Item H7Marine Resources
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: _ 18 May 2000
Bulk Item: Yes No X
Division: Growth Management
Department: Marine Resources
AGENDA ITEM WORDING:
Discussion concerning on -going contract negotiations, including rate structure policy and financing programs,
between the Florida Keys Aqueduct Authority (FKAA) and Ogden Water Systems to construct and operate the Key
Largo Wastewater project.
ITEM BACKGROUND:
The Board of Commissioners (BOCC) supported an RFP to complete a wastewater facility in the Key Largo area.
The RFP allowed either a design -build or a design -build -operate approach focusing on a specific defined area at
approximately mile marker 106. It also allowed a broader project area if the responding firm could provide a
proposal, which made a larger area more feasible, principally on a cost/benefit basis. The BOCC accepted a
proposal from Ogden Water Systems to construct and operate a wastewater facility for all of Key Largo (MM 91 —
MM 106). They also requested that the FKAA begin contract negotiations with Ogden Water Systems to construct
and operate the project.
The FKAA will provide discussion concerning on -going contract negotiations with Ogden and suggest direction to
the BOCC toward approving a contract with the firm. They will discuss the proposed rate structure for the project
and the financing program. They will seek BOCC approval to sign two contracts with Ogden Water Systems (a
construction contract & an operation/maintenance contract) and approval of rate structure policy and a financing
program. FKAA staff will then meet with their board on the 24s' of May to discuss the same items.
PREVIOUS RELEVANT BOARD ACTION:
September 1999 — Approval to let an RFP for a wastewater facility in Key Largo
March 2000 — Approval of the Ogden Water Systems proposal for Key Largo wastewater services
March 2000 — Request to the FKAA to begin contract negotiations with Ogden Water Systems
STAFF RECOMMENDATION:
None
TOTAL COST: _Approx. 59 million BUDGETED: Yes No X
COST TO COUNTY: FEMA Unmet Needs Money potentially
APPROVED BY: County Attorney _NA_
DEPARTMENT DIRECTOR APPROVAL:
DIVISION DIRECTOR APPROVAL:
DOCUMENTATION: Included To follow X Not
DISPOSITION:
Risk Management NA
Agenda Item #:
ine Resources
Management
BC000560.doc
051011001:50 PM
Fforida keys Aqueduct Authority
Presentation Notebook
for
Danny Koh(age
County C%rk
Board of County Commission Meeting
May 18, 2000
Wastewater Treatment and Coffection System
Introduction & Summary Overview................................Tab 1
Proposed Des�qn/Build Contract.....................................Tad 2
Proposed Operation & Maintenance Contract................Tab 3
Proposed sate Structure.................................................Tad 4
Proposed Jinancial Plan................................................Tad .5,,
5110100
Fforida Keys Aqueduct Authority
Presentation Notebook
for
Submission to:
Board of County Commission Meeting
May 18, 2000
Wastewater Treatment and Collection System
— Introduction & Summary Overview................................Tad 1
— Proposed Des qn/Build Contract.....................................Tad 2
— Proposed Operation & Maintenance Contract................Tab 3
— Proposed sate Structure.................................................Tad 4
— Proposed Financial Plan................................................Tad 5
5110100
a A%
Florida Keys
Aqueduct Authority
Post Office Box 1239
1100 Kennedy Drive
Key West, Florida 33041-1239
Telephone (305) 296-2454
MEMORANDUM OF TRANSMITTAL May 9, 2000
TO: JIM ROBERTS, COUNTY ADMINISTRATOR
FROM: ROGER BRAUN, EXECUTIVE DIRECTOR
SUBJECT: BOCC INFORMATIONAL PACKET FOR MAY 18T11 MEETING
1:30 P.M., TIME DEFINITE, GROWTH MANAGEMENT DIVISION
(1) OGDEN/FKAA NEGOTIATED DRAFT CONTRACTS
(A)DESIGNBUILD (B) OPERATION & MAINTENANCE
(2) PROPOSED RATE STRUCTURE
(3) PROPOSED FINANCIAL PLAN
Presenters:
Roger Braun, Executive Director, FKAA
(General)
Bob Feldman, General Counsel, FKAA
(Contracts)
Alan Cummings, Special Counsel, FKAA
(Contracts)
Ogden Corporate Representative(s)
(Contracts)
Rob Orie, Public Resources Management Group, Inc.
(Rate structure)
Toby Wagner, Southeastern Investment Securities, Inc.
(Financial Plan)
Dick Smith, FDEP, State Revolving Loan Fund
(Financial Plan)
Miles Anderson, DCA, FEMA Program
(Financial Plan)
James Reynolds, Deputy Director, FKAA
(Technical data)
Ray Shimokubo, Boyle Engineering
(Technical data)
Attachments:
J. Robert Dean, Chairman
Key West
Thomas R. McDonald
Vice -Chairman
Tavernier
Fred Shaw
Secretary -Treasurer
Big Pine
Albert O. Appell
Duck Key
Linda B. Wheeler
Key West
Roger Braun
Executive Director
l . Summary Overview of FKAA responses to BOCC Resolution 093-2000.
2. Proposed Design/Build Contract & appendices.
5/10/00 currently being presented to Ogden's Board of Directors for consideration of
formal approval.
3. Proposed Operation and Maintenance Contract & appendices.
5110/00 currently being presented to Ogden's Board of Directors for consideration of
formal approval.
4. Proposed Rate Structure Information.
5. Proposed Financial Plan.
6.
Summary: Any procedural changes or scriber changes to the above listed documentation will be
noted and distributed to the BOCC prior to designated time/date for FKAA presentation to the
BOCC.
BRIEF SUMMARY OVERVIEW as of 5/9/00
System Development Fee per EDU: $ Per EDU
1. Residential requiring new connection lines and abandonment of existing system $5,340
2. Commercial requiring new connection lines and abandonment of existing system $5,340
3. Residential currently served by package plant $3,815
4. Commercial currently served by package plant $3,815
EDU = Equivalent Dwelling Unit
One EDU = 167 gallon flow per day average. Based on latest 3 yr. water use average.
All residential water accounts calculate at one EDU.
Each commercial account has the number of EDUs calculated by total water use
divided by the total yearly EDU flow of 167 gallons per day.
Example: 182,865 gal. use per yr. divided by (167 gal. per day x 365 days/60,955 gal.) = 3EDUs
Payment of System Development Fee Options.
1. Pay System Development fee in full within 60 days of receipt of FKAA
Customer Service Agreement
$250 reduction (pay $5,090 in lieu of $5,340)
$175 reduction (pay $3,640 in lieu of $3,815)
2. Pay one half (1/2) System Development fee within 60 days of receipt of
FKAA Customer Service Agreement
$125.00 reduction (pay $2,545 in lieu of $2,670.00) based on $5,340 EDU
$ 87.50 reduction (pay $1,820 in lieu of $1,907.50) based on $3,815 EDU
Finance the remaining one half (1/2) Development Fee @ approx. 4% for 20 years
$2,670.00 financed = $16.18 per mo. Finance charge interest/principal.
$1,907.50 financed = $11.56 per mo. Finance charge interest/principal.
3. Pay zero amount and sign financing agreement for 100% financing.
Available for 20 years @ approx. 4%. Monthly Finance charge includes interest/principal
$5,340 financed = $32.71 per mo. (added to your monthly use billing)
$3,815 financed = $23.12 per mo. (added to your monthly use billing)
Monthly "Base" Rate Structure
Monthly Base Service Charge per EDU residential/commercial includes 2,000 gallon wastewater use.
Residential Base monthly rate (per EDU) $18.64
Commercial Base monthly rate (per EDU) $18.64
Monthly Additional Flow Rate Structure
Residential/Commercial additional flow charge per 1,000 gallons: $1.72 per 1,000 gallons
Residential/Commercial maximum additional flow charge capped at 12,000 gal. per. Mo. per EDU
Installation of Commercial Deduct Flow meters for non -wastewater flow is allowed.
Review/Appeal process for EDU Determination base on previous use calculations available all accts.
Actual Monthly Costs analysis:
Residential Minimum rate per EDU: $18.64 includes 2,000 gallons of flow.
