for making management decisions. It shall be prepared and furnished to the County monthly throughout the contract period. 8. Warranty Where any work is performed by the DB's own forces or by subcontractors under contract with the DB, the DB shall warrant that all materials and equipment included in such work will be of good quality, free from improper workmanship and defective materials and in conformance with the drawings and specifications. In general, the warranty shall be a one - year period from acceptance by the County (unless superseded in the scope of work). With respect to the same work, the DB further agrees to correct all work found by the County to be defective in material or workmanship or not in conformance with the drawings or specifications at no expense to the County. 27 III 9. Public Information Program The DB shall undertake a Public Information Program. The minimum requirements to complete this task and any information assembled shall include the following and must be approved by the County. • Maintain mailing lists of elected and appointed officials in the project area, permit and review agencies, property owners adjacent to or within the three hundred (300) feet of the project, and other interested parties that may be designated by the County. • Provide notification to residents in affected construction area in advance of proceeding with work in that area. DB shall keep residents informed of changes, delays, or other inconveniences until work in that area is complete. • Prepare exhibits, attend and participate in Public Information Meetings, which shall be conducted by the DB. The DB shall prepare and send notification of all meetings to all parties on the appropriate mailing lists. • Prepare presentation exhibits for use as visual aids during public meetings. • Erect project signs throughout the project area indicating the name of the project, project descriptions, and contact information. The DB shall also be responsible for establishing a construction inquiry phone line to manage complaints, questions and concerns. The phone number of this line will be prominently displayed on all communications with the public. All complaints will be researched and a response will be provided. Action on all complaints should be taken within twenty -four (24) hours from the time the complaint is registered. This information will be recorded and tracked in a computer database that may be reviewed by the County on a daily basis. In addition, a County representative will be identified to hear claims: County Responsibilities 1. County's Information Upon request, the County shall provide all known available information regarding the requirements for the project design. 2. County's Representative The County shall designate a representative who shall be fully acquainted with the project. The representative shall render decisions promptly and furnish information expeditiously. 3. Availability of Lands The County shall furnish, as indicated in the Contract Documents, the lands upon which the construction is to be performed, rights -of -way and easements for access thereto, and such other lands which are designated for the use of the DB. The County may request the DB to assist with this effort. The DB shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment. 28 100 EXHIBIT B INSURANCE / BONDING REQUIREMENTS Insurance /; Bond ,Type Required Limits 1. ® Worker's Statutory Limits of Florida Statutes, Chapter 440 and all Federal Compensation Government Statutory Limits and Requirements 2. ® Employer's Liability $1,000,000 single limit per occurrence 3. ® Commercial General Bodily Injury and Property Damage Liability (Occurrence Form) patterned after $2,000,000 single limit per occurrence the current ISO form 4. ® Indemnification To the maximum extent permitted by Florida law, the ContractorNendor /Consultant shall indemnify and hold harmless Collier County, its officers and employees from any and all liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys' fees and paralegals' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the ContractorNendor /Consultant or anyone employed or utilized by the ContractorNendor /Consultant in the performance of this Agreement. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified party or person described in this paragraph. This section does not pertain to any incident arising from the sole negligence of Collier County. 4. ® Automobile Liability $ 2,000,000 Each Occurrence; Bodily Injury & Property Damage, Owned /Non - owned /Hired; Automobile Included 5. ® Other insurance as ❑ Watercraft $ Per noted: Occurrence ❑ United States Longshoreman's and Harborworker's Act coverage shall be maintained where applicable to the completion of the work. $ Per Occurrence ❑ Maritime Coverage (Jones Act) shall be maintained where applicable to the completion of the work. $ Per Occurrence ❑ Aircraft Liability coverage shall be carried in limits of not less than $5,000,000 each occurrence if applicable to the completion of the Services under this Agreement. $ Per Occurrence ❑ Pollution $ Per Occurrence 29 10 ® Professional Liability $1,000,000 Per Occurrence • $ 500,000 each claim and in the aggregate • $1,000,000 each claim and in the aggregate • $2,000,000 each claim and in the aggregate ❑ Project Professional Liability $ Per Occurrence ❑ Valuable Papers Insurance $ Per Occurrence 6. ® Bid /Proposal Bond Shall be submitted with proposal response in the form of certified funds, cashiers' check or an irrevocable letter of credit, a cash bond posted with the County Clerk, or proposal bond in a sum equal to 5% of the cost proposal. All checks shall be made payable to the Collier County Board of County Commissioners on a bank or trust company located in the State of Florida and insured by the Federal Deposit Insurance Corporation. 