A meeting of the Manatee County Port Authority will be held Wednesday, July 28, 2021, at 9:00 am, or as soon thereafter as is practicable in the third-floor meeting room of the Port Manatee Intermodal Center, 1905 Intermodal Circle, Palmetto, FL 34221, located at the intersection of South Dock Street and Reeder Road at Port Manatee.

Anyone wishing to attend this meeting who does not have an appropriate Port Manatee identification badge may enter Port Manatee by the north or south gate by displaying photo identification, generally a driver’s license.

MANATEE COUNTY PORT AUTHORITY AGENDA

July 28, 2021 – 9:00 am

The Manatee County Port Authority may take action on any matter during this meeting, including those items set forth within this agenda. The chairperson, at the option of the chairperson, may take business out of order if the chairperson determines that such a change in the agenda’s schedule will expedite the business of the Port Authority.

CALL TO ORDER

Invocation – Rev. Allen Howe Pledge of Allegiance

Public Comments

1. Employee Recognition

   
   

2. Presentation – Norman Atkins, Marine Towing of Tampa

   
   

3. Presentation – Terry Fluke, Tampa Bay Pilots Association

   
   

4. Consent Agenda

   
   

5. South Gate Expansion Contract Award

Executive Director Comments Commissioner Comments

According to Section 286.0105, Florida Statutes, any person desiring to appeal any decision made by the Port Authority with respect to any matter considered at this meeting will need a record of the proceedings, and for such purpose may need to ensure that a verbatim record of the proceedings is made, which includes the testimony and evidence upon which the appeal is to be based.

Reggie Bellamy, Chairman

Misty Servia, 1st Vice-Chairman; James Satcher, 2nd Vice-

Chairman; Carol Whitmore, 3rd Vice-Chairman;

Vanessa Baugh, Member; George Kruse, Member;

Kevin Van Ostenbridge, Member

July 28, 2021

AGENDA ITEM 1.: EMPLOYEE RECOGNITION

Rachel Gallant Trusted TWIC Agent 5 years

Mylaka Ware Badging Clerk 15 years

July 28, 2021

AGENDA ITEM 2.: PRESENTATION - NORMAN ATKINS, VICE

PRESIDENT, MARINE TOWING OF TAMPA, LLC

Vice President Norman Atkins began working on the harbor tugs during summer break while still a high school student. He spent his college years in the harbor operations department and has been involved with ship docking on Tampa Bay ever since. Along with his current senior management position, he is also responsible for the company's marketing and sales activity.

He is married with four children and resides in Lithia, Florida.

July 28, 2021

AGENDA ITEM 3.: PRESENTATION – TERRY FLUKE, EXECUTIVE

DIRECTOR, TAMPA BAY PILOTS ASSOCIATION

Terry Fluke is the Executive Director of the Tampa Bay Pilots Association. He graduated from The University of South Florida in 1983 with a degree in Finance. He began his career in the Port of Tampa in 1985 as an Assistant Terminal Manager at a marine petroleum bulk plant located within the Port of Tampa. He was promoted to Terminal Manager in 1991 and served as manager through 2009. In 2009 he went to work as an Operations Manager for Cargill/Nova responsible for inbound and outbound vessel operations, cargo loading and unloading and vessel logistical support. In January 2020 he assumed the role of Executive Director, Tampa Bay Pilots Association.

Throughout his 36-year career in the ports of Tampa Bay, Mr. Fluke has directly participated in many port-related professional associations. Early in his career he served in officer roles in the Tampa Spill Prevention Cooperative including Secretary, Vice President and President. As a career long member of the Tampa Propeller Club, he served a term as a board member and chairman of their annual golf tournament for 8 consecutive years. In 1997 he was elected to the board of the Tampa Bay Harbor Safety & Security Committee (TBHSSC) and co-chaired the initial Vessel Movement subcommittee. He was elected Chairman of the TBHSSC in 2006 and remained in that position through 2019. Mr. Fluke participates in the Area Maritime Security Committee, Port Heavy Weather Advisory Group, Vessel Movement Committee and Manatee Propeller Club.

During his career Mr. Fluke has directly participated in many port-wide initiatives including planning, hosting and participating in numerous emergency response drills and exercises. Throughout his career he has also represented the maritime industry in rulemaking and public policy initiatives in areas such as emergency response and security regulations, environmental regulations, port dredging projects, and various vessel traffic protocols. Mr. Fluke lives in St Petersburg with his wife Kelley and enjoys boating, fishing, and various sporting events.

July 28, 2021

1. CONSENT AGENDA

   
   

   1. Warrant List

      
      

   2. Minutes May 20, 2021

      
      

   3. Budget Resolution

      
      

   4. Travel and Proprietary Activities Policies Update

      
      

   5. First Amendment to the Contract for Lobbying Services with Jocelyn Hong and Associates, LLC

      
      

   6. World Direct Shipping Cargo and Freight Volume Agreement Amendment Four

      
      

   7. Tampa Bay Estuary Program Amended and Restated Interlocal Agreement

RECOMMENDATION:

Move to approve the Consent Agenda incorporating the language as stated in the recommended motions on the cover sheets for the Consent Agenda items.

Manatee County Port Authority Warrant (Check) Listing

05/13/2021 to 07/18/2021

Manatee County Port Authority Warrant (Check) Listing

05/13/2021 to 07/18/2021

Manatee County Port Authority Warrant (Check) Listing

05/13/2021 to 07/18/2021

Manatee County Port Authority Warrant (Check) Listing

05/13/2021 to 07/18/2021

Manatee County Port Authority Warrant (Check) Listing

05/13/2021 to 07/18/2021

Total warrants (checks) for period reported 4,002,792.74

MANATEE COUNTY PORT AUTHORITY REGULAR MEETING

COUNTY ADMINISTRATION BUILDING – HONORABLE PATRICIA M. GLASS CHAMBERS

1112 Manatee Avenue West Bradenton, Florida

May 20, 2021

Meeting video link: https://www.youtube.com/channel/UCUlgjuGhS-qV966RU2Z7AtA

Present were:

Reggie Bellamy, Chairman

Misty Servia, First Vice-Chairman

James A. Satcher III, Second Vice-Chairman (entered during meeting) Carol Whitmore, Third Vice-Chairman

Vanessa Baugh George W. Kruse

Kevin Van Ostenbridge

Also present were:

Carlos Buqueras, Executive Director Jennifer R. Cowan, Port Authority Attorney Danielle Heaton, Clerk of the Circuit Court Julie Jensvold, Clerk of the Circuit Court

Quantana Acevedo, Deputy Clerk, Clerk of the Circuit Court

Chairman Bellamy called the meeting to order at 9:00 a.m.

INVOCATION AND PLEDGE OF ALLEGIANCE

The Invocation was delivered by Reverend Allen Howe, Anchor House, followed by the Pledge of Allegiance.

PUBLIC COMMENT

There being no public comment, Chairman Bellamy closed public comment.

AGENDA PA20200520DOC001

Agenda Update:

• Add-On Item 5, Mask Update

1. PRESENTATION – PORT MANATEE PROPELLER CLUB

   Matty Appice, President of the Port Manatee Propeller Club (Club), utilized a slide presentation to review the significance of the Club, reasons to join the Club, Board Members, membership statistics, support of local charitable organizations and schools, annual Golf Classics, planned events, maritime job opportunities, club outreach, 2019/2020 Awards, and scholarship awards.

   (Enter Commissioner Satcher during the presentation)

   
   

   Scholarship Awards were presented to Reagan Williams, Madison Kaler, Kaylene Balzer, and Madison Burt (fifth awardee Owen Cattlet was not present).

   Mr. Appice read a statement of observation regarding the upcoming Maritime Day (5/22/21).

   
   

   Upon question, Mr. Appice spoke on how the Club supports the Anchor House and their efforts. PA20200520DOC002

   MAY 20, 2021 (Continued)

   
   

2. EMPLOYEE RECOGNITION/INTRODUCTION

   Carlos Buqueras, recognized the retirement of Matty Appice, Chief Commercial Officer, with the presentation of a Bell Plaque Award. Mr. Appice made remarks including that he would continue to serve as President of the Propeller Club.

   
   

   There was discussion on how Mr. Appice was a great leader in his role as Chief Commercial Officer, and wishing Mr. Appice the best in his retirement.

   Mr. Buqueras introduced Charles Tillotson as the new Chief Commercial Officer.

   Discussion ensued that Mr. Tillotson would be a great asset to the Port Manatee.

   PA20200520DOC003

   
   

3. CONSENT AGENDA PA20200520DOC004

   A motion was made by Member Servia, seconded by Baugh, and carried 7 to 0, to approve the Consent Agenda incorporating the language as stated in the recommended motions on the cover sheets for the Consent Agenda.

   1. WARRANT LIST

      Accepted Warrant Listing from April 8, 2021 to May 12, 2021 PA20200520DOC005

   2. MINUTES

      Approved the Minutes of April 20, 2021

   3. BUDGET RESOLUTION

      Adopted Budget Resolution PA-21-10 PA20200520DOC006

   4. LEASE AMENDMENT ONE AND LEASE ADDENDUM AND ASSUMPTION

      • Authorized execution of Lease Amendment One between Port Manatee and Port Manatee Ship Repair & Fabrication LLC, to amend the description of the demised premises (paragraph 2), which consists of approximately 2.015 acres; and

      • Authorized execution of Lease Addendum Providing for Assignment and Assumption of the Lease by Carver Maritime LLC from Port Manatee Ship Repair & Fabrication LLC as amended by Lease Amendment One PA20200520DOC007

   5. INTERMODAL CONTAINER YARD

      Authorized execution of Change Order 5 to increase the Contract with The Crisdel Group, $29,959.94, subject to the Florida Department of Transportation (FDOT) approval PA20200520DOC008

   6. ALUMINUM YARD GRADING AND PAVING

      Approved and authorized the Executive Director to execute the proposal from Gator Grading & Paving LLC, $506,735, for paving a three–acre storage laydown area

      PA20200520DOC009

   7. BERTH 10 REHABILITATION ADDITIONAL ENGINEERING SERVICES

      Approved and authorized the Chairman to execute Professional Services Authorization 18-05-A1 to RS&H, Inc., subject to review and approval of FDOT. The additional amount, $26, 871, is for dive services to determine the extent of steel sheet piling repairs to minimize grout loss bringing the total to $359,338, with 75 percent funded by FDOT PA20200520DOC010

   8. DELEGATION OF AUTHORITY TO EXECUTIVE DIRECTOR

      Adopted Resolution PA-21-09 PA20200520DOC011

   9. LEASE AMENDMENT FIVE

      Approved and authorized the Chairman to execute Lease Amendment Five between Port Manatee and Carver Maritime LLC, to add ten acres to Carver’s existing leased property PA20200520DOC012

      (End Consent Agenda)

      MAY 20, 2021 (Continued)

      
      

4. MANATEE COUNTY PORT AUTHORITY PROCUREMENT POLICY

   Jennifer Cowan, Port Authority Attorney, reported the procurement policy was 16 years old and the revisions were necessary to bring the policy up to date technologically, lawfully and in alignment with policies of Manatee County. She highlighted some of the changes including the spending threshold and refunds that can be authorized by the Executive Director, lack of changes to the thresholds that require competitive solicitation, recognition of grants and associated requirements with private and public partnerships, and purchasing mechanisms such as purchasing cards and purchase orders.

   Upon question, Ms. Cowan reported the purchasing authority threshold was increased from

   $50,000 to $200,000.

   A motion was made by Member Servia and seconded by Member Kruse, to:

   • Repeal Chapter 7, Purchasing Policy, Chapter 9, Refunds, and Chapter 11, Petty Cash, of the Manatee County Port Authority Policies; and

   • Approved the Manatee County Port Authority Procurement Policy.

   There being no public comment, Chairman Bellamy closed public comment.

   The motion carried 7-0. PA20200520DOC013

5. MASK UPDATE

Carlos Buqueras, Executive Director, stated this language aligns with the action taken by the Board of County Commissioners on May 11, 2021.

A motion was made by Member Satcher and seconded by Member Baugh to approve removing all COVID–19–related restrictions in Port buildings including the ability to test temperatures and the requirements for masks.

Member Baugh inquired if the Port considered adding a vaccine clinic at Port Manatee.

Mr. Buqueras mentioned that the Anchor House has been doing vaccines and any Port staff member seeking to be vaccinated has been vaccinated.

There being no public comment, Chairman Bellamy closed public comment.

The motion carried 6-1, with Chairman Bellamy voting nay. PA20200520DOC014

EXECUTIVE DIRECTOR COMMENTS

Carlos Buqueras, Executive Director, stated plans are to hold future meetings at Port Manatee following the summer recess. He utilized a slide presentation to highlight:

• No disruption in the fuel supply coming through Port Manatee during the Colonial Pipeline incident

• Port Manatee welcomes World Direct Shipping’s third vessel

• Port Manatee adds yachts to its diverse cargo mix

• Port Manatee holds first in–person Facility Security Officer Training since January 2020

• Port Manatee and Lobbyist welcomed Lauren Brand, former Associate Administrator for the Maritime Administration (MARAD), for a port update

• Port Manatee removes COVID-19 related restrictions in Port buildings

• Anchor House at Port Manatee assists with coordination of COVID-19 vaccinations efforts for seafarers

  MAY 20, 2021 (Continued)

  
  

  Discussion took place on TWIC cards/readers, and security at the Port is fantastic due to David St. Pierre, Director of Public Safety and Security.

  (Note: The Transportation Worker Identification Credential, also known as TWIC, is required by the Maritime Transportation Security Act for workers who need access to secure areas of the Nation's maritime facilities and vessels) PA20200520DOC015

  PUBLIC COMMENT

  There being no public comment, Chairman Bellamy closed public comment.

  MEMBER COMMENTS

  There were no Member comments.

  ADJOURN

  

  There being no further business, Chairman Bellamy adjourned the meeting at 10:00 a.m.

  Minutes Approved:                                           

  July 28, 2021

  
  

  CONSENT

  AGENDA ITEM 4.C: BUDGET RESOLUTION BACKGROUND:

  This resolution budgets for the following capital improvement projects:

  
  

  • Budgets $141,750 for the Port’s insurance deductible to replace the roof at warehouse 7 damaged by Hurricane Eta.

  • Corrects scrivener error on Budget Amendment PA-21-10 approved on May 20, 2021, to reflect appropriate fund allocation. No change in the budget amount.

  • Budgets $250,000 of Florida Department of Environmental Protection (FDEP) grant funding for Berth 4 Extension for the purchase of offsite stormwater treatment capacity. There is no match requirement.

ATTACHMENT:

Budget Resolution PA-21-11.

COST AND FUNDING SOURCE:

Budgets $250,000 FDEP grant; $141,750 of Port cash.

CONSEQUENCES IF DEFERRED:

Delay in budget allocations.

LEGAL COUNSEL REVIEW: N/A RECOMMENDATION:

Move to adopt Budget Resolution PA-21-11.

RESOLUTION PA-21-11 AMENDING THE ANNUAL BUDGET

FOR MANATEE COUNTY PORT AUTHORITY FOR FISCAL YEAR 2020-2021

WHEREAS, Florida Statutes 129.06, authorizes the Manatee County Port Authority to amend its budget for the current fiscal year as follows:

1. Appropriations for expenditures in any fund may be decreased and other appropriations in the same fund correspondingly increased, provided the total appropriations of the fund are not changed.

   
   

2. Appropriations from reserves may be made to increase the appropriation for any particular expense in the same fund, or to create an appropriation in the fund for any lawful purpose.

   
   

3. Unanticipated revenues, including increased receipts for enterprise or propriety funds, may be appropriated for their intended purpose, and may be transferred between funds to properly account for the unanticipated revenue.

NOW, THEREFORE, BE IT RESOLVED by the Manatee County Port Authority that the 2020-2021 budget is hereby amended in accordance with Section 129.06, Florida Statutes as described on the attached summary and specified in the budget adjustment batch files which are listed below:

ADOPTED with a quorum present and voting this the 28th day of July, 2021.

ATTEST: ANGELINA M. COLONNESO MANATEE COUNTY PORT AUTHORITY

CLERK OF CIRCUIT COURT

By:                                                                                

BUDGET ADMENDMENT RESOLUTION NO. PA-21-11 AGENDA DATE: July 28, 2021

1. Fund: Port Cash Section: Administration

   
   

   Description: Budgets $141,750 for the replacement of the roof at warehouse 7. Batch ID: BAAL072821A Reference: BU21000398

   
   

2. Fund: FDOT – 75% Port Cash – 25% SIB Loan – 25%

   
   

   Section: Berth 4 Improvements

   Berth 6 Improvements Seaport Security Initiative

   
   

   Description: Scriver error on budget amendment PA-21-10 approved by the Port Authority on May 20, 2021. This corrects the appropriate fund allocation.

   
   

   Batch ID: BAAL052021A Reference: BU21000322 BAAL052021A/B BU21000328

   
   

3. Fund: FDEP – 100% Section: Berth 4 Extension

Description: Budgets $250,000 for the cost of offsite stormwater treatment capacity.

Batch ID: BAAL072821A Reference: BU21000400

July 28, 2021

CONSENT

AGENDA ITEM 4.D.: TRAVEL AND PROPRIETARY ACTIVITIES POLICIES

UPDATE

BACKGROUND:

On September 15, 2005, the Port Authority approved the consolidation of all Port Authority policies into one document with individual chapters delineating each policy. Since then, minor updates to certain policies have been approved. A determination was made that an in-depth review of all policies was needed. As such, port staff has been working with the port’s legal counsel to accomplish this task.

Several policies have been previously updated and approved. Staff and the port’s legal counsel are now focused on the Proprietary Activities and Travel policies. The revised policies address the sensitive nature of identifying prospective clients when engaged in potential business development transactions. In these instances, the supporting travel voucher will identify the attendees as “Prospective Client”.

ATTACHMENT: Travel Policy and Proprietary Activities Policy

COST AND FUNDING SOURCE:

N/A.

CONSEQUENCES IF DEFERRED:

Delay in updating policies.

LEGAL COUNSEL REVIEW: Yes

RECOMMENDATIONS:

Move to approve the updated Chapter 6 Proprietary Activities and Chapter 10 Travel polices of the Manatee County Port Authority Policies.

CHAPTER 6 PROPRIETARY ACTIVITIES

1. - 1 P U R P O S E

   The Port Authority is a business and commercial enterprise engaged in encouraging, developing and stimulating the flow of waterborne commerce through Port Manatee pursuant to Chapter 2003-351 of the Laws of Florida entitled the "Manatee County Port

   Authority Act", Chapter 315 of the Florida Statutes and other applicable provisions of law. This policy shall constitute the guidelines for authorized proprietary activities and

   the payment or reimbursement by the Port Authority for expenses in connection therewith by Port Authority members, the Executive Director and all other employees of the Port Authority, including professional consultants for the Port Authority and other persons to the extent authorized by law.

   
   

   1. PROPRIETARY ACTIVITIES

      

      The proprietary activities set forth in the Manatee County Port Authority Act are those to publicize, advertise and promote the activities and projects authorized by said Act; to make known to users, potential users and the public in general the advantages, facilities, resources, products, attractions and attributes of the activities and projects authorized by said Act; to further create a favorable climate of opinion concerning the activities and projects authorized and indicated by said Act; to cooperate with other agencies, both public and private, in accomplishing the purposes enumerated and indicated by said Act; and to promote and engender good will toward the activities and projects authorized by said Act. Reasonable expenditures verified by a supporting voucher to be filed for audit for the purposes set forth in said Act are authorized by said Act including, but not limited to, meals, hospitality and entertainment of persons in the interest of promoting the business of the Port and engendering good will toward the activities and projects authorized by said Act. In promoting the activities and making known to potential users the advantages, facilities, resources, product, attractions and attributes of the activities and projects authorized by the Act for the purpose of promoting business at the Port, the Port Authority recognizes that those activities may be sensitive nature and it is essential that the identity of a prospective client not be disclosed. Therefore, when the Executive

      

      Director or other designated Director is engaged in proprietary activities involving a prospective client, the supporting voucher may only identify the attendees as “Prospective Client” along with the number of attendees, and any other details that may inadvertently disclose the identity of the prospective client may be omitted from the supporting voucher.

      
      

   2. NATURE OF PROPRIETARY ACTIVITIES

      The activities set forth in paragraph 6-2 of this policy are for business, commercial and promotional purposes in connection with the operation of Port Manatee as authorized by law and set forth in paragraph 6-1 of this policy, as opposed to general governmental purposes. These activities are normally undertaken as a part of the waterborne commerce and other business and commercial activities at Port Manatee on an as advisable or needed basis from time to time. Entertainment expenses as used in this policy shall encompass the costs of food and beverages, including alcohol, gratuities and other amenities associated with meetings,

      lunches and dinners, receptions, cocktail parties, golfing outings, and similar events whether

      catered or provided at a Port or other facility or at a restaurant. All expenditures will be evidenced by receipts.

      
      

   3. AUTHORIZATION BY THE PORT AUTHORITY

      The Port Authority at any meeting thereof may authorize proprietary activities and related expenses for any persons listed in paragraph 6-1 and in conformity with paragraph 6-2 of this policy. The chairman or Executive Director may incur expenses for proprietary activities, when in their opinion, advance notice may be detrimental to the purpose of the activity. At a subsequent meeting of the Port Authority, a report will be submitted for approval, ratification and confirmation by the Port Authority.

      
      

   4. BUDGET PROVISIONS

      The Executive Director shall include in the proposed budget of the Port Authority for each fiscal year line items for the anticipated expenditure of funds for proprietary activities and related expenses in conformity with paragraphs 6-1 and 6-2 of this policy during said fiscal year. The adoption of any such budget containing said line items by the Port Authority shall constitute authorization by the Port Authority for the Executive Director at his discretion

      to authorize or undertake said proprietary activities and related expenses and to authorize the payment or reimbursement by the Port Authority for expenses in connection therewith.

      
      

   5. AUTHORIZATION BY EXECUTIVE DIRECTOR

      The Executive Director may in writing authorize proprietary activities in conformity with applicable budget line items by the Executive Director and other employees of the Port Authority together with professional consultants for the Port Authority if it is determined in writing by the Executive Director that said proprietary activities are of public benefit to the Port Authority in conformity with paragraphs 6-1 and 6-2 of this policy and the Port Authority budget for the current fiscal year.

      
      

   6. TRAVEL

This chapter shall not impair or limit matters relating to travel as defined in the Chapter 10 entitled “Travel” to the extent provided for in said Chapter 10 and to the extent authorized by law.

CHAPTER 10 TRAVEL

1. 1 PURPOSE

   This chapter shall constitute the guidelines for travel outside of Manatee County, Florida, and the payment or reimbursement by the Port Authority for expenses in connection therewith by Port Authority members, the Executive Director and all other employees of the Port Authority, including professional consultants for the Port Authority and other authorized persons to the extent authorized by and subject to the limitations imposed by

   Section 112.061 of the Florida Statutes, Chapter 315, Florida Statutes, and pursuant to Chapter 2003-351 of the Laws of Florida entitled the “Manatee County Port Authority

   Act.”

2. PORT PROPRIETARY ACTIVITIES

   

   All travel and expense in connection therewith by persons identified in paragraph 10-1 of this chapter exclusively dealing with the business activities of Port Manatee, as distinguished from general governmental activities, shall be governed by and limited to the purposes authorized and empowered to the Port Authority by the Manatee County Port Authority Act. When the Executive Director is engaged in proprietary activities involving a prospective client, the supporting documentation for travel must include point of original for travel, destination of travel for each day, purpose of travel or duties performed during the travel period but may only identify the party met with as “Prospective Client”, and any other details that may inadvertently disclose the identity of the prospective client may be omitted from the supporting documentation.

3. OTHER ACTIVITIES

   All travel and expenses in connection therewith by persons identified in paragraph 10-1 of this chapter that are not covered by paragraph 10-2 of this policy shall be governed by and limited to the authorization set forth in Section 112.061 of the Florida Statutes entitled ”Per Diem and Travel Expenses of Public Officers, Employees and Authorized Persons.”

4. AUTHORIZATION BY EXECUTIVE DIRECTOR

   The Executive Director may in writing authorize in advance travel by the Executive Director and other employees of the Port Authority and professional consultants for the Port Authority, together with other persons identified in paragraph 10-1 of this chapter, when, in the discretion of the Executive Director same is budgeted, appropriate, desirable or necessary in the conduct of the operations and business of the Port Authority in conformity with paragraphs 10-2 or 10-3 of this chapter. Professional consultants who pursuant to an agreement with the Port Authority or pursuant to specific authorization by the Port Authority are performing services for the Port Authority which require in the course and scope of the performance thereof that said professional consultants travel as a part of the performance of said services, are impliedly authorized with the approval of the Executive Director to travel and to incur expenses in connection therewith to the extent authorized by law and as limited by the provisions of paragraphs 10-2 or 10-3 of this chapter. Travel by any professional consultant pursuant to the provisions of this paragraph and all expenses incurred in connection therewith shall be reported in the bills, invoices or statements periodically rendered by said professional consultant to the Port Authority and the payment thereof by the Port Authority shall be subject to the approval thereof by the Executive Director and the office of the Clerk of the Circuit Court of Manatee County, Florida, as being in conformity with provisions of law and this chapter. In the event that it would be in the best interest of the Port Authority for a traveler to extend his/her stay in order to achieve a savings to the Authority by means of lower airfare (usually over the weekend), such arrangements will be allowed only after meeting the following conditions:

   1. Prior approval of arrangements by the Executive Director or his designee.

   2. Documentation of the savings to be realized by extending such trip prior to approval, including hotel costs and per diem, unless waived by the employee.

   3. The traveler consents to the extended stay and agrees that any weekend or holiday involved is not considered to be a working day for the purposes of compensation or generation of additional leave.

5. AUTHORIZATION BY THE PORT AUTHORITY

   The Port Authority at any meeting thereof may authorize in advance travel for Port Authority members and may authorize travel for the Executive Director and other employees of the Port Authority and professional consultants for the Port Authority, together with other persons identified in paragraph 10-1 of this chapter, when the proposed travel is of a prolonged or unusual nature.