Additional Flow per 1,000 gallons $ 1.72 per 1,000g up to a total of 12,000 gallons.
Average Residential Customer Use is 4,000 gal. $22.08 average customer use bill per EDU
Maximum Residential Monthly Use Charge $35.84 per EDU Residential
Average Residential Max. use w/100% financing $56.49 per EDU Residential
Monthly fee/Maximum use & 100% financing $68.75 per EDU Residential
Commercial Minimum rate per EDU: $18.64
Additional Flow per 1,000 gallons $ 1.72 per 1,000g up to a total of 12,000g/ EDU
Maximum Monthly Use Charge per EDU $35.84 per EDU
Average/maximum Commercial Customer Use varies with the variety of different business enterprises
Individual commercial account breakout available from FKAA. FKAA to contact each business acct.
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TABLE OF CONTENTS
A. Service Area Characteristics ......... 9
B. Rate Application and Structure ....... 13
C. Rate Impact and Comparison .........16
D. Utility Connection Policy ............18
A. Service Area Characteristics
I
• Equivalent Dwelling Unit (EDU)
Usage Characteristics of Typical Single -Family Residence
Is a Basic Industry Standard in Rate Development Typically Related to Flow
Requirements (gallons per day)
Used to Evaluate Customer's Capacity Needs (Service Requirements)
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• EDU = 167 gallons per day (gpd) of use (approximately 5,000
gallons/month)
— Consistent with Service Area Characteristics of Key Largo
Consistent with System Usage Requirements Identified in County's Master Plan
— Comparable with Other Utilities
• Stock Island - 205 gpd
• 'Key West - 140 gpd
• Hillsborough County - 200 gpd.
• Charlotte County - 190 gpd
• Served as a Base for Rate Structure and Rate Application
• EDUs Based on "Customer Class" Capacities
r Individually Metered Single -Family = 1 EDU
Low Income Senior Citizen Residences = 1 EDU
Master Metered Residential (Per -Unit) = 1 EDU
Commercial/Non-Residential Use = Varies Per Account
• Commercial Class Based on Actual Use Example:
Monthly Gallons
Average Monthly Use 10,000 20,000
Average Gallons per Day
(monthly use _ 30 days) 334 668
EDU Factor (gpd) 167 167
Allocated and Billed EDUs 2_0 4_0
• Application Typical with Other Utilities in Florida
• Calculation of EDUs Derived from Last 3 Years Water Use Data Based on
Historical Customer Billing Records (per Account)
• Serves as Basis for Design of Rates and Charges
Development of Rates
• Two Separate Rate Components
System Development and Connection Charges
— Monthly User Charges
12
• System Development and Connection Charges
Recovery of Capital Plant Cost of System
Includes Cost of Treatment, Collection System and On -Site Decommissioning
Costs ($59,257,000)
Includes Financing Costs to Borrow Money to Build System
• Monthly User Charges
— Similar to Monthly Water Usage Charges, but for Wastewater Service
— Recover Cost of Daily Operations
— Includes OWS Contractual Services, FKAA Management Charges, Customer
— Billing, and Allowances for Repairs and Maintenance
• Both Rate Components Must Meet Financial/Operational Needs of
Wastewater System
.r
• Must Recover Revenue Requirements
• Revenue Requirements Include:
— OWS Contract Operations
— FKAA Management Costs (Wastewater/Administration)
— Customer Billing/Accounting Costs
— Loan Repayment Costs
- Loan Covenant Requirements (Debt Service Coverage and Allowance for
Renewals and Replacement)
• Must Operate the Utility as a Business
B. Rate Application and Structure
• System Development/Connection Charges
Recover Capital Costs of Wastewater Program
Capital Costs Include:
• Plant Construction
• Financing Costs
• FKAA Costs to Establish/Implement Program
Capitalization Follows Accounting Principles for Asset Capitalization
13
• Three Cost Components Identified
System Development Fee
• Plant Capacity Charge Component (1st)
• Capital Connection Charge Component (2°d)
• On -Site Connection Component (3`d)
• Identified for Cost Recovery Purposes
• Plant Capacity Charge Component
— First Component of Capital Charges
— Recovers Cost of Wastewater Treatment and Effluent Disposal
— Benefits All users of the System
— Estimated Cost per EDU = $760
• Capital Connection Charge Component
— Second Component of Capital Charges
— Recovers System -Related Transmission/Collection Costs
— Benefit to All Users of the System
— Estimated Cost per EDU = $3,055
• System Development Fee = $3,815
• On -Site Connection Charge Components
— Third Component of Capital Charges
— Recovers Cost of On -Site Treatment System Decommissioning / Disposal
— Provides for Connection of Property to Wastewater System
— Benefit to Users Not Served by Package Plants
— Estimated Cost per EDU = $1,525
• Customers with On -Site Package Plants
Responsible for Decommissioning of Plants
— Responsible for On -Site Collection System Property
Reason for Cost Differential
14
• Cost Comparison (Per EDU)
Custom ers
Customers
with
On -Site
Package
Systems
Plants
System Development Fee
Plant Capacity Charge
$760
$760
Capital Connection Charge
3,055
3,055
Subtotal
3,815
3,815
On -Site Connection Charge
1,525
-
Total Fee
$5,340
$3,815
MonthlyFinance Charge at 4.0%, 20 Years
$32.36
$23.11
r
• Package Plant Customers Responsible for Plant Decommissioning
• Customers Can Pay Up -Front or Elect Installment Payment Method
• Installment Program = 240 Level Monthly Payment
• Will be a Component of Monthly Utility Charge
• Monthly User Charges
— Represents Second Rate (Billing) Component
— Recovers Cost of Operations and Meets Financial Commitments
• User Charge Components
— Base Facility Charge
— Consumption or Usage Charge
— Minimum Bill (includes 2,000 gallons of use)
• Residential and Master Metered Residential Users
— All Customers and Units Billed Same
— Residential Usage Cap of 12,000 Gallons Per Unit
— No Minimum Use Requirement for Low Income Senior Citizen Class
— Consistent with Water Rate Blocks / Application
15
• Commercial Users
— Billed Based on Capacity Need (EDU Basis per Customer)
— All Water Use Billed Wastewater Consumption Charge
All Commercial Customers Treated the Same
C. Rate Impact and Comparison
• Estimated Rates for Service
Minimum Bill $18.64 - per EDU per Month
Consumption Charge $1.72 - per 1,000 gallons
Average Bill $22.08 - TypicalResidential
User Consuming
4,000 Gallons per
Month per EDU
.r
• Average Residential Customers
— Approximates 69% of Estimated EDUs Served
— Single -Family Residences Use Approximately 4,000 Gallons of Water per Month
— Essentially All Indoor Use
— Average Monthly Residential Bill
Minimum Bill Average Bill Maximum Bill
(No Use) (4,000 Gallons) (12,000 Gallons)
$18.64 $22.08 $35.84
• Rates in Addition to System Development Fees / Connection Charges
• Master Metered and Commercial
Based on Number of EDUs Assigned to Account
16
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• Comparison to Initial OWS Estimates
— Preliminary Rate Estimate
• System Development Fee - $2,500 Paid Over 4 Years
• Average Monthly Rate of $35.00/EDU
• Differences in Operating Costs
• Differences in Financing Program
• Differences in Service Area Assumptions
• Comparison to On -Site AWT Systems
• Capital Cost. Amortization
— Assumed Cost to Construct - $13,500
— Monthly Cost (Finance 20 Yrs.@4%) _ $81.80
— Estimated Annual Operating Costs
• License
$150
• Maintenance Agreement
200
• Electricity
360
• Repair/Maintenance/Parts
135
• Brick Chips
100
• Total Annual Operating Costs
$945
— Total Amortized Monthly Costs
$78.75
— Capital Costs Amortization
$81.80
— Total Monthly Cost On -Site System
$160.55
D. Utility Connection Policy
• Authority to Develop Utility Connection and User Charge (Rate) Policy
• Policies Anticipated to Include
— Requirements for Customer Connection (Existing/Future Development)
— Capacity Fees and Rates to be Paid
— Responsibilities of Property Owner
— Method of Billing/Fee Collection
— Appeal Process for EDU Determination
— Allowance for "Deduct" Meters
18
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May 10, 2000
Draft
Key Largo Wastewater Treatment System
DESIGN/BUILD CONTRACT
FKAA Project No. 4004-00
The Florida Keys Aqueduct Authority
;4
Ogden Water Systems of Key Largo, Inc.