7. ® Performance and For projects in excess of $200,000, bonds shall be submitted with the Payment Bonds executed contract by Proposers receiving award, and written for 100% of the Contract award amount, the cost borne by the Proposer receiving an award. The Performance and Payment Bonds shall be underwritten by a surety authorized to do business in the State of Florida and otherwise acceptable to Owner; provided, however, the surety shall be rated as "A2 or better as to general policy holders rating and Class V or higher rating as to financial size category and the amount required shall not exceed 5% of the reported policy holders' surplus, all as reported in the most current Best Key Rating Guide, published by A.M. Best Company, Inc. of 75 Fulton Street, New York, New York 10038. 8. ® Vendor shall ensure that all subcontractors comply with the same insurance requirements that he is required to meet. The same Vendor shall provide County with certificates of insurance meeting the required insurance provisions. 9. ® Collier County must be named as "ADDITIONAL INSURED" on the Insurance Certificate for Commercial General Liability where required. 10. ® The Certificate Holder shall be named as Collier County Board of County Commissioners, OR, Board of County Commissioners in Collier County, OR Collier County Government, OR Collier County.. 11. ® Thirty (30) Days Cancellation Notice required. 30 100 A`� °® CERTIFICATE OF LIABILITY INSURANCE 2i3i2012 "' THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy((es) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Linda Paulsen NAME: PHONE (616) 942 -5070 NC No): (616) 942 -8199 Van Wyk Risk � Financial Management ADMDARESS: iindap @vanwykcorp . com 2237 Wealthy Street SE .Suite 200 PRODUC CUSTOMER 00005268 ER ID INSURERS AFFORDING COVERAGE NAIC # Grand Rapids MI 49506 INSURED INSURER A :CNA Insurance Co. COMMERCIAL GENERAL LIABILITY CLAIMS -MADE a OCCUR INSURER B: 2086707358 Thomas Marine Construction Inc INSURER C: DAMAGE TO RENTED PREMISES Ea occurrence 8999 High Cotton Lane INSURER D: $ 10,000 INSURER E: $ 1,000,000 Ft. Myers FL 33905 INSURER F: COVERAGES CERTIFICATE NUMBER:11 -12 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. 1�7R TYPE OF INSURANCE ADDLSUBR POLICY NUMBER MM /DDY/YYVV POLICY LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 A COMMERCIAL GENERAL LIABILITY CLAIMS -MADE a OCCUR 2086707358 12/31/2011 12/31/2012 DAMAGE TO RENTED PREMISES Ea occurrence $ 300,000 MED EXP (Any one person) $ 10,000 PERSONAL & ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GENT AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG $ 2,000,000 POLICY X PE LOC $ A AUTOMOBILE X LIABILITY ANY AUTO ALL OWNED AUTOS 086707330 12/31/201112/31 /2012 COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ SCHEDULED AUTOS HIRED AUTOS PROPERTY DAMAGE (Per accident) $ Medical payments $ 2,000 NON -OWNED AUTOS PIP -Basic $ Statutory x UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 10,000,000 AGGREGATE $ 10,000,000 EXCESS LIAB CLAIMS -MADE DEDUCTIBLE $ A X I RETENTION $ 10,000 1 086707344 12/31/201112/31 /2012 $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N ANY PROPRIETOR /PARTNER /EXECUTIVE OFFICER/MEMBER EXCLUDED? F—] (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below NIA 2086707358 12/31/2011 12/31/2012 X WC STATU- OTH- ER E.L. EACH ACCIDENT $ 500,000 E.L. DISEASE - EA EMPLOYEE $ 500,000 E.L. DISEASE - POLICY LIMIT $ 500,000 A Pollution Liability CPLOO1532201 7/01/2011 7/1/2012 LIMIT OF LIABILITY $2,000,000 Professional Liability DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space is required) Certificate holder is added as additional insured to the general liability and the automobile liability. THE UMBRELLA POLICY IS EXCESS OVER THE AUTOMOBILE LIABILITY PROVIDING A TOTAL AUTO LIABILITY LIMIT OF $11,000,000. Collier County Board of County Commission 3327 Tamiami Trail East Naples, FL 34112 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Paulsen /LINDAP raa.vtcu cu tcuumu%py W 1W 16 -2009 ACORD CORPORATION. All rights reserved. INS025 (2oogog) The ACORD name and logo are registered marks of ACORD EXHIBIT C SCHEDULE OF VALUES Design and Preconstruction Services Summary - Project Phase 1 30% Design and Plans 60% Design and Plans 90% Design and Plans Final Design Permitting Utility Coordination & Design Design Services During Construction Subtotal: Design and Precjonstruction Services 100 Total Project $ 180,750.00 $ 180,750.00 $ 180,750.00 $ 61,250.00 $ 11,600.00 $ 17,900.00 $ 34,000.00 $ 667,000.00' Construction Services Summary- Project Phase II Mobilization $ 202,414.00 Subtotal $ 202,414.00 Golden Gate Main Canal Bridge and Roadway Maintenance of Traffic $ 19,000.00 Erosion Control and Turbidity Compliance $ 5,000.00 Temporary Roadway Construction $ 62,000.00 Temporary Bridge Construction $ 120,000.00 Removal of Existing Structure $ 50,200.00 Bridge Piling Foundation Complete $ 172,800.00 Channel Excavation $ 18,950.00 Bridge Substructure $ 93,670.00 Rip Rap Slope Protection $ 76,940.00 Florida I Beams $ 169,500.00 Bridge Superstructure $ 255,330.00 Bridge Approach Slabs $ 81,400.00 Bridge Rail $ 70,250.00 Earthwork and Embankment $ 145,000.00 Roadwork including Paving $ 105,000.00 Guardrail $ 20,000.00 Striping and Signs $ 12,000.00 Sodding /Restoration $ 5,000.00 Subtotal $ 1,482,040.00 Miller Canal Bridge and Roadway Maintenance of Traffic $ 17,000.00 Erosion Control and Turbidity Compliance $ 5,000.00 Temporary Roadway Construction $ 54,000.00 Temporary Bridge Construction $ 80,000.00 31 Removal of Existing Structure Bridge Piling Foundation Complete Channel Excavation Bridge Substructure Rip Rap Slope Protection Bridge Superstructure Bridge Approach Slabs Bridge Rail Earthwork and Embankment Roadwork including Paving Guardrail Striping and Signs Sodding /Restoration Subtotal TOTAL BASE BID Add Alternate: City of Naples Water Line Work (Includes Both Sites) _11 $ 39,000.00 $ 149,400.00 $ 17,300.00 $ 83,180.00 $ 76,900.00 $ 205,160.00 $ 81,400.00 $ 58,000.00 $ 55,000.00 $ 140,000.00 $ 18,000.00 $ 12,000.00 $ 5,000.00 $ 1,096,340.00 $ 3,447,794.00 $ 601,150.00 TOTAL PROJECT $ 4,048,944.00 32 EXHIBIT D APPLICATION FOR PAYMENT County Project Manager) Contract No. (County Department) Project No. Collier County Board of County Commissioners (the OWNER) or Collier County Water -Sewer District (the OWNER) Application Date FROM: (CONTRACTOR's Representative) Payment Application For (CONTRACTOR's Name) Work accomplished through Date: (CONTRACTOR's Address) RE: Original Contract Time: Revised Contract Time: Percent Work completed to Date: % Percent Contract Time completed to Date Original Contract Amount: $ Total Change Orders to Date $ Revised Contract Amount $ Total value of Work Completed and stored to Date $ Less Retainage $ % Total earned Less Retainage $ Less previous payment (s) $ AMOUNT DUE THIS APPLICATION: $ 10D Name) ATTACH SCHEDULE OF VALUES AND ACCOMPANYING DOCUMENTATION TO THIS APPLICATION CONTRACTOR'S CERTIFICATION: The undersigned CONTRACTOR certifies that: (1) all previous progress payments received from OWNER on account of Work done under the Contract referred to above have been applied to discharge in full all obligations of CONTRACTOR incurred in connection with Work covered by prior Applications for Payment numbered 1 through inclusive; (2) title to all materials and equipment incorporated in said Work or otherwise listed in or covered by this Application for Payment will pass to OWNER at time of payment free and clear of all liens, claims, security interests and encumbrances (except such as covered by Bond acceptable to OWNER); (3) all amounts have been paid for work which previous payments were issued and received from the OWNER and that current payment is now due; (4) and CONTRACTOR agrees that all overruns as shown on the monthly estimate summary shall, in fact, be added to the revised contract and shall be incorporated into a future Change Order: By CONTRACTOR: (CONTRACTOR's Name) (Signature) DATE: (Type Name & Title) (shall be signed by a duly authorized representative of CONTRACTOR) Payment to the CONTRACTOR for the above AMOUNT DUE THIS APPLICATION is recommended: By Design Professional: (Signature) DATE: (DP's Name) (Type Name & Title) Payment to the CONTRACTOR for the above AMOUNT DUE THIS APPLICATION is approved: By OWNER'S Project Manager: (Signature) DATE: _ (Type Name and Title) 33 10D EXHIBIT E RELEASE AND AFFIDAVIT FORM COUNTY OF COLLIER STATE OF FLORIDA Before me, the undersigned authority, personally appeared , who after being duly sworn, deposes and says: (1) In accordance with the Contract Documents and in consideration of $ paid, "Contractor" hereby releases and waives for itself and its subcontractors at every tier, material men, suppliers, successors and /or assigns, all claims for payments due under this Agreement, against the Board of County Commissioners of Collier County, Florida, ( "OWNER ") relating in any way to the performance of the Agreement between Contractor and OWNER, dated , 20_, for the period from to (2) CONTRACTOR hereby certifies for itself and its subcontractors at every tier, material men, suppliers, successors and /or assigns, that all charges for labor, materials, supplies, lands, licenses and other expenses for which OWNER might be sued or for which a lien or a demand against any payment bond might be filed, have been fully satisfied and paid. (3) This Release and Affidavit is given in connection with CONTRACTOR's [monthly /final] Application for Payment No. Date:_ ATTEST: First Witness Printed Name Second Witness Printed Name STATE OF go Thomas Marine Construction, Inc. "CONTRACTOR" Title of individual signing COUNTY OF The foregoing instrument was acknowledged before me this day of by , as of a _ corporation, on behalf of the corporation. He /she is personally known to me as identification, and did not take an oath. My Commission Expires: Name: (Signature of Notary) (Legibly Printed) (AFFIX OFFICIAL SEAL) Notary Public, State of 20_, or produced 34 EXHIBIT F -1 CHANGE ORDER CHANGE ORDER NO TO: DATE: PROJECT NAME: PROJECT NO.: Under our AGREEMENT dated CONTRACT NO. BCC Date: Agenda Item: _ ram 10D You hereby are authorized and directed to make the following change(s) in accordance with terms and conditions of the Agreement: (Type in clearly identified change here if short, otherwise use attachment and identify. Example: See attached Exhibit "A ") FOR words) THE (Additive) (Deductive) Sum of: Original Agreement Amount Sum of Previous Changes This Change Order (Add) (Deduct) Present Agreement Amount ($ (write out in The time for completion shall be (increased /decreased) by calendar days due to this Change Order. Accordingly, the Contract Time is now ( ) calendar days. The substantial completion date is and the final completion date is . Your acceptance of this Change Order shall constitute a modification to our Agreement and will be performed subject to all the same terms and conditions as contained in our Agreement indicated above, as fully as if the same were repeated in this acceptance. The adjustment, if any, to the Agreement shall constitute a full and final settlement of any and all claims of the CONTRACTOR arising out of or related to the change set forth herein, including claims for impact and delay costs. Accepted: , 20_ CONTRACTOR: OWNER: (type in CONTRACTOR name) A (type name of authorized firm signatory) 0 BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA (Type name) Project Manager 35 ioo EXHIBIT F -2 WORK DIRECTIVE CHANGE PROJECT NAME: DATE OF ISSUANCE: OWNER: Collier County Board of Commissioners CONTRACTOR: DESIGN PROFESSIONAL Bv: (may not apply) EFFECTIVE DATE: PROJECT #: ENGINEER: You are directed to proceed promptly with the following change(s): Description: Purpose of Work Directive Change: Attachments: If a claim *is made that the above change(s) have affected Contract Price or Contract Times any claim for a Change Order based thereon will involve one or more of the following methods of determining the effect of the changes(s). Method of determining change in Contract Price Contract Times: ❑ Unit Prices ❑ Lump Sum ❑ Other Method of determining change in ❑ CONTRACTOR's records ❑ Engineer's record ❑ Other Estimated increase (decrease) in Contract Price Estimated change in Contract Time: $ Increase or decrease by calendar days. RECOMMENDED: AUTHORIZED: in Engineer OWNER's Representative 36 