6. RATIFIED AUTHORIZATION

   When, in the discretion of any Port Authority member or the Executive Director, it is necessary that travel be immediately undertaken because of an emergency situation requiring said travel or because of particular circumstances, short notice was given of the event necessitating said travel and there is insufficient time to obtain authorization pursuant to the provisions of paragraphs 10-4 or 10-5 of this chapter, authorization for said travel and to incur expenses in connection therewith may be orally given and as soon thereafter as is practicable, a written report of said travel and the circumstances in connection therewith shall be submitted for approval, ratification and confirmation by the Port Authority in the event said travel would normally have been authorized pursuant to paragraph 10-5 of this chapter or by the Executive Director in all other situations.

7. NOTIFICATION OF EXECUTIVE DIRECTOR TRAVEL

   The Executive Director, to the extent expedient under the particular circumstances, shall give notification to the Port Authority of the anticipated or completed travel activities of the Executive Director when the Executive Director is traveling or absent from Port Manatee for more than the normal business hours of one day. The Executive Director, to the extent expedient under the particular circumstances, shall give said notification to the Port Authority by notifying the Chairman thereof, the Vice Chairman in the absence or unavailability of the Chairman or any member of the Port Authority in the absence or unavailability of both the Chairman and the Vice Chairman.

   

8. COMMON CARRIER EXPENSES

   Except as otherwise provided herein, all travel by common carrier shall be paid at the coach fare rate unless no other fare is available, and time is critical. Additional charges are allowed for baggage fees, comfort seating, and automatic check-ins. In any case where

   

   other than coach fare is used, full justification will be submitted for consideration, and the additional charges will be approved only if the justification is found to be credible by the Executive Director. In accordance with Section 112.061(7) of the Florida Statutes, the Port Authority has considered the time of the traveler, the impact on the productivity of the traveler, the cost of transportation and the per diem required and determined that business class travel is the most efficient and economical means of travel for the Executive Director or his/her designee on foreign flights having a duration of seven (7) hours or more.

   10-9 MOTOR VEHICLE USE ALTERNATIVES

   Any employee may elect, subject to written approval by the Executive Director, one of the following three alternatives for the use of a motor vehicle (“vehicle”) in the performance of the official business and the authorized proprietary activities of the Port Authority:

   

   1. Use a privately-owned vehicle and receive a mileage allowance in the amount of the per mile rate based upon the usually traveled route for each authorized travel or use provided in Section 112.061(7)(d) of the Florida Statutes. The mileage allowance received for each authorized travel or use may not be income to the particular employee for federal income tax purposes. The Port Authority will not be held responsible for any damages that might occur to an employee’s personal automobile while on business activities of Port Manatee

      

   2. Use a privately owned vehicle and receive a monthly vehicle allowance in an amount determined by the Executive Director pursuant to Section 112.061(7)(f) of the Florida Statutes. The monthly vehicle allowance may be income to the particular employee for federal income tax purposes. The Port Authority will not be held responsible for any damages that might occur to an employee’s personal automobile while on business activities of Port Manatee.

   3. Use a vehicle owned by the Port Authority as assigned by the Executive Director to the particular employee. Said vehicle may be used for travel between the place of residence and the official place of work of the particular employee and for traveling to and from lunch during work days of the

particular employee. The personal use of a Port Authority owned vehicle may be income to the particular employee for federal income tax purposes.

1. REIMBURSEMENT RATES FOR MEALS AND FOR MILEAGE

   

   All persons authorized to travel for or in connection with the business activities of Port Manatee shall be entitled to reimbursement in accordance with Section 112.061(14) of the Florida Statutes, as amended from time to time. When authorized to travel by privately owned vehicles, for or in connection with the business activities of Port Manatee, the traveler shall be entitled to the Internal Revenue Service standard mileage rate for business miles driven effective January 1, of each year or as otherwise adjusted from time to time by the Internal Revenue Service. Documentation of miles traveled for Port Authority business is required.

2. FRAUDULENT CLAIMS

Pursuant to section 112.021(10) of the Florida Statutes, any person who willfully makes and subscribes any claim that he or she does not believe to be true and correct as to every material matter, or who willfully aids or assist in, or procures, counsels or advises the preparation or presentation of such a claim that is fraudulent or is false at to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such claim, commits a misdemeanor of the second degree, punishable as provided in section 775.082 of the Florida Statutes or section 775.083 of the Florida Statutes. Whoever receives an allowance or reimbursement by means of a false claim is civilly liable in the amount of the overpayment for the reimbursement of the public fund from which the claim was paid.

July 28, 2021

CONSENT

AGENDA ITEM 4.E: FIRST AMENDMENT TO THE CONTRACT FOR LOBBYING SERVICES WITH JOCELYN HONG AND ASSOCIATES, LLC

BACKGROUND:

On January 23, 2019, the Port Authority approved a contract with Jocelyn Hong and Associates, LLC, (JHA) for professional federal governmental consulting and lobbying services for the purpose of both Legislative and Executive branch lobbying. The contract expires on July 31, 2021. Port staff wishes to continue to obtain lobbying assistance from JHA and has prepared an amendment to the contract for continuation of services.

ATTACHMENT:

First Amendment to Contract for Professional Services

COST AND FUNDING SOURCE:

$5,000 per month included in the approved budget. No increase in monthly fee.

CONSEQUENCES IF DEFERRED:

Delay in contract execution

LEGAL REVIEW: Yes RECOMMENDATION:

Move to approve and authorize execution on behalf of the Port Authority the First Amendment to Contract for Professional Services between the Manatee County Port Authority and Jocelyn Hong and Associates, LLC.

FIRST AMENDMENT TO CONTRACT FOR PROFESSIOI\AL SERVICES

THIS FIRST AMENDMENT TO THE CONTRACT FOR PROFESSIONAL SERIVCES

(hereinafter "First Amendment") is entered into by and between the MANATEE COUNTY PORT AUTHORITY, a political entity of the State of Florida, as the Employer, with a principal place of business located at Port Manatee , 300 Tampa Bay Way, Suite 1, Palmetto, Florida 34221, (hereinafter referred to as the "Authority"), and JOCELYN HONG AND ASSOCIATES, LLC, a foreign corporation, located at 2346 S. Queen Street, Arlington, VA 22202, (hereinafter referred to as the "Firm") (hereinafter collectively the Authority and Finn shall be referred to as the "Parties").

WHEREAS, the Authority entered into a Contract for Professional Services on July 23, 2019, with an expiration date of July 31, 2021, wherein the Firm was designated to provide federal governmental consulting and lobbying professional services to Port Manatee for the purposes of both Legislative and Executive branch lobbying, developing and fully implementing effective lobbying strategies, strategic planning and budgeting, and business expansion connections ("Contract"); and

WHEREAS, the Parties have determined it is in both parties' best interest to extend the Contract with alternative terms as provided in this First Amendment.

NOW THEREFORE, in consideration of the promises and mutual covenants contained in the First Amendment, the Contract is amended, modified, clarified, and superseded as follows:

l. Recitals: The above recitals are tme and correct and incorporated by reference.

1. Modi fication : The Parties agree to modify the tenn set forth in Section 5. General

   Provisions of the Contract as set forth below :

   This Agreement is effective as of August I, 2019. The Firm shall continue to provide professional services until terminated by either Party in accordance with Section 2 Compensation; Termination, Subsection C of this Agreement. If termination notice is given, the Firm shall cease rendering all services on the date of the tennination, and the Authority shall compensate the Firm as provided for in this Agreement for all services rendered through the date of termination.

   
   

   This Agreement may be executed in multiple counterparts, any of which shall be regarded as an original and all of which constitute one and the same instrument. This Agreement is governed by and construed in accordance with the laws of the State of Florida and venue is proper in Manatee County.

   
   

   15003/554/01792472.DOCXvl

   
   

   
   

2. Effective Date. This First Amendment shall be effective on July 31, 2021.

3. Savings Provision: Except for the modifications provided above, all other terms and conditions of the Contract will remain in full force and effect unless subsequently amended in writing. Except to the extent amended and supplemented by this First Amendment, the Contract will remain in full force and effect.

4. Conflict: In the event of a conflict regarding the provisions set forth in Section 5. of the Contract, and the provisions of this First Amendment, the provisions set forth in this First Amendment will prevail. In the event of a conflict between any other paragraphs within the Contract and this First Amendment, the Contract will prevail.

5. Authority. Each of the Parties hereto covenant to the other party that it has the lawful authority to enter into this First Amendment, that the governing or managing body of each of the Parties has approved this First Am endmen t, and that the governing or managing body of each of the Parties has authorized execution of this First Amendment in the manner set forth below.

   IN WITNESS WHEREOF, the Manatee County Port Authority caused this First Amendment to the Contract for Professional Services to be signed and executed on its behalf by its Chairman, and fully attested by its Clerk, and Fim1 has executed this First Amendment to the Contract, in duplicate on the 28th day of July, 2021.

   MANATEE COUNTY PORT AUTHORITY COMMISSIONERS

   
   

   ATTEST:

   
   

   
   

   
   

   

   Angelina M. Colonneso Clerk of the Circuit Court

   By:                                _

   CHAIRMAN

   
   

   

   lyn Hong Lowe Chief Executive Officer

   FIRM - JOCELYN HONG AND ASSOCIATES, LLC

   
   

   
   

   15003/554/01792472.DOCXvl 2

   July 28, 2021

   
   

   CONSENT

   AGENDA ITEM 4.F.: WORLD DIRECT SHIPPING CARGO AND

   FREIGHT VOLUME AGREEMENT AMENDMENT FOUR

   
   

   BACKGROUND:

   
   

   On October 27, 2020, the Authority approved World Direct Shipping (WDS) Cargo and Freight Volume Agreement Amendment Three which increased the unit rate per container effective January 1, 2021. This request is for approval of the World Direct Shipping Cargo and Freight Volume Agreement Amendment Four which adds rates for the new 53-foot containers WDS has added to its vessel calls.

   
   

   ATTACHMENTS:

   
   

   World Direct Shipping Cargo and Freight Volume Agreement Amendment Four

   
   

   COST AND FUNDING SOURCE:

   
   

   N/A

   
   

   CONSEQUENCES IF DEFERRED:

   
   

   Delay in Port Authority approval of the rate for 53-foot containerized cargo

   
   

   LEGAL COUNSEL REVIEW: Yes

   
   

   RECOMMENDATION:

   
   

   Move to approve and authorize on behalf of the Port Authority the execution of the World Direct Shipping Cargo and Freight Volume Agreement Amendment Four between the Manatee County Port Authority and World Direct Shipping.

   WORLD DIRECT SHIPPING CARGO AND FREIGHT VOLUME AGREEMENT - AMENDMENT FOUR

   
   

   The tenns and conditions of this World Direct Shipping Cargo and Freight Volume Agreement Amendment Four, hereinafter ("Amendment Four"), made and entered into by and between the MANATEE COUNTY PORT AUTHORITY, a political entity of the State of Florida, with its principal place of business located at Port Manatee, 300 Tampa Bay Way, Suite 1, Palmetto, Florida 34221, hereinafter referred to as the "Authority", and WORLD DIRECT SHIPPING, a limited liability company duly organized and existing under the laws of the State of Florida, with a principal place of business located at 1905 Intermodal Circle, Suite 330, Palmetto, Florida 34221, hereinafter referred to as "WDS", for and in consideration of the mutual covenants herein contained and other good and valuable consideration, amend the World Direct Shipping Cargo and Freight Volume Agreement entered into by the parties hereto dated January 19, 2017 (hereinafter "Agreement"), the World Direct Shipping Cargo and Freight Volume Agreement Amendment One dated April 20, 2017, (hereinafter "Amendment One"), the World Direct Shipping Cargo and Freight Volume Agreement Amendment Two dated December 19, 2019, (hereinafter "Amendment Two"), the World Direct Shipping Cargo and Freight Volume Agreement Amendment Three dated October 27, 2020, (hereinafter "Amendment Three"),and state as follows:

   1. CONSIDERATION. Each of the parties hereto represent that, as a result of anticipated growth in waterborne commerce, mutual covenants, the long-tenn benefit to both parties, and other good and valuable consideration, this Amendment Four shall govern the parties' responsibilities regarding waterborne rates for a set

      26981/00 l/Ol 792578.DOCXv2 1 of 7

      tem1 including dockage, wharfage, linehandling, harbonnaster fees, outside storage, waterborne minimum annual guarantee and free time, beginning April 1, 2017 through December 31, 2026. Any fees not listed herein shall be handled under the Port Manatee Tariff, unless otherwise agreed to in writing by the parties.

   2. SCOPE. This Amendment Four is being entered into for the purpose of amending, modifying and superseding paragraph 3. of the Agreement, Amendment One, Amendment Two, and Amendment Three. Except to the extent herein amended, all other provisions set forth in the Agreement, Amendment One, Amendment Two, and Amendment Three shall remain in full force and effect and binding upon the Authority and WDS. In entering into Amendment Four, the parties acknowledge that in no way has the Authority waived any of its rights or claims it may have against WDS.

   3. AMENDMENT. The parties hereby agree to amend, modify, and supersede paragraph 3. of the Agreement, as follows:

      1. TARIFF RATES.

         1. Inside Storage Rates and Charges Per Full Container. During the Initial Term and notwithstanding the storage rates set fo1ih in Port Manatee Tariff Items No. 709 (Frnits/Vegetables) and 702 (Articles - General NOS not otherwise shown), WDS shall pay to the Authority an Inside Storage Rate of $56.856 for full or partially full containers in calendar year 2017, $58.562 in calendar year 2018,

            $59.837 in calendar year 2019, $61.07 in calendar year 2020, and $125.47 in calendar year 2021. The amount of said cargo shall be based upon the number of containers as shown on the Bills of Lading or other appropriate documentation evidencing the arrival of said cargo at Port Manatee. The Inside Storage Rates shall increase in 2022 and each year thereafter based on the current consumer price index (CPI) increase, but shall not be increased more than 3% for any one (1) year. However, in no event shall WDS be charged more than $142,140 total during calendar year 2017, $146,404 total during calendar year 2018, $154,080 total during calendar year 2019, $152,675 total during calendar year 2020, and $313,675 total during calendar year 2021 (January 1 through December 31) ("Annual Inside Storage Rate Maximum"). The Annual Inside Storage Rate Maximum shall

            increase each year based on that year's Inside Storage Rate multiplied by the total Minimum Annual Guarantee for containers as described in subparagraph D below. The Inside Storage Rate and the Annual Inside Storage Rate Maximum will not be decreased. (For example in 2022, the 2022 Inside Storage Rate will equal $125.47 multiplied by the then cunent consumer price index (CPI) increase (not more than 3%). The 2022 Annual Inside Storage rate will equal the 2022 Inside Storage Rate multiplied by 2,500.)

         2. Dockage, Wharfage, Linehandling, Harbormaster Fees. Beginning April I, 2017 and continuing through December 31, 2019, notwithstanding the dockage, wharfage, linehandling, and harbormaster rates set forth in P011 Manatee Tariff Items No. 395 (Dockage Rates - Based on Gross Registered Tons (GRT), 396 (Dockage Rates - Based on Vessel Length Overall (LOA)), 440 (Linehandling Charges), 482 (Harbormaster Fee) and 495 (Containerized Cargo), WDS shall pay to the Authority:

            A Dockage rate of $4.51 per LOA; and

            A Wharfage rate for containerized cargo of $24.00 per each full or partially full 20-foot container and $40.00 per each full or partially full 40-foot container, (there will be no charge for empty containers); and

            Effective October 15, 2019, a Wharfage rate of $8.00 for containerized cargo of appliances and/or air conditioners per each full or pm1ially full 20-foot container and per each full or pm1ially full 40-foot; and

            A Linehandling fee of $345 (plus overtime, if applicable) for each anival and departure; and

            A Harbonnaster fee of $.039 per GRT in 2017 and 2018, and

            $.040 per GRT in 2019.

            Beginning January I, 2020 and continuing throughout the term of this Agreement, notwithstanding the dockage, wharfage, linehandling, and harbomrnster rates set fo11h in Port Manatee Tariff Items No. 395 (Dockage Rates - Based on Gross Registered Tons (GRT), 396 (Dockage Rates - Based on Vessel Length Overall (LOA)), 440 (Linehandling Charges), 482 (Harbomrnster Fee) and 495 (Containerized Cargo), WDS shall pay to the Authority:

            A Dockage rate of $4.60 per LOA for January I, 2020 - December 31, 2020, Dockage: $4.69 per LOA for Janua1y I, 2021 - December 31, 2021 and thereafter the Dockage rate shall increase each year based on the cunent consumer price index (CPI) increase, but shall not be increased more than 2% for any one (I) year; and

            A Wharfage rate for containerized cargo of $24.00 per each full or partially full 20-foot container, $40.00 per each full or partially full 40-foot container, and $50.00 per each full or partially full 53-foot container (there will be no charge for empty containers) throughout the term of this Agreement and all renewals; and

            A Wharfage rate of $8.00 for containerized cargo of appliances and/or air conditioners per each full or partially full 20-foot or 40-foot container and $IO.00 for each full or partially full 53-foot container throughout the te1m of this Agreement and all renewals; and

            The 2019 Linehandling fee of $345 (plus overtime, if applicable) for each an-ival and departure shall increase in January of each year (Jan. - Dec.) in years 2020 and 2021 based on the current consumer price index (CPI) increase, but shall not be increased more than 2% for any one (1) year and thereafter (in years 2022-2026), the Linehandling rates will remain the 2021 rate; and

            The 2019 Harbormaster fee of $.040 per GRT shall increase in January of each year (Jan. -Dec.) in years 2020 and 2021 based on the current consumer price index (CPI) increase, but shall not be increased more than 2% for any one (1) year and thereafter (in years 2022-2026), the Harbonnaster fee will remain at the 2021 rate.

            For each calendar year, including extended term, the wharfage rate for full or partially full containerized cargo shall remain $24.00 per each 20-foot container and $40.00 per each 40-foot container and $8.00 for appliances and/or air conditioners until at such time that the wharfage revenue reaches $140,000 for the calendar years 2017 through 2019 and $280,000 for calendar years 2020 through 2026 ("Annual Specified Wharfage Revenue"). In the event that the Annual Specified Wharfage Revenue is reached, the rate per container for the remaining calendar year for both 20 foot and 40 foot, shall be $33.00 during 2017, $34.00 during 2018, and $35.00 in years 2019-2026, $8.00 for appliances and/or air conditioners, effective October 15, 2019 through December 31, 2026. In the event that the Annual Specified Wharfage Revenue is reached, the rate per container for the remaining calendar year shall be $44.00 for 53-foot containers and $10.00 for 53-foot containers containing appliances and/or air conditioners, effective April 24, 2021 through December 31, 2026.

         3. Outside Storage. Beginning April 1, 2017 and continuing through December 31, 2019, notwithstanding the rates set forth in Port Manatee Tariff Item No. 477A (Containers/Trailers Storage), WDS shall pay to the Authority an outside storage rate of $3.25 per container in 2017 and 20 I 8 and $3.33 per container in 20 I 9. The Outside Storage rate shall increase each year (Jan. - Dec.) thereafter based on the current consumer price index (CPI) increase, but shall not be increased more than 2% for any one year.

            
            

         4. Minimum Annual Guarantee. Regardless of the amount of full or partially full containers of cargo actually shipped through Port Manatee by WDS during the Initial Term, WDS guarantees that the amount of inside storage to be paid (January 1 through December 31) for calendar years 2017 and 2018 of this Agreement shall be for at least 2,500 containers stripped for inside storage per calendar year. WDS guarantees that the amount of said inside storage to be paid (January 1 through December 31) for calendar year 2019 of this Agreement shall be for at least 2,575 containers stripped for inside storage per calendar year. This guarantee for inside storage is a major inducement to the Authority for entering into this Agreement, and the Authority has entered into this Agreement in reliance thereon. As soon as 2,500 is reached in each calendar year during the 2017 and 2018 calendar years and 2,575 is reached in the calendar year of 2019, the Minimum Annual Guarantee (MAG) will be settled. The MAG will revert to 2,500 when the renewal option is exercised in calendar years 2020-2026. Once the container count is reached in each calendar year during the renewal years, the MAG will be settled. Any shortfall for inside storage will be calculated by the difference in the total number of containers stripped for inside storage and the minimum annual guarantee per each calendar year calculated per the Inside Storage Rate in

            1. The annual amount of guaranteed wharfagc is $280,000 for each calendar year during 2020-2026.

               
               

               After each qum1er during the fiscal year throughout the duration or term of this Agreement, an accounting shall be made as to the actual amount of inside storage and waterborne wharfage charged by the Authority and paid by WDS for commodities for each particular quarter, and WDS shall pay the inside storage and wharfage rate set forth herein within thi11y (30) days thereafter any difference remaining due between the amount of the commodity inside storage and wharfage actually paid and the amount of the guaranteed commodity inside storage and wharfage for that particular fiscal year. WDS's failure to meet the minimum guaranteed inside storage and wharfage for any fiscal year will be considered a breach of this Agreement by WDS, and grounds for immediate termination of the Agreement at the Authority's sole option. WDS shall pay the Authority interest at one and one-half percent (1.5%) per month or pa11 thereof (18%) per annum on any payment which remains unpaid for sixty (60) calendar days from the due date.

               
               

               Regardless of the amount of containers of cargo actually shipped through Port Manatee by WDS during the Initial Term or any extended tenn, the Authority guarantees that WDS will be provided with sufficient warehouse space to store its incoming cargo and that the Authority will make its best efforts to store related WDS cargo together. However, the Authority makes no guarantees that all of WDS's cargo can be consolidated and stored together. For refrigerated cargo from de-vanned ocean containers, the Authority shall provide:

               
               

               1. Storage to accommodate 2,200 pallets in a refrigerated warehouse that, at all times, shall be capable of meeting PRIMUS GFS ce11ification standards, shall have a wireless internet and an area suitable for Custom's Border Patrol (CBP) to carry out cargo inspections, be structurally sound with 24-hour external security provided and capable of maintaining temperatures ideal for perishable cargo.

                  
                  

               2. Access to at least 6 refrigerated dock doors where the cold chain may at all times be preserved for all pallet movements: from containers into storage, from storage into containers and into trucks to maintain a temperature ideal for perishable cargo, with access to, infrastructure for, and equipment for, camera monitoring of interior of dock space.

                  
                  

               3. Dry storage space of 20,000 square feet and access to six loading docks.

            
            

            For container storage, the Authority shall provide storage space capable of use for storing any empty standard ocean shipping container (or safe stacks thereof), for seventy (70) containers free of charge. For refrigerated containers, the Authority shall provide a minimum of fifty-two (52) safe, functioning 480V container plugs, for which WDS shall be responsible for the cost of electricity while container plugs are used by containers associated with WDS business. If fifty-two (52) 480V container plugs become insufficient to power the quantity ofrefrigerated containers required by WDS, WDS shall be pennitted use of either (1) the Authority's mobile generator 480V plug tree to power the remaining refrigerated containers at cost of generator fuel only, or (2) additional 480V plugs, the cost of electricity to be for the account of WDS.

         5. Other Charges and WDS Responsibilities.Notwithstanding the free time set forth in P01i Manatee Tariff Item No. 365 (Free Time), WDS shall receive 30 days' free time for sugar, 21 days' free time for paper and 10 days' free time for all other cargo.

            
            

            Charges for electricity of any cold storage or dry storage facility used by WDS shall be the responsibility of WDS and the Authority shall invoice WDS monthly for such charges, after receipt of billing from Florida Power & Light (FPL).

            
            

            The Authority agrees to allow WDS the use of the Authority's p01iable dock at no cost to WDS. The Authority agrees that WDS will also not be charged for the area utilized to support the cross-dock operation. WDS agrees to maintain the Authority's portable dock in safe and operable condition throughout the tenn of this Agreement. WDS agrees to be responsible for all repairs and liabilities associated with the Authority's portable dock.

            
            

            Fmiher, the parties agree that WDS is responsible for any and all of its cargo that is stored at Po1i Manatee. In accordance with the Port Manatee Tariff, WDS agrees to provide all necessary insurance related to the cargo WDS brings to Port Manatee and that Port Manatee shall not be responsible for any damage to such cargo.

            
            

   4. CONFLICT. In the event of a conflict regarding the provisions set forth m paragraph 3. of the Agreement, Amendment One, Amendment Two, Amendment Three and the provisions contained in this Amendment Four, the provisions set forth in Amendment Four shall prevail. In the event of a conflict between any other paragraphs within Amendment Four, and the provisions contained in Amendment Three, Amendment Two, Amendment One and the Agreement, the provisions set forth in the Agreement, Amendment One, Amendment Two and Amendment Three shall prevail.

   5. AUTHORITY TO EXECUTE. Each of the parties hereto covenants to the other party that it has lawful authority to enter into this Amendment Four, that the governing or managing body of each of the parties has approved this Amendment

      
      

      Four and that theg overning or1nanaging body of each of thep ar tiesh as authoxized the execution of this A1nendt1 e n t Four in the 1nannerh ereinafter s et forth.

   6. EFFECTIVE DATE. The effectived ate of Amendn7.ent Four is Apr il24 , 2021_

IN w 1 r N ES S W H E RE O F> th e parties h ave c a us ed th is A m e nd m e nt Four to be duly

executed indup licate thsi

the2 8th day of Juyl

2 02 1.

ATTEST:

ANGELINA "M.COLONNESO

Clerk of'Circuit Court

By: - - - - - - - - - - - - - - - - - -

P r in ted : _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

MANATEE COUNTY PORT AUTHORITY

By:                                         

Ch air:rn an

July 28, 2021

CONSENT

AGENDA ITEM 4.G.: TAMPA BAY ESTUARY PROGRAM AMENDED AND

RESTATED INTERLOCAL AGREEMENT

BACKGROUND:

On March 17, 2016, the Authority approved a Joinder Agreement with the Tampa Bay Estuary Program (TBEP) which enabled the Authority to be a member of TBEP’s Management Board. The Amended and Restated Interlocal Agreement adds the Authority to the agreement and updates the Comprehensive Conservation & Management Plan “CCMP” goals emphasizing regional cooperation and seeks to ensure that the CCMP continues to be properly and effectively implemented.

ATTACHMENT:

Tampa Bay Estuary Program Amended and Restated Interlocal Agreement

COST AND FUNDING SOURCE:

N/A

CONSEQUENCES IF DEFERRED:

Delay in approving the Amended and Restated Interlocal Agreement

Move to approve and authorize the Chairman to execute the Joinder Agreement Between the Tampa Bay Estuary Program and the Manatee County Port Authority.