Dated , 2000
Table of Contents
ARTICLE 1
Definitions and Identifications
6
ARTICLE 2
Intention of FKAA
12
ARTICLE 3
Contract Documents
13
ARTICLE 4
OGDEN's Representations
15
ARTICLE 5
Scope of Work
16
ARTICLE 6
Contract Price
17
ARTICLE 7
Payment Procedures
18
ARTICLE 8
Contract Time
23
ARTICLE 9
Limited Notice to Proceed
24
ARTICLE 10
OGDEN's Responsibility
26
ARTICLE 11
FKAA's Responsibility
28
ARTICLE 12
Changes in the Scope of Work
29
ARTICLE 13
Field Orders
30
ARTICLE 14
Change Orders
30
ARTICLE 15
Claims
31
ARTICLE 16
Dispute Resolution
33
ARTICLE 17
Assignment & Subcontractors
34
ARTICLE 18
Materials, Equipment, & Machinery
35
ARTICLE 19
Working Plans & Drawings
38
ARTICLE 20
Materials and Machinery
39
Key Largo Wastewater Treatment System 2 of 67
Design/Build Contract
10 May 2000
ARTICLE 21
OGDEN to Check Drawings & Data
40
ARTICLE 22
Security
41
ARTICLE 23
Field Engineering
41
ARTICLE 24
Field Layout of the Work and Record Drawings
41
ARTICLE 25
Inspection of the Project
42
ARTICLE 26
Defective Work
43
ARTICLE 27
Damage to Existing Facilities, Equipment or Utilities
44
ARTICLE 28
Lands for Work
46
ARTICLE 29
Legal Restrictions and Traffic Provisions
48
ARTICLE 30
Safety and Protection
49
ARTICLE 31
Interim Operations
50
ARTICLE 32
Cleaning Up and Removal of Equipment
52
ARTICLE 33
FKAA's Right to Terminate the Contract
52
ARTICLE 34
OGDEN's Right to Stop Work or Terminate the Contract
55
ARTICLE 35
Bonds, Indemnification and Insurance
56
ARTICLE 36
Re -use
63
ARTICLE 37
Miscellaneous Contract Provisions
64
ARTICLE 38
Hurricane Precautions
68
Key Largo Wastewater Treatment System 3 of 67
Design/Build Contract
10 May 2000
APPENDICES
A. Wastewater Management Facilities
B. Guaranty from Ogden Energy Group
C. Performance and Payment Bonds
D. Ogden's Drug Free Workplace Policy
E. Existing Collection Systems
F. Approved Schedule of Values
G. FKAA Approved Conceptual Plans, Drawings, & Specifications
H. Limited Notice to Proceed
I. Notice to Proceed
J. FKAA Purchase Order
K. Schedule of Materials and Machinery for FKAA Purchase
L. Change Order
M. Unilateral Change Order
N. Interim Operations Invoice
O. Certificate of Substantial Completion, Phase I
P. Certificate of Substantial Completion, Project
Q. Certificate of Final Acceptance
R. Affidavit and Partial Release, Monthly Payments
S. Affidavit and Release, Final Payment
T. Final Release, Subcontractors
U. Architectural Design
Key Largo Wastewater Treatment System 4 of 67
Design/Build Contract
10 May 2000
THIS CONTRACT is made and executed on the day of , 2000,
by and between the Florida Keys Aqueduct Authority (hereinafter "FKAA"), and Ogden Water
Systems of Key Largo, Inc. (hereinafter "OGDEN").
WITNESSETH
WHEREAS, Monroe County, Florida ("Monroe County") through the Monroe County
Office of Budget and Management and the Board of Commissioners, authorized the issuance and
publication of a request for proposals dated September 8, 1999, for the design, construction,
operation and maintenance of a wastewater collection system and treatment facilities for Key
Largo, Florida;
WHEREAS, a technical evaluation panel was established by Monroe County and
composed of representatives from the United States Environmental Protection Agency ("EPA"),
the Florida Department of Environmental Protection and other agencies;
WHEREAS, FKAA has the authority to enter into contracts for the design, construction,
improvement, enlargement, operation and maintenance of facilities, such as the Facilities, in
accordance with its bylaws and organizational documents;
WHEREAS, Monroe County authorized FKAA to design, build, own and operate the
Facilities;
WHEREAS, Monroe County, through its Board of Commissioners, requested FKAA to
enter into contract negotiations with OGDEN for the design, construction, operation and
maintenance of the Facilities by its Resolution No. 093-2000, dated February 17, 2000;
WHEREAS, the Facilities will be owned by FKAA and located on land and within
rights -of -way and easements; acquired by FKAA and made available to OGDEN by FKAA;
WHEREAS, FKAA and OGDEN have, consistent with Monroe County's request to
FKAA, negotiated the terms and conditions pursuant to which OGDEN will provide the design,
engineering, construction, equipment, start-up, testing, operation and maintenance of the
Facilities;
WHEREAS, OGDEN will design, construct, equip, start up, test, operate and maintain
the Facilities pursuant to this Contract and an operations and maintenance agreement
("Operations Agreement") to be executed contemporaneously herewith;
WHEREAS, FKAA desires to receive, and OGDEN desires to provide, design,
engineering, construction, operation and maintenance services under the terms of this Contract
and the Operations Agreement;
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NOW, THEREFORE, in consideration of the mutual terms, conditions, covenants and
obligations contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, FKAA and OGDEN agree as follows:
ARTICLE 1
Definitions and Identifications
The following terms, when used in the Contract, have the meaning described.
1.1 Affiliate: Any person, corporation, or other entity directly or indirectly controlling
or controlled by another person, corporation or other entity or under direct or indirect common
control with such person, corporation, or other entity.
1.2 Applicable Law: Each and every law, rule, regulation, requirement, specification,
order, permit, judgment, decree, or ordinance of every kind whatsoever issued by any
government entity, as in effect during the term of this Contract, applicable to or affecting the
Project, this Contract, and all persons engaged in the Work.
1.3 Business Day: Any day that is neither a Saturday nor a Sunday, nor a legal
holiday as designated by the State Legislature or Cabinet as holidays, which include, but are not
limited to, New Year's Day, Martin Luther King's Birthday, Memorial Day, Independence Day,
Labor Day, Veterans' Day, Thanksgiving Day, and Christmas Day.
1.4 Calendar Day: Every day shown on the calendar, ending and beginning at
midnight.
1.5 Change in Law: Any of the following events or conditions having, or which may
reasonably be expected to have, an effect on the performance by the parties of their respective
obligations under this Contract:
(1) The enactment, adoption, promulgation, modification, or repeal after the
Effective Date of any federal, state, or local law, ordinance, code, rule, regulation, or
other similar legislation or an official change in interpretation after the Effective Date, of
any federal, state, or local law, ordinance, code, rule, regulation, official permit, license
or approval by any regulatory entity having jurisdiction with respect to the design,
construction, operation, or maintenance of the Facilities; or
(2) The imposition, after the Effective Date, of any material conditions on the
issuance, modification or renewal of any official permit, license, or other approval
necessary for the design, construction, operation, or maintenance of the Facilities, which
necessitates or makes advisable a capital improvement, modifies OGDEN's guarantees of
the Facilities' performance or establishes requirements with respect to the design,
construction, operation, or maintenance of the Facilities which are more burdensome than
the most stringent requirements: (a) in effect on the Effective Date, or (b) agreed to by
FKAA in any applications for official permits, licenses, or approvals for the Facilities,
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other than any requirements set forth in said applications to comply with future laws,
ordinances, codes, rules, regulations, or similar legislation.