EXHIBIT G CERTIFICATE OF SUBSTANTIAL COMPLETION OWNER'S Project No. PROJECT: Contract For _ Contract Date 100 ENGINEER'S Project This Certificate of Substantial completion applies to all Work under the Contract documents or to the following specified parts thereof: To_[insert correct information] OWNER And T The Work to which this Certificate applies has been inspected by authorized representatives of OWNER, CONTRACTOR, AND DESIGN PROFESSIONAL, and that such Work is hereby declared to be substantially complete in accordance with the contract documents on the following effective date: THE DATE OF SUBSTANTIAL COMPLETION A tentative list of items to be completed or corrected is attached hereto. This list may not be all - inclusive, and the failure to include an item in it does not alter the responsibility of CONTRACTOR to complete all the Work in accordance with the Contract Documents. The items in the tentative list shall be completed or corrected by CONTRACTOR within days of the above date of Substantial Completion. 37 100 The responsibilities between OWNER and CONTRACTOR for security, operation, safety, maintenance, heat, utilities, insurance and warranties shall be as follows: RESPONSIBILITIES: CMAINk' t CONTRACTOR: The following documents are attached to and made a part of this Certificate: This certificate does not constitute an acceptance of Work not in accordance with the Contract Documents nor is it a release of CONTRACTOR'S obligation to complete the Work in accordance with the Contract Documents. Executed by Design Professional on 20_ Design Professional By: Type Name and Title CONTRACTOR accepts this Certificate of Substantial Completion on , 20_ CONTRACTOR By: Type Name and Title OWNER accepts this Certificate of Substantial Completion on 20 OWNER By: Type Name and Title 100 EXHIBIT H FINAL PAYMENT CHECKLIST Bid No.: Project No.: Date: CONTRACTOR: The following items have been secured by the for the Project known as and have been reviewed and found to comply with the requirements of the Contract Documents. Original Contract Amount: Commencement Date: Final Contract Amount: Substantial Completion Time as set forth in the Agreement: Actual Date of Substantial Completion: Final Completion Time as set forth in the Agreement: Actual Final Completion Date: YES NO Calendar Days. Calendar Days. 20 1. All Punch List items completed on 2. Warranties and Guarantees assigned to OWNER (attach to this form). 3. Effective date of General one year warranty from CONTRACTOR is: 4. 2 copies of Operation and Maintenance manuals for equipment and system submitted (list manuals in attachment to this form). 5. As -Built drawings obtained and dated: 6. OWNER personnel trained on system and equipment operation. 7. Certificate of Occupancy No.: issued on (attach to this form). 8. Certificate of Substantial Completion issued on 9. Final Payment Application and Affidavits received from CONTRACTOR on: 10. Consent of Surety received on 11. Operating Department personnel notified Project is in operating phase. 12. All Spare Parts or Special Tools provided to OWNER: 13. Finished Floor Elevation Certificate provided to OWNER: 14. Other: If any of the above is not applicable, indicate by N /A. If NO is checked for any of the above, attach explanation. Acknowledgments: By CONTRACTOR: (Company Name) (Signature) (Typed Name & Title) By Design Professional: (Firm Name) (Signature) (Typed Name & Title) By OWNER: (Department Name) (Signature) (Name & Title) EXHIBIT I DESIGN /CONSTRUCTION SCHEDULE (provided in separate file) 100 C U zm -- -- -- p I, " i r. n rte. aim_...... °= O p O n 3m eaOx�,c Ri A rvm_ rvo _._ ___. ..... ..... ._. _. _.._. _._ .._. _.... w o "c m _ = u ry " n D " a - _ _ E d ry m n g 3 " v n_ m _..._. ........... _..__. ..... ............... ................ ...._ ..._. .... i A F V ..gym) ...... «f t .................. �� ....... N ..n '.N N N N N N N N N N N N N N N c 0 E c a o - O y v o v a in o E m g ¢ o E �E O w _ z a` w' a` w' a c°� a z 9 c _. i0 ..... .... _... c a it a_ E V m too __ .. .. .. ...... .. ..... .... ............................... 3 s S I Ac El _ r v F a w a 2 a z 3 t h z E ` a O too EXHIBIT J -1 PUBLIC PAYMENT BOND CONTRACT NO, 11 -5722 BOND No. ]09691g47 10d KNOW ALL MEN BY THESE PRESENTS: That lbem.c Marina Cm-,tnirtinn Ca many , as Principal, and TMyelerc CAcgialty 9 4iiraty c, , as Surety, located at nna Tnwar Sq -VR Harrfnrd (T (fi?9i (Business Address) are held and firmly bound to ('nlliar ay &Iqrd of ay cn m as Obligee in the sum of $4,048,944.00 ($ 4,048,A44.00 ) for the payment whereof we bind ourselves, our heirs, executors, personal representatives, successors and assigns, jointly and severally. WHEREAS, Principal has entered into a contract dated as of the 24th day of Tan „ate, , 20_12 with Obligee for Golden Gate Bridge JM rovem= in accordance with drawings and specifications, which contract is incorporated by reference and made a part hereof, and is referred to as the Contract. THE CONDITION OF THIS BOND is that if Principal: Promptly makes payment to all claimants as defined in Section 255.05(1), Florida Statutes, supplying Principal with labor, materials or supplies, used directly or indirectly by Principal in the prosecution of the work provided for in the Contract, then is bond is void; otherwise it remains in full force. Any changes in or under the Contract and compliance or noncompliance with any formalities connected with the Contract or the changes do not affect Sureties obligation under this Bond. The provisions of this bond are subject to the time limitations of Section 255.05(2). In no event will the Surety be liable in the aggregate to claimants for more than the penal sum of this Payment Bond, regardless of the number of suits that may be filed by claimants. IN WITNESS WHEREOF, the above parties have executed this instrument this 8th day of February , 20 1, 2the name of each party being affixed and these presents duly signed by its under - signed representative, pursuant to authority of its governing body. Signed, sealed and delivered in the presence of: PRINCIPAL: Mark n_ Mabee Thomas Mara�fie Construction, Inc_ By: — — Witnesses as to Pn cipal Name: Kev' C. Shimip Its: President dent lam' STATE OF Florida COUNTY OF Lee The foregoing instrument was acknowledged before me this8th day of February 201,2by Kevin C. Shimp as President of Thomas Marine Construction, _Inc. a Florida corporation, on behalf of the corporation. He /she is personally known to me OR has produced as identification -and did (did not) take an oath. My Commission Expires: 2/ 0 5/ 2 015 LINDA SOLICH `�� Commission # EE 039917 Ata: Expires February 5, 2015 NAME: �i p�r(k�.' [bonded n. Troy Fan Inmrm 800 3857019 (AFFIX OFFICIAL SEAL) ATTEST: Witness as to Surety •o (Signature of Notary) Linda Solich (Legibly Printed) Notary Public, State of Florida Commission No. EE 039917 SURETY: 100 cQ V1A ccs CQ \�4 ay.