LEGAL COUNSEL REVIEW: Yes

RECOMMENDATION:

Move to approve and authorize the Chairman to execute the Amended and Restated Interlocal Agreement Between the Tampa Bay Estuary Program and the Manatee County Port Authority.

TAMPA BAY ESTUARY PROGRAM AMENDED AND RESTATED INTERLOCAL AGREEMENT

THIS TAMPA BAY ESTUARY PROGRAM INTERLOCAL AGREEMENT (the

“Agreement”) is executed and made effective by and among the following governmental entities:

1. CITY OF CLEARWATER, a Florida municipal corporation; 2. CITY OF ST. PETERSBURG, a Florida municipal corporation; 3. CITY OF TAMPA, a Florida municipal corporation; 4. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, a Florida state agency; 5. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION’S FISH AND WILDLIFE RESEARCH INSTITUTE, an institute; 6. HILLSBOROUGH COUNTY, a political subdivision of the State of Florida; 7. THE ENVIRONMENTAL PROTECTION COMMISSION OF HILLSBOROUGH COUNTY, a political subdivision of the State of Florida;

   1. MANATEE COUNTY, a political subdivision of the State of Florida; 9. PINELLAS COUNTY, a political subdivision of the State of Florida; 10. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, a public corporation of the State of Florida; 11. the TAMPA PORT AUTHORITY, an independent special district of the State of Florida; 12. the TAMPA BAY REGIONAL PLANNING COUNCIL, a Florida regional planning council; 13. TAMPA BAY WATER, a regional water supply authority; 14. PASCO COUNTY, a political subdivision of the State of Florida; and, 15. the MANATEE COUNTY PORT AUTHORITY, a dependent special district of the State of Florida, (collectively the “Parties” and each singularly a “Party”), and the following recitation of facts are provided in support of this Agreement:

      
      

      1. The Tampa Bay National Estuary Program (hereinafter, “Tampa Bay Estuary Program” or “Program”) was established in 1991 to assist the Tampa Bay area in developing a

         comprehensive plan to restore and protect Tampa Bay. The Tampa Bay Estuary Program was created by Interlocal Agreement dated February 27, 1998 (the “Original Interlocal Agreement”), as amended and restated August 10, 2015, and is governed by a Policy Board and advised by a Management Board. The Tampa Bay Estuary Program is a part of a national network of twenty-eight (28) National Estuary Programs established under the Federal Clean Water Act and administered nationally by the United States Environmental Protection Agency.

         
         

      2. Local government and regulatory agency participants in the Tampa Bay Estuary Program consisting of the Parties described in the Preamble above, as well as the United States Environmental Protection Agency and the United States Army Corps of Engineers, have developed and unanimously adopted a Comprehensive Conservation & Management Plan for Tampa Bay, known as Charting the Course, dated December 1996, which was updated in May 2006, amended in February 2013, and updated again in 2017 (the “CCMP”), and are committed to its successful implementation. The CCMP seeks to ensure that Tampa Bay remains a vibrant part of the region's environmental and economic landscape by preserving and enhancing its roles as a recreational resource, international seaport, and home for fish and wildlife.

         
         

      3. The CCMP presents goals for clean water and sediments; thriving habitats and abundant wildlife; and an informed, engaged and responsible community which will be re-examined at least once every five (5) years and updated as appropriate. To achieve the CCMP goals, this Agreement emphasizes regional cooperation and regulatory flexibility that allows the Parties to select cost-effective and environmentally beneficial bay improvement options for their communities, so long as the goals of the CCMP are met.

      4. The parties to the CCMP and the Original Interlocal Agreement, established the Tampa Bay Estuary Program as the first National Estuary Program to adopt a binding agreement for implementation of the CCMP, and now seek to ensure that the CCMP continues to be properly and effectively implemented.

   
   

   NOW THEREFORE, in consideration of the mutual promises contained in this Agreement, the receipt and adequacy acknowledged by them, the Parties agree as follows:

   
   

   ARTICLE ONE – INTRODUCTORY PROVISIONS

   
   

   1. Recitals. The statements contained in the recitation of facts set forth above (collectively the "Recitation of Facts") are true and correct, and are hereby made a part of this Agreement by this reference.

      
      

   2. Exhibits. The exhibits which are attached to this Agreement are by this reference made a part hereof.

      
      

   3. Abbreviations and Definitions. The following abbreviations and definitions will be used for purposes of this Agreement:

      1. The abbreviations and definitions contained in the Preamble will be used for purposes of this Agreement.

      2. The abbreviations and definitions contained in the Recitals will be used for purposes of this Agreement.

      3. The term “Act” shall mean Section 163.01, Florida Statutes, the Florida Interlocal Cooperation Act of 1969.

      4. The term “Action Plan(s)” shall mean the comprehensive action plans set forth in the CCMP, including initiatives and strategies to be undertaken to attain the CCMP Goals.

      5. The term “Agreement” shall mean this Amended and Restated Interlocal Agreement between the Parties as it is presently constituted or as it may be amended from time to time.

      6. The term “Army Corps” shall mean the United States Army Corps of Engineers, a federal agency.

      7. The term “CCMP” shall mean the Comprehensive Conservation and Management Plan, dated December 1996, unanimously approved by the Parties, as updated in May 2006, amended in February 2013, and again updated in 2017, and as it may be amended from time to time.

      8. The term “CCMP Goals” or “Goals” shall mean those goals and priorities of the CCMP set forth in Section 4.1 below, as amended from time to time.

      9. The term “Clearwater” shall mean the City of Clearwater, a Florida municipal corporation.

      10. The term “Cities” shall mean collectively Clearwater, St. Petersburg, and

          
          

          Tampa.

          
          

      11. The term “Contribution” includes funding of the Tampa Bay Estuary Program, the Tampa Bay Environmental Restoration Fund, the Bay Mini Grant Program and/or projects which support the goals of the CCMP and are included in the approved Work Plan.

          1. The term “Counties” shall mean collectively Hillsborough, Manatee, Pasco, and Pinellas.

1. The term “DEP” shall mean the Florida Department of Environmental Protection, a Florida state agency.

2. The term “Effective Date” shall mean the date that all Parties have duly executed this Agreement and filing has been completed under Section 11.14 below.

3. The term “EPA” shall mean the United States Environmental Protection Agency, a federal agency.

4. The term “EPC” shall mean the Environmental Protection Commission of Hillsborough County, a political subdivision of the State of Florida.

5. The term “Full Budget” includes the Work Plan Budget and all other funding received by the Tampa Bay Estuary Program for projects, programs, operations and staffing.

6. The term “Funding Entity” shall mean and include Local Governments and SWFWMD.

7. The term “Hillsborough” shall mean Hillsborough County, a political subdivision of the State of Florida.

8. The term “Institute” shall mean the Florida Fish and Wildlife Conservation Commission’s Fish and Wildlife Research Institute.

9. The term “Local Governments” shall mean collectively the Cities and the

   
   

   Counties.

   
   

10. The term “Management Board” shall mean a board of the Tampa Bay Estuary Program, as set forth and described in Article Five below.

11. The term “Manatee” shall mean Manatee County, a political subdivision of the State of Florida.

12. The term “Manatee Port Authority” shall mean Manatee County Port Authority, a dependent special district of the State of Florida.

13. The term “Original Interlocal Agreement” shall mean the Interlocal Agreement dated February 27, 1998.

14. The term “Tampa Bay Nitrogen Management Consortium” or “Consortium” shall mean an ad hoc task force of representatives from the currently existing Management Board, other municipalities and counties located within the Tampa Bay watershed, private entities, electric utility industry, fertilizer industry, other industries with permitted nitrogen discharges, agriculture representatives, and regulatory agencies.

(aa) The term “Pasco” shall mean Pasco County, a political subdivision of the State of Florida.

(bb) The term "Pinellas" shall mean Pinellas County, a political subdivision of the State of Florida.

(cc) The term "Policy Board" shall mean a board of the Tampa Bay Estuary Program, as set forth and described in Article Five below.

(dd) The term "Tampa Port Authority" shall mean the Tampa Port Authority, a Florida port authority.

(ee) The term "Regulatory Agencies" shall mean the governmental agencies with regulatory authority as identified in each agency’s authorizing law or document creating such agency, district or commission, including EPA, DEP, EPC, Tampa Port Authority, and SWFWMD.

(ff) The term "St. Petersburg" shall mean the City of St. Petersburg, a Florida municipal corporation.

(gg) The term “SWFWMD” shall mean the Southwest Florida Water Management District, a public corporation of the State of Florida.

(hh) The term “Tampa” shall mean the City of Tampa, a Florida municipal

corporation.

1. The term “Tampa Bay Water” shall mean a regional water supply authority formed pursuant to Sections 373.713, 373.715 and 163.01, Florida Statutes.

   (jj) The term “TBRPC” shall mean the Tampa Bay Regional Planning Council, a Florida regional planning council.

   (kk) The term “Work Plan” shall mean the annual document outlining the previous year's accomplishments and the upcoming year’s priorities, projects, funding partners and expenditures to meet the requirements of the EPA’s Cooperative Agreement with the Tampa Bay Estuary Program pursuant to CWA 320, and adopted by the Policy Board.

   (ll) The term “Work Plan Budget” shall mean that portion of the Full Budget which includes the funding for projects identified in the Tampa Bay Estuary Program Work Plan.

   
   

   ARTICLE TWO – AMENDED AND RESTATED INTERLOCAL AGREEMENT

   
   

   1. Authority. This Agreement is an interlocal agreement, as contemplated by the Act, and pursuant to the authority of subsection (4) of the Act, all of the Parties qualify to be a part of this Agreement under such Act.

   2. Immunity. Pursuant to subsection (9) of the Act, all of the privileges and immunities from liability, exemptions from laws, ordinances and rules, and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents or employees of any public agent or employees of any public agency when performing their respective functions within the territorial limits for their respective agencies shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, or employees extraterritorially under the provisions of this Agreement.

      
      

   3. Amendment and Restatement of Original Interlocal Agreement. This Agreement amends and restates the Original Interlocal Agreement, as previously amended and restated on August 10, 2015, in its entirety such that the Original Interlocal Agreement and all exhibits thereto are hereby superseded and subsumed into this Agreement, and all terms, obligations, powers and responsibilities regarding matters addressed herein and in the Original Interlocal Agreement shall be governed solely by this Agreement. All acts and omissions of the Parties hereto, their officers, employees, agents and assigns, and all of the officers, employees, agents and assigns of the Tampa Bay Estuary Program established as a legal entity pursuant to the Original Interlocal Agreement, taken or carried out pursuant to the Original Interlocal Agreement, are hereby ratified and affirmed under this Agreement.

   
   

   ARTICLE THREE – TERM

   
   

   1. Term. The term of this Agreement is perpetual, commencing on the Effective Date (the “Term”), unless earlier terminated as provided herein. The first day of the Term (the

      "Effective Date") will be referred to below as the "Commencement Date.” The last day of the Term will be referred to below as the "Termination Date.”

      
      

   2. Sundown Review. This Agreement shall be subject to a review by the Policy Board five (5) years from the Effective Date of this Agreement and on the same day of each five

   (5) year period thereafter at which time the Policy Board shall evaluate the appropriateness and effectiveness of this Agreement and the Tampa Bay Estuary Program. The Policy Board shall vote by majority vote on whether to submit a recommendation to the Parties to terminate this Agreement, amend this Agreement or to let the status quo prevail. Should no action by the Parties occur, this Agreement shall continue for another five (5) year period.

   
   

   ARTICLE FOUR – CCMP

   
   

   

   1. Adoption of CCMP Goals and Priorities. The Parties hereby agree that the Goals for Tampa Bay described in the CCMP are approved and adopted by each of them. The Goals for Tampa Bay are to maintain important water quality and seagrass gains achieved since 1991 and to maintain seagrass acreage at or above levels observed in 1950. The Goals focus on issues that must be addressed to sustain a healthier bay that will support both recreation and commerce, including but not limited to: clean water and sediments; thriving habitats and abundant wildlife; and an informed, engaged and responsible community. The Goals shall be achieved in the manner described in Section 4.3 below. The Parties shall use their best efforts to achieve the Goals within the time periods prescribed, and shall work cooperatively to attempt to achieve all of the Goals applicable to them in a cost-effective manner. Additionally, the Parties

      agree to work together in good faith and through their best efforts to address other actions and recommendations in the CCMP.

      
      

   2. Modification. The CCMP and its incorporated Goals for Tampa Bay shall not be amended, changed, extended, modified or supplemented without the unanimous written consent of all of the Parties, to be decided in their respective sole and absolute discretion. The Goals shall be re-examined by the Tampa Bay Estuary Program at least once every five (5) years in light of new knowledge or changed circumstances and updated accordingly. The Policy Board may elect by a majority vote to re-examine the Goals more frequently if warranted by them. When it has been determined by the Policy Board unanimously that a Goal has been met, the Policy Board will thereafter support efforts by the Parties and the Consortium, as appropriate, that provide for the ongoing maintenance of the resource.

      
      

   3. Goals: Achievement. The only CCMP Goal that is to be achieved individually by any of the Parties is the nitrogen loading reduction/management, to be accomplished by the Local Governments and other members of the Consortium, as described in the “Reasonable Assurance Addendum: Allocation and Assessment Report” dated September 11, 2009, updated in the “2012 Reasonable Assurance Update” dated December 14, 2012, the “2017 Reasonable Assurance Update” dated September 29, 2017, and subsequent Reasonable Assurance Updates, and implemented through actions identified in the Consortium’s Action Plan Database (“Action Plan Database”). The Tampa Bay Estuary Program shall facilitate and assist the Parties to collectively address the remaining CCMP Goals. If a cumulative Goal is not met within its stated goal period, then the Tampa Bay Estuary Program will develop the additional projects necessary

      to address the shortfall, including the funding sources, which projects and funding are subject to the approval of the Policy Board.

      
      

   4. Nitrogen Management Consortium Responsibilities. The Consortium participants have made and are expected to continue to make significant contributions toward achieving the CCMP goal of nitrogen loading management by meeting entity-specific nitrogen load allocations as identified in the “Reasonable Assurance Addendum: Allocation and Assessment Report” dated September 11, 2009, updated in the “2012 Reasonable Assurance Update” dated December 14, 2012, the “2017 Reasonable Assurance Update” dated September 29, 2017, and approved by the Consortium participants.

      
      

   5. Existing Projects. The Parties shall be able to take into account, in their nutrient management actions, projects that accomplish their designated responsibilities to the extent that such projects were completed and became operational on or after January 1, 1995.

   
   

   ARTICLE FIVE – STRUCTURE OF THE TAMPA BAY ESTUARY PROGRAM

   
   

   1. Tampa Bay Estuary Program. The Tampa Bay Estuary Program was created and continues under authority of Section 163.01(7), Florida Statutes. The Tampa Bay Estuary Program shall have those powers specifically described in or contemplated by this Agreement, which shall be exercised by, or in accordance with policies or procedures approved by, the Policy Board.

      1. The Tampa Bay Estuary Program shall:

         1. Have the powers and be in compliance with subsection (5) of the

            
            

            Act;

            
            

         2. Determine, adopt and implement a personnel policy for the recruitment, retention, supervision, discipline and evaluation of Tampa Bay Estuary Program employees and be solely responsible for any claims by its employees;

         3. Make purchases and enter into contracts in the manner determined and, adopted by the Policy Board in the operating procedures for the Tampa Bay Estuary Program;

         4. Determine the manner of acquisition, ownership, custody, operation, maintenance, lease or sale of real or personal property;

         5. Determine the manner of the acceptance of gifts, grants, assistance

            
            

            funds or bequests;

            
            

         6. Determine the making of requests for federal, state, regional, local government or other aid or grants for the Tampa Bay Estuary Program, except as otherwise specifically described in this Agreement;

         7. Determine Tampa Bay Estuary Program’s manner of responding for any liabilities, debts, mortgages or claims that may be incurred through performance under this Agreement, provided that the Tampa Bay Estuary Program shall be solely liable and responsible for any such liabilities, debts, mortgages or claims incurred by or resulting from actions taken by the Tampa Bay Estuary Program;

         8. Determine the manner in which strict accountability of all funds shall be provided and the manner in which reports, including an annual independent audit, of all

            receipts and disbursements shall be prepared and presented to the Tampa Bay Estuary Program and all Parties; and,

         9. Determine, adopt and implement all other necessary and proper matters not otherwise covered above.

      2. The Tampa Bay Estuary Program will not promulgate, issue or make rules or regulations, bonds, tax, charge rates, fees or rents, condemn or possess any of the other governmental powers possessed by the other Parties except as specifically allowed by this Agreement.

      3. In the event there is an undesignated fund balance held by the Tampa Bay Estuary Program, it shall be used in the manner determined by the Policy Board.

      4. The adjudication of disputes or agreements, the effects of failure of adjudicated Parties to pay their share of the cost or expenses and the rights of other Parties in such cases shall be governed by this Agreement and applicable law.

         
         

   2. Tampa Bay Estuary Program Functions and Responsibilities. The Tampa Bay Estuary Program shall have the following functions and responsibilities, which are not inconsistent with the Act or any provision of applicable law, and which shall be carried out by, or in accordance with, policies or procedures approved by the Policy Board:

      1. To make and enter into contracts and assume such other functions as are necessary to carry out the provisions of any contracts entered into by the Tampa Bay Estuary Program;

      2. To employ agencies or employees and establish salaries and personnel and employee benefit programs for such full time and temporary employees as are necessary to carry

         out the functions of the Tampa Bay Estuary Program; provided that the Tampa Bay Estuary Program shall be solely responsible for any claims by its employees;

      3. To acquire, lease, construct, manage, maintain or operate buildings, works or improvements;

      4. To purchase, receive, or otherwise acquire, own, hold, sell, convey, lend, or otherwise dispose of, real, tangible or intangible personal property, or any legal or equitable interest in such property wherever located, and to the extent the Parties all have such power, to mortgage, pledge, or create a security interest in such property;

      5. To incur debts, liabilities, obligations, borrow money, issue its notes and other obligations, and to the extent the Parties all have such power, to secure any of its obligations by mortgage or pledge of any of its property, income and make contracts of guaranty and suretyship which do not constitute the debts, liabilities or obligations of any of the Parties;

      6. To adopt policies or procedures or rules pertaining to any of its operations and to conduct its business, locate offices, and exercise the powers granted by law;

      7. To acquire and to perform all the things necessary to carry out the purposes of this Agreement separately or in conjunction with any of the Parties;

      8. To conduct and pay for studies, plans and designs to effectuate the purpose of the Tampa Bay Estuary Program, which action may include, but is not limited to, plans for staffing, financing, research, advertising and marketing projects;

      9. To enter into interlocal agreements, or other contracts with public or private entities, if necessary, for the purposes described in this Agreement;

      10. To establish any future plan for participation of the Parties to effectuate the terms and provisions of this Agreement, which shall include plans for any additional funding

          for the purpose of performance of this Agreement; provided that any change, modification or amendment to the method of funding set forth herein must be approved by all of the Funding Entities;

      11. To appear on its own behalf before boards, commissions, departments, or other agencies of municipal, county, state, or federal government; provided, however, members of the Management Board, Technical Advisory Committee and Community Advisory Committee shall not support or oppose specific projects or permits when acting as, on behalf of, or representing said Board or Committees; provided further that Tampa Bay Estuary Program employees can provide scientific and technical information and participate in technical discussions, but shall not oppose or support specific projects or permits;

      12. To request or accept any grant, payment, or gift, of funds or property made by the State of Florida, or by the United States or any department or agency thereof or by any individual, firm, corporation, municipality, county, or organization for any or all of the purposes of the Tampa Bay Estuary Program; and to expend such funds in accordance with the terms and conditions of any such grant, payment, or gift, in the pursuit of its administration or in support of the terms and provisions of this Agreement. The Tampa Bay Estuary Program shall separately account for the public funds and the private funds deposited into any authorized public depository;

      13. To recommend changes, amendments or modifications to this Agreement, which will become effective only upon approval by all Parties;

      14. To sue and be sued, complain, and defend in its entity name;

          
          

      15. To transact any lawful business that will aid governmental policy; and

      16. To make payments or donations or do any other act not inconsistent with law that furthers the affairs of the Tampa Bay Estuary Program.

          
          

   3. Policy Board. The Policy Board of the Tampa Bay Estuary Program shall serve as the governing board of the Program and shall be made up of nine (9) voting directors appointed by and representing the Cities, Counties, DEP and SWFWMD (collectively the "Policy Board Member(s)"), and one non-voting participant representing the EPA, and shall be known as the "Policy Board". The representative of each Policy Board Member and the EPA shall be appointed by such Policy Board Member or the EPA, respectively, from time to time. Each Policy Board Member and the EPA shall also appoint an alternate director for the Policy Board from time to time to serve when their director is not available. Each Policy Board Member and the EPA may change either their director or alternate director from time to time with prior written notice by a duly authorized representative of any change to the Policy Board before any meeting. The Policy Board shall have policy making powers for the Tampa Bay Estuary Program in addition to those powers explicitly set forth in this Agreement. Except as otherwise specifically set forth herein, a quorum for meetings shall be five (5) voting members and all action taken by the Policy Board shall be by a majority vote of the Policy Board directors in attendance, with the exception of the EPA representative who will not vote nor be counted for purposes of a quorum. All directors of the Policy Board shall serve without compensation.

      
      

   4. Management Board. The Management Board of the Tampa Bay Estuary Program shall consist of representatives of each of the Parties (each of which shall be voting members), one of each of the existing Co-Chairs of the TAC and CAC (both referred to in Section 5.6 below) and the Industry Co-Chair of the Consortium (each of which shall be voting members),

      and representatives of the Army Corps and EPA (who will be nonvoting members) (the "Management Board"). The actual representatives of each of the Parties and the Army Corps and EPA shall be appointed by such Management Board member from time to time. Each of the Parties and the Army Corps and EPA shall also appoint an alternate member to the Management Board from time to time, to serve when the actual representative is not available. Each of the Parties and EPA may change either their initial or alternate representatives from time to time with prior written notice by a duly authorized representative, to the Management Board before any meeting. The TAC and CAC shall not have alternate members, with only the alternating Co-Chairs being a member of the Management Board. The Management Board shall have managerial powers for the Tampa Bay Estuary Program to the extent delegated by the Policy Board, in addition to those powers explicitly set forth in this Agreement. Except as otherwise specifically set forth herein, a quorum for meetings shall be ten (10) voting members and all action taken by the Management Board shall be by a majority vote of the board members in attendance, with the exception of the Army Corps and EPA representatives who will not vote nor be counted for purposes of a quorum. New members may be added to the Management Board with Policy Board approval, and the Policy Board shall specify whether such new members shall be voting or nonvoting members. All directors of the Management Board shall serve without compensation.

      
      

   5. Officers. The Policy Board shall elect (i) a Chair or Chairs of the Policy Board; and (ii) other Policy Board officers. The Management Board shall elect (i) a Chair or Chairs of the Management Board; and (ii) other Management Board officers.

   6. Committees. The Policy Board, or the Management Board at the direction of the Policy Board, shall continue such existing advisory committees as it deems necessary, including without limitation, the Technical Advisory Committee ("TAC") and the Community Advisory Committee ("CAC"). All members of committees shall serve without compensation.

      
      

   7. Limitations of Powers. The Tampa Bay Estuary Program shall have no powers of taxation, regulation or eminent domain.

      
      

   8. Additional Board Members. The Tampa Bay Estuary Program may allow other governmental entities, regulatory agencies, or other entities, to the extent allowed by law, to participate in the Program as members of the Policy Board, provided they are unanimously approved by the Policy Board in their respective sole and absolute discretion. Upon unanimous approval of the Policy Board, such Party must execute a Joinder Agreement by which it agrees to comply with all of the provisions of this Agreement and agree to contribute to funding of the Tampa Bay Estuary Program. The funding amounts in Exhibit A will be amended accordingly to add the funding obligation of the new Policy Board Member, all as of the first day of the next fiscal year of the Tampa Bay Estuary Program. Once an entity is approved and has executed a Joinder Agreement, it will become a member of the Tampa Bay Estuary Program, of the Policy Board and of the Management Board with the same voting rights as the existing members of such entities or boards. The Policy Board may also allow other governmental entities or regulatory agencies to participate in the Program as members of the Management Board, provided that they must be unanimously approved by the Policy Board and the Management Board in their respective sole and absolute discretion and execute a Joinder Agreement. Once an entity has such approval and has executed a Joinder Agreement, it will become a member of the

      Management Board with the same voting rights as the existing members of such entities or board all as of the first day of the next fiscal year of the Tampa Bay Estuary Program.

      
      

   9. Fiscal Year. The Tampa Bay Estuary Program shall observe a fiscal year beginning on October 1 and ending September 30 of each year, or such other fiscal year as may be required for special districts pursuant to Florida law.

      
      

   10. Budgets.

       
       

       1. No later than the last day of the month of February each year, the Policy Board shall review the Tampa Bay Estuary Program tentative Work Plan Budget, and shall thereafter approve the Work Plan Budget no later than the last day of May each year. The approved Work Plan Budget shall be included in the Tampa Bay Estuary Program Full Budget.

       2. No later than the last day of the month of August and following preparation of a tentative Full Budget, the Policy Board shall publish a notice of its intention to adopt the Tampa Bay Estuary Program Full Budget. Following an appropriate public hearing, the Policy Board shall adopt the Tampa Bay Estuary Program Full Budget each year no later than the month of September covering its proposed operation and requirements for the fiscal year commencing on October 1 of that year.

       3. The Policy Board shall give consideration to objections filed against the budget and in its discretion, may amend, modify or change the tentative Full Budget. The Policy Board, by September 30 following appropriate notice and hearing, shall adopt a Full Budget for the Tampa Bay Estuary Program, which shall thereupon be the operating and fiscal budget for the Tampa Bay Estuary Program for the ensuing fiscal year.

       4. The Policy Board shall provide copies of the Work Plan and Full Budgets to the Parties, as well as the Army Corps and EPA, and such Work Plan and Full Budgets shall be accompanied by the estimated annual contribution of each of the Policy Board Members. The notice of public hearing to adopt the Tampa Bay Estuary Program Full Budget shall be published in accordance with Florida law and shall inform the public that: (i) the tentative Full Budget shall be posted on the Tampa Bay Estuary Program website at least two (2) days before the public hearing; (ii) the Full Budget shall be posted on the Tampa Bay Estuary Program website within thirty (30) days following adoption; and (iii) the public will be afforded an opportunity to appear before the Policy Board and express support or objection to the Full Budget.