For purposes of part (1) of this definition, no enactment, adoption, promulgation, or modification
of laws, ordinances, codes, rules, regulations, or similar requirement or enforcement policy with
respect to any such requirement shall be considered a Change in Law if, as of the Effective Date,
such laws, ordinances, codes, rules, regulations, or similar requirement would have directly
affected the continued operation and maintenance of the Facilities by FKAA during and after the
Interim Operations Period in the absence of this Contract and either such law, ordinance, code,
rule, regulation, or similar requirement was either officially proposed by the responsible agency
and published in final form in the Federal Register or equivalent federal, state, or local
publication and thereafter becomes effective without further action, or enacted into law,
promulgated or issued as a draft for comments by the appropriate state or local body before the
Effective Date.
1.6 Change Order: A written document issued by FKAA issued by FKAA pursuant
to Article 14 ordering a change in the Facilities, plans, drawings, specifications, Contract Time,
or Contract Price.
1.7 Collection System: All components of the sewer collection system from the point
of connection at the wastewater treatment plant site, including gravity lines, vacuum pits,
vacuum lines, vacuum stations, force mains, and manholes.
1.8 Contract: This entire and integrated Design/Build agreement between FKAA and
OGDEN, which supersedes all prior negotiations, representations, or contracts, either written or
oral.
1.9 Contract Documents: Those documents identified under Article 3.
1.10 Contract Time: The number of calendar days allowed for final completion of the
Project, including authorized time extensions. When the Contract stipulates a final completion
date in lieu of a number of calendar days, the Contract Time is the time from notice to proceed to
the stipulated completion date.
1.11 Drawings: The official drawings, profiles, cross sections, elevations, details, and
other working drawings and supplementary drawings or reproductions thereof, which show the
location, character, dimensions, and details of the Work to be performed.
1.12 EDU: An Equivalent Dwelling Unit equals a 167 flow per day average. FKAA
has estimated the number of EDU's on the Project to be 14,300, but the parties agree that the
number of actual EDU's is subject to revision during the course of the Project. The adjusted
number will be used where the number of EDU's has application in this Contract.
1.13 Effective Date: The date by which the Board of County Commissioners of
Monroe County officially designates a legally obtainable treatment plant site as is required to
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meet the technical performance requirement of the Contract; that date to be no later than June 30,
2000. This contract is contingent upon the occurrence of the Effective Date.
1.14 Equipment: The movable goods, tools, devices, and other apparatuses owned and
supplied by OGDEN as required for the construction and acceptable completion of the Work,
together with the necessary supplies for the upkeep and maintenance thereof, all of which shall
remain the property of OGDEN after final acceptance.
1.15 Facilities: All of the property and rights, both tangible and intangible, that FKAA
owns or uses or subsequently acquires or uses in conjunction with the operation and maintenance
of the wastewater treatment system as constructed under this Contract, including by way of
example and not limitation, the following:
1.15.1 All real property and interests, rights, or uses of real property whether
recorded in the public records or not.
1.15.2 All wastewater facilities, including reuse and reclaimed water, treatment
plants, wells, collection, transmission, distribution, pumping, effluent, vacuum, and
disposal systems of every kind and description, including by way of example and not
limitation, all lift stations, pumps, generators, controls, tanks, sewers rehabilitated under
Appendix E, distribution, collection or transmission facilities, valves, meters, service
connections, and all other physical facilities and subsequent installations used in the
operation of the wastewater treatment system.
1.15.3 All equipment, tools, machinery, parts, inventory, laboratory equipment,
and other personal property used in connection with the operation of the wastewater
treatment system.
1.15.4 All easements and licenses in favor of or otherwise lawfully available to
FKAA.
1.15.5 All surveys and water and wastewater drawings, plans, engineering
designs, blueprints, plans and specifications, maintenance and operating manuals,
engineering reports, calculations, non-proprietary computer models, business records, and
all other information controlled by or in the possession of FKAA or OGDEN (both in
original and electronic formats) that relates to the description and operation of the
wastewater treatment system.
1.15.6 All necessary regulatory approvals subject to all conditions, limitations,
restrictions contained therein; all permits and other governmental authorizations and
approvals of any kind necessary to construct, operate, expand, use and maintain the
wastewater treatment system.
1.16 FDEP: The State of Florida, Department of Environmental Protection.
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1.17 FDOT: The State of Florida, Department of Transportation.
1.18 FKAA: The Florida Keys Aqueduct Authority whose address is 1100 Kennedy
Drive, Post Office Box 1239, Key West, Florida 33041-1239.
1.19 Field Order: A written order issued by FKAA or its Project Representative which
orders minor changes in the Project but which does not involve a change in the terms and
conditions of this Contract, including the total cost or time for performance.
1.20 Final Completion: The date certified by FKAA or its Project Representative in
accordance with Article 25 that all conditions of the permits and regulatory agencies have been
met, all construction, reconstruction, or rehabilitation, including corrective Work, has been
performed and all requirements of the Contract Documents have been completed.
1.21 Hazardous or Toxic Waste: By reason of its composition or characteristics, any
substance or material which under the provisions of Applicable Law is hazardous, toxic, or
poisonous, or any material which could pose a threat to health or safety or cause injury to or
adversely affect the construction of the Project or operation of the Facilities.
1.22 Highway, Street, or Road: A general term denoting a public way for purposes of
vehicular travel, including the entire area within the right-of-way.
1.23 Interim Operations: Operation of less than the entire Facilities prior to substantial
completion of the entire Project.
1.24 Interim Operations Payment: Payment(s) made by FKAA to OGDEN during the
Interim Operation Period in accordance with Article 31.
1.25 Interim Operations Period: The period beginning on the date as certified by
FKAA under Article 31 and ending on the date certified for Substantial Completion of the entire
Project.
1.26 Machinery: Any and all complex devices, tools, facilities, or other apparatuses,
together with the necessary supplies for upkeep and maintenance thereof, that are necessary for
the construction and acceptable completion of the Work; that are to be incorporated into the
Facilities; and that are, or will, become the property of FKAA.
1.27 Material: Any substance to be incorporated into the Work or consumed in the
performance of the Work that will become the property of FKAA upon FKAA's acceptance of
the Project.
1.28 Mobilization: Preparatory work, operations and mobilizing for beginning Work
on the Project, including, but not limited to, those operations necessary for the movement of
personnel, equipment, supplies, and incidentals to the Project Sites and for the establishment of
temporary offices, buildings, safety equipment and first aid supplies, and sanitary and other
facilities. It also includes the cost(s) of bonds and any required insurance and any other
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preconstruction expense necessary for the start of the Work, excluding the costs of construction
materials, equipment, and machinery.
1.29 Notice means a written communication delivered in person, via facsimile, or by
certified or registered mail to be addressed to the last business address known to the person or
entity giving notice and addressed to the following individuals:
FKAA
Executive Director
Deputy Director
Director of Environmental Services
OGDEN
Executive Vice President
General Counsel
Project Manager
1.30 Notice to Proceed: A written notice issued by FKAA or its Project Representative
to OGDEN authorizing the commencement of the Work and the commencement of Contract
Time.
1.30.1 Limited Notice to Proceed: A written notice issued by FKAA or its Project
Representative to OGDEN authorizing the commencement of a portion of the Work as
provided under Article 9, but which does not commence the running of Contract Time.
1.31 OGDEN means Ogden Water Systems of Key Largo, Inc., or its authorized
representative, whose address is: 40 Lane Road, Fairfield, NJ 07007. All references to OGDEN
shall include any and all third parties under contract or control of OGDEN, and all references to
any such third party shall also be deemed to be a reference to OGDEN. OGDEN shall include a
design professional engineering and a design/build firm as set forth in Section 287.005, Florida
Statutes.
1.32 OGDEN's Proposal: The transmittal letter, technical proposal and cost proposal
to design, build, and operate a wastewater collection and treatment system to serve the Key
Largo area of Monroe County, Florida, submitted to Monroe County in response to the Request
for Proposals, together with any addenda thereto and any clarifications and explanations
provided by OGDEN.
1.33 Operations Agreement: The Operations and Maintenance Agreement between
FKAA and OGDEN relating to the Facilities and executed on the Effective Date hereof.