� ALE �� 04 (Printed Name) ; e` �t�o�xC `jgt,pee� 3P� ti4��f� C-c 'U(ot�i3 (Business Address) (Authorized Signature) (Printed Name) As Attor (Attach act of Attorney) Witnesses a � we4 t:�A(N t sle Cm.��+ R�►� > WK u.aSQ(a (Business Address) Lcvd� �Vct -es (Printed Name) 1o1��Gtia o (Telephone Number) STATE OF COUNTY • The foregoin instrument was acknowledged before this day of 201fby as of el U Surety, on behalf f Surety. He /She is personally nown to m---e 2 R has produced as identification and w o di (did not) take an oath. My Commission Expires: (S-igniAture of Notary) Name: ALlebm L-- VO4) wU (Legibly Printed) (AFFIX OFFICIAL SEAL) Notary Public, State ofMJMA4W-,f%L_ Commission No.: WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER �A o ► POWER OF ATTORNEY TRAVELERS.1 Farmington Casualty Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Company Travelers Casualty and Surety Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company St. Paul Guardian Insurance Company Attorney -In Fact No. 223202 Certificate No. 0 0 4 4 1 2 6 KNOW ALL MEN BY THESE PRESENTS: That St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota, that Farmington Casualty Company, Travelers Casualty and Surety Company, and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc., is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies "), and that the Companies do hereby make, constitute and appoint Patti Zuk, Nick Good, Alison Van Wyk, Eric Van Wyk, Max Van Wyk, David Hop, Mike Rothermel, H. David Hoovler, and Christopher Hieftje of the City of Grand Rapids , State of Michigan , their true and lawful Attorney(s) -in -Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. IN WITNESS July WHEREOF, the Companies caused this instrument to be signed and their corporate seals to be hereto affixed, this day of . State of Connecticut City of Hartford ss. Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company 25th St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company CSE Ao� .}3• nano SBAfs�J '.'ads By: /Georg99 Thompson, nior ice President On this the 25th day of July 2011 before me personally appeared George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. G•T� In Witness Whereof, I hereunto set my hand and official seal. * A My Commission expires the 30th day of June, 2016. pllBUp 58440 -6 -11 Printed in U.S.A. ` N &An A C . Marie C. Tetreault, Notary Public INVALID WITHOUT THE RED BORDER WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys -in -Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys -in -Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys -in -Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kevin E. Hughes, the undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals of said Companies this %I day of February 20 -12 4r� JV Kevin E. Hughes, Assistant Seciftary G 1.$U.� ��' e�`•.�,`` \0.E��6r�yyh4 wN IN r INSU tV A/y O� D��rTL 6 `tpp°aAa�'e G �Pi fQO011POR 1y 4Ji •.... q.�� U G9 4�f `'� ,��0 c7 1 9 8 2 O �� Z E . n= a HARTFORD, IihfYEFCRD. Z ° (� � � � 1951 a 3 �`• seat, ost �`: 'Oi CONN. � CONN j8 N t896 4y��aa '� � ",,; s cod ��. jj, a .SBAL:'s r° g�.., ✓ °�, To verify the authenticity of this Power of Attorney, call 1 -800- 421 -3880 or contact us at www.travelersbond.com. Please refer to the Attomey -In -Fact number, the above -named individuals and the details of the bond to which the power is attached. EXHIBIT ©- PERFORMANCE BOND BOND NO. 105621947 CONTRACT NO. 11 -5722 100 KNOW ALL MEN BY THESE PRESENTS: That Thomas Marine Construction Company as Principal, and Travelers Casualty & Surety Company of America as Surety, located at One Tower Square 3PB Hartford CT 06193 (Business Address) are held and firmly bound to Collier Cty Board of Cty Comm as Obligee in the sum Of Four Million Fortyg�ght Thousand Nine Hundred Fortyfour &no /100($ 4,048,944.00 ) for the payment whereof we bond ourselves, our heirs, executors, personal representatives, successors and assigns, jointly and severally WHEREAS, Principal has entered into a contract dated as of the 24th day of January 20-12 with Obligee for sign Bulb Golden gate Bridge 1 euera m" I ) -Co -dop Gato -('anal 2) DUi for capal in accordance with drawings and specifications, which contract is incorporated by reference and made a part hereof, and is referred to as the Contract. THE CONDITION OF THIS BOND is that if Principal: 1. Performs the Contract at the times and in the manner prescribed in the Contract; and 2. Pays Obligee any and all losses, damages, costs and attorneys' fees that Obligee sustains because of any default by Principal under the Contract, including, but not limited to, all delay damages, whether liquidated or actual, incurred by Obligee; and 3. Performs the guarantee of all work and materials furnished under the Contract for the time specified in the Contract, then this bond is void; otherwise it remains in full force. Any changes in or under the Contract and compliance or noncompliance with any formalities connected with the Contract or the changes do not affect Sureties obligation under this Bond. The Surety, for value received, hereby stipulates and agrees that no changes, extensions of time, alterations or additions to the terms of the Contract or other work to be performed thereunder, or the specifications