          
          

   11. Bylaws. The Policy Board by unanimous vote shall create, adopt, amend and update Bylaws or appropriate rules of procedure for the Tampa Bay Estuary Program for its governance and which shall remain in effect until modified by the Policy Board.

       
       

   12. Policies. The Tampa Bay Estuary Program shall adopt its operating rules and internal procedures as provided in Section 5.2(f) above.

   
   

   ARTICLE SIX – RESPONSIBILITIES OF THE PARTIES

   
   

   1. Responsibilities of all Parties. By entering into this Agreement, the Parties intend to recommend actions and adjust strategies as needed to keep Tampa Bay's recovery on track. To that end, each of the Parties hereby agrees to:

      1. Assist in implementing the CCMP nitrogen loading reduction/management Goal, to be accomplished by the Parties and other members of the

         Consortium, as described in the “Reasonable Assurance Addendum: Allocation and Assessment Report” dated September 11, 2009, and as updated in the “2012 Reasonable Assurance Update” dated December 14, 2012 and the “2017 Reasonable Assurance Update” dated September 29,

         2017;

         
         

      2. Report in the Action Plan Database, which supports the CCMP and is maintained by the Tampa Bay Estuary Program, all available information about projects and actions that address nutrient reduction in Tampa Bay;

      3. Assist in supporting CCMP habitat goals for Tampa Bay by assisting the Tampa Bay Estuary Program in implementing and recording habitat protection and restoration activities; and

      4. Participate, as “responsible parties” identified in the CCMP, to implementation of Action Plans identified in the CCMP.

         
         

   2. Additional Responsibilities of the Regulatory Agencies. The Regulatory Agencies agree that they will extend as much flexibility as is legally permissible under circumstances deemed appropriate by such agencies for projects that are part of an approved Action Plan set forth in the CCMP.

      
      

   3. Regulatory Process Review. Subject to the above limitations, all Regulatory Agencies and all other Parties having regulatory functions agree to periodically review their regulatory processes and consider changes in statutes, ordinances, rules or policies that would assist in meeting the goals of the CCMP. Any such changes shall be made in keeping with the cooperative intent of this section and otherwise in this Agreement.

   4. Responsibilities of the Tampa Bay Estuary Program. The Tampa Bay Estuary Program shall:

      1. Serve as the coordinating body for the CCMP and assist the Parties in implementation thereof;

      2. Prepare, every two (2) years, a progress report on the status of CCMP implementation;

      3. Assist the Parties in locating grants and other funds to aid in implementation of the projects set forth in the CCMP;

      4. Coordinate outreach programs to promote public participation and facilitate restoration activities that support the CCMP Goals;

      5. Coordinate the re-examination and updating of the CCMP every five (5)

         
         

         years;

         
         

      6. Facilitate resolution of conflicts among the Parties;

         
         

      7. Oversee atmospheric deposition, toxic contamination, climate change, habitat assessments, water quality evaluations and other research projects;

      8. Develop Action Plans to address goals not currently being addressed in the

         
         

         CCMP; and,

         
         

      9. If requested by any Party, the Tampa Bay Estuary Program Executive Director shall appear before that Party’s governing body to report on the Work Plan and any other matters of interest pertaining to the Tampa Bay Estuary Program.

         
         

   5. Tampa Port Authority. The Tampa Port Authority is an independent special district created by the Florida Legislature under Chapter 95-488, Laws of Florida, as amended

   from time to time (the "Port Authority Enabling Act"). The Port Authority Enabling Act provides in part the Tampa Port Authority is responsible for regulating marine construction and management of sovereign submerged lands within the Hillsborough County Port District (the "Port Authority Regulatory Capacity"). Notwithstanding any provisions in this Agreement to the contrary, the Tampa Port Authority is entering into this Agreement only to the extent of its Port Authority Regulatory Capacity.

   
   

   ARTICLE SEVEN – BUDGETING AND FUNDING

   
   

   1. Tampa Bay Estuary Program Budget. The Policy Board is responsible for establishing the budget for the Tampa Bay Estuary Program and shall annually review and approve the budget. The budget will require approval by two-thirds (2/3) of all members of the Policy Board.

      
      

   2. Funding. Subject to the provisions of Section 7.3 below, all non-federal Tampa Bay Estuary Program Work Plan budgeted costs shall be funded by the Funding Entities and allocated in accordance with Schedules 1 and 2 of Exhibit “A” hereto, as follows:

      1. To support additional projects and CCMP implementation, all Funding Entities are encouraged to contribute to the Tampa Bay Estuary Restoration Fund (“TBERF”) at the following levels based upon current (2021) Tampa Bay Estuary Program dues:

         	Dues	TBERF Contribution
         Level A:	Less than $40,000 per year	At least $25,000
         Level B:	Between $40,000 and $65,000	At least $75,000

         Level C: Greater than $65,000 At least $100,000

         
         

      2. Annual dues for Funding Entities will be determined by Schedule 1 of Exhibit “A” under the following conditions:

         1. If a Funding Entity contributes to the TBERF at the above levels in

            
            

            a particular year; or,

            
            

         2. In the case of SWFWMD, if SWFWMD provides funding to the Tampa Bay Estuary Program at the above levels through cooperative funding projects; or

         3. If a Funding Entity contributes to the Tampa Bay Estuary Program at the above levels through projects which support the goals of the CCMP, are included in the approved Work Plan, and include a ten percent (10%) administrative fee for the Tampa Bay Estuary Program.

      3. Annual dues for Funding Entities will be determined by Schedule 2 of Exhibit “A” if section 7.2(b), above, does not apply.

      4. On or before the end of fiscal year 2026, and every five (5) years thereafter, the Policy Board shall initiate review and approval of draft revisions to Schedules 1 and 2, and thereafter shall submit said revisions to the Funding Entities for their review and approval, with the option to amend or modify. If no action is taken by the end of fiscal year 2026, and every five (5) years thereafter, the funding levels shown in each Schedule shall continue at the same level (the then current Year Five level) until amended or modified by the Policy Board and the Funding Entities;

      5. Management Board members that are not on the Policy Board are encouraged to contribute directly to the operations of Tampa Bay Estuary Program or to the TBERF; and,

      6. The Funding Entities agree that if federal and other external funding increases beyond the levels on the Effective Date, and if the Tampa Bay Estuary Program’s undesignated fund balance reaches a level that is sufficient to support a full fiscal year of program operations, then the Policy Board shall consider reducing their dues to the levels in place on the Effective Date.

         
         

   3. Annual Approval. Each Policy Board director shall present for consideration and approval to its applicable legislative or governing body each fiscal year the funding levels described in Schedules 1 or 2 of Exhibit “A” hereof, but which funding decision is in the sole discretion of such applicable body. Such funding approval is a condition precedent to the funding obligation by such Funding Entity each year under Section 7.2 and Schedules 1 and 2 of Exhibit “A” attached hereto.

      
      

   4. Non-Appropriation.

      
      

      1. The obligations of the Funding Entities as to any funding required pursuant to this Agreement shall be limited to an obligation in any given year to budget, appropriate, and pay from legally available funds, after monies for essential services have been budgeted and appropriated, sufficient monies for the funding that is required during that year. Further, the Funding Entities shall not be prohibited from pledging any legally available non ad valorem revenues for any obligations prior to or after the execution of this Agreement and not including the commitments pursuant to this Agreement, which pledge shall be prior and superior to any commitments of the Funding Entities pursuant to this Agreement.

      2. Notwithstanding any other provisions of this Agreement, the obligations undertaken by the Funding Entities hereto shall not be construed to be or constitute general

         obligations’, debts or liabilities of any Funding Entity or the State of Florida or any political subdivision, municipal corporation or agency thereof within the meaning of the Constitution and laws of the State of Florida, but shall be payable solely in the manner and to the extent provided in or contemplated by this Agreement. The obligations of the Funding Entities hereunder are subject to annual appropriation of legally available non ad valorem funds by their respective governing boards, and shall not constitute or create a pledge, lending of credit or lien, either legal or equitable, of or on any of their ad valorem revenues or funds, or upon any other revenues or funds of the Funding Entities, as may be construed under the laws or the Constitution of the State of Florida. Neither any Funding Entity nor any other person or entity shall ever have the right to compel any exercise of ad valorem taxing power by any other Funding Entity to make the payments herein provided, nor shall this Agreement constitute a charge, lien or encumbrance, either legal or equitable, upon any property or funds of any Funding Entity.

      3. Notwithstanding anything contained herein, each of the Funding Entities reserves the right, in its sole discretion, to pay the funding obligations contemplated by this Agreement from any Funds legally available for such purpose.

   
   

   ARTICLE EIGHT – DEFAULT

   
   

   In the event any Party is determined to be in willful and significant noncompliance with the CCMP Goals or with the terms of this Agreement, the Policy Board may, by a unanimous vote by all Parties except the Party charged with being in default, recommend the removal of such non-complying Party from this Agreement. Prior to any such vote by the Policy Board, the non-complying Party shall be given a notice of its non-compliance and an opportunity to remedy

   the problem within a reasonable period or to a public hearing before the Policy Board if there is a dispute whether a default exists. If a Party is found to be in noncompliance with permits by the applicable Regulatory Agency(ies), the permit granting agencies may take actions to enforce their permits against such non-complying Party under their own respective laws and regulations. If any Party is discharged under this Article Eight, (i) all monies previously paid hereunder shall be conclusively deemed earned and not subject to return to such Party, (ii) any future funding responsibility of such party shall terminate, and (iii) this Agreement shall continue as to the remaining Parties. Provided, however, any funds paid before termination but not expended shall only be used by the Tampa Bay Estuary Program in accordance with the approved budget for which such contribution was made.

   
   

   ARTICLE NINE – NOTICE

   
   

   Any and all notices required or permitted to be given hereunder shall be in writing, and shall be provided if either personally delivered to the Party at the addresses set forth in Exhibit "B," transmitted by electronic facsimile machine to the fax numbers listed, or sent by U.S. certified or registered mail, postage prepaid, return receipt requested, to such addresses, all such notices being effective upon delivery to and receipt by the Parties, unless the respective Party or Parties notify all other Parties in writing in accordance herewith of a change of address and/or representative at such address authorized to receive any and all such notices, in which case any and all such notices shall be delivered and/or mailed as aforesaid to said Party or Parties at such new address with respect to such Party.

   
   

   ARTICLE TEN – WITHDRAWAL OF A PARTY

   
   

   Notwithstanding anything contained in this Agreement to the contrary, any Party hereto shall have the right to withdraw as a Party to this Agreement by providing one hundred eighty

   (180) days prior written notice as set forth in Article Nine above. Such withdrawal of a Party shall occur only if the withdrawing Party provides one hundred eighty (180) days prior written notice to the other Parties. On the day following the end of such one hundred eighty (180) day period, the withdrawing Party shall no longer be considered a Party to this Agreement. Provided however, even though such withdrawing Party shall have withdrawn as a Party to this Agreement as set forth above in this Article, such withdrawing Party shall continue to be subject to all applicable laws and regulations, without the benefit of being a Party hereto to this Agreement. If a Party withdraws under this Article Ten, (i) all monies previously paid hereunder shall be conclusively deemed earned and not subject to return to such Party; (ii) the future funding responsibility of such Party shall continue for the longer of the period of such one hundred eighty

   (180) days or until the end of the current fiscal year, and (iii) this Agreement shall continue as to the remaining Parties.

   
   

   ARTICLE ELEVEN – MISCELLANEOUS PROVISIONS

   1. No Third Party Beneficiaries. This Agreement shall inure to the benefit of the Parties. This Agreement is for the exclusive benefit of the Parties, and shall not be deemed to be made for the benefit of any other persons not so specified.

      
      

   2. Modification. This Agreement may be modified, altered or amended only by a written instrument recommended by the Policy Board and subsequently approved and executed by the Parties hereto.

      
      

   3. Complete Agreement. This Agreement constitutes the full, complete and wholly independent agreement among the Parties with regard to the matters addressed herein. This Agreement also supersedes all prior agreements, memorandums of understanding, representations, and statements among the Parties with respect to the matters addressed herein, either written or oral.

      
      

   4. Severability Clause. If any clause, provision or section of this Agreement shall be held to be illegal or invalid by any court, the invalidity of such clause, provision or section shall not affect any of the remaining clauses, provisions or sections hereof, and this Agreement shall be construed and enforced as if such illegal or invalid clause, provision or section had not been contained herein.

      
      

   5. Governing Law. Existing and future laws, rules and regulations of the United States and its agencies, the State of Florida and its agencies and the other Parties to this Agreement shall take precedence over the terms and provisions of this Agreement in case of conflict or inconsistencies between them. The laws of the United States or State of Florida as

      appropriate and applicable, shall govern the validity, performance and enforcement of this Agreement, regardless of the state in which this Agreement is being executed.

      
      

   6. Public Purpose. This Agreement satisfies, fulfills and is pursuant to and for a public purpose and municipal purpose and is in the public interest, and is a proper exercise of each Party's power and authority under each Party's individual municipal or governmental authority.

      
      

   7. Performance Standards. None of the provisions in this Agreement shall be deemed in any manner to amend, modify or otherwise change any of the provisions or regulations or ordinances of any municipality or governmental agency which is a Party to this Agreement to allow a performance standard less than is otherwise required under the terms of those provisions or regulations or ordinances.

      
      

   8. Survival. All of the representations and warranties set forth in this Agreement shall survive the consummation of any and all of the transactions described in this Agreement and the termination of this Agreement, and shall not be deemed to be merged in this Agreement or any other instrument which may be executed and delivered pursuant to this Agreement.

      
      

   9. Authority. None of the Parties has any authority to bind or make any oral or written representations on behalf of the other Parties, and nothing contained in this Agreement shall designate any one or more of the Parties as partners with or agents for any one or more of the other Parties.

   10. Headings Not a Part Hereof. The headings preceding the several articles and sections hereof (and any table of contents hereto) are solely for convenience of reference, do not constitute a part of this Agreement, and shall not affect its meaning, construction or effect.

       
       

   11. Counterparts. This Agreement may be executed in one or more counterparts, each of which may be executed by less than all of the parties but all of which shall be construed together as a single instrument. This Agreement shall become effective upon the exchange of original counterpart signature pages signed by all of the parties, but if such initial exchange occurs by facsimile, original signature pages will be exchanged within ten days of the date hereof.

       
       

   12. Binding Effect. This Agreement shall bind the successors and assigns of the

       
       

       Parties.

       
       

   13. Execution. This Agreement shall not be effective nor shall it have any force and effect whatsoever until all of the Parties have duly executed this Agreement and filed the Agreement pursuant to Section 11.14 below.

       
       

   14. Filing. The Tampa Bay Estuary Program shall, pursuant to Section 163.01(11), Florida Statutes, file a copy of this Agreement and any amendments thereto with the Clerk of the Circuit Court of each County where the Parties are located.

       
       

   15. Conditions Precedent. The Parties encourage the Army Corps to execute a Joinder to this Agreement and encourage the EPA to enter into a Memorandum of Understanding with the Tampa Bay Estuary Program concerning this Agreement, but said Joinder and

   Memorandum of Understanding shall not be a precondition to the effectiveness of this Agreement.

   
   

   IN WITNESS WHEREOF, the Parties hereto caused this Agreement to be executed, under seal, and it shall become effective upon completion of filing in accordance with Section 11.14, hereto.

   
   

   [INTENTIONALLY LEFT BLANK]

   
   

   Countersigned:

   
   

   By:                                                                  

   CITY OF CLEARWATER, a Florida

   municipal corporation

   
   

   By:                                                                  

   Frank Hibbard, Mayor William B. Horne II, City Manager Date:                                                                

   
   

   APPROVED AS TO FORM: Attest:

   
   

   

   Assistant City Attorney City Clerk

   
   

   (SEAL)

   
   

   
   

   Attest:

   CITY OF ST. PETERSBURG, a Florida

   municipal corporation

   
   

   By:                                                                  

   
   

   
   

   
   

   

   City Clerk

   Print Name:                                                    

   
   

   Title:                                                                

   
   

   Date:                                                                

   
   

   APPROVED AS TO FORM: ATTEST:

   
   

   
   

   

   City Attorney (Designee) City Clerk

   
   

   (SEAL)

   
   

   Attest:

   CITY OF TAMPA, a Florida municipal corporation

   
   

   By:                                                                  

   

   City Clerk or Deputy Clerk Jane Castor, Mayor

   
   

   Date:                                                                

   
   

   APPROVED AS TO FORM:

   (SEAL)

   
   

   

   Janice M. McLean, Senior Assistant City Attorney

   
   

   Attest:

   FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

   
   

   By:                                                                  

   

   
   

   Print Name:                                                    

   
   

   Title:                                                                

   
   

   Date:                                                                

   
   

   APPROVED AS TO FORM:

   (SEAL)

   
   

   

   Assistant General Counsel

   FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION’S

   FISH AND WILDLIFE RESEARCH INSTITUTE

   
   

   By:                                                                  

   
   

   Print Name:                                                    

   
   

   Title:                                                                

   
   

   Date:                                                                

   
   

   APPROVED AS TO FORM:

   (SEAL)

   
   

   

   FWC Legal Counsel

   
   

   Attest: Cindy Stuart, Clerk

   HILLSBOROUGH COUNTY, a political subdivision of the State of Florida

   
   

   By:                                                                  

   

   By: Deputy Clerk Chairperson

   
   

   Print Name:                                             Print Name:                                                    

   
   

   Date:                                                                

   
   

   APPROVED AS TO FORM:

   (SEAL)

   
   

   

   Vivian Arenas-Battles

   Senior Assistant County Attorney

   
   

   Attest:

   THE ENVIRONMENTAL PROTECTION COMMISSION

   OF HILLSBOROUGH COUNTY, a political subdivision of the State of Florida

   
   

   By:                                                                  

   

   
   

   Print Name:                                                    

   
   

   Title:                                                                

   
   

   Date:                                                                

   
   

   APPROVED AS TO FORM:

   (SEAL)

   
   

   

   EPC Attorney

   
   

   Attest:

   MANATEE COUNTY, a political subdivision of the State of Florida

   
   

   
   

   
   

   

   Angelina Colonneso, Clerk of the Circuit Court

   By its Board of County Commissioners

   
   

   

   By:                                                                  

   Deputy Clerk Chairperson

   
   

   Print Name:                                                    

   
   

   Date:                                                                

   
   

   (SEAL)

   
   

   Attest:

   MANATEE COUNTY PORT

   AUTHORITY, a dependent special district of the State of Florida

   
   

   

   Clerk of the Circuit Court

   
   

   

   By:                                                                  

   Deputy Clerk Chairperson

   
   

   Print Name:                                                    

   
   

   Date:                                                                

   
   

   APPROVED AS TO FORM:

   (SEAL)

   
   

   

   Attorney for Manatee County Port Authority

   
   

   Attest:

   PASCO COUNTY, a political subdivision of the State of Florida

   
   

   By:                                                                  

   

   Nikki Alvarez-Sowles, Esq.

   Clerk & Comptroller Title: Chairperson

   
   

   Print Name:                                                    

   
   

   Date:                                                                

   
   

   (SEAL)

   
   

   Attest:

   PINELLAS COUNTY, a political subdivision of the State of Florida

   
   

   By:                                                                  

   

   Clerk of the Circuit Court Barry Burton

   
   

   Title: County Administrator

   
   

   Date:                                                                

   
   

   APPROVED AS TO FORM:

   (SEAL)

   
   

   

   Assistant County Attorney

   SOUTHWEST FLORIDA WATER MANAGEMENT

   DISTRICT, a public corporation of the State of Florida

   
   

   By:                                                                  

   Chair

   
   

   Print Name:                                                    

   
   

   Date:                                                                

   
   

   APPROVED AS TO FORM:

   (SEAL)

   
   

   

   Assistant General Counsel

   
   

   Attest:

   TAMPA PORT AUTHORITY, an

   independent special district of the State of Florida

   
   

   By:                                                                  

   

   
   

   Print Name:                                                    

   
   

   Title:                                                                

   
   

   Date:                                                                

   
   

   APPROVED AS TO FORM:

   (SEAL)

   
   

   

   General Counsel

   TAMPA BAY REGIONAL PLANNING

   COUNCIL, a Florida regional planning council

   
   

   By:                                                                  

   Sean Sullivan Title: Executive Director

   Date:                                                                  

   
   

   APPROVED AS TO FORM:

   (SEAL)

   
   

   

   General Counsel

   ATTEST: TAMPA BAY WATER, a Regional

   Water Supply Authority

   
   

   
   

   
   

   

   Secretary

   By:                                                                  

   
   

   Its: Chairman

   
   

   Date:                                                                

   
   

   APPROVED AS TO FORM:

   (SEAL)

   
   

   
   

   

   General Counsel

   EXHIBIT “A”

   SCHEDULE 1 (with consideration of a TBERF contribution)

   
   

   GOAL: Maintain program operations with funding entities adjusting the base local dues (Schedule 2) annually by 2.5% and subtracting 10% TBERF administration contributions through FY2026. Maintain SWFWMD funding level at FY2021 rate. Funding schedule for other entities in FY2022 adjusted to 2018 American Community Survey, US Census Bureau, Census Tract population estimates (Table B00001)1.

   Funding Entity	FY2022	FY2023	FY2024	FY2025	FY2026
   SWFWMD	$156,513	$156,513	$156,513	$156,513	$156,513
   City of Clearwater	$18,488	$19,074	$19,786	$20,516	$21,264
   City of St. Petersburg	$42,076	$43,410	$45,030	$46,691	$48,394
   City of Tampa	$62,361	$64,337	$66,739	$69,201	$71,724
   Pasco County	$34,536	$35,630	$36,960	$38,324	$39,721
   Manatee County	$45,829	$47,282	$49,047	$50,856	$52,710
   Pinellas County	$65,730	$67,813	$70,345	$72,939	$75,599
   Hillsborough County	$156,491	$161,452	$167,479	$173,657	$179,989
   Total Local Dues	$582,023	$595,511	$611,899	$628,696	$645,914
   Projected Total Funds Needed for Program Operations	$966,239 (FY2021)	$990,395	$1,015,155	$1,040,534	$1,066,547
   Funding shortfall needed for Program Operations (in addition to funding entities listed above + 10% TBERF Contributions)	$326,716	$334,884	$343,256	$351,838	$360,633

   SCHEDULE 2 (without consideration of a TBERF contribution)

   GOAL: Maintain program operations with funding entities adjusting annually by 2.5% through FY2026. Maintain SWFWMD levels at FY2021 rate. Funding schedule for other entities in FY2022 adjusted to 2018 American Community Survey, US Census Bureau, Census Tract population estimates (Table B00001)2.

   Funding Entity	FY2022	FY2023	FY2024	FY2025	FY2026
   SWFWMD	$202,505	$202,505	$202,505	$202,505	$202,505
   City of Clearwater	$18,988	$19,683	$20,395	$21,125	$21,873
   City of St. Petersburg	$43,214	$44,795	$46,415	$48,076	$49,779
   City of Tampa	$64,047	$66,390	$68,792	$71,254	$73,777
   Pasco County	$35,470	$36,767	$38,097	$39,461	$40,858
   Manatee County	$47,068	$48,790	$50,555	$52,365	$54,219
   Pinellas County	$67,507	$69,977	$72,509	$75,103	$77,763
   Hillsborough County	$160,724	$166,604	$172,631	$178,808	$185,140
   Total Local Dues	$639,523	$655,511	$671,899	$688,696	$705,914
   Projected Total Funds Needed for Program Operations	$966,239 (FY2021)	$990,395	$1,015,155	$1,040,534	$1,066,547
   Funding shortfall needed for Program Operations (in addition to funding entities listed above)	$326,716	$334,884	$343,256	$351,838	$360,633

   EXHIBIT “B”

   
   

   If to Clearwater: City of Clearwater

   P. O. Box 4748

   Clearwater, FL 34618-4748 Attn: City Attorney

   
   

   If to St. Petersburg: City of St. Petersburg One Fourth Street North St. Petersburg, FL 33701 Attn: City Attorney

   
   

   If to Tampa: City of Tampa

   306 E. Jackson Street Tampa, FL 33602 Attn: City Attorney

   
   

   If to FDEP Florida Department of Environmental Protection Southwest District Office

   13051 N. Telecom Parkway Temple Terrace, FL 33637 Attn: District Director

   
   

   If to Fish & Wildlife Research Institute Florida Fish & Wildlife Conservation Commission’s

   Fish and Wildlife Research Institute 100 8th Avenue SE

   St. Petersburg, FL 33701 Attn: Director

   
   

   If to Hillsborough County: Hillsborough County

   Environmental Management Division 601 E. Kennedy Blvd.

   Tampa, FL 33602 Attn: Director

   
   

   If to EPC Environmental Protection Commission of Hillsborough County

   3629 Queen Palm Drive Tampa, FL 33619

   Attn: General Counsel

   
   

   If to Manatee County Manatee County

   1112 Manatee Avenue West, Suite 920

   Bradenton, FL 34205

   Attn: County Administrator

   If to Manatee Port Authority Manatee County Port Authority 300 Tampa Bay Way

   Palmetto, FL 34221 Attn: Executive Director

   
   

   If to Pasco County Pasco County

   8731 Citizens Dr., Suite 350 New Port Richey, FL 34654 Attn: County Administrator

   
   

   If to Pinellas County Pinellas County

   315 Court Street, Room 601

   Clearwater, FL 33756

   Attn: County Administrator

   
   

   If to SWFWMD: Southwest Florida Water Management District 2379 Broad Street

   Brooksville, FL 34609 Attn: General Counsel

   
   

   If to Tampa Port Authority: Tampa Port Authority

   P.O. Box 2192 Tampa, FL 33601

   Attn: General Counsel

   
   

   If to TBRPC: Tampa Bay Regional Planning Council 4000 Gateway Centre Blvd., Suite 100 Pinellas Park, FL 33782

   Attn: Executive Director

   
   

   If to Tampa Bay Water: Tampa Bay Water 2575 Enterprise Road

   Clearwater, FL 33763 Attn: General Manager

   July 28, 2021

   
   

   AGENDA ITEM 5: SOUTH GATE EXPANSION CONTRACT AWARD

   
   

   BACKGROUND:

   
   

   On November 19, 2020, the Authority approved the ranking as recommended by the Evaluation Committee for the South Gate Expansion Progressive Design-Build project and authorized negotiation of the design-build contract to be brought back to the Port Authority for approval. Port staff and Ajax Paving Company Industries have negotiated a first-phase design fee of $148,297 which is funded 75% by the 2019 Port Security Grant Program (PSGP). This phase will result in a partial design, a construction scope, and a guaranteed maximum price for the project which will be brought back before the Authority for approval.