1.34 Qperation: Everything required to be furnished and done for and relating to start-
up and interim operation of the Facilities by OGDEN pursuant to this Contract subsequent to
substantial completion of the Project. Operation shall include the employment and furnishing of
all labor, materials, equipment, supplies, tools, storage, transfer, transportation, insurance,
delivery and other things and services of every kind whatsoever necessary for the full
performance and completion of OGDEN's operation, maintenance, treatment and related
obligations under this Contract, and all of OGDEN's administrative, accounting, record keeping,
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notification and similar responsibilities of every kind whatsoever under this Contract pertaining
to such obligations
1.35 Phase I: The initial portion of the Project consisting of a fully operational
treatment plant, deep injection well, and a minimum of 600 EDU's, preferably the area referred
to as the "Key Largo Hot Spot" in both the RFP and OGDEN's Proposal.
1.36 Phase II: The remainder of the Project to final completion.
1.37 Plans: The official graphic representations of the Project, which, after review and
comment by FKAA, shall become a part of the Contract Documents.
1.38 Project: The design and construction of a wastewater treatment and collection
system(s) to serve the island of Key Largo, Florida, consisting of Phase I and Phase II as defined
herein, between mile markers 91 and 106, including all existing or permitted EDU's within that
area as of October 31, 1999, all in accordance with the provisions of Appendix A; FKAA Project
No. 4004-00.
1.39 Project Representative: An authorized representative of FKAA assigned to make
necessary inspections of materials and Work furnished and performed by OGDEN; to review
applications for payment; drawing, plan, and specification submittals; and to issue Field Orders
as provided in the Contract Documents. FKAA shall provide OGDEN with the identity of its
Project Representative no later than the issuance of the limited notice to proceed.
1.40 Request for Proposals: ("RFP") The documents issued by Monroe County seeking
competitive offers for the design and construction of the Project, including any addenda thereto.
1.41 Roadway: The portion of a highway within the Project.
1.42 Sites: The real property, including all rights -of -way and easements to be obtained
and owned by FKAA upon which the Facilities are to be constructed, consisting of the treatment
plant and the collection systems.
1.43 Specifications: Written technical descriptions of materials, equipment,
machinery, construction systems, standards, and workmanship as applied to the Work and certain
administrative details applicable thereto.
1.44 State: State of Florida
1.45 Subcontractor: The person, firm, or corporation having a direct contract with
OGDEN including one who furnishes material worked to a special design according to the
Contract Documents for this Project, but does not include one who merely furnishes material not
so worked.
1.46 Substantial Completion: The date certified by FKAA or its Project
Representative when all conditions and requirements of permits and regulatory agencies have
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been satisfied by OGDEN and the Work is sufficiently complete in accordance with the Contract
Documents so that the Project (or defined portion of the Project) is available for full-time use by
FKAA for the purposes for which it was intended. Substantial completion shall not be deemed
to have occurred until FKAA or its Project Representative has made an inspection of the
construction to determine the status of completion and a written certificate of substantial
completion has been issued by FKAA. Substantial completion of an operating facility shall be
that degree of completion that has provided a minimum of seven (7) continuous days of
successful, trouble -free operation, which period shall begin after all performance and acceptance
testing has been successfully demonstrated to FKAA, and all permits required to operate the Key
Largo wastewater treatment system have been obtained by OGDEN, including the exploratory
injection well permit, but not the operating injection well permit. All machinery contained in the
Work, plus all other components necessary to enable operation of the Facilities in the manner
that was intended, shall be complete on the substantial completion date.
1.47 Sure : The corporate body that is bound by the Contract Bond as required under
Article 33 with and for OGDEN and is responsible for the performance of the Contract and the
payment of all legal debts pertaining thereto.
1.48 Uncontrollable Circumstance: An event or condition, whether affecting the
Facilities, the Project, FKAA or OGDEN that materially and adversely affects the ability of
either party to perform any obligation under this Contract, if such act, event or condition is
beyond the reasonable control and is not also the result of the willful or negligent action,
inaction, or fault of the party relying thereon as justification for not performing an obligation or
complying with any condition of this Contract. Such acts or events may include, but shall not be
limited to, the following, if they meet the requirements of the foregoing sentence:
1.48.1 an act of God, including a hurricane, landslide, lightning, earthquake,
flood, drought, sabotage, or similar disturbance;
1.48.2 the failure of any Federal, State, public or private utility having
jurisdiction in the area in which the Facilities are located to provide and maintain utilities,
services, water or power transmission lines to the Facilities, which are required for the
construction, start-up, testing, operation, or maintenance of the Facilities;
1.48.3 governmental preemption of materials or services in connection with a
public emergency; and
1.48.4 any illegal activity by a third party that materially interferes with the
construction, operation, or maintenance of the Facilities.
1.49 Wastewater Treatment System(s): The wastewater treatment system(s) shall
include, but not be limited to, the land, easements, rights -of -way, machinery, materials
equipment, structures, buildings, tanks, chemical feed systems, odor control processes,
instrumentation, access roads, buffer provisions, safety and security provisions, fire protection,
emergency and stand-by power generation, disposal, and sewer collection systems, including but
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not limited to land, easements, rights -of -way, buffer provisions, piping, pumps, vacuum
equipment (including valves, pits and tanks) and appurtenances, structures, buildings,
instrumentation, access roads, and power supply.
1.50 Work: All labor, materials, tools, appliances, machinery, transportation and
incidentals required to execute and complete the requirements of the Contract Documents and
such additional items not specifically indicated or described which can be reasonably inferred as
belonging to the item described or indicated and as required by good practice to provide a
complete and satisfactory system or structure, including superintendence, use of equipment and
tools, decommissioning on -site wastewater treatment and disposal systems, excluding facilities
otherwise permitted by FDEP, in accordance with the Applicable Laws, and all services and
responsibilities prescribed or implied. As used herein, the term "provide" shall be understood to
mean "furnish, install, complete and in place."
ARTICLE 2
Intention of FKAA
It is the intent of FKAA to combine into a single contract the design, construction,
construction engineering, interim operations and other related requirements for this Project in
accordance with the Contract Documents and the Applicable Laws. It is the intent of FKAA to
require OGDEN to design and build a wastewater treatment system(s) to serve the designated
areas of Key Largo. The Project shall be constructed in two phases, Phase I and Phase 11. This
Project must be implemented on a "fast track" schedule, with Phase I fully operational within
nine hundred and thirteen (913) calendar days of issuance of the notice to proceed, and with
Phase H fully operational within one thousand and ninety-five (1095) calendar days of issuance
of the notice to proceed. The Contract Documents are intended to describe a functionally
complete Project to be designed and constructed by OGDEN in accordance with the Applicable
Laws. OGDEN will supply any Work, equipment, machinery or materials that may reasonably
be inferred from the Contract Documents or from prevailing custom or trade usage in the
wastewater treatment industry as being required to produce the intended result, whether or not
specifically called for in the Contract Documents. When words, which have a well-known
technical or trade meaning, are used to describe work, equipment, materials or machinery, such
words shall be interpreted in accordance with that meaning. Reference to the Florida
Department of Transportation and other specifications, manuals or codes or any governmental
authority, whether such reference is specific or by implication, shall mean the standard
specification, manual, code, laws or regulations in effect at the time of the date of the execution
of this Contract.
ARTICLE 3
Contract Documents
3.1 The Contract Documents shall be followed in strict accordance as to Work,
material, machinery and dimensions except when FKAA may direct otherwise by means of
written Change Order.
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3.2 Dimensions given in figures are to hold preference over scaled measurements
from the drawings; however, OGDEN shall decide upon all discrepancies. OGDEN shall not
proceed when in doubt as to any dimension or measurement but shall seek clarification from
FKAA or its Project Representative.
3.3 OGDEN shall maintain four (4) copies of the drawings, plans, and specifications,
two (2) of which shall be preserved and always kept accessible to FKAA or its Project
Representative. One set shall be marked to reflect the current as -built condition of the progress
of construction.