referred to therein shall in anywise, affect its obligations under this bond, and it does hereby waive notice of any such changes, extensions of time, alterations or additions to the terms of the Contract or to work or to the specifications. This instrument shall be construed in all respects as a common law bond. It is expressly understood that the time provisions and statute of limitations under Section 255.05, Florida Statutes, shall not apply to this bond. In no event will the Surety be liable in the aggregate to Obligee for more than the penal sum of this Performance Bond regardless of the number of suits that may be filed by Obligee. IN WITNESS WHEREOF, the above parties have executed this instrument this 8th day of February , 20 1,2the name of each party being affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body. Signed, sealed and delivered in the presence of: PRINCIPAL: Mark D. Mabee 0" 411. - By: Witnesses as to Principal Name: Its: STATE OF Florida COUNTY OF Lee Thomas Marine Construction, Inc. Pi The foregoing instrument was acknowledged before me this 8th day of February 20 1,�y Kevin C. Shimp as �residen of Thomas Marine Construction, Inc., a Florida corporation, on behalf of the corporation. He /she is personally known to me OR has produced as identification and did take an oath. My Commission Expires: LINDA SOLICH _., ..: Commission # EE 039917 Expires February 5, 2015 %Q ,if,, ,V ftxW Pn Troy Fain 1m rama 800.385.7019 (AFFIX OFFICIAL SEAL) ATTEST: Witness as to Surety �n�/--i4' L\\,,A. D,c ,x�es Witnesses (Printed Name) STATE OF �l T e foregoing instrument was 7� Surety, produced My Commission Expires: 100 (Signature of Notary) Name: Linda Sol i c'h (Legibly Printed) Notary Public, State of Florida Commission No. EE 039917 SURETY: �cay� \ccs cit:�,,=\V-.t Ccant &-rte (Printed Name) ccS O��u�cc Sq��re. 3P� Hoc (Business Address) (Authorized Signature) (Printed Name) As Attorney i Fac (Attach Power orney) aa3-z I,,� kMr. s} :l G'(Z na �00d s Mr I (Business Address) W,- 0Ka -, o (Telephone Number) COUNTY OF acknowledged before me t is day of Q40 • , 20 q-by as A Y- 'Ivi — of r 115 on behalf of Suret . He /She is personal, nown to me )DR has as identification and who did take an oath. %-11 (S+ nature of Notq j Name: slit CiM L. uo-,n t,12w (Legibly Printed) (AFFIX OFFICIAL SEAL) Notary Public, State of �M� Commission No.: 100 EXHIBIT K PERMITS Complete Documents Provided in Solicitation Package for the Following: • Collier County Excavation Permit No 60.058/PL20100001178 • Collier County Utility Deviation Form • SFWMD Environmental Resource • City of Naples Potable Water Services • DEP Permit No 52258 - 373 -DWC • Collier County Final Site Plan Approval (SDPA) 1 li EXHIBIT L TRUTH IN NEGOTIATION CERTIFICATE In compliance with the Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes, Thomas Marine Construction, Inc. hereby certifies that wages, rates and other factual unit costs supporting the compensation for the Design Professional services to be provided under this Agreement, concerning Contract 11 -5722 "Design -Build Golden Gate Bridge Improvements: 1) Golden Gate Canal and 2) Miller Canal (Project # 66066) are accurate, complete and current as of the time of contracting. Thomas Marine Construction, Inc. BY: K?�tJi� C'_ Sinf TITLE: DATE: c-� 10 3 //a. EXHIBIT M STAFFING Provided in Separate File 10 12 10 ORGANIZATIONAL CHART M i jAmerican ''fA { Q 3y S U l T i N G W. Thomas Mnrnn Goon constrn Thomas Marine, Inc. II Quality Assurance f Construction Project Manager Quality Control 0 Mark Mabee Allied Engineering & Testing, Project Superintendent _ Darren Watkins Earthwork Safety Manager Mark Mabee Paving AJAX Paving Industries Mitchell & Stark Construction Co.. Inc. Traffic Control Traffic Control Products of Florida, Inc. An important factor in the successful completion of this project is the quality and commitment of our staff. The Thomas Marine / American Team have identified this project as a Top Priority in order to continue our strong relationship with Collier County. Our identified resources are available to successfully complete the requirements of this project. We have assembled an outstanding team of construction and design professionals who's individual and collective abilities, as well as their past experiences with similar projects and achievements, ensure success on this project. With built -in replication in all areas of expertise necessary, our Team has the resources and capabilities to undertake this important assignment. Our team includes individuals that have specialized in all disciplines required for this project including bridge and road design, public involvement, environmental permitting and mitigation, utility design, as well as all elements of bridge and road construction required to complete the construction of the entire project. ?iiamas roariae,a C °n�ru 0 N S U l T I N G Page 1 100 Key personnel that will accomplish the management, design, construction and administrative services required for this project include: Kevin Shimp, PE - Project Director: Kevin joined Thomas Marine Construction in 1998 as an estimator and project manager. He has estimated and managed various heavy civil structure projects with a focus on marine construction for the past 14 years. Kevin is now president of Thomas Marine. He is responsible for all daily business operations and field construction from estimating through project close out on projects large and small. He has successfully managed several design -build projects starting with SR 80, one of FDOT's pilot design -build projects. Kevin is familiar with all aspects of heavy civil construction including permitting and design. With a master's degree in Civil Engineering from the University of Florida and a specialty in construction ,management, Kevin's education has ideally suited him for design -build work. Reference Name: Project Owner: Contact Information: 2885 S Horseshoe Drive Kevin Dugan, PM Collier County Transp. Engineering Naples FL 34104 (239) 252 -8192 Project Description: OIL WELL ROAD PHASE 2 AND PHASE 4 