   
   

   ATTACHMENT:

   
   

   Progressive Design Build Contract

   
   

   COST AND FUNDING SOURCE:

   
   

   Port Security Grant Program grant of $111,222 and $37,075 Port cash

   
   

   CONSEQUENCES IF DEFERRED:

   
   

   Delay in commencement of Phase 1 of the South Gate Expansion Project

   
   

   LEGAL COUNSEL REVIEW: Yes

   
   

   RECOMMENDATION:

   
   

   Move to approve and authorize the Chairman to execute the Design Build Contract between Ajax Paving Industries and the Manatee County Port Authority which includes a fee of $148,297 for Phase 1 Services of the South Gate Expansion Project.

   
   

   Progressive Design-Build Agreement

   This AGREEMENT is made as of the _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ day of _ _ _ _ _ _

   in the year of 2021 , ("Effective Date") by and between the following parties, for services in connection with the Project identified below:

   
   

   OWNER:

   Manatee County Port Authority 300 Tampa Bay Way, Suite 1

   Palmetto, FL 34221

   
   

   The Owner is a dependent special district of the State of Florida.

   
   

   DESIGN-BUILDER:

   
   

   Ajax Paving Industries of Florida, LLC One Ajax Drive

   North Venice, FL 34275

   
   

   PROJECT:

   South Gate Expansion

   The facility is located north of South Dock Street, between Reeder Road to the west and the CSX mainline to the east, near the City of Palmetto, Florida.

   
   

   In consideration of the mutual covenants and obligations contained herein, Owner and Design-Builder agree as set forth herein.

   
   

   Article 1

   General

   
   

   1. Duty to Cooperate. Owner and Design-Builder commit at all times to cooperate fully with each other, and proceed on the basis of trust and good faith to permit each party to realize the benefits afforded under this Agreement.

      
      

   2. Definitions. Terms, words and phrases used in this Agreement shall have the meanings given them in the Modified Form of General Conditions of Contract Between Owner and Design-Builder ("General Conditions of Contract"), which are based on the standard DBIA form Document No. 535 (2010 Edition).

      
      

   3. Design Services. Design-Builder shall, consistent with applicable state licensing laws, provide design services, including architectural, engineering, and other design professional services

   required by this Agreement. Such design services shall be provided through qualified, licensed design professionals who are either (i) employed by Design-Builder, or (ii) procured by Design­ Builder from independent sources. Nothing in this Agreement is intended to create any legal or contractual relationship between Owner and any independent design professional.

   
   

   Article 2

   . Design-Builder's Services and Responsibilities

   
   

   1. General Services.

      
      

      1. Owner shall provide Design-Builder with Owner's Project Criteria describing Owner's program requirements and objectives for the Project as set forth in Exhibit A Owner's Project Criteria shall include Owner's use, space, price, time, site, performance, and expandability requirements. Owner's Project Criteria may include conceptual documents, design specifications, design performance specifications, and other technical materials and requirements prepared by or for Owner.

         
         

      2. If Owner's Project Criteria have not been developed prior to the execution of this Agreement, Design-Builder will assist Owner in developing Owner's Project Criteria, with such service deemed to be included within Phase 1 Services. If Owner has developed Owner's Project Criteria prior to executing this Agreement, Design-Builder shall review and prepare a written evaluation of such criteria, including recommendations to Owner for different and innovative approaches to the design and construction of the Project. The parties shall meet to discuss Design­ Builder's written evaluation of Owner's Project Criteria and agree upon what revisions, if any, should be made to such criteria.

         
         

   2. Phased Services.

      
      

      1. Phase 1 Services. Design-Builder shall perform the services of design, pricing, and other services for the Project based on Owner's Project Criteria, as may be revised in accordance with Section 2.1 hereof, as set forth in Exhibit B, Scope of Services. Design-Builder shall perform such services to the level of completion required for Design-Builder and Owner to establish the Contract Price for Phase 2, as set forth in Section 2.3 below. The Contract Price for Phase 2 shall be developed during Phase 1 on an "open-book" basis. Design-Builder's Compensation for Phase 1 Services is set forth in Section 7.0 herein. The level of completion required for Phase 1 Services is defined in Exhibit B, Scope of Services (either as a percentage of design completion or by defined deliverables).

         
         

      2. Phase 2 Services. Design-Builder's Phase 2 services shall consist of the completion of design services for the Project, the procurement of all materials and equipment for the Project, the performance of construction services for the Project, the start-up, testing, and commissioning of the Project, and the provision of warranty services, all as further described in the Contract Price Amendment. Upon receipt of Design-Builder's proposed Contract Price for Phase 2, Owner may proceed as set forth in Article 2.3.

         
         

   3. Proposal. Upon completion of the Phase 1 Services and any other Basis of Design Documents upon which the parties may agree, Design-Builder shall submit a proposal to Owner (the "Proposal") for the completion of the design and construction for the Project for the Contract Price, which may be based on

      Lump Sum or Design-Builder's Fee and Cost of the Work with an option for a Guaranteed Maximum Price

      (GMP).

      
      

      1. The Proposal shall include the following unless the parties mutually agree otherwise:

         
         

         1. The Contract Price that may be based on a Lump Sum or Design-Builder's Fee and Cost of the Work, with an option for a GMP, which shall be the sum of:

            1. Design-Builder's Fee as defined in Section 7.4.1 hereof;

            2. The estimated Cost of the Work as defined in Section 7.5 hereof, inclusive of any Design-Builder 's Contingency as defined in Section 7.6.2 hereof; and

            3. If applicable, any prices established under Section 7.1.3 hereof;

               
               

         2. The Basis of Design Documents, which may include, by way of example, Owner's Project Criteria, which are set forth in detail and are attached to the Proposal;

            
            

         3. A list of the assumptions and clarifications made by Design-Builder in the preparation of the Proposal, which list is intended to supplement the information contained in the drawings and specifications and is specifically included as part of the Basis of Design Documents;

            
            

         4. The Scheduled Substantial Completion Date upon which the Proposal is based, to the extent said date has not already been established under Section 6.2.1 hereof, and a schedule upon which the Scheduled Substantial Completion Date is based and a Project Schedule for the Work;

            
            

         5. If applicable, a list of Allowance Items, Allowance Values, and a statement of their basis;

            
            

         6. If applicable, a schedule of alternate prices;

            
            

         7. If applicable, a schedule of unit prices;

            
            

         8. If applicable, a statement of Additional Services which may be performed but which are not included in the Proposal, and which, if performed, shall be the basis for an increase in the Contract Price and/or Contract Time(s);

            
            

         9. If applicable, a Savings provision;

            
            

         10. If applicable, Performance Incentives;

             
             

         11. The time limit for acceptance of the Proposal; and

             
             

         12. An Owner's permit list, a list detailing the permits and governmental approvals that Owner will bear responsibility to obtain.

             
             

      2. Review and Adjustment to Proposal.

         
         

         1. After submission of the Proposal, Design-Builder and Owner shall meet to discuss and review the Proposal. If Owner has any comments regarding the Proposal, or finds any

   inconsistencies or inaccuracies in the information presented, it shall promptly give written notice to Design-Builder of such comments or findings. If appropriate, Design-Builder shall, upon receipt of Owner's notice, make appropriate adjustments to the Proposal.

   
   

   1. Acceptance of Proposal. If Owner accepts the Proposal, as may be amended by Design-Builder, the Contract Price and its basis shall be set forth in an amendment to this Agreement, when mutually agreed between the parties (the "Contract Price Amendment"). Once the parties have agreed upon the Contract Price and Owner has issued a Notice to Proceed with Phase 2, Design-Builder shall perform the Phase 2 Services, all as further described in the Contract Price Amendment, as it may be revised.

      
      

   2. Failure to Accept the Proposal. If Owner rejects the Proposal, or fails to notify Design-Builder in writing on or before the date specified in the Proposal that it accepts the Proposal, the Proposal shall be deemed withdrawn and of no effect. In such event, Owner and Design-Builder shall meet and confer as to how the Project will proceed, with Owner having the following options:

      
      

      1. Owner may suggest modifications to the Proposal, whereupon, if such modifications are accepted in writing by Design-Builder, the Proposal shall be deemed accepted and the parties shall proceed in accordance with Section 2.3.2.3 above;

         
         

      2. Owner may authorize Design-Builder to continue to proceed with the Work on the basis of reimbursement as provided in Section 7.1.2 hereof without a Contract Price, in which case all references in this Agreement to the Contract Price shall not be applicable; or

         
         

      3. Owner may terminate this Agreement for convenience in accordance with Article 9 hereof; provided, however, in this event, Design-Builder shall not be entitled to the payment provided for in Section 9.2 hereof.

   
   

   If Owner fails to exercise any of the above options, Design-Builder shall have the right to

   1. continue with the Work as if Owner had elected to proceed in accordance with Item

      2.3.2.4 ii. above, and be paid by Owner accordingly, unless and until Owner notifies it in writing to stop the Work, (b) suspend performance of Work in accordance with Section

      11.3.1 of the General Conditions of Contract, provided, however, that in such event Design­ Builder shall not be entitled to the payment provided for in Section 9.2 hereof, or (c) may give written notice to Owner that it considers this Agreement completed. If Owner fails to exercise any of the options under Section 2.3.2.4 within ten (10) days of receipt of Design­ Builder's notice, then this Agreement shall be deemed completed. If Owner terminates the relationship with Design-Builder under Section 2.3.2.4(iii), or if this Agreement is deemed completed under this paragraph, then Design-Builder shall have no further liability or obligations to Owner under this Agreement.

      
      

      Article 3

      Contract Documents

      
      

      1. The Contract Documents are comprised of the following:

         1. All written modifications, amendments, minor changes, and Change Orders to this Agreement issued in accordance with the General Conditions of Contract;

            
            

         2. The Contract Price Amendment referenced in Section 2.3.2.3 herein or the Proposal accepted by Owner in accordance with Section 2.3 herein.

            
            

         3. This Agreement, including all exhibits (List for example, performance standard requirements, performance incentive arrangements, markup exhibits, allowances, unit prices, or exhibit detailing offsite reimbursable personnel) but excluding, if applicable, the Contract Price Amendment;

            
            

         4. The General Conditions of Contract;

            
            

         5. Construction Documents prepared and approved in accordance with Section 2.4 of the General Conditions of Contract;

            
            

         6. Exhibit B, Scope of Services; and

            
            

         7. The following other documents, if any:

      Exhibit A Project Objectives Exhibit B Scope of Services Exhibit C Davis Bacon Rates Exhibit D Insurance Requirements

      RFQ-18-0-2020/GI Sout Gate Expansion Progressive Design-Build

      
      

      Article 4 Interpretation and Intent

      1. Design-Builder and Owner, at the time of acceptance of the Proposal by Owner in accordance with Section 2.3 hereof, shall carefully review all the Contract Documents, including the various documents comprising the Basis of Design Documents for any conflicts or ambiguities. Design-Builder and Owner will discuss and resolve any identified conflicts or ambiguities prior to execution of the Agreement, or if applicable, prior to Owner's acceptance of the Proposal.

         
         

      2. The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents within the Contract Time(s) for the Contract Price. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a manner consistent with construction and design industry standards. In the event inconsistencies, conflicts, or ambiguities between or among the Contract Documents are discovered after Owner's acceptance of the Proposal, Design-Builder and Owner shall attempt to resolve any ambiguity, conflict, or inconsistency informally, recognizing that the Contract Documents shall take precedence in the order in which they are listed in Section 3.1 hereof.

         
         

      3. Terms, words, and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in the General Conditions of Contract.

      4. If Owner's Project Criteria contain design specifications: (a) Design-Builder is entitled to reasonably rely on the accuracy of the information represented in the design specifications and their compatibility with other information set forth in Owner's Project Criteria, including any design performance specifications; and

   2. Design-Builder shall be entitled to an adjustment in its Contract Price and/or Contract Time(s) to the extent Design-Builder's cost and/or time of performance have been adversely impacted by such inaccurate design specification.

   
   

   1. The Contract Documents form the entire agreement between Owner and Design-Builder and by incorporation herein are as fully binding on the parties as if repeated herein. No oral representations or other agreements have been made by the parties except as specifically stated in the Contract Documents.

   
   

   Article 5

   Ownership of Work Product

   
   

   1. Work Product. All drawings, specifications and other documents and electronic data, including such documents identified in the General Conditions of Contract, furnished by Design-Builder to Owner under this Agreement ("Work Product") are deemed to be instruments of service and Design-Builder shall retain the ownership and property interests therein, including but not limited to any intellectual property rights, copyrights , and/or patents, subject to the provisions set forth in Sections 5.2 through 5.5 below.

      
      

   2. Owner's Limited License upon Project Completion and Payment in Full to Design-Builder. Upon Owner's payment in full for all Work performed under the Contract Documents, Design-Builder shall grant Owner a limited license to use the Work Product in connection with Owner's occupancy of the Project, conditioned on Owner's express understanding that its alteration of the Work Product without the involvement of Design-Builder is at Owner's sole risk and without liability or legal exposure to Design­ Builder or anyone working by or through Design-Builder, including Design Consultants of any tier (collectively the "Indemnified Parties"), and on the Owner's obligation to provide the indemnity set forth in Section 5.5 herein. Such license authorizes Owner's reuse of the Work Product in accordance with the provisions of subsection 287.055(10), Florida Statutes (2020).

      
      

   3. Owner's Limited License upon Owner's Termination for Convenience or Design-Builder's Election to Terminate. If Owner terminates this Agreement for its convenience as set forth in Article 9 hereof, or if Design-Builder elects to terminate this Agreement in accordance with Section 11.4 of the General Conditions of Contract, Design-Builder shall, upon Owner's payment in full of the amounts due Design­ Builder under the Contract Documents, grant Owner a limited license to use the Work Product to complete the Project and subsequently occupy the Project, and Owner shall thereafter have the same rights as set forth in Section 5.2 above, conditioned on the following:

      
      

      1. Use of the Work Product is at Owner's sole risk without liability or legal exposure to any Indemnified Party, and on the Owner's obligation to provide the indemnity set forth in Section 5.5 herein, and

         
         

      2. Owner agrees to pay Design-Builder the additional sum of Zero Dollars ($Q) as compensation for the right to use the Work Product to complete the Project and subsequently use the Work Product in accordance with Section 5.2 if Owner resumes the Project through its employees, agents, or third parties.

         
         

   4. Owner's Limited License upon Design-Builder's Default. If this Agreement is terminated due to Design-Builder's default pursuant to Section 11.2 of the General Conditions of Contract, then Design­ Builder grants Owner a limited license to use the Work Product to complete the Project and subsequently

   occupy the Project, and Owner shall thereafter have the same rights and obligations as set forth in Section

   5.2 above. Notwithstanding the preceding sentence, if it is ultimately determined that Design-Builder was not in default, Owner shall be deemed to have terminated the Agreement for convenience, and Design­ Builder shall be entitled to the rights and remedies set forth in Section 5.3 above.

   
   

   5.5 .Owner's Use of Work Product. Owner recognizes that in the event of an early termination of the Work, whether for convenience or for cause, Design Builder will not have the opportunity to finish or to finalize its Work Product. Therefore, if Owner uses the Work Product, in whole or in part, or alter the Work Product, it waives any and all claims against Design Builder.

   Article 6

   Contract Time

   
   

   1. Date of Commencement. The Phase 1 Services shall commence within five (5) days of Design­ Builder's receipt of Owner's Notice to Proceed unless the parties mutually agree otherwise in writing. The Work shall commence within five (5) days of Design-Builder's receipt of Owner's Notice to Proceed for Phase 2 Services ("Date of Commencement") if the Proposal is accepted and the Contract Price Amendment is amended to this Agreement unless the parties mutually agree otherwise in writing.

      
      

   2. Substantial Completion and Final Completion.

      
      

      1. Substantial Completion of the entire Work shall be achieved no later than _ _ _ _ _ _

         ,    Date").

         ) calendar days after the Date of Commencement ("Scheduled Substantial Completion

         
         

         [At the parties' option, the following supplemental language may be inserted at the end of Section 6.2.1.J

         
         

         X The parties agree that the definition for Substantial Completion set forth in Section 1.2.18 of the General Conditions of Contract is hereby modified to read as follows:

         
         

         "Substantial Completion is the date on which the Work, or an agreed upon portion of the Work, is sufficiently complete in accordance with the Contract Documents so that Owner can occupy and use the Project or a portion thereof for its intended purposes, provided, however, that Substantial Completion shall be deemed to have been achieved no later than the date of issuance of a Temporary Certificate of Occupancy issued by the local building official, if a Temporary Certificate of Occupancy is applicable to the Project."

         
         

      2. Interim milestones and/or Substantial Completion of identified portions of the Work shall be achieved as follows: Phase 1 services shall be completed to the point of a first-draft Phase 2 proposal (approximately 30% design) within sixtyt (60) calendar days after Phase 1 Notice to Proceed

         
         

      3. Final Completion of the Work or identified portions of the Work shall be achieved as expeditiously as reasonably practicable. Final Completion is the date when all Work is complete pursuant to the definition of Final Completion set forth in Section 1.2.7 of the General Conditions of Contract.

         
         

      4. All of the dates set forth in this Article 6 ("Contract Time(s)") shall be subject to adjustment in accordance with the General Conditions of Contract.

   3. Time is of the Essence. Owner and Design-Builder mutually agree that time is of the essence with respect to the dates and times set forth in the Contract Documents.

      
      

   4. Liquidated Damages. Design-Builder understands that if the entire contract amount is not earned by the grant deadline, Owner will suffer loss of eligibility for grant reimbursement. Design-Builder agrees that if Substantial Completion is not attained by the August 31, 2022, grant deadline (the "LD Date"}, Design­ Builder shall pay Owner the amount lost as liquidated damages.

      
      

   5. Any liquidated damages assessed pursuant to this Agreement shall be in lieu of all liability for any and all extra costs, losses, expenses, claims, penalties, and any other damages, whether special or consequential, and of whatsoever nature, incurred by Owner which are occasioned by any delay in achieving Substantial Completion, Interim Milestone Dates (if any) or Final Completion.

   
   

   X Owner and Design-Builder agree that the maximum aggregate liability Design-Builder has for any liquidated damages that may be assessed under this Agreement shall be the amount of the contract remaining at the time of the grant deadline.

   
   

   Article 7

   Contract Price

   
   

   1. Contract Price.

      
      

      1. Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract the sum of one hundred forty eight thousand two hundred ninety seven dollars ($148,297.00) for the Phase 1 Ser ices, subject to adjustments made in accordance with the General Conditions of Contract. Unless otherwise provided in the Contract Documents, the Phase 1 Services compensation is deemed to include all sales, use, consumer and other taxes mandated by applicable Legal Requirements.

         
         

      2. For Phase 2 Services, Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract a contract price ("Contract Price") equal to the Lump Sum amount set forth in Section 7.2 hereof or in the Contract Price Amendment, or equal to the Design-Builder's Fee (as defined in Section 7.4 hereof) plus the Cost of the Work (as defined in Section 7.5 hereof), subject to any GMP established in Section 7.6 hereof or as set forth in the Contract Price Amendment and any adjustments made in accordance with the General Conditions of Contract.

         
         

   2. Lump Sum. Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract the sum of _ _ _ TBD Dollars($ TBD ) ("Contract Price") for the Work for Phase 2 Services, subject to adjustments made in accordance with the General Conditions of Contract. Unless otherwise provided in the Contract Documents, the Contract Price is deemed to include all sales, use, consumer and other taxes mandated by applicable Legal Requirements.

      
      

   3. Markups for Changes. If the Contract Price requires an adjustment due to changes in the Work, and the cost of such changes is determined under Sections 9.4.1.3 or 9.4.1.4 of the General Conditions of Contract, the following markups shall be allowed on such changes:

      1. For additive Change Orders, including additive Change Orders arising from both additive and deductive items, it is agreed that Design-Builder shall receive a Fee of 10% of the additional subcontractor cost up to the first $50,000 and 5% over $50,000, and 15% of the additional cost of self-performed work incurred for that Change Order.

         
         

      2. For deductive Change Orders, including deductive Change Orders arising from both additive and deductive items, it is agreed that Design-Builder shall receive a reduction in Fee of 10% of the net reduction in subcontractor cost up to the first $50,000 and 5% over $50,000, and 15% of the net reduction in cost of self-performed work for that Change Order.

         
         

   4. Design-Builder's Fee.

      
      

      1. Design-Builder's Fee shall be:

         
         

         (Choose one of the following:)

         D TBDDollars ($ TBD), as adjusted in accordance with Section 7.4.2 below. or

         D TBD percent (TBD%) of the Cost of the Work, as adjusted in accordance with Section 7.4.2 below.

         
         

      2. Design-Builder's Fee will be adjusted as follows for any changes in the Work:

         
         

         1. For additive Change Orders, including additive Change Orders arising from both additive and deductive items, it is agreed that Design-Builder shall receive a Fee of TBD percent (TBD %) of the additional Costs of the Work incurred for that Change Order.

            
            

         2. For deductive Change Orders, including deductive Change Orders arising from both additive and deductive items, the deductive amounts shall include:

            
            

            [Check one box only]

            D No additional reduction to account for Design-Builder's Fee or any other markup.

            
            

            or

            D An amount equal to the sum of: (a) TBD percent (TBD %) applied to the direct costs of the net reduction (which amount will account for a reduction associated with Design-Builder's Fee); plus (b) any

            other markups set forth at Exhibit     of the net reduction.

            hereto applied to the direct costs

   5. Cost of the Work.

      
      

      1. The term Cost of the Work shall mean costs reasonably incurred by Design-Builder in the proper performance of the Work. The Cost of the Work shall include only the following:

         
         

         1. Wages of direct employees of Design-Builder performing the Work at the Site or, with Owner's agreement, at locations off the Site, provided, however, that the costs for those employees of Design-Builder performing design services shall be calculated on the basis of prevailing market rates for design professionals performing such services or, if applicable, those rates set forth in an exhibit to this Agreement.

            
            

         2. Wages or salaries of Design-Builder's supervisory and administrative personnel engaged in the performance of the Work and who are located at the Site or working off­ Site to assist in the production or transportation of material and equipment necessary for the Work.

            
            

         3. Wages or salaries of Design-Builder's personnel stationed at Design-Builder's principal or branch offices, but only to the extent said personnel are identified in Exhibit _ TBD and performing the function set forth in said Exhibit. The reimbursable costs of personnel stationed at Design-Builder's principal or branch offices shall include a TBD percent (TBD %) markup to compensate Design-Builder for the Project-related overhead associated with such personnel.

            
            

         4. Costs incurred by Design-Builder for employee benefits, premiums, taxes, insurance, contributions and assessments required by law, collective bargaining agreements, or which are customarily paid by Design-Builder, to the extent such costs are based on wages and salaries paid to employees of Design-Builder covered under Sections

            7.5.1.1 through 7.5.1.3 hereof.

            
            

            1. The reasonable portion of the cost of travel, accommodations and meals for Design-Builder's personnel necessarily and directly incurred in connection with the performance of the Work.

               
               

            2. Payments properly made by Design-Builder to Subcontractors and Design Consultants for performance of portions of the Work, including any insurance and bond premiums incurred by Subcontractors and Design Consultants.

               
               

            3. Costs incurred by Design-Builder in repairing or correcting defective, damaged or nonconforming Work (including any warranty or corrective Work performed after Substantial Completion), provided that such Work was beyond the reasonable control of Design-Builder, or caused by the ordinary mistakes or inadvertence, and not the negligence, of Design-Builder or those working by or through Design-Builder. If the costs associated with such Work are recoverable from insurance, Subcontractors or Design Consultants, Design-Builder shall exercise best efforts to obtain recovery from the appropriate source and provide a credit to Owner if recovery is obtained.

               
               

            4. Costs, including transportation, inspection, testing, storage, and handling of materials, equipment, and supplies incorporated or reasonably used in completing the Work.

            5. Costs less salvage value of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by the workers that are not fully consumed in the performance of the Work and which remain the property of Design­ Builder, including the costs of transporting, inspecting, testing, handling, installing, maintaining, dismantling, and removing such items.

               
               

            6. Costs of removal of debris and waste from the Site.

               
               

            7. The reasonable costs and expenses incurred in establishing, operating and demobilizing the Site office, including the cost of facsimile transmissions, long-distance telephone calls, postage and express delivery charges, telephone service, photocopying, and reasonable petty cash expenses.

               
               

            8. Rental charges and the costs of transportation, installation, minor repairs and replacements, dismantling and removal of temporary facilities, machinery, equipment and hand tools not customarily owned by the workers, which are provided by Design-Builder at the Site, whether rented from Design-Builder or others, and incurred in the performance of the Work.

               
               

            9. Premiums for insurance and bonds required by this Agreement or the performance of the Work.

               
               

            10. All fuel and utility costs incurred in the performance of the Work.

                
                

            11. Sales, use, or similar taxes, tariffs, or duties incurred in the performance of the Work.

                
                

            12. Legal costs, court costs, and costs of mediation and arbitration reasonably arising from Design-Builder's performance of the Work, provided such costs do not arise from disputes between Owner and Design-Builder.

                
                

            13. Costs for permits, royalties, licenses, tests and inspections incurred by Design­ Builder as a requirement of the Contract Documents.

                
                

            14. The cost of defending suits or claims for infringement of patent rights arising from the use of a particular design, process, or product required by Owner, paying legal judgments against Design-Builder resulting from such suits or claims, and paying settlements made with Owner's consent.

                
                

            15. Deposits which are lost, except to the extent caused by Design-Builder's negligence.

                
                

            16. Costs incurred in preventing damage, injury, or loss in case of an emergency affecting the safety of persons and property.

                
                

            17. Accounting and data processing costs related to the Work.

                
                

            18. Other costs reasonably and properly incurred in the performance of the Work to the extent approved in writing by Owner.

      2. Non-Reimbursable Costs. The following shall be excluded from the Cost of the Work:

         
         

         1. Compensation for Design-Builder's personnel stationed at Design-Builder's principal or branch offices, except as provided for in Sections 7.5.1.1, 7.5.1.2, and 7.5.1.3 hereof.