3.4 Listed in order of authority in the event of a discrepancy, the Contract Documents
include:
3.4.1 Change Orders mutually agreed to by both parties
3.4.2 The Contract
3.4.3 Department of Environmental Protection Supplementary Conditions
3.4.4 Change Orders issued unilaterally by FKAA
3.4.5 The FKAA approved conceptual plans, drawings, and specifications as
submitted by OGDEN during the limited notice to proceed period. A copy of FKAA
approved plans, drawings, and specifications shall be set forth as Appendix G prior to
issuance of the full Notice to Proceed.
3.4.6 Performance and Payment Bonds and Insurance
3.4.7 Field Orders
3.4.8 The Request for Proposals including any Addenda
3.4.9 OGDEN's Proposal, but only where consistent and compliant with the
RFP and sub -article 3.4.5 above, including clarifications and explanations provided to the
Technical Evaluation Panel.
ARTICLE 4
OGDEN's Representations
OGDEN makes the following representations:
4.1 OGDEN has thoroughly and carefully examined and studied the Contract
Documents.
4.2 OGDEN has visited the area of the Project and investigated the conditions to be
encountered, as to the character, quality, and quantities of Work to be performed, and has
become familiar with and is satisfied as to the Work, locality, topography, soil conditions,
weather and other conditions that may affect cost, progress, timely performance, or furnishing of
the Work.
4.3 OGDEN is familiar with and is satisfied as to all Applicable Laws that may affect
cost, progress, performance, or furnishing of the Work.
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4.4 OGDEN has or will, at its own expense, made or obtained any additional
examinations, investigations, explorations, tests and studies and obtained any additional
information and data which pertain to the physical conditions (surface, subsurface and
underground facilities) at or contiguous to the Sites or otherwise which may affect cost, progress,
performance or furnishing of the Work.
4.5 Although the Sites have not been selected by Monroe County as of the execution
of this Contract, OGDEN has correlated the information known to it, information and
observations obtained from visits to the proposed Sites and the Key Largo area, mile markers 91
through 106, reports and drawings identified in the Contract Documents and all additional
examinations, investigations, explorations, tests, studies, and data within the Contract
Documents and satisfied itself of the locality, topography, soil conditions, weather and other
conditions that may affect cost, progress, timely performance, or furnishing of the Work, and that
there are no conflicts, errors or discrepancies in the Contract Documents in existence as of the
Effective Date. Should Monroe County select a treatment plant site between mile markers 91 and
106, OGDEN will be entitled to no additional compensation for any additional costs that may
arise from that selection except as otherwise provided in Article 28.
4.6 OGDEN agrees that the Contract Documents are generally sufficient to indicate
and convey understanding of all terms and conditions for performance and furnishing of the
Work.
4.7 OGDEN represents that it has complied with every requirement of this Article 4
and, in doing so, has satisfied itself that the Contract Price is just and reasonable compensation
for all the Work, including all foreseen and unforeseen risks, hazards, and difficulties in
connection therewith, including any conditions encountered below the surface of the ground
which may be at variance with the conditions indicated in the Contract Documents or the other
information available to OGDEN. OGDEN shall not increase the Contract Price except as may
occur through operation of this Contract.
4.8 FKAA shall have no responsibility to the extent the design of the Project is
insufficient or incapable of performance, and any modification to the Work made necessary by
the condition of the Project Sites, subsurface conditions, any conditions encountered in the
performance of the Work or otherwise. OGDEN shall not increase the Contract Price except as
may occur through operation of this Contract.
ARTICLE 5
Scope of Work
5.1 OGDEN hereby agrees to complete the Project described by the Contract
Documents, including but not limited to obtaining and furnishing permits, engineering and land
surveying services, labor, materials, machinery, equipment, and other services necessary to
perform all of the Work to be constructed in accordance with the requirements and provisions of
the Contract Documents, Applicable Laws, FDOT and FDEP standards and regulations (where
applicable).
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5.2 OGDEN agrees to meet regularly with FKAA or its Project Representative at
reasonable times and upon reasonable notice.
5.3 OGDEN will develop from the RFP and its Proposal, conceptual plans, drawings,
and specifications, which will be provided to FKAA during the limited notice to proceed, and
which will be subject to review, comment, and approval by FKAA or its Project Representative.
The reviews will cover constructability, maintenance of traffic, and safety; and the plans,
drawings and specifications provided to FKAA under Article 9 shall meet or exceed the
standards noted in the RFP and all Applicable Laws. All such documents shall become a part of
the Contract Documents after they are provided by OGDEN, and upon review and approval by
FKAA.
5.3.1 OGDEN shall submit to FKAA prior to any proposed road or lane closure,
a Maintenance of Traffic Plan ("MOT Plan") that shows the scheme(s) that is intended
for use on the Project. Any MOT Plan for this Project, including requests for lane
closures, must be approved by FDOT prior to implementation. Any MOT Plan must
include appropriate signage, barricades and/or temporary striping in accordance with the
Florida Department of Transportation Roadway and Traffic Design Standards and/or the
Manual on Uniform Traffic Control Devices, Part VI, Standards and Guides for Traffic
Controls for Street and Highway Construction, Maintenance, Utility, and Incident
Management Operations. It shall be OGDEN's responsibility to determine the traffic
control requirements of the public agencies having jurisdiction of the Project area and
satisfy itself that the Contract Price is just and reasonable compensation for all costs
incurred or to be incurred in the proper maintenance, control, detour and protection of
traffic. No claims for additional compensation will be considered for costs incurred in
the maintenance, control, detour and protection of traffic.
5.4 OGDEN shall plan, record, and update the design and construction schedule of
the Project utilizing the Critical Path Method (CPM) of scheduling and software for Windows or
such other type of cost loaded schedule. The schedule shall show the various activities of Work
in sufficient detail to demonstrate that OGDEN has a reasonable and workable plan to complete
the Project within the Contract Time. The schedule shall show the order and interdependence of
activities and the sequence in which the Work is to be accomplished as planned by OGDEN. All
activities are to be described so that the Work, including EDU connections, is readily identifiable
and the progress on each activity can be readily measured.
5.4.1 OGDEN shall prepare and submit for FKAA or its Project
Representative's concurrence the Initial Project Schedule in accordance with Article 9,
and it shall be updated monthly based on percentage completion and submitted to FKAA
or its Project Representative as part of each pay request.
5.4.2 In addition, OGDEN shall, as requested by FKAA or its Project
Representative, prepare and submit other necessary schedules (all of which are
hereinafter referred to as "Project Schedule") in the interest of completing the Project in
the most expeditious and economical manner.
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5.4.3 If the Contract Time has been substantially changed as a result of time
extensions, FKAA or its Project Representative may request a revised Project Schedule.
The revised Project Schedule shall indicate percent completed, measured in dollars and
based upon the most recent Project Schedule. If satisfactory, the Revised Project
Schedule will become the basis for measurement of progress.
5.4.4 All schedule submittals shall be accompanied by a copy of the schedule
files on a DOS compatible 3.5" diskette.
5.5 OGDEN shall prosecute the Work in accordance with the latest approved Project
Schedule.
ARTICLE 6
Contract Price
6.1 FKAA hereby agrees to pay OGDEN for the faithful performance of this
Contract, subject to additions and deductions as provided for in this Contract, the sum of Fifty
Nine Million, Two Hundred Fifty Seven Thousand Dollars ($59,257,000.00) ("Contract Price").
6.2 The Contract Price shall expressly include all costs incurred in the performance of
the Work, including without limitation, the following items:
6.2.1 All labor directly on OGDEN's payroll used in the performance of the
Work on the Project Sites, including social security, fringe benefits and all taxes related
thereto;
6.2.2 Salaries of OGDEN's employees stationed at the field office, in whatever
capacity employed, including employees engaged at shops or on the road, in expediting
the production or transportation of material to be used in the performance of the Work;
6.2.3 Sales and use taxes, excluding those paid directly by FKAA pursuant to
Article 20, permit fees, permit renewal fees, laboratory certification fees, royalties, and
other taxes mandated by the Applicable Laws.