BRIDGESl This Collier County project included two bridges each three spans on beams that are very similar to the proposed Golden i Gate Blvd Bridges. Thomas Marine will complete the bridges A. on time this fall under contract with Mitchell and Stark;, Construction. We highlight this project as the Oil Well Road: Bridge over the Golden Gate Main Canal is exactly 4 miles • - -- north of the western proposed bridge for this project. The work has given TMC /American a unique perspective on this project as soil conditions are similar, TMC has worked with Big Cypress Basin directly, permit conditions are the same, and the owner is the same. Both phase one and phase two for a total of six lanes with bike lanes and sidewalks are complete just as this project includes two phases that will include four lanes in the future. Thomas marioe o construe'° American C O N S U L T I N G Page 2 10 Mark Mabee - Construction Project Manager: Mark, an Auburn Civil Engineer, joined TMC as an estimator and project manager in 2008. Mark came to TMC from Kiewit Construction, one of the largest heavy civil contractors in the world. Mark adds very specialized experience to the team as he has managed the construction of civil projects of astounding complexity in urban centers. His most recent project included a new bascule -span bridge in downtown Miami over the Miami River. In addition to the typical management responsibilities on the project, maintenance of inner city traffic, maintenance of nautical traffic for the most congested river in Florida, existing structural preservation including extensive vibration monitoring, strict US Coast Guard permitting, and security /crime prevention were all major issues. Since joining TMC, he has estimated and managed projects side -by -side with Kevin Shimp. In just three years in the SW Florida engineering /construction community, Mark has already forged solid relationships with his peers. Reference Name &Title: Project Owner: Contact Information: 7000 Florida Street Chuck Koons, PE Punta Gorda, FL 33950 Barry Cohen Charlotte County Public Works (941) 575 -3660 (941) 575 -3645 Project Description: CORAL CREEK BRIDGE REPLACEMENT CEI AND VALUE ENGINEERING In 2011, Thomas Marine and American, who conducted the CEI and developed Value Engineering Redesigns to improve the project, worked very closely together to successfully construct this project for the County. The project included the realignment of County Road 775 and County Road 771 with the construction of a new 438' long CIP fl at slab bridge with 36' -6" spans and supported by pile bents. Also included in the construction were concrete sheet piling, lighting, utility conduits placed in the traffic rails and curbs, and sub- aqueous water mains. The proposed sanitary sewer included gravity main, force main and a lift station. With the exception of a few minutes to construct minor temporary widening at the locations where the proposed roadway tied into the existing roadway, traffic was maintained on the existing roadway and bridge throughout the duration of construction. Access to the existing Fishery Road was maintained at all times throughout construction. Darren Watkins - Project Superintendent: Darren Watkins has spent the last 13 years with TMC. He has run a wide variety of projects inclusive of FDOT bridge projects where his crew self performed 95% of the total work. A notable recent project he completed early was the construction of Golden Gate Canal Water Control Structure # 3. TMC's contracted directly to SFWMD and worked with the personnel at Big Cypress Basin daily. While completing the exceeding complex $3.85 million project, Darren spent much of his time in a dewatered cofferdam in the middle of the canal. Darren's local knowledge from this project and others nearby is exceptional. Also notable, Darren is four months away from completing a Civil Engineering degree at Florida Gulf Coast University, making him the company's third construction civil engineer. Goriiuu ou oustructj i C 0 N S U L T i N G Page 3 ion Page 4 on co 11 Donald Keenan, PE - QA /QC - Structures: Don has over 43 years of structural design experience serving as a Senior Engineer with the FDOT Central Office and with American. His responsibilities included the approval of structures, as well as consultant plans review, bridge development report reviews, review of all phases of plans development, and coordination of reviews with the Federal Highway Administration. Having reviewed thousands of consultant bridge replacement plans, he is perfectly suited to lead the QA/QC effort for the project. Erik Leschak, PE — Roadway and MOT: Erik Leschak has more than 13 years experience in roadway, utility, traffic and transportation projects. Experience includes use of GEOPAK and Microstation for roadway and utility design, traffic operations, and signing /pavement marking. Other duties include computation booklet preparation, typical section packages, pavement design, and GUIDSIGN design. He is also trained in Advanced MOT and LRE / TRNS*PORT. Ryan Forrestel, PE - QA /QC — Roadway: Ryan has over 35 years of diverse highway design, site design and traffic engineering experience. Ryan has designed well over 100 miles of highway improvements ranging from local and rural roadways to interstates. Ryan's design experience includes serving as Engineer of Record for several projects for Collier County including most recently the County Barn and Goodlette Frank Roads capacity improvement projects. He was also the Project Manager for the Park Shore and Harbor Drive Bridge Rehab and widening projects for the City of Naples. Anna Peterfreund - Environmental & Permitting: Anna has 13 years experience in permitting and environmental - related work. She specializes in wetland and wildlife assessments and permitting relating to bridge, roadway, and land development projects and other related environmental consulting services. She has managed and permitted many projects on the state, federal, and local levels, including all water management districts, the FDEP, SHPO, FFWCC, USCG, USACE, and many