            
            

         2. Overhead and general expenses, except as provided for in Section 7.5.1 hereof, or which may be recoverable for changes to the Work.

            
            

         3. The cost of Design-Builder's capital used in the performance of the Work.

            
            

         4. If the parties have agreed on a GMP, costs that would cause the GMP, as adjusted in accordance with the Contract Documents, to be exceeded.

            
            

            (The parties shall comply with the following Section 7.6 based upon whether the GMP is agreed upon before the execution of this Agreement or will be developed and agreed upon after execution of this Agreement . If the parties do not use a GMP, this Section 7.5 shall be deemed inapplicable and compensation to Design-Builder shall be based on those fees and costs identified in the balance of this Article 7.)

            
            

   6. The Guaranteed Maximum Price.

      
      

      1. Design-Builder guarantees that it shall not exceed the GMP of TBD Dollars ($TBD ). Documents used as a basis for the GMP shall be identified in the Contract Price Amendment to this Agreement. Design-Builder does not guarantee any specific line item provided as part of the GMP, and has the sole discretion to apply payment due to overruns in one line item to savings due to underruns in any other line item. Design-Builder agrees, however, that it will be responsible for paying all costs of completing the Work which exceed the GMP, as adjusted in accordance with the Contract Documents. (While the Contract Price Amendment will be developed in advance or concurrently with the execution of this Agreement, it is recnmmfmrlArl that such exhibit include the items set forth in Section 2.3 above, to ensure that the basis for the GMP is well understood).

         
         

      2. The GMP includes a Contingency in the amount ofTBD Dollars ($TBD) which is available for Design-Builder's exclusive use for unanticipated costs it has incurred that are not the basis for a Change Order under the Contract Documents. By way of example, and not as a limitation, such costs may include: (a) trade buy-out differentials; (b) overtime or acceleration; (c) escalation of materials; (d) correction of defective, damaged or nonconforming Work, design errors or omissions, however caused; (e) Subcontractor defaults; or (f) those events under Section 8.2.2 of the General Conditions of Contract that result in an extension of the Contract Time but do not result in an increase in the Contract Price. The Contingency is not available to Owner for any reason, including changes in scope or any other item which would enable Design-Builder to increase the GMP under the Contract Documents. Design-Builder shall provide Owner notice of all anticipated charges against the Contingency, and shall provide Owner as part of the monthly status report required by Section 2.1.2 of the General Conditions of Contract an accounting of the Contingency, including all reasonably foreseen uses or potential uses of the Contingency in the upcoming three (3) months. Design-Builder agrees that with respect to any expenditure from the Contingency relating to a Subcontractor default or an event for which insurance or bond may provide reimbursemen,tDesign-Builder will in good faith exercise reasonable steps to obtain performance from the Subcontractor and/or recovery from any

         surety or insurance company. Design-Builder agrees that if Design-Builder is subsequently reimbursed for said costs, then said recovery will be credited back to the Contingency.

         
         

      3. Savings.

         
         

         1. If the sum of the actual Cost of the Work and Design-Builder's Fee (and, if applicable, any prices established under Section 7.1.3 hereof) is less than the GMP, as such GMP may have been adjusted over the course of the Project, the difference ("Savings") shall be reinvested in the project, if practicable, or if not practicable shared as follows:

            D percent ( 50%) to Design-Builder and percent (50%) to Owner.

            
            

         2. Savings shall be calculated and paid as part of Final Payment under Section 8.4 hereof, with the understanding that to the extent Design-Builder incurs costs after Final Completion which would have been payable to Design-Builder as a Cost of the Work, the parties shall recalculate the Savings in light of the costs so incurred, and Design-Builder shall be paid by Owner accordingly.

            
            

   7. Allowance Items and Allowance Values.

      
      

      1. Any and all Allowance Items, as well as their corresponding Allowance Values, are set forth in the Contract Price Amendment or the Proposal.

         
         

      2. Design-Builder and Owner have worked together to review the Allowance Items and Allowance Values based on design information then available to determine that the Allowance Values constitute reasonable estimates for the Allowance Items. Design-Builder and Owner will continue working closely together during the preparation of the design to devP.lop r.nnstruction Documents consistent with the Allowance Values. Nothing herein is intended in any way to constitute a guarantee by Design-Builder that the Allowance Item in question can be performed for the Allowance Value.

         
         

      3. No work shall be performed on any Allowance Item without Design-Builder first obtaining in writing advanced authorization to proceed from Owner. Owner agrees that if Design-Builder is not provided written authorization to proceed by the date set forth in the Project schedule, due to no fault of Design-Builder, Design-Builder may be entitled to an adjustment of the Contract Time(s) and Contract Price.

         
         

      4. The Allowance Value includes the direct cost of labor, materials, equipment, transportation, taxes, and insurance associated with the applicable Allowance Item. All other costs, including design fees, Design-Builder's overall project management and general conditions costs, overhead and Fee, are deemed to be included in the original Contract Price, and are not subject to adjustment notwithstanding the actual amount of the Allowance Item.

         
         

      5. Whenever the actual costs for an Allowance Item is more than or less than the stated Allowance Value, the Contract Price shall be adjusted accordingly by Change Order, subject to Section 7.7.4. The amount of the Change Order shall reflect the difference between actual costs incurred by Design-Builder for the particular Allowance Item and the Allowance Value.

   
   

   Article 8

   Procedure for Payment

   
   

   1. Payment for Preliminary Services. Design-Builder and Owner agree upon the following method for partial and final payment to Design-Builder for the services hereunder: (Insert terms.)

      
      

   2. Contract Price Progress Payments.

      
      

      1. Design-Builder shall submit to Owner on the last day of each month, beginning with the first month after the Date of Commencement, Design-Builder's Application for Payment in accordance with Article 6 of the General Conditions of Contract.

         
         

      2. Owner shall make payment within ten (10) days after Owner's receipt of each properly submitted and accurate Application for Payment in accordance with Article 6 of the General Conditions of Contract, but in each case less the total of payments previously made, and less amounts properly withheld under Section 6.3 of the General Conditions of Contract.

         
         

      3. If Design-Builder's Fee under Section 7.4 hereof is a fixed amount, the amount of Design­ Builder's Fee to be included in Design-Builder's monthly Application for Payment and paid by Owner shall be proportional to the percentage of the Work completed, less payments previously made on account of Design-Builder's Fee.

         
         

   3. Retainage on Progress Payments.

      
      

      1. Owner will retain five percent (§%) of each Apphcat1on tor Payment provided, however, that when fifty percent (50%) of the Work has been satisfactorily completed by Design-Builder and Design-Builder is otherwise in compliance with its contractual obligations, Owner will not retain any additional retention amounts from Design-Builder's subsequent Applications for Payment. Owner will also reasonably consider reducing retainage for Subcontractors completing their work early in the Project.

         
         

      2. Within fifteen (15) days after Substantial Completion of the entire Work or, if applicable, any portion of the Work, pursuant to Section 6.6 of the General Conditions of Contract, Owner shall release to Design-Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to: (a) the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion; and (b) all other amounts Owner is entitled to withhold pursuant to Section 6.3 of the General Conditions of Contract.

         
         

   4. Final Payment. Design-Builder shall submit its Final Application for Payment to Owner in accordance with Section 6.7 of the General Conditions of Contract. Owner shall make payment on Design­ Builder's properly submitted and accurate Final Application for Payment (less any amount the parties may have agreed to set aside for warranty work) within ten (10) days after Owner's receipt of the Final Application for Payment, provided that: (a) Design-Builder has satisfied the requirements for final payment set forth in Section 6.7.2 of the General Conditions of Contract.

   5. Interest. Payments due and unpaid by Owner to Design-Builder, whether progress payments or final payment, shall bear interest commencing five (5) days after payment is due at the rate of percent (1%) per month until paid.

      
      

   6. Record Keeping and Finance Controls. Design-Builder acknowledges that this Agreement is to be administered on an "open book" arrangement relative to Costs of the Work. Design-Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles and as may be provided in the Contract Documents. During the performance of the Work and for a period of three

   (3) years after Final Payment, Owner and Owner's accountants shall be afforded access to, and the right to audit from time to time, upon reasonable notice, Design-Builder's records, books, correspondence , receipts, subcontracts, purchase orders, vouchers, memoranda, and other data relating to the Work, all of which Design-Builder shall preserve for a period of three (3) years after Final Payment. Such inspection shall take place at Design-Builder's offices during normal business hours unless another location and time is agreed to by the parties. Any multipliers or markups agreed to by the Owner and Design-Builder as part of this Agreement are only subject to audit to confirm that such multiplier or markup has been charged in accordance with this Agreement, but the composition of such multiplier or markup is not subject to audit. Any lump sum agreed to by the Owner and Design-Builder as part of this Agreement is not subject to audit.

   
   

   Article 9

   Termination for Convenience

   
   

   1. Upon ten (10) days' written notice to Design-Builder, Owner may, for its convenience and without cause, elect to terminate this Agreement. In such event, Owner shall pay Design-Builder for the following:

      
      

      1. All services performed and Work executed and for proven loss, cost, or expense in connection with the services and Work;

         
         

      2. The reasonable costs and expenses attributable to such termination, including demobilization costs and amounts due in settlement of terminated contracts with Subcontractors and Design Consultants; and

         
         

      3. (Choose one of the following:)

         
         

         The fair and reasonable sums for overhead and profit on the sum of items 9.1.1 and

         9.1.2 above.

         
         

         or

         D Overhead and profit in the amount of percent

         ,,_ _ _ _ _ _ %} on the sum of items 9.1.1 and 9.1.2 above.

         
         

   2. In addition to the amounts set forth in Section 9.1 above, Design-Builder shall be entitled to receive one of the following as applicable:

      
      

      1. If Owner terminates this Agreement prior to commencement of construction, Design- Builder shall be paid _ _ _ _ _ _ _ percent( %) of the remaining balance of

         the Contract Price or, if a GMP has not been established, the remaining balance of the most recent estimated Contract Price.

         
         

      2. If Owner terminates this Agreement after commencement of construction, Design-Builder shall be paid _ _ _ _ _ _ _ percent{ _ _ _ _ _ %) of the remaining balance of the Contract Price or, if a GMP has not been established, the remaining balance of the most recent estimated Contract Price.

         
         

   3. If Owner terminates this Agreement pursuant to Section 9.1 above and proceeds to design and construct the Project through its employees, agents or third parties, Owner's rights to use the Work Product shall be as set forth in Section 5.3 hereof. Such rights may not be transferred or assigned to others without such third parties' agreement to the terms of Article 5.

   
   

   Article 10

   Representatives of the Parties

   
   

   1. Owner's Representatives .

      
      

      1. Owner designates the individual listed below as its Senior Representative ("Owner Senior Rep resentative",) which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract:

         
         

         Dave Sanford

         Deputy Executive Director Manatee County Port Authority 300 Tampa Bay Way, Suite 1

         Palmetto, FL 34221

         Direct: (941) 713-3793

         Email: dsanford@portmanatee.com.

         
         

      2. Owner designates the individual listed below as its Owner's Representative, which individual has the authority and responsibility set forth in Section 3.4 of the General Conditions of Contract:

         George F. Isiminger, P.E.

         Senior Director and Port Engineer Manatee County Port Authority 300 Tampa Bay Way, Suite 1

         Palmetto, FL 34221

         Direct: (941) 721-2330

         Cell: (941) 650-3451

         Email: gisiminger@portmanatee.com.

         
         

   2. Design-Builder's Representatives.

      
      

      1. Design-Builder designates the individual listed below as its Senior Representative ("Design-Builder'sSenior Representative"), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: J

         Scott Pittman, P.E.

         Vice President

         Ajax Paving Industries of Florida, LLC 7860 Professional Place

         Temple Terrace, FL 33637 Cell: 727-638-2812

         Email: spittman@ajaxpaving.com

         
         

      2. Design-Builder designates the individual listed below as its Design-Builder's Representative, which individual has the authority and responsibility set forth in Section 2.1.1 of the General Conditions of Contract:

   Felipe Jaramillo, P.E. Preconstruction Manager

   Ajax Paving Industries of Florida, LLC 7860 Professional Place

   Temple Terrace, FL 33637 Cell: 941-404-9282

   Email: fjaramillo@ajaxpaving.com

   
   

   Article 11

   Bonds and Insurance

   
   

   1. Insurance. Design-Builder and Owner shall procure the insurance coverages set forth in the Insurance Exhibit attached hereto and in accordance with Article 5 of the General Conditions of Contract.

      
      

   2. Bonds and Other Performance Security. Design-Builder shall provide the following performance bond and labor and material payment bond or other performance securtiy:

   
   

   Performance Bond.

   Required Payment Bond.

   Required

   
   

   Other Performance Security.

   D Required

   
   

   D Not Required

   D Not Required

   
   

   Not Required

   Article 12

   Other Provisions

   
   

   1. Other provisions, if any, are as follows:

      
      

      1. Owner has a firm budget limit. The budget limit is $1,000,000 (grant plus match). Owner desires to spend right up to the budget to maximize the benefit without spending over the budget.

         
         

      2. The Project is funded in part from the proceeds of a grant(s) from the U. S. Department of Homeland Security (Grant No. ENW-2019-PU-00193) ("Grant"). This grant funding is conditioned in part on the Design-Builder meeting the requirements of the Grant, including but not limited to the following requirements:

         1. DBE Policy: The Design-Builder and subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. The Design-Builder shall carry out applicable requirements of 49 CFR part 26 in the award and administration of this Agreement. Failure by the Design-Builderto carry out these requirements is a material breach of this Agreement , which may result in the termination of this Agreement or such remedy as the Owner deems appropriate.

         2. Design-Builder shall utilize the U.S. Homeland Security's E-Verify system to verify the employment eligibility of alt new employees hired by the C Design-Builder during the term of this Agreement, and shall expressly require any subcontractor performing Work or providing services pursuant to this Agreement to likewise utilize the U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility of all new employees hired by the subcontractor during the Agreement.

         3. Design-Builder understands that the grant funding is dependent on completion of Work within the Contract Times and the Milestones and the Design-Buiider agrees to complete the Work within the Contract Times. Should the Design-Builder fail to complete the Work within the Contact Times, the Contractor agrees the provisions of Article 6 above shall apply.

         4. No member, officer or employee of Design-Builder during this Agreement or 2 years thereafter shall have any interest, direct or indirect, in this contract or the proceeds thereof. Moreover, this provision must be inserted in any subcontracts for the Work.

         5. Design-Builder shall not employ unauthorized aliens in violation of section 274(e) of the Immigration and Naturalization Act. If Design-Builder knowingly employs unauthorized aliens, such violation will be cause for unilateral cancellation of this Agreement.

            
            

         6. Design Builder shall comply with Section 6002 of the Solid Waste Disposal Act, Pub. L. No. 89-272 (1965) (codified as amended by the Resource Conservation and Recovery Act, 42 U.S.C. section 6962) The requirements of Section 6002 include procuring only items designed in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition.

            
            

         7. Davis Bacon Rates apply and are provided in Exhibit C, which amends section 6 of the General Conditions.

      3. Port Manatee is regulated under the provision of the Maritime Transportation Security Act of 2002. Individuals accessing the port must comply with the provision of the applicable regulations and the associated elements of Port Manatee's approved Facility Security Plan. These provisions include obtaining a federal Transportation Workers Identification Credential (TWIC), which requires submission to federal security screening. Information on the TWIC enrollment process is available at www.tsa.gov/twic.

         
         

      4. Assignment of Contract - Unless expressly agreed to elsewhere in the Agreement, no assignment by a party hereto of any rights under or interests in the Agreement will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, money that may become due and money that is due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Agreement. Notwithstanding the foregoing, the Owner may assign this Agreement to the State of Florida for any political subdivision, municipality, special district, or authority thereof without Design­ Builder's consent and without recourse.

      5. Successors and Assigns

         1. Owner and Design-Builder each binds itself, its successors, assigns, and legal representatives to the other party hereto, its successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Agreement.

         2. This Agreement is solely for the benefit of the parties and no right or privilege or cause of action shall by reason hereof accrue upon to, or for the benefit of any third party. Nothing in this Agreement is intended or will be construed to confer upon or give any person, corporation, partnership, trust, private entity, or agency any right, remedy, or claim under or by reason of this Agreement or any provisions or conditions of this Agreement.

      6. Severability

         1. Any provision or part of the Agreement held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Design-Builder, who agree that the Agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision.

         2. Neither the validity of this Agreement nor the validity of any portion of it may be challenged by any party to this Agreement, and each party waives any right to initiate such challenge. Furthermore, if this Agreement or any portion is challenged by a third party in a judicial, administrative, or appellate proceeding (each party covenanting with the other party not to initiate, encourage, foster, promote, cooperate with or acquiesce to such challenge), the parties collectively and individually agree, at their individual sole cost and expense, to defend in good faith its validity through a final judicial determination or other resolution, unless all parties mutually agree in writing not to defend such challenge or not to appeal any decisions invalidating this Agreement or portion thereof.

      7. Contractor's Certifications

         1. Design-Builder certifies that it has not engaged in corrupt, fraudulent, collusive, or coercive practices in competing for or in executing the Agreement. For the purposes of this Paragraph:

            1. "corrupt practice" means the offering, giving, receiving, or soliciting of anything of value likely to influence the action of a public official in the bidding process or in the Agreement execution;

            2. "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the bidding process or the execution of the Agreement to the detriment of Owner, (b) to establish Bid or Contract prices at artificial non­ competitive levels, or (c) to deprive Owner of the benefits of free and open competition;

            3. "collusive practice" means a scheme or arrangement between two or more Bidders, with or without the knowledge of Owner, a purpose of which is to establish prices at artificial, non-competitive levels; and

            4. "coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Agreement.

         2. Design-Builder shall pay promptly and before final payment, any claims or liens incurred in and about this work, and to execute a Contractor's affidavit for final payment.

      8. The Owner and Design-Builder agree that this Agreement shall be governed by applicable Florida Law. Venue for any legal action in connection with this Contract shall be in the Circuit Court of the Twelfth Judicial Circuit in and for Manatee County. In any claim dispute procedure or litigation arising from this Agreement, each party shall be solely responsible for paying its attorney's fees and costs.

      9. Each party to this Agreement has had the benefit of representation by counsel and equal input into drafting this Agreement such that no provision of this Agreement shall be strictly construed against one party as the draft of the Agreement.

         1. The headings and captions of articles, sections and paragraphs used in this Agreement are for convenience of reference only and are not intended to define or limit their contents, nor are they to affect the construction of or be taken into consideration in interpreting this Agreement.

         2. The Design-Builder recognized the Owner is a public agency subject to the Public Records Act of Florida and agrees to comply with section 13.20 of the General Conditions. The Design-Builder agree that, at any time during the Agreement, the Design-Builder will allow and provide the Owner access to all of the documents, papers, letter, or other materials made or received by the Design-Builder in conjunction with the Agreement and Work. Should the Design-Builder fail to provide prompt access to these documents in response to the Owner's request, the Owner may unilaterally cancel the Agreement.

         3. Design-Builder has reviewed and agreed to comply with the applicable Port Manatee Tariff provisions available online at https://www.portmanatee.com /wp­ content/uploads/2018/05/Tariff.pdf. Any conflict between a Tariff provision and this Agreement, this Agreement shall prevail.

   2. Listing of Exhibits and documents incorporated herein: Exhibit A - Owner's Project Criteria

   Exhibit B - Scope of Services

   DBIA Document No. 535, Standard Form of General Conditions of Contract Between Owner and Design-Builder (2010 Edition) ("General Conditions of Contract")

   Contract Price Amendment, if any.

   
   

   
   

   Article 13 Limitation of Liability

   13.1 Limitation. To the fullest extent permitted by law, and notwithstanding any other provision of this Agreement, the total liability, in the aggregate, of Design-Builder, its Design Consultants, and Subcontractors, surety (if any) and their respective officers, directors, employees, and agents, and any of them, to Owner and anyone claiming by, through or under Owner, for any and all claims, losses, liabilities, costs, or damages whatsoever arising out of, resulting from, or in any way related to, the Project or this Agreement from any cause, including but not limited to the negligence, indemnity, professional errors or omissions, strict liability, breach of contract, or warranty (express or implied). The parties agree that specific consideration has been given by the Design-Builder for this limitation and that it is deemed adequate.

   In executing this Agreement, Owner and Design-Builder each individually represents that it has the necessary financial resources to fulfill its obligations under this Agreement, and each has the necessary corporate approvals to execute this Agreement, and perform the services described herein.

   
   

   OWNER: DESIGN-BUILDER:

   
   

   

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   Manatee Count Port Authori                                           

   
   

   

   (Name of Owner)

   
   

   

   (Signature)

   
   

   

   (Printed Name)

   
   

   Chairman                                                 

   (Title)

   
   

   Date: _ _ _ _ _ _ _ _ _ _ _ _

   
   

   (Title)

   

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   DBIA Contract Document

   #535

   Standard Form of General Conditions of Contract Between Owner and Design-Builder

   
   

   Document No. 535

   Second Edition, 2010

   26981/001/01730879.DOCXv2

   © Design-Build Institute of America Washington, D.C.

   

   
   

   Design-Build Institute of America - Contract Documents

   LICENSE AGREEMENT

   By using the DBIA Contract Documents, you agree to and are bound by the terms of this License Agreement.

   
   

   1. License. The Design-Build Institute of America (“DBIA”) provides DBIA Contract Documents and licenses their use worldwide. You acknowledge that DBIA Contract Documents are protected by the copyright laws of the United States. You have a limited nonexclusive license to: (a) Use DBIA Contract Documents on any number of machines owned, leased or rented by your company or organization; (b) Use DBIA Contract Documents in printed form for bona fide contract purposes; and (c) Copy DBIA Contract Documents into any machine-readable or printed form for backup or modification purposes in support of your permitted use.

   2. User Responsibility. You assume sole responsibility for the selection of specific documents or portions thereof to achieve your intended results, and for the installation, use, and results obtained from the DBIA Contract Documents. You acknowledge that you understand that the text of the DBIA Contract Documents has important legal consequences and that consultation with an attorney is recommended with respect to use or modification of the text. You will not represent that any of the contract documents you generate from DBIA Contract Documents are DBIA documents unless (a) the document text is used without alteration or (b) all additions and changes to, and deletions from, the text are clearly shown.

   3. Copies. You may not use, copy, modify, or transfer DBIA Contract Documents, or any copy, modification or merged portion, in whole or in part, except as expressly provided for in this license. Reproduction of DBIA Contract Documents in printed or machine-readable format for resale or educational purposes is expressly prohibited. You will reproduce and include DBIA’s copyright notice on any printed or machine-readable copy, modification, or portion merged into another document or program.

   4. Transfers. You may not transfer possession of any copy, modification or merged portion of DBIA Contract Documents to another party, except that a party with whom you are contracting may receive and use such transferred material solely for purposes of its contract with you. You may not sublicense, assign, or transfer this license except as expressly provided in this Agreement, and any attempt to do so is void.

   5. Term. The license is effective for one year from the date of purchase. DBIA may elect to terminate it earlier, by written notice to you, if you fail to comply with any term or condition of this Agreement.

   6. Limited Warranty. DBIA warrants the electronic files or other media by which DBIA Contract Documents are furnished to be free from defects in materials and workmanship under normal use during the Term. There is no other warranty of any kind, expressed or implied, including, but not limited to the implied warranties of merchantability and fitness for a particular purpose. Some states do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. This warranty gives you specific legal rights and you may also have other rights which vary from state to state. DBIA does not warrant that the DBIA Contract Documents will meet your requirements or that the operation of DBIA Contract Documents will be uninterrupted or error free.

   7. Limitations of Remedies. DBIA’s entire liability and your exclusive remedy shall be: the replacement of any document not meeting DBIA’s "Limited Warranty" which is returned to DBIA with a copy of your receipt, or at DBIA’s election, your money will be refunded. In no event will DBIA be liable to you for any damages, including any lost profits, lost savings or other incidental or consequential damages arising out of the use or inability to use DBIA Contract Documents even if DBIA has been advised of the possibility of such damages, or for any claim by any other party. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.

   8. Acknowledgement. You acknowledge that you have read this agreement, understand it and agree to be bound by its terms and conditions and that it will be governed by the laws of the District of Columbia. You further agree that it is the complete and exclusive statement of your agreement with DBIA which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this agreement.

   INSTRUCTIONS

   For DBIA Document No. 535 Standard Form of General Conditions of Contract Between Owner and Design-Builder (2010 Edition)

   

   
   

   General Instructions

   
   

   No.	Subject	Instruction
   1.	Standard Forms	Standard form contracts have long served an important function in the United States and international construction markets. The common purpose of these forms is to provide an economical and convenient way for parties to contract for design and construction services. As standard forms gain acceptance and are used with increased frequency, parties are able to enter into contracts with greater certainty as to their rights and responsibilities.
   2.	DBIA Standard Form Contract Documents	Since its formation in 1993, the Design-Build Institute of America (DBIA) has regularly evaluated the needs of owners, design-builders, and other parties to the design-build process in preparation for developing its own contract forms. Consistent with DBIA’s mission of promulgating best design-build practices, DBIA believes that the design-build contract should reflect a balanced approach to risk that considers the legitimate interests of all parties to the design-build process. DBIA’s Standard Form Contract Documents reflect a modern risk allocation approach, allocating each risk to the party best equipped to manage and minimize that risk, with the goal of promoting best design-build practices.
   3.	Use of Non- DBIA Documents	To avoid inconsistencies among documents used for the same project, DBIA’s Standard Form Contract Documents should not be used in conjunction with non-DBIA documents unless the non-DBIA documents are appropriately modified on the advice of legal counsel. Moreover, care should also be taken when using different editions of the DBIA Standard Form Document on the same project to ensure consistency.
   4.	Legal Consequences	DBIA Standard Form Contract Documents are legally binding contracts with important legal consequences. Contracting parties are advised and encouraged to seek legal counsel in completing or modifying these Documents.
   5.	Reproduction	DBIA hereby grants to purchasers a limited license to reproduce its Documents consistent with the License Agreement accompanying these Documents. At least two original versions of the Agreement should be signed by the parties. Any other reproduction of DBIA Documents is strictly prohibited.
   6.	Modifications	Effective contracting is accomplished when the parties give specific thought to their contracting goals and then tailor the contract to meet the unique needs of the project and the design-build team. For that reason, these Documents may require modification for various purposes including, for example, to comply with local codes and laws, or to add special terms. DBIA’s latest revisions to its Documents provide the parties an opportunity to customize their contractual relationship by selecting various optional contract clauses that may better reflect the unique needs and risks associated with the project. Any modifications to these Documents should be initialed by the parties. At no time should a document be re-typed in its entirety. Re-creating the document violates copyright laws and destroys one of the advantages of standard forms-familiarity with the terms.
   7.	Execution	It is good practice to execute two original copies of the Agreement. Only persons authorized to sign for the contracting parties may execute the Agreement.