6.2.4 Losses, approved claims and expenses not compensated by insurance or
otherwise, sustained by OGDEN in connection with the Work, including but not limited
to any settlements made with the written consent and approval of FKAA;
6.2.5 Expenses incurred at the Project Sites for telegrams, telephone service,
and express mail;
6.2.6 Materials, machinery, supplies, equipment, transportation and all other
costs required for the proper execution of the Work;
6.2.7 The amounts paid by OGDEN to all Subcontractors for Work performed;
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6.2.8 Premiums on all bonds and insurance policies obtained by OGDEN in the
discharge of its obligations under the Contract;
6.2.9 Cost of removal of all trash and debris;
6.2.10 Costs incurred due to an emergency affecting the safety of persons or
property;
6.2.11 Travel expenses incurred by OGDEN's employees, agents and/or
representatives in connection with the Work;
6.2.12 The portion of the salaries and benefits of any officer or executive of
OGDEN or persons employed in the main office of OGDEN associated with the
execution of the Work;
6.2.13 Overhead or general expenses incurred at OGDEN's home office in
conjunction with the execution of the Work; and
6.2.14 Interest on capital employed in equipment or in expenditures on the Work.
6.2.15 All required testing, inspection, and permitting of the Facilities.
ARTICLE 7
Payment Procedures
7.1 OGDEN shall be compensated for its Mobilization as follows:
7.1.1 Beginning with FKAA's issuance of the Limited Notice to Proceed, and
concluding upon the expiration of the ninety day design/review/approval period, OGDEN
shall be paid as mutually agreed and identified on the schedule of values, to be attached
and included as a contract document.
7.1.2 Beginning with FKAA's issuance of the Full Notice to Proceed, and
concluding with the earlier expiration of one hundred and twenty (120) calendar days, or
the acquisition by OGDEN of the first FDEP permit, OGDEN shall be paid as mutually
agreed and identified on the schedule of values, to be attached and included as a contract
document.
7.1.3 Beginning with the conclusion of the period identified in 7.1.2 above,
OGDEN shall be paid the remainder of its Mobilization costs on a pro-rata basis, in
accordance with subsequent FDEP permit acquisitions.
7.2 All other payments that shall become due after issuance of the full notice to
proceed under Article 9 shall be paid pursuant to the parties' approved schedule of values
attached to this Contract as Appendix F. OGDEN shall submit to FKAA or its Project
Representative on the twentieth (20`h) day of each month, beginning with the first month after the
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full notice to proceed, OGDEN's application for payment, together with OGDEN's updated
schedule, an updated schedule of values for the Work performed, and an affidavit stating that all
previous payments received on account of the Work performed on the Project have been applied
in full to discharge OGDEN's responsibility associated with prior applications for payment
(Appendix R). Payment to OGDEN shall be based upon earned values developed from the
Proj ect's latest schedule and the schedule of values as certified by OGDEN and approved by
FKAA or its Project Representative.
7.2.1 No payment will be considered or approved for construction work
performed on the following items prior to OGDEN obtaining the required FDEP permits:
(1) treatment plant; (2) injection deep well; (3) vacuum basins; or (4) US 1 force main.
Upon obtaining the applicable FDEP permit for each item, OGDEN shall be paid in
accordance with this Article for the Work performed pursuant to that permit.
7.3 FKAA's Project Representative will, within seven (7) business days after receipt
of each application for payment, either indicate in writing a recommendation of payment and
present the request to FKAA, or return the request to OGDEN indicating in writing the reasons
for refusing to recommend payment. In the latter case, OGDEN may, within seven (7) business
days, make the necessary corrections and resubmit the request.
7.4 FKAA's Project Representative's recommendation that the application be paid
will constitute a representation by FKAA's Project Representative to FKAA, based on the
Project Representative's on -site observations of the executed Work, review of the application for
payment and the accompanying data and schedules, that to the best of the Project
Representative's knowledge, information and belief:
(1) The Work has progressed to the point indicated;
(2) The quality of the Work is generally in accordance with the Contract
Documents (subject to an evaluation of the Work as a functioning whole prior to or upon
Substantial completion, to the results of any subsequent tests called for in the Contract
Documents, and to any other qualifications stated in the recommendation); and
(3) The conditions precedent to OGDEN being entitled to such payment
appear to have been fulfilled insofar as it is the Project Representative's responsibility to
observe the Work.
However, by recommending any such payment, FKAA or its Project Representative will not
thereby be deemed to have represented that: (i) exhaustive or continuous on -site inspections
have been made to check the quality or the quantity of the Work beyond the responsibilities
specifically assigned to FKAA's Project Representative, or (ii) that there may not be other
matters or issues between the parties that might entitle FKAA to withhold payment to OGDEN.
7.5 FKAA's Project Representative may refuse to recommend the whole or any part
of any payment to OGDEN if, in its determination, it would be incorrect to make the
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representations to FKAA referred to in paragraph 7.4. FKAA or its Project Representative may
also refuse to recommend the whole or part of any such payment to OGDEN, or nullify any such
payment previously recommended, to such extent as may be necessary in FKAA's Project
Representative's determination to protect FKAA from loss because:
7.5.1 The Work is defective, or completed Work has been damaged requiring
correction or replacement;
7.5.2 Written claims have been made against FKAA or liens have been filed in
connection with the Work;
7.5.3 A Change Order has reduced the Contract Price;
7.5.4 FKAA has been required to correct defective Work or complete Work
pursuant to Article 26;
7.5.5 OGDEN is prosecuting the Work substantially behind schedule or not in
accordance with the Contract Documents;
7.5.6 OGDEN has failed to make payment to Subcontractors or for labor,
materials, machinery, or equipment, except where OGDEN's non-payment is pursuant to
the applicable subcontract or agreement, or OGDEN has otherwise presented a
meritorious defense to any claim for non-payment;
7.5.7 Claims have been made against FKAA on account of OGDEN's
performance or furnishing of the Work;
7.5.8 Liens have been filed in connection with the Work, except where OGDEN
has delivered a specific bond satisfactory to FKAA to secure the satisfaction and
discharge of such liens;
7.5.9 The occurrence of any of the events or circumstances entitling FKAA to
terminate the Contract under Article 33; or
7.5.10 Any other event or occurrence by OGDEN which could result in loss to
FKAA or which entitles FKAA to withhold monies otherwise due to OGDEN.
7.6 FKAA may, and reserves the right to, withhold all or part of any monthly
payment(s). If the Executive Director of FKAA determines that OGDEN has failed to fulfill any
material obligation, or that OGDEN has repeatedly and persistently failed to fulfill any
obligation, FKAA will provide OGDEN with written notice of its intent to withhold all or part of
any payment related to work in the particular vacuum basin, the treatment plant, the deep
injection well, or the US 1 force main, within which the disputed item(s) are located. OGDEN
shall have ten (10) calendar days from its receipt of the notice from FKAA to commence the
remedy of its failure, and shall not receive payment until OGDEN has promptly performed the
obligation.
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7.7 Upon receipt and approval of a properly submitted and accurate application for
payment, and further provided that FKAA has not exercised its right to withhold payment under
the Contract Documents, FKAA shall make payment to OGDEN of the amount approved within
sixty (60) calendar days, but in each case the payment shall not include the total of payments
previously made or amounts properly withheld by FKAA under the Contract Documents.
7.8 FKAA will deduct from the application for payment, and retain as part security,
ten percent (10%) of amount earned for Work satisfactorily completed. A deduction in retainage
of ten percent (10%) will be made on the amount of the application for payment for approved
items of material and machinery delivered to and properly stored at the jobsite but not
incorporated into the Work. When the Work is fifty percent (50%) complete pursuant to
OGDEN's most recent project schedule, and at the written request of OGDEN, FKAA may
reduce the retainage to five percent (5%) of the dollar value of all Work satisfactorily completed
to date, provided that OGDEN is making satisfactory progress and there is no specific cause for a
greater retainage. Such reduction shall not apply to the rate of retainage to be held with respect
to Work completed thereafter. FKAA may reinstate the retainage up to ten percent (10%) if
FKAA determines, in its reasonable discretion, that OGDEN is not making satisfactory progress
if there is other specific cause for such withholding.