others. Vester "Butch" McDaniel - Senior Construction Inspector: Butch has over 48 years of construction experience. For the first 21 years, Butch worked for contractors as a tradesman, foreman and superintendent. In the last 27 years, Butch has worked as a chief inspector and project engineer on various highway and bridge construction projects including the SW 13th Street Bridge Construction Project for Collier County. AJAX Paving Industries is one of the largest FDOT roadway asphalt companies in SW Florida. Their capabilities are on display in the recently completed 1 -75 IROX project inclusive of Collier and Lee Counties. Thomas Marine and Ajax have a worked on each other's jobs for more than 20 years with much of our combined work being for FDOT. Traffic Control Products of Florida, Inc, a well established FDOT signing, striping, and MOT firm. Traffic Control Products of FL. Inc. (TCP) has been one of the premier road maintenance companies in Florida for the past 20 years. TCP serves the Florida Road and Bridge Construction industry , Signing, Striping & Maintenance of Traffic. Traffic Control Products provides servicers for the entire state of Florida somas tZ ItZ Mai lilB C"00 15- Posts American C 0 N S U h T I N G Page 5 10 Universal Engineering Sciences, Inc., Robert Gomez, PE — Geotechnical V5 Engineering Support: As a branch manager and geotechnical engineering with Universal Engineering Sciences, Inc., Mr. Gomez's responsibilities include project management, interpretation and analysis of field and laboratory data, engineering analysis and evaluation of foundation design, pavement design and evaluation, ground water modeling, client communication and report and proposal preparation. Mr. Gomez also has extensive experience in laboratory material testing, field inspection and quality assurance of earthwork and concrete construction. Hyatt Survey Services, Inc., Pamela Hyatt, PSM — Survey and Mapping Support: As H at President of Hyatt Survey Services, Inc., Pamela's duties include the direction of quality control and technical procedures as well as client relations and marketing. In addition to her administrative duties, Mrs. Hyatt is also responsible for the production of boundary, right -of -way and topographic surveys. Mrs. Hyatt couples over nineteen years of surveying experience with a four -year degree in Surveying and Mapping. Her project experience has included residential, commercial and municipal development surveys. Kevin Shimp, being both a "hands on" builder and a professional engineer with a comprehensive understanding of both the design and the construction side is an ideal choice to lead this design build team. Kevin will be involved from the beginning of the design phase, reviewing and overseeing the design details to ensure they are fully constructable and provide the County with the greatest value for the costs invested. After the design is complete, Kevin will shift to his traditional construction roll to ensure that the design is accurately and professionally constructed with the least possible impacts to the environment and the public, and in the least amount of time feasible. Kevin will be supported by a seasoned team of designers who have extensive experience in the design of transportation projects for Collier County. Scott Korpi will serve as the lead from American. With his extensive experience on design -build projects throughout the state, including the SW 13th Street Bridge over the Golden Gate Main Canal for the County, as well as his recent experience working closely with Thomas Marine and Kevin Shimp & Mark Mabee on three recent bridge replacement projects, will ensure no disconnect between the builder, the desi n and most importantly, the County. d A In 2011 alone, the same TMC /American Team proposed for the replacement of the Golden Gate Blvd bridges over the Golden Gate Main and Miller Canals worked together on thre- L...1.J...... ......J ........ --4. .._...-- 4- ...—.4" $10M combined approach we toc team members optimum perforr able to match members best ensure the ow possible. We pie Gate Blvd. Bridg remains intact close working i project between can work togeth on this project. .somas Mar' °a n . onstra 100 EQUIPMENT AND MATERIAL. Thomas Marine Construction owns all the equipment needed to construct the work for which it is prequalified. The list of equipment on our job sites every day include five friction cranes, two pile hammers, two sheet pile hammers, two bridge deck screed machines, four excavators, a long stick excavator, a demolition hammer, a demolition pulverizer, five front end loaders, compaction equipment, specialized steel and modular forms, sectional barges, trucks, welders, and generators. Each crew is a self sufficient entity which could be working miles from the nearest power source or in the middle of town. American works exclusively on transportation projects for State and County Governments. This specialization has allowed us to continually maintain the stare of the art in all computer hardware and software. We prepare plans in both AutoCAD and MicroStation formats depending on the requirements and desires of our clients. For this project we would continue the use of MicroStation with Geopak as the underlying design tool since that is the basis of the 60% plans the County's consultant has already prepared. Every designer and engineer employed by American has both of these software packages and they serve as our primary vehicle in project delivery. We also routinely use all of the latest roadway and structural design software ranging from LEAP for prestressed concrete design to STAAD when finite element analysis is required. We also require the same software packages from our subconsultants to maintain consistency throughout the development of the project. .lamas MOM Page 7 EXHIBIT N STORED MATERIALS RECORD (Provided in Separate File) 10 13 w 0 U m Q m E `0 LL M L 0 v NNd L7. R 'L d C� C as L 0 II�^ vI ►I L x w X11 0 w m R = R— m 0 m 'L d �a a _ U) U .0 > N a— 0 > m m 'd a V N LPL � N as Q 0 > v d � a` d 0 E > Z CL CL cn C 0 'L V 0 d 0 X11