   Specific Instructions

   
   

   Section	Title	Instruction
   General	Purpose of This Document	The General Conditions of Contract provide the terms and conditions under which the Work of the Project will be performed. This document accompanies DBIA Document No. 525 and DBIA Document No. 530 (each referred to herein generally as “Agreement”). It may also be incorporated by reference into other related agreements, as between the Design-Builder and the Design Consultant, and the Design-Builder and the Subcontractor.
   General	Checklist	The following Sections reference documents that are to be attached to the Agreement: Section 3.5.1 Owner’s Permit List Article 5 Insurance and Bonds Section 9.4.2 Unit Prices
   2.1.3	Schedule	The parties are encouraged, if possible, to agree to a schedule for the execution of the Work upon execution of the Agreement or upon establishing the GMP.
   2.2.1	Design Professional Services	The parties should be aware that in addition to requiring compliance with state licensing laws for design professionals, some states also require that the design professional have a corporate professional license.
   2.3.1	Standard of Care for Design Professional’s Services	Design-Builder’s obligation is to deliver a design that meets prevailing industry standards. However, DBIA has provided the parties at Article 11 of the Agreement an optional provision whereby if Owner can identify specific performance standards that can be objectively measured, Design-Builder is obligated to design the Project to satisfy these standards if this optional provision is selected. To avoid any confusion and to ensure that the parties fully understand what their obligations are, the specific performance standards should be clearly identified and should be able to be objectively measured. The Design- Builder should recognize that this is a heightened standard of care that has insurance ramifications that should be discussed with the Design-Builder’s insurance advisor.
   3.5.1	Government Approvals and Permits	Design-Builder is responsible for obtaining all necessary permits, approvals and licenses, except to the extent specific permits, approvals, and licenses are set forth in an Owner’s Permit List, which must be attached as an exhibit to the Agreement. The parties, prior to execution of the Agreement, should discuss which permits, approvals and licenses need to be obtained for the Project and which party is in the best position to do so.
   5.1.1	Design-Builder’s Insurance Requirements	Design-Builder is obligated to provide insurance coverage from insurance carriers that meet the criteria set forth in the Insurance Exhibit attached to Section 10.1 of the Agreement.
   5.1.2	Exclusions to Design-Build	Parties are advised that their standard insurance policies may contain exclusions for the design-build delivery method. This Section 5.1.2 requires that any such exclusions be deleted from the policy.
   5.2	Owner’s Insurance Requirements	Owner, in addition to providing the insurance set forth in this Section and Section 5.3, is also obligated to procure the insurance coverages for the amounts and consistent with the terms set forth in the Insurance Exhibit made part of the Agreement.
   5.4	Bonds and Other Performance Security	Design-Builder is only obligated to provide bonds or other forms of performance security to the extent called for in Section 10.2 of the Agreement.

   Section	Title	Instruction
   8.2.2	Compensability for Force Majeure Events	The parties are provided the option in the Agreement of negotiating whether the Design- Builder is entitled to compensation for Force Majeure Events.
   9.4.1	Contract Price Adjustments	Unit prices, if established, shall be attached pursuant to Article 2 of the Agreement.
   9.4.3	Payment/ Performance of Disputed Services	When Owner disputes Design-Builder’s entitlement to a change order or disagrees with Design-Builder regarding the scope of Work, and nevertheless expects Design-Builder to perform the services, Design-Builder’s cash flow and ability to complete the Work will be hampered if Owner fails to pay Design-Builder for the disputed services. This Section provides a balanced approach whereby Design-Builder is required to perform the services, but Owner is required to pay fifty percent (50%) of Design-Builder’s reasonable estimated direct costs of performing such services until the dispute is settled. By so doing, Owner does not forfeit its right to deny total responsibility for payment, and Design-Builder does not give up its right to demand full payment. The dispute shall be resolved according to Article 10.
   Article 10	Contract Adjustments and Disputes	DBIA endorses the use of partnering, negotiation, mediation and arbitration for the prevention and resolution of disputes. The General Conditions of Contract provides for the parties’ Representatives and Senior Representatives to attempt to negotiate the dispute or disagreement. If this attempt fails, the dispute shall be submitted to mandatory, non-binding mediation. Any dispute that cannot be resolved by mediation shall then be submitted to binding arbitration, unless the parties elect in the Agreement to submit their dispute to a court of competent jurisdiction.
   10.3.4	Arbitration	The prevailing party in any arbitration shall receive reasonable attorneys’ fees from the other party. DBIA supports this “loser pays” provision to encourage parties to negotiate or mediate their differences and to minimize the number of frivolous disputes.
   10.4	Duty to Continue Performance	Pending the resolution of any dispute or disagreement, both Owner and Design-Builder shall continue to perform their respective duties under the Contract Documents, unless the parties provide otherwise in the Contract Documents.
   10.5	Consequential Damages	DBIA believes that it is inappropriate for either Owner or Design-Builder to be responsible to the other for consequential damages arising from the Project. This limitation on consequential damages in no way restricts, however, the payment of liquidated damages, if any, under Article 5 of the Agreement.
   11.4	Design-Builder’s Right to Terminate for Cause	If Design-Builder properly terminates the Agreement for cause, it shall recover from Owner in the same way as if Owner had terminated the Agreement for convenience under Article 8 of the Agreement. Owner shall pay to Design-Builder its costs, reasonable overhead and profit on the costs, and an additional payment based on a percentage of the remaining balance of the Contract Price, all as more fully set forth in Article 8 of the Agreement.
   Article 12	Electronic Data	Design-Builder and Owner shall agree on the software and format for the transmission of Electronic Data. Ownership of Work Product in electronic form is governed by Article 4 of the Agreement. The transmitting party disclaims all warranties with respect to the media transmitting the Electronic Data, but nothing in this Article is intended to negate duties with respect to the standard of care in creating the Electronic Data.

   
   

   TABLE OF CONTENTS

   Article Name Page

   Article 1 General 1

   Article 2 Design-Builder’s Services and Responsibilities 2

   Article 3 Owner’s Services and Responsibilities 7

   Article 4 Hazardous Conditions and Differing Site Conditions 9

   Article 5 Insurance and Bonds 10

   Article 6 Payment 11

   Article 7 Indemnification 14

   Article 8 Time 15

   Article 9 Changes to the Contract Price and Time 16

   Article 10 Contract Adjustments and Disputes 18

   Article 11 Stop Work and Termination for Cause 19

   Article 12 Electronic Data 22

   Article 13 Miscellaneous 23

   1. Mutual Obligations

      Article 1

      General

      
      

      1. Owner and Design-Builder commit at all times to cooperate fully with each other, and proceed on the basis of trust and good faith, to permit each party to realize the benefits afforded under the Contract Documents.

         
         

   2. Basic Definitions

      
      

      1. Agreement refers to the executed contract between Owner and Design-Builder based upon DBIA Document No. 544. Progressive Design-Build Agreement (2019 Edition).

         
         

      2. Basis of Design Documents are those documents specifically listed in the Contract Price Amendment as being the “Basis of Design Documents.”

         
         

      3. Construction Documents are the documents, consisting of Drawings and Specifications, to be prepared or assembled by the Design-Builder consistent with the Basis of Design Documents unless a deviation from the Basis of Design Documents is specifically set forth in a Change Order executed by both the Owner and Design-Builder, as part of the design review process contemplated by Section 2.4 of these General Conditions of Contract.

         
         

      4. Day or Days shall mean calendar days unless otherwise specifically noted in the Contract Documents.

         
         

      5. Design-Build Team is comprised of the Design-Builder, the Design Consultant, and key Subcontractors identified by the Design-Builder.

         
         

      6. Design Consultant is a qualified, licensed design professional who is not an employee of Design-Builder, but is retained by Design-Builder, or employed or retained by anyone under contract with Design-Builder, to furnish design services required under the Contract Documents. A Design Sub-Consultant is a qualified, licensed design professional who is not an employee of the Design Consultant, but is retained by the Design Consultant or employed or retained by anyone under contract to Design Consultant, to furnish design services required under the Contract Documents.

         
         

      7. Final Completion is the date on which all Work is complete in accordance with the Contract Documents, including but not limited to, any items identified in the punch list prepared under Section 6.6.1 and the submission of all documents set forth in Section 6.7.2.

         
         

      8. Force Majeure Events are those events that are beyond the control of both Design-Builder and Owner, including the events of war, floods, labor disputes, earthquakes, epidemics, adverse weather conditions not reasonably anticipated, and other acts of God.

         
         

      9. General Conditions of Contract refer to this modified form of DBIA Document No. 535, Standard Form of General Conditions of Contract Between Owner and Design-Builder (2010 Edition) (© 2010 Design-Build Institute of America).

         
         

      10. Contract Price Amendment means that amendment contemplated by Section 2.3.2.3 of the Agreement. .

          
          

      11. Proposal means that proposal developed by Design-Builder in accordance with Section 2.3

          of the Agreement.

          
          

      12. Hazardous Conditions are any materials, wastes, substances and chemicals deemed to be hazardous under applicable Legal Requirements, or the handling, storage, remediation, or disposal of which are regulated by applicable Legal Requirements.

          
          

      13. Legal Requirements are all applicable federal, state and local laws, codes, ordinances, rules, regulations, orders and decrees of any government or quasi-government entity having jurisdiction over the Project or Site, the practices involved in the Project or Site, or any Work.

          
          

      14. Owner’s Project Criteria are developed by or for Owner to describe Owner’s program requirements and objectives for the Project, including use, space, price, time, site and expandability requirements, as well as submittal requirements and other requirements governing Design- Builder’s performance of the Work. Owner’s Project Criteria may include conceptual documents, design criteria, design performance specifications, design specifications, and LEED® or other sustainable design criteria and other Project-specific technical materials and requirements.

          
          

      15. Site is the land or premises on which the Project is located.

          
          

      16. Subcontractor is any person or entity retained by Design-Builder as an independent contractor to perform a portion of the Work and shall include materialmen and suppliers.

          
          

      17. Sub-Subcontractor is any person or entity retained by a Subcontractor as an independent contractor to perform any portion of a Subcontractor’s Work and shall include materialmen and suppliers.

          
          

      18. Substantial Completion or Substantially Complete means the date on which the Work, or an agreed upon portion of the Work, is sufficiently complete in accordance with the Contract Documents so that Owner can occupy and use the Project or a portion thereof for its intended purposes.

          
          

      19. Work is comprised of all Design-Builder’s design, construction and other services required by the Contract Documents, including procuring and furnishing all materials, equipment, services and labor reasonably inferable from the Contract Documents.

   
   

   Article 2

   Design-Builder’s Services and Responsibilities

   
   

   1. General Services.

      
      

      1. Design-Builder’s Representative shall be reasonably available to Owner and shall have the necessary expertise and experience required to supervise the Work. Design-Builder’s Representative shall communicate regularly with Owner and shall be vested with the authority to act on behalf of Design-Builder. Design-Builder’s Representative may be replaced only with the mutual agreement of Owner and Design-Builder.

         
         

      2. Design-Builder shall provide Owner with a monthly status report detailing the progress of the Work, including (i) whether the Work is proceeding according to schedule, (ii) whether discrepancies, conflicts, or ambiguities exist in the Contract Documents that require resolution, (iii) whether health and safety issues exist in connection with the Work; (iv) status of the contingency

         account to the extent provided for in the Agreement; and (v) other items that require resolution so as not to jeopardize Design-Builder’s ability to complete the Work for the Contract Price and within the Contract Time(s).

         
         

      3. Unless a schedule for the execution of the Work has been attached to the Agreement as an exhibit at the time the Agreement is executed, Design-Builder shall prepare and submit, at least three (3) days prior to the meeting contemplated by Section 2.1.4 hereof, a schedule for the execution of the Work for Owner’s review and response. The schedule shall indicate the dates for the start and completion of the various stages of Work, including the dates when Owner information and approvals are required to enable Design-Builder to achieve the Contract Time(s). The schedule shall be revised as required by conditions and progress of the Work, but such revisions shall not relieve Design-Builder of its obligations to complete the Work within the Contract Time(s), as such dates may be adjusted in accordance with the Contract Documents. Owner’s review of, and response to, the schedule shall not be construed as relieving Design-Builder of its complete and exclusive control over the means, methods, sequences and techniques for executing the Work.

         
         

      4. The parties will meet within seven (7) days after execution of the Agreement to discuss issues affecting the administration of the Work and to implement the necessary procedures, including those relating to submittals and payment, to facilitate the ability of the parties to perform their obligations under the Contract Documents.

         
         

   2. Design Professional Services.

      
      

      1. Design-Builder shall, consistent with applicable state licensing laws, provide through qualified, licensed design professionals employed by Design-Builder, or procured from qualified, independent licensed Design Consultants, the necessary design services, including architectural, engineering and other design professional services, for the preparation of the required drawings, specifications and other design submittals to permit Design-Builder to complete the Work consistent with the Contract Documents. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Design Consultant.

         
         

   3. Standard of Care for Design Professional Services.

      
      

      1. The standard of care for all design professional services performed to execute the Work shall be the care and skill ordinarily used by members of the design profession practicing under similar conditions at the same time and locality of the Project.

         
         

   4. Design Development Services.

      
      

      1. Design-Builder and Owner shall, consistent with any applicable provision of the Contract Documents, agree upon any interim design submissions that Owner may wish to review, which interim design submissions may include design criteria, drawings, diagrams and specifications setting forth the Project requirements. Interim design submissions shall be consistent with the Basis of Design Documents, as the Basis of Design Documents may have been changed through the design process set forth in this Section 2.4.1. On or about the time of the scheduled submissions, Design-Builder and Owner shall meet and confer about the submissions, with Design- Builder identifying during such meetings, among other things, the evolution of the design and any changes to the Basis of Design Documents, or, if applicable, previously submitted design submissions. Changes to the Basis of Design Documents, including those that are deemed minor changes under Section 9.3.1, shall be processed in accordance with Article 9. Minutes of the meetings, including a full listing of all changes, will be maintained by Design-Builder and provided to all attendees for review. Following the design review meeting, Owner shall review and approve the interim design submissions and meeting minutes in a time that is consistent with the turnaround times set forth in Design-Builder’s schedule.

      2. Design-Builder shall submit to Owner Construction Documents setting forth in detail drawings and specifications describing the requirements for construction of the Work. The Construction Documents shall be consistent with the latest set of interim design submissions, as such submissions may have been modified in a design review meeting and recorded in the meetings minutes. The parties shall have a design review meeting to discuss, and Owner shall review and approve, the Construction Documents in accordance with the procedures set forth in Section 2.4.1 above. Design-Builder shall proceed with construction in accordance with the approved Construction Documents and shall submit one set of approved Construction Documents to Owner prior to commencement of construction.

         
         

      3. Owner’s review and approval of interim design submissions, meeting minutes, and the Construction Documents is for the purpose of mutually establishing a conformed set of Contract Documents compatible with the requirements of the Work. Neither Owner’s review nor approval of any interim design submissions, meeting minutes, and Construction Documents shall be deemed to transfer any design liability from Design-Builder to Owner.

         
         

      4. To the extent not prohibited by the Contract Documents or Legal Requirements, Design- Builder may prepare interim design submissions and Construction Documents for a portion of the Work to permit construction to proceed on that portion of the Work prior to completion of the Construction Documents for the entire Work.

         
         

   5. Legal Requirements.

      
      

      1. Design-Builder shall perform the Work in accordance with all Legal Requirements and shall provide all notices applicable to the Work as required by the Legal Requirements.

         
         

      2. The Contract Price and/or Contract Time(s) shall be adjusted to compensate Design- Builder for the effects of any changes in the Legal Requirements enacted after the date of the Agreement affecting the performance of the Work, or if a Guaranteed Maximum Price is established after the date of the Agreement, the date the parties agree upon the Guaranteed Maximum Price. Such effects may include, without limitation, revisions Design-Builder is required to make to the Construction Documents because of changes in Legal Requirements.

         
         

   6. Government Approvals and Permits.

      
      

      1. Except as identified in an Owner’s Permit List attached as an exhibit to the Agreement, Design-Builder shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees required for the prosecution of the Work by any government or quasi- government entity having jurisdiction over the Project.

         
         

      2. Design-Builder shall provide reasonable assistance to Owner in obtaining those permits, approvals and licenses that are Owner’s responsibility.

         
         

   7. Design-Builder’s Construction Phase Services.

      
      

      1. Unless otherwise provided in the Contract Documents to be the responsibility of Owner or a separate contractor, Design-Builder shall provide through itself or Subcontractors the necessary supervision, labor, inspection, testing, start-up, material, equipment, machinery, temporary utilities and other temporary facilities to permit Design-Builder to complete construction of the Project consistent with the Contract Documents.

         
         

      2. Design-Builder shall perform all construction activities efficiently and with the requisite expertise, skill and competence to satisfy the requirements of the Contract Documents. Design-

         Builder shall at all times exercise complete and exclusive control over the means, methods, sequences and techniques of construction.

         
         

      3. Design-Builder shall employ only Subcontractors who are duly licensed and qualified to perform the Work consistent with the Contract Documents. Owner may reasonably object to Design-Builder’s selection of any Subcontractor, provided that the Contract Price and/or Contract Time(s) shall be adjusted to the extent that Owner’s decision impacts Design-Builder’s cost and/or time of performance.

         
         

      4. Design-Builder assumes responsibility to Owner for the proper performance of the Work of Subcontractors and any acts and omissions in connection with such performance. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Subcontractor or Sub-Subcontractor, including but not limited to any third-party beneficiary rights.

         
         

      5. Design-Builder 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, Design-Builder 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.

         
         

      6. Design-Builder shall keep the Site reasonably free from debris, trash and construction wastes to permit Design-Builder 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, Design-Builder 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.

         
         

   8. Design-Builder’s Responsibility for Project Safety.

      
      

      1. Design-Builder recognizes the importance of performing the Work in a safe manner so as to prevent damage, injury or loss to (i) all individuals at the Site, whether working or visiting, (ii) the Work, including materials and equipment incorporated into the Work or stored on-Site or off-Site, and (iii) all other property at the Site or adjacent thereto. Design-Builder assumes responsibility for implementing and monitoring all safety precautions and programs related to the performance of the Work. Design-Builder shall, prior to commencing construction, designate a Safety Representative with the necessary qualifications and experience to supervise the implementation and monitoring of all safety precautions and programs related to the Work. Unless otherwise required by the Contract Documents, Design-Builder’s Safety Representative shall be an individual stationed at the Site who may have responsibilities on the Project in addition to safety. The Safety Representative shall make routine daily inspections of the Site and shall hold weekly safety meetings with Design- Builder’s personnel, Subcontractors and others as applicable.

         
         

      2. Design-Builder and Subcontractors shall comply with all Legal Requirements relating to safety, as well as any Owner-specific safety requirements set forth in the Contract Documents, provided that such Owner-specific requirements do not violate any applicable Legal Requirement. Design-Builder will immediately report in writing any safety-related injury, loss, damage or accident arising from the Work to Owner’s Representative and, to the extent mandated by Legal Requirements, to all government or quasi-government authorities having jurisdiction over safety- related matters involving the Project or the Work.

         
         

      3. Design-Builder’s responsibility for safety under this Section 2.8 is not intended in any way to relieve Subcontractors and Sub-Subcontractors of their own contractual and legal obligations and responsibility for (i) complying with all Legal Requirements, including those related to health

         and safety matters, and (ii) taking all necessary measures to implement and monitor all safety precautions and programs to guard against injuries, losses, damages or accidents resulting from their performance of the Work.

         
         

   9. Design-Builder’s Warranty.

      
      

      1. Design-Builder warrants to Owner that the construction, including all materials and equipment furnished as part of the construction, shall be new unless otherwise specified in the Contract Documents, of good quality, in conformance with the Contract Documents and free of defects in materials and workmanship. Design-Builder’s warranty obligation excludes defects caused by abuse, alterations, or failure to maintain the Work in a commercially reasonable manner. Nothing in this warranty is intended to limit any manufacturer’s warranty which provides Owner with greater warranty rights than set forth in this Section 2.9 or the Contract Documents. Design-Builder will provide Owner with all manufacturers’ warranties upon Substantial Completion.

         
         

   10. Correction of Defective Work.

       
       

       1. Design-Builder agrees to correct any Work that is found to not be in conformance with the Contract Documents, including that part of the Work subject to Section 2.9 hereof, within a period of one year from the date of Substantial Completion of the Work or any portion of the Work, or within such longer period to the extent required by any specific warranty included in the Contract Documents.

          
          

       2. Design-Builder shall, within seven (7) days of receipt of written notice from Owner that the Work is not in conformance with the Contract Documents, take meaningful steps to commence correction of such nonconforming Work, including the correction, removal or replacement of the nonconforming Work and any damage caused to other parts of the Work affected by the nonconforming Work. If Design-Builder fails to commence the necessary steps within such seven

          (7) day period, Owner, in addition to any other remedies provided under the Contract Documents, may provide Design-Builder with written notice that Owner will commence correction of such nonconforming Work with its own forces. If Owner does perform such corrective Work, Design- Builder shall be responsible for all reasonable costs incurred by Owner in performing such correction. If the nonconforming Work creates an emergency requiring an immediate response, the seven (7) day period identified herein shall be deemed inapplicable.

          
          

       3. The one-year period referenced in Section 2.10.1 above applies only to Design-Builder’s obligation to correct nonconforming Work and is not intended to constitute a period of limitations for any other rights or remedies Owner may have regarding Design-Builder’s other obligations under the Contract Documents.

          
          

   11. Access to Port Manatee

       
       

       1. Port Manatee is regulated under the provision of the Maritime Transportation Security Act of 2002 (MTSA). Individuals accessing the port must comply with the provision of the applicable regulations and the associated elements of Port Manatee’s approved Facility Security Plan. These provisions include obtaining a federal Transportation Workers Identification Credential (TWIC), which requires submission to federal security screening. Information on the TWIC enrollment process is available at www.tsa.gov/twic. The cost for TWIC processing is $132.50.

       2. Enroll TWIC into Port Manatee Access Control System. Enrollment into the Access Control System requires the applicant demonstrate verifiable port business. A $20.00 Enrollment fee is required. Additional information is available by contacting Port Manatee Security at 941-722- 6455.

       3. Visitors/Temporary Access: Provisions exist to allow temporary access within Port Manatee’s facilities. These provisions include:

          1. Individuals not possessing a valid TWIC may be granted access under the following conditions: 1) Individuals must apply for access at the Port Manatee Access Control Center prior to entry. Passes will be issued to allow escorted access into the facility. Processing and Escort Fee’s may be required; and 2) Individuals are required to be escorted at all times while on the port. Failure to maintain proper escort is a violation of Federal regulations.

          2. Access Credential Fees:

             1. A processing fee of $132.50 is assessed by the Department of Homeland Security for each individual TWIC credential and is valid for five (5) years from the date of issuance.

             2. A worker with a valid Hazmat Endorsement Threat Assessment Program endorsement may be eligible for a reduced processing fee of $105.25.

             3. The processing fee is subject to change pursuant to Port Manatee Tariff provisions.

             4. A processing fee of $20.00 is assessed in accordance with the Port Manatee Tariff for enrollment of a TWIC into the Access Control System.

             5. A processing fee of $5.00 is assessed for the issuance of temporary access credentials and a $55.00 escort fee is required for individuals requiring a Port Security to conduct a TWIC escort. Provisions to allow the escorting of individuals by other than port security can be arranged by qualified companies on a case by case basis.

   
   

   Article 3

   Owner’s Services and Responsibilities

   1. Duty to Cooperate.

      
      

      1. Owner shall, throughout the performance of the Work, cooperate with Design-Builder and perform its responsibilities, obligations and services in a timely manner to facilitate Design-Builder’s timely and efficient performance of the Work and so as not to delay or interfere with Design- Builder’s performance of its obligations under the Contract Documents.

         
         

      2. Owner shall provide timely reviews and approvals of interim design submissions and Construction Documents consistent with the turnaround times set forth in Design-Builder’s schedule.

         
         

      3. Owner shall give Design-Builder timely notice of any Work that Owner notices to be defective or not in compliance with the Contract Documents.

         
         

   2. Furnishing of Services and Information.

      
      

      1. Unless expressly stated to the contrary in the Contract Documents, Owner shall provide, at its own cost and expense, for Design-Builder’s information and use the following, all of which Design-Builder is entitled to rely upon in performing the Work:

         
         

         1. To the extent available, surveys describing the property, boundaries, topography

            and reference points for use during construction, including existing service and utility lines;

            
            

         2. To the extent available, geotechnical studies describing subsurface conditions, and other surveys describing other latent or concealed physical conditions at the Site;

            
            

         3. Temporary and permanent easements, zoning and other requirements and encumbrances affecting land use, or necessary to permit the proper design and construction of the Project and enable Design-Builder to perform the Work;

            
            

         4. A legal description of the Site;

            
            

         5. To the extent available, record drawings of any existing structures at the Site; and

            
            

         6. To the extent available, environmental studies, reports and impact statements describing the environmental conditions, including Hazardous Conditions, in existence at the Site.

            
            

      2. Owner is responsible for securing and executing all necessary agreements with adjacent land or property owners that are necessary to enable Design-Builder to perform the Work. Owner is further responsible for all costs, including attorneys’ fees, incurred in securing these necessary agreements.

         
         

   3. Not Used.

      
      

      1. Not Used.

         
         

      2. Not Used.

         
         

   4. Owner’s Representative.

      
      

      1. Owner’s Representative shall be responsible for providing Owner-supplied information and approvals in a timely manner to permit Design-Builder to fulfill its obligations under the Contract Documents. Owner’s Representative shall also provide Design-Builder with prompt notice if it observes any failure on the part of Design-Builder to fulfill its contractual obligations, including any errors, omissions or defects in the performance of the Work. Owner’s Representative shall communicate regularly with Design-Builder and shall be vested with the authority to act on behalf of Owner.

         
         

   5. Government Approvals and Permits.

      
      

      1. Owner shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees set forth in the Owner’s Permit List attached as an exhibit to the Agreement.

         
         

      2. Owner shall provide reasonable assistance to Design-Builder in obtaining those permits, approvals and licenses that are Design-Builder’s responsibility.

         
         

   6. Owner’s Separate Contractors.

      
      

      1. Owner is responsible for all work performed on the Project or at the Site by separate contractors under Owner’s control. Owner shall contractually require its separate contractors to cooperate with, and coordinate their activities so as not to interfere with, Design-Builder in order to enable Design-Builder to timely complete the Work consistent with the Contract Documents.

   
   

   Article 4

   Hazardous Conditions and Differing Site Conditions

   
   

   1. Hazardous Conditions.

      
      

      1. Unless otherwise expressly provided in the Contract Documents to be part of the Work, Design-Builder is not responsible for any Hazardous Conditions encountered at the Site. Upon encountering any Hazardous Conditions, Design-Builder will stop Work immediately in the affected area and duly notify Owner and, if required by Legal Requirements, all government or quasi- government entities with jurisdiction over the Project or Site.

         
         

      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 remediated 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.

         
         

      3. Design-Builder 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.

         
         

      4. Design-Builder 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 Design-Builder’s cost and/or time of performance have been adversely impacted by the presence of Hazardous Conditions.

         
         

      5. Not Used.

         
         

      6. Notwithstanding the preceding provisions of this Section 4.1, Owner is not responsible for Hazardous Conditions introduced to the Site by Design-Builder, Subcontractors or anyone for whose acts they may be liable. To the fullest extent permitted by law, Design-Builder shall indemnify, defend and hold harmless Owner and Owner’s officers, directors, employees and agents from and against all claims, losses, damages, liabilities and expenses, including attorneys’ fees and expenses, arising out of or resulting from those Hazardous Conditions introduced to the Site by Design-Builder, Subcontractors or anyone for whose acts they may be liable.

         
         

   2. Differing Site Conditions.

      
      

      1. Concealed or latent physical conditions or subsurface conditions at the Site that (i) materially differ from the conditions indicated in the Contract Documents or (ii) are of an unusual nature, differing materially from the conditions ordinarily encountered and generally recognized as inherent in the Work are collectively referred to herein as “Differing Site Conditions.” If Design- Builder encounters a Differing Site Condition, Design-Builder will be entitled to an adjustment in the Contract Price and/or Contract Time(s) to the extent Design-Builder’s cost and/or time of performance are adversely impacted by the Differing Site Condition. An adjustment in Contract Time for Differing Site Conditions is conditioned on the adjustment being essential to Design- Builder’s ability to complete the Work within the Contract Time.

      2. Upon encountering a Differing Site Condition, Design-Builder shall provide prompt written notice to Owner of such condition, which notice shall not be later than fourteen (14) days after such condition has been encountered. Design-Builder shall, to the extent reasonably possible, provide such notice before the Differing Site Condition has been substantially disturbed or altered.

   
   

   Article 5

   Insurance and Bonds

   
   

   1. Design-Builder’s Insurance Requirements.

      
      

      1. Design-Builder is responsible for procuring and maintaining the insurance for the coverage amounts all as set forth in the Insurance Exhibit D to the Agreement. Coverage shall be secured from insurance companies authorized to do business in the state in which the Project is located, and with a minimum rating set forth in the Agreement.

         
         

      2. Design-Builder’s insurance shall specifically delete any design-build or similar exclusions that could compromise coverages because of the design-build delivery of the Project.

         
         

      3. Prior to commencing any construction services hereunder, Design-Builder shall provide Owner with certificates evidencing that (i) all insurance obligations required by the Contract Documents are in full force and in effect and will remain in effect for the duration required by the Contract Documents and (ii) no insurance coverage will be canceled, renewal refused, or materially changed unless at least thirty (30) days prior written notice is given to Owner. If any of the foregoing insurance coverages are required to remain in force after final payment are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the Final Application for Payment. If any information concerning reduction of coverage is not furnished by the insurer, it shall be furnished by the Design-Builder with reasonable promptness according to the Design-Builder’s information and belief.

         
         

   2. Owner’s Liability Insurance.

      
      

      1. Not Used..

         
         

   3. Not Used.

      
      

      5.3.1

      
      

      1. Not Used.

         
         

      2. Not Used.

         
         

      3. Not Used.

         
         

      4. Not Used.

      
      

   4. Bonds and Other Performance Security.

      
      

      1. If Owner requires Design-Builder to obtain performance and labor and material payment bonds, or other forms of performance security, the amount, form and other conditions of such security shall be as set forth in the Agreement and compliant with section 255.05, Florida Statutes.

      2. All bonds furnished by Design-Builder shall be in a form satisfactory to Owner. The surety shall be a company qualified and registered to conduct business in the state in which the Project is located.

   
   

   
   

   1. Schedule of Values.

      Article 6

      Payment

      
      

      1. Unless required by the Owner upon execution of this Agreement, within ten (10) days of execution of the Agreement, Design-Builder shall submit for Owner’s review and approval a schedule of values for all of the Work. The Schedule of Values will (i) subdivide the Work into its respective parts, (ii) include values for all items comprising the Work and (iii) serve as the basis for monthly progress payments made to Design-Builder throughout the Work.

         
         

      2. The Owner will timely review and approve the schedule of values so as not to delay the submission of the Design-Builder’s first application for payment. The Owner and Design-Builder shall timely resolve any differences so as not to delay the Design-Builder’s submission of its first application for payment.

         
         

   2. Monthly Progress Payments.

      
      

      1. On or before the date established in the Agreement, Design-Builder shall submit for Owner’s review and approval its Application for Payment requesting payment for all Work performed as of the date of the Application for Payment. The Application for Payment shall be accompanied by all supporting documentation required by the Contract Documents and/or established at the meeting required by Section 2.1.4 hereof.

         
         

      2. The Application for Payment may request payment for equipment and materials not yet incorporated into the Project, provided that (i) Owner is satisfied that the equipment and materials are suitably stored at either the Site or another acceptable location, (ii) the equipment and materials are protected by suitable insurance and (iii) upon payment, Owner will receive the equipment and materials free and clear of all liens and encumbrances. The Application for Payment must be accompanied by a bill of sale, invoice, or other documentation warranting that Owner has received the materials and equipment free and clear of all liens, and evidence that the materials and equipment are covered by appropriate property insurance, a warehouse bond, or other arrangements to protect Owner’s interest therein, all of which must be satisfactory to Owner. Design-Builder will furnish evidence that payment received for materials and equipment not incorporated and suitably stored on Site has in fact been paid to the respective supplier(s) in the form of a waiver and release as contemplated by Chapter 713 of the Florida Statutes within 30 days of payment by Owner. Failure to provide such evidence of payment may result in the withdrawal of previous approval(s) and removal of the cost of related materials and equipment from the next submitted Application for Payment.

         
         

      3. All discounts offered by Subcontractor, Sub-Subcontractors and suppliers to Design- Builder for early payment shall accrue one hundred percent to Design-Builder to the extent Design- Builder advances payment. Unless Owner advances payment to Design-Builder specifically to receive the discount, Design-Builder may include in its Application for Payment the full undiscounted cost of the item for which payment is sought.

         
         

      4. The Application for Payment shall constitute Design-Builder’s representation that the Work described herein has been performed consistent with the Contract Documents, has progressed to the point indicated in the Application for Payment, and that title to all Work will pass to Owner free

         and clear of all claims, liens, encumbrances, and security interests upon the incorporation of the Work into the Project, or upon Design-Builder’s receipt of payment, whichever occurs earlier.

         
         

   3. Withholding of Payments.

      
      

      1. On or before the date established in the Agreement, Owner shall pay Design-Builder all amounts properly due. If Owner determines that Design-Builder is not entitled to all or part of an Application for Payment as a result of Design-Builder’s failure to meet its obligations hereunder, it will notify Design-Builder in writing at least five (5) days prior to the date payment is due. The notice shall indicate the deficiency in the payment request, specific amounts Owner intends to withhold, the reasons and contractual basis for the withholding, and the specific measures Design-Builder must take to rectify Owner’s concerns. Design-Builder and Owner will attempt to resolve Owner’s concerns prior to the date payment is due. If the parties cannot resolve such concerns, Design- Builder may pursue its rights under the Contract Documents, including those under Article 10 hereof. Nothing herein is intended to conflict with Florida’s Prompt Payment Act, and any conflict will be resolved in accordance with Florida’s Prompt Payment Act.

         
         

      2. Notwithstanding anything to the contrary in the Contract Documents, Owner shall pay Design-Builder all undisputed amounts in an Application for Payment within twenty-five days after presentation of the Application for Payment (subject to any Owner set-offs).

         
         

   4. Right to Stop Work and Interest.

      
      

      1. If Owner fails to pay timely Design-Builder any amount that becomes due, Design-Builder, in addition to all other remedies provided in the Contract Documents, may stop Work pursuant to Section 11.3 hereof. All payments due and unpaid shall bear interest at the rate set forth in the Agreement.

         
         

   5. Design-Builder’s Payment Obligations.

      
      

      1. Design-Builder will pay Design Consultants and Subcontractors, in accordance with its contractual obligations to such parties, all the amounts Design-Builder has received from Owner on account of their work. Design-Builder will impose similar requirements on Design Consultants and Subcontractors to pay those parties with whom they have contracted. Design-Builder will indemnify and defend Owner against any claims for payment and mechanic’s liens as set forth in Section 7.3 hereof.

         
         

   6. Substantial Completion.

      
      

      1. Design-Builder shall notify Owner 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 Design-Builder’s notice, Owner and Design-Builder will jointly inspect such Work to verify that it is Substantially Complete in accordance with the requirements of the Contract Documents. If such Work is Substantially Complete, Owner shall prepare and issue a Certificate of Substantial Completion 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,

2. provisions (to the extent not already provided in the Contract Documents) establishing Owner’s and Design-Builder’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.

1. Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, Owner shall release to Design-Builder all 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.

   
   

2. 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 6.6.1 above, (ii) Design- Builder and Owner have obtained the consent of their sureties and insurers, and to the extent applicable, the appropriate government authorities having jurisdiction over the Project, and (iii) Owner and Design-Builder agree that Owner’s use or occupancy will not interfere with Design- Builder’s completion of the remaining Work.

   
   

1. Final Payment.

   
   

   1. After receipt of a Final Application for Payment from Design-Builder, Owner shall make final payment by the time required in the Agreement, provided that Design-Builder has achieved Final Completion.

      
      

   2. At the time of submission of its Final Application for Payment, Design-Builder shall provide the following information:

      
      

      1. An affidavit that there are no claims, obligations or liens outstanding or unsatisfied for labor, services, material, equipment, taxes or other items performed, furnished or incurred for or in connection with the Work which will in any way affect Owner’s interests;

         
         

      2. A general release executed by Design-Builder waiving, upon receipt of final payment by Design-Builder, all claims, except those claims previously made in writing to Owner and remaining unsettled at the time of final payment;

         
         

      3. Consent of Design-Builder’s surety, if any, to final payment;

         
         

      4. All operating manuals, warranties and other deliverables required by the Contract Documents; and

         
         

      5. Certificates of insurance confirming that required coverages will remain in effect consistent with the requirements of the Contract Documents.

         
         

   3. Upon making final payment, Owner waives all claims against Design-Builder except claims relating to (i) Design-Builder’s failure to satisfy its payment obligations, if such failure affects Owner’s interests, (ii) Design-Builder’s failure to complete the Work consistent with the Contract Documents, including defects appearing after Substantial Completion and (iii) the terms of any special warranties required by the Contract Documents.

      
      

   4. Deficiencies in the Work discovered after Substantial Completion, whether or not such deficiencies would have been included on the Punch List if discovered earlier, shall be deemed warranty Work. Such deficiencies shall be corrected by Design-Builder under Sections 2.9 and

      2.10 herein, and shall not be a reason to withhold final payment from Design-Builder, provided, however, that Owner shall be entitled to withhold from the Final Payment the reasonable value of completion of such deficient work until such work is completed.

      
      

2. Grants. Some portion of the Contract Price may be paid from the proceeds of a grant, loan or revenue bonds (hereinafter “funding”) obtained by the Owner for this Work and the funding documents may impose certain conditions, limitations, procedures and restrictions. The Design- Builder shall coordinate with the Owner in order to comply with the conditions, limitations,

procedures and restrictions that relate to the delivery of materials, the Work, applications for payment and other matters concerning the administration of the Contract.

Article 7

Indemnification

1. Patent and Copyright Infringement.

   
   

   1. Design-Builder shall defend any action or proceeding brought against Owner based on any claim that the Work, or any part thereof, or the operation or use of the Work or any part thereof, constitutes infringement of any United States patent or copyright, now or hereafter issued. Owner shall give prompt written notice to Design-Builder of any such action or proceeding and will reasonably provide authority, information and assistance in the defense of same. Design-Builder shall indemnify and hold harmless Owner from and against all damages and costs, including but not limited to attorneys’ fees and expenses awarded against Owner or Design-Builder in any such action or proceeding. Design-Builder agrees to keep Owner informed of all developments in the defense of such actions.

      
      

   2. If Owner is enjoined from the operation or use of the Work, or any part thereof, as the result of any patent or copyright suit, claim, or proceeding, Design-Builder shall at its sole expense take reasonable steps to procure the right to operate or use the Work. If Design-Builder cannot so procure such right within a reasonable time, Design-Builder shall promptly, at Design-Builder’s option and at Design-Builder’s expense, (i) modify the Work so as to avoid infringement of any such patent or copyright or (ii) replace said Work with Work that does not infringe or violate any such patent or copyright.

      
      

   3. Sections 7.1.1 and 7.1.2 above shall not be applicable to any suit, claim or proceeding based on infringement or violation of a patent or copyright (i) relating solely to a particular process or product of a particular manufacturer specified by Owner and not offered or recommended by Design-Builder to Owner or (ii) arising from modifications to the Work by Owner or its agents after acceptance of the Work. If the suit, claim or proceeding is based upon events set forth in the preceding sentence,

      
      

   4. The obligations set forth in this Section 7.1 shall constitute the sole agreement between the parties relating to liability for infringement of violation of any patent or copyright.

      
      

2. Tax Claim Indemnification.7.2.1 .Not Used7.3 Payment Claim Indemnification.

7.3.1 Provided that Owner is not in breach of its contractual obligation to make payments to Design-Builder for the Work, Design-Builder shall indemnify, defend and hold harmless Owner from any claims or mechanic’s liens brought against Owner or against the Project as a result of the failure of Design-Builder, or those for whose acts it is responsible, to pay for any services, materials, labor, equipment, taxes or other items or obligations furnished or incurred for or in connection with the Work. Within three (3) days of receiving written notice from Owner that such a claim or mechanic’s lien has been filed, Design-Builder shall commence to take the steps necessary to discharge said claim or lien, including, if necessary, the furnishing of a mechanic’s lien bond. If Design-Builder fails to do so, Owner will have the right to discharge the claim or lien and hold Design-Builder liable for costs and expenses incurred, including attorneys’ fees.

1. Design-Builder’s General Indemnification.

   1. Design-Builder, to the fullest extent permitted by law, shall indemnify, hold harmless and defend Owner, its officers, directors, and employees from and against claims, losses, damages, liabilities, including attorneys’ fees and expenses, for bodily injury, sickness or death, and property damage or destruction (other than to the Work itself) to the extent resulting from the negligent acts or omissions of Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable.

      
      

   2. If an employee of Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable has a claim against Owner, its officers, directors, employees, or agents, Design-Builder’s indemnity obligation set forth in Section 7.4.1 above shall not be limited by any limitation on the amount of damages, compensation or benefits payable by or for Design-Builder, Design Consultants, Subcontractors, or other entity under any employee benefit acts, including workers’ compensation or disability acts.

      
      

2. Sovereign Immunity.

   
   

   1. Notwithstanding the forgoing, Owner is a governmental agency and is entitled to the benefits of Sovereign Immunity and the limited waiver thereof as provided in Florida Statutes, Section 768.28, and common law. Nothing contained in the Agreement (including these General Conditions of Contract) shall be construed as a waiver of any immunity or limitation of liability Owner may be entitled to under the doctrine of Sovereign Immunity or section 768.28, Florida Statutes.

Article 8

Time

1. Obligation to Achieve the Contract Times.

   
   

   1. Design-Builder agrees that it will commence performance of the Work and achieve the Contract Time(s) in accordance with Article 5 of the Agreement.

      
      

2. Delays to the Work.

   
   

   1. If Design-Builder is delayed in the performance of the Work due to acts, omissions, conditions, events, or circumstances beyond its control and due to no fault of its own or those for whom Design-Builder is responsible, the Contract Time(s) for performance shall be reasonably extended by Change Order, subject to Section 8.2.3. By way of example, events that will entitle Design-Builder to an extension of the Contract Time(s) include acts or omissions of Owner or anyone under Owner’s control (including separate contractors), changes in the Work, Differing Site Conditions, Hazardous Conditions, and Force Majeure Events.

      
      

   2. In addition to Design-Builder’s right to a time extension for those events set forth in Section

8.2.1 above, Design-Builder shall also be entitled to an appropriate adjustment of the Contract Price provided, however, that the Contract Price shall not be adjusted for Force Majeure Events unless otherwise provided in the Agreement and Contract Price shall only be increased in accordance with Section 8.2.3.

1. No delay may entitle Design-Builder to an increase of the Contract Price except where (i) Owner acted in bad faith to prevent the progress of Work or (ii) Hazardous Conditions or Differing Site Conditions, verified in writing, prevent the progress of Work. Design-Builder

   acknowledges that in agreeing to the Contract Price, it has assessed the potential impact of the limitations of this section on its ability to recover additional compensation in connection with a Work delay or interference, and Design-Builder agrees that the limitations will apply, regardless of the accuracy of Design-Builder’s assessment or actual costs incurred by Design-Builder in connection with any such delays or interference.

   
   

2. Design-Builder seeking an adjustment in Contract Price or Contract Times under this article must submit such change order request within 30 days of the commencement of the delaying, disrupting, or interfering event.

Article 9

Changes to the Contract Price and Time

1. Change Orders.

   
   

   1. A Change Order is a written instrument issued after execution of the Agreement signed by Owner and Design-Builder, stating their agreement upon all of the following:

      
      

      1. The scope of the change in the Work;

         
         

      2. The amount of the adjustment to the Contract Price; and

         
         

      3. The extent of the adjustment to the Contract Time(s).

         
         

   2. All changes in the Work authorized by applicable Change Order shall be performed under the applicable conditions of the Contract Documents. Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for such changes.

      
      

   3. If Owner requests a proposal for a change in the Work from Design-Builder and subsequently elects not to proceed with the change, a Change Order shall be issued to reimburse Design-Builder for reasonable costs incurred for estimating services, design services and services involved in the preparation of proposed revisions to the Contract Documents.

      
      

   4. Change Orders require approval as an agenda item of the Manatee County Port Authority

      – Board of Commissioners. The Board meets on a monthly basis and changes in Contract Price and Contract Times must account for meeting scheduling accordingly

      
      

2. Work Change Directives.

   
   

   1. A Work Change Directive is a written order prepared and signed by Owner directing a change in the Work prior to agreement on an adjustment in the Contract Price and/or the Contract Time(s).

      
      

   2. Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for the Work Change Directive. Upon reaching an agreement, the parties shall prepare and execute an appropriate Change Order reflecting the terms of the agreement.

      
      

3. Minor Changes in the Work.

   1. Minor changes in the Work do not involve an adjustment in the Contract Price and/or Contract Time(s) and do not materially and adversely affect the Work, including the design, quality, performance and workmanship required by the Contract Documents. Design-Builder may make minor changes in the Work consistent with the intent of the Contract Documents, provided, however, that Design-Builder shall promptly inform Owner, in writing, of any such changes and record such changes on the documents maintained by Design-Builder.

      
      

4. Contract Price Adjustments.

   
   

   1. The increase or decrease in Contract Price resulting from a change in the Work shall be determined by one or more of the following methods:

      
      

      1. Unit prices set forth in the Agreement or as subsequently agreed to between the parties;

         
         

      2. A mutually accepted lump sum, properly itemized and supported by sufficient substantiating data to permit evaluation by Owner;

         
         

      3. Costs, fees and any other markups set forth in the Agreement; or

         
         

      4. If an increase or decrease cannot be agreed to as set forth in items 9.4.1.1 through

         9.4.1.3 above and Owner issues a Work Change Directive, the cost of the change of the Work shall be determined by the reasonable expense and savings in the performance of the Work resulting from the change, including a reasonable overhead and profit, as may be set forth in the Agreement.

         
         

   2. If unit prices are set forth in the Contract Documents or are subsequently agreed to by the parties, but application of such unit prices will cause substantial inequity to Owner or Design-Builder because of differences in the character or quantity of such unit items as originally contemplated, such unit prices shall be equitably adjusted.

      
      

   3. If Owner and Design-Builder disagree upon whether Design-Builder is entitled to be paid for any services required by Owner, or if there are any other disagreements over the scope of Work or proposed changes to the Work, Owner and Design-Builder shall resolve the disagreement pursuant to Article 10 hereof. As part of the negotiation process, Design-Builder shall furnish Owner with a good faith estimate of the costs to perform the disputed services in accordance with Owner’s interpretations. If the parties are unable to agree and Owner expects Design-Builder to perform the services in accordance with Owner’s interpretations, Design-Builder shall proceed to perform the disputed services, conditioned upon Owner issuing a written order to Design-Builder (i) directing Design-Builder to proceed and (ii) specifying Owner’s interpretation of the services that are to be performed. If this occurs, Design-Builder shall be entitled to submit in its Applications for Payment an amount equal to fifty percent (50%) of its reasonable estimated direct cost to perform the services, and Owner agrees to pay such amounts, with the express understanding that (i) such payment by Owner does not prejudice Owner’s right to argue that it has no responsibility to pay for such services and (ii) receipt of such payment by Design-Builder does not prejudice Design- Builder’s right to seek full payment of the disputed services if Owner’s order is deemed to be a change to the Work.

      
      

5. Emergencies.

   
   

   1. In any emergency affecting the safety of persons and/or property, Design-Builder shall act, at its discretion, to prevent threatened damage, injury or loss. Any change in the Contract Price and/or Contract Time(s) on account of emergency work shall be determined as provided in this Article 9.

Article 10

Contract Adjustments and Disputes

1. Requests for Contract Adjustments and Relief.

   
   

   1. If either Design-Builder or Owner believes that it is entitled to relief against the other for any event arising out of or related to the Work or Project, such party shall provide written notice to the other party of the basis for its claim for relief. Such notice shall, if possible, be made prior to incurring any cost or expense and in accordance with any specific notice requirements contained in applicable sections of these General Conditions of Contract. In the absence of any specific notice requirement, written notice shall be given within a reasonable time, not to exceed twenty-one (21) days, after the occurrence giving rise to the claim for relief or after the claiming party reasonably should have recognized the event or condition giving rise to the request, whichever is later. Such notice shall include sufficient information to advise the other party of the circumstances giving rise to the claim for relief, the specific contractual adjustment or relief requested and the basis of such request.

      
      

2. Dispute Avoidance and Resolution.

   
   

   1. The parties are fully committed to working with each other throughout the Project and agree to communicate regularly with each other at all times so as to avoid or minimize disputes or disagreements. If disputes or disagreements do arise, Design-Builder and Owner each commit to resolving such disputes or disagreements in an amicable, professional and expeditious manner so as to avoid unnecessary losses, delays and disruptions to the Work.

      
      

   2. Design-Builder and Owner will first attempt to resolve disputes or disagreements at the field level through discussions between Design-Builder’s Representative and Owner’s Representative which shall conclude within fourteen (14) days of the written notice provided for in Section 10.1.1 unless the Owner and Design-Builder mutually agree otherwise.

      
      

   3. If a dispute or disagreement cannot be resolved through Design-Builder’s Representative and Owner’s Representative, Design-Builder’s Senior Representative and Owner’s Senior Representative, upon the request of either party, shall meet as soon as conveniently possible, but in no case later than thirty (30) days after such a request is made, to attempt to resolve such dispute or disagreement. Five (5) days prior to any meetings between the Senior Representatives, the parties will exchange relevant information that will assist the parties in resolving their dispute or disagreement.

      
      

   4. If after meeting the Senior Representatives determine that the dispute or disagreement cannot be resolved on terms satisfactory to both parties, the parties shall submit within thirty (30) days of the conclusion of the meeting of Senior Representatives the dispute or disagreement to non-binding mediation. The mediation shall be conducted by a mutually agreeable impartial mediator, or if the parties cannot so agree, a mediator designated by the American Arbitration Association (“AAA”) pursuant to its Construction Industry Mediation Rules. The mediation will be governed by and conducted pursuant to a mediation agreement negotiated by the parties or, if the parties cannot so agree, by procedures established by the mediator. Unless otherwise mutually agreed by the Owner and Design-Builder and consistent with the mediator’s schedule, the mediation shall commence within ninety (90) days of the submission of the dispute to mediation.

3. Judicial Resolution of Disputes.

   
   

   1. Should it become necessary to commence an action, judicial or otherwise with respect to any dispute arising out of or related in any way to the Agreement or the Project, sole and exclusive jurisdiction and venue for said action will be in the 12th Judicial Circuit in and for Manatee County, Florida. Each party in any such dispute will be responsible for its own attorney fees incurred in such action. The parties expressly waive any and all rights to trial by jury with respect to any dispute arising from or related to the Agreement or the Project.

      
      

   2. Not Used.

      
      

   3. Not Used.

      
      

   4. Not Used.

      
      

4. Duty to Continue Performance.

   
   

   1. Unless provided to the contrary in the Contract Documents, Design-Builder shall continue to perform the Work and Owner shall continue to satisfy its payment obligations to Design-Builder, pending the final resolution of any dispute or disagreement between Design-Builder and Owner.

      
      

5. CONSEQUENTIAL DAMAGES.

   
   

   1. Not Used

      
      

   2. The consequential damages limitation set forth in Section 10.5.1 above is not intended to affect the payment of liquidated damages or lost early completion bonus, if any, set forth in Article 5 of the Agreement, which both parties recognize has been established, in part, to reimburse Owner or reward Design-Builder for some damages that might otherwise be deemed to be consequential.