7.8.1 After FKAA has certified that OGDEN has attained substantial
completion on the entire Project; FKAA may release payment to OGDEN reducing
retainage withheld to the reasonable value of all remaining or incomplete items of Work
as noted in the Certificate of Substantial Completion.
7.8.2 Any retainage remaining will be paid to OGDEN upon attaining Final
Completion and upon OGDEN fulfilling all requirements contained in the Contract
Documents for Final Payment.
7.8.3 Any reduction in retainage shall be at FKAA's discretion and OGDEN
shall have no entitlement to a reduction of the same. Nothing in this section shall
prohibit FKAA from withholding monies due OGDEN as provided for elsewhere in this
Contract.
7.9 Upon Final Completion of all of the Work, OGDEN shall submit to FKAA its
final application for payment, along with evidence satisfactory to FKAA that all payrolls,
material bills, Subcontractors, and all other costs incurred by OGDEN in connection with the
construction of the Project have been paid in full. OGDEN shall also deliver to FKAA all
warranties, guarantees, operational manuals, and instructions at this time. As -built drawings
must be completed before Final Payment can be made by FKAA. Upon approval of the final
application for payment by FKAA, FKAA shall make full and final payment on account of this
Contract within ninety (90) calendar days of receipt and approval of OGDEN's final Application
for Payment and other documents as required by the Contract Documents, and after completion
of the final inspection as defined in Article 25. Approval of the final application for payment by
FKAA shall require approval by FKAA's Board of Directors.
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7.9.1 FKAA reserves the right to withhold from the final payment any disputed
amounts between OGDEN and FKAA. FKAA will release all other amounts due as
provided herein.
7.10 The acceptance by OGDEN of the final payment shall constitute a waiver of all
claims by OGDEN and shall release FKAA from all claims and all liability to OGDEN for all
things done or furnished in connection with the Work and for every act of FKAA and others
relating to or arising out of the Work. No payment, however, final or otherwise, shall operate to
release OGDEN or its Sureties from obligations under this Contract, the Performance and
Payment Bond(s), and other bonds and warranties as herein provided.
7.11 If through no fault of OGDEN, FKAA delays making payment for more than
sixty (60) days from the date that FKAA approves OGDEN's application for payment in
accordance with this Article, FKAA will pay interest at a rate of six percent (6%) per annum for
each calendar day thereafter. No other interest on monies owed will be allowed.
7.12 Nothing contained in this Article shall be construed to affect the right, hereby
reserved to FKAA, to reject the whole or any part of the Work, in the event that such Work is
later found not to comply with the provisions of the Contract. Payment by FKAA and
acceptance by OGDEN of partial payment based on periodic estimates of progress of Work
performed shall not, in any way, constitute acceptance of the estimate of progress used as the
basis for computing the amounts of the partial payments.
ARTICLE 8
Contract Time
8.1 FKAA shall instruct OGDEN to proceed with the Work by a written, full notice to
proceed, which shall not be provided to OGDEN prior to the date Monroe County has secured
the right to perform Work on the treatment plant site, and FKAA has completed its review,
comment, and approval of OGDEN's conceptual design under Article 9. The Contract Time shall
commence on the date specified in the full notice to proceed.
8.2 It shall be OGDEN's responsibility to determine any work hour and/or noise
limitation or requirement of the public agencies having jurisdiction over the Project area,
including without limitation FKAA, Monroe County, FDEP, and FDOT, and to satisfy itself that
the Contract Price is just and reasonable compensation for all costs incurred or to be incurred as
a result of such limitation or requirement. No claims for additional payment or additional time
will be considered for costs incurred as a result of any such work hour or noise limitation or
requirement.
8.3 OGDEN and FKAA mutually agree that time is of the essence with respect to the
dates and times set forth in the Contract Documents.
8.4 OGDEN understands that if substantial completion is not attained by the dates
scheduled for substantial completion, FKAA will suffer damages that are difficult to determine
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and accurately specify. OGDEN agrees that if substantial completion of Phase I is not obtained
by earliest possible time and in no event longer than nine hundred and thirteen (913) calendar
days after issuance of the full notice to proceed, OGDEN shall pay FKAA two thousand dollars
($2,000.00) per calendar day as liquidated damages for each day that substantial completion of
Phase I is delayed.
8.5 OGDEN agrees that if substantial completion of Phase II is not obtained by the
earliest possible time and in no event longer than one thousand and ninety five (1095) calendar
days after issuance of the full notice to proceed, OGDEN shall pay FKAA liquidated damages
for each day that substantial completion of Phase II is delayed as follows:
8.5.1 The base liquidated damages amount of fifteen thousand ($15,000.00)
dollars per calendar day;
8.5.2 The base liquidated damages amount shall be reduced on the thirtieth (30)
calendar day of each month during the Interim Operations Period by the percentage of
EDU's that OGDEN has acceptably connected to the Facilities. The number of EDU's
acceptably connected to the Facilities shall be the same number agreed to by FKAA in
computing the Interim Operations Payment amount under Article 31.
8.6 OGDEN understands that after substantial completion of Phase II is attained,
should OGDEN neglect, refuse, or fail to complete the remaining Work and achieve final
completion of the entire Project within sixty (60) calendar days, FKAA will suffer damages that
are difficult to determine and accurately specify. OGDEN therefore agrees that if Final
Completion is not attained for the entire Project within sixty (60) calendar days of OGDEN
obtaining substantial completion of Phase II, OGDEN shall pay FKAA five hundred dollars
($500.00) per calendar day after the scheduled final completion date as liquidated damages.
8.7 These amounts are not penalties, but are liquidated damages to FKAA. The
liquidated damages are hereby fixed and agreed upon between the parties, recognizing the
impossibility of precisely ascertaining the amount of damages that will be sustained by FKAA as
a consequence of such delay, and both parties desiring to alleviate any question or dispute
concerning the amount of said damages and the cost and effect of OGDEN's failure to complete
the Project, and each phase thereof, on time.
8.8 FKAA has the right to apply as payment on any such liquidated damages any
money FKAA owes OGDEN.
ARTICLE 9
Limited Notice To Proceed
9.1 On the Effective Date, FKAA shall issue OGDEN a limited notice to proceed,
authorizing OGDEN to commence with the design, scheduling, submittal, and other portions of
the Work, other than actual construction. The limited notice to proceed shall not commence
Contract Time.
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9.2 After issuance of the limited notice to proceed, OGDEN shall have sixty (60)
calendar days in which to complete the following, which shall collectively constitute the basis of
design:
9.2.1 The initial project schedule in accordance with Article 5;
9.2.2 Major Subcontractor List in accordance with Article 17;
9.2.3 The Material, Equipment, and Machinery List in accordance with Article
U.
9.2.4 The identity and location of all real property, easements, and right-of-
ways that will be necessary and essential to construct the Project, in accordance with
Article 28.
9.2.5 Aerial and Ground Surveys
9.2.6 Plant hydraulic profile
9.2.7 Plant process flow diagram
9.2.8 Elevation of treatment plant buildings
9.2.9 Typical vacuum station layout
9.2.10 Typical vacuum station elevation
9.2.11 Conceptual and Preliminary plans, drawings, and specifications in
accordance with Section 18,
9.2.12 Standard manufacturer drawings and specifications for all major items of
machinery and materials as requested by FKAA upon review of OGDEN's submittal
under Section 9.2.3.
9.3 After the expiration of the sixty (60) calendar day design and submittal period,
provided in Section 9.2, FKAA shall have a minimum of thirty (30) calendar days to review,
comment, and approve the documents and other information submitted by OGDEN under this
Article.
9.4 FKAA shall review these designs and submittals for content, and promptly make
any comments, objections, or approvals it may have thereto in writing to OGDEN. If FKAA
raises any objection to the information provided above, OGDEN agrees to meet with FKAA at a
reasonable time, upon reasonable notice, for the purpose of reaching mutual agreement on the
item(s) at issue.
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9.5 Review, comment, objection, or approval by FKAA shall not relieve OGDEN
from responsibility for errors or omissions of any sort. FKAA's review, comment, objection, or
approval, shall be general and shall not relieve OGDEN of responsibility for the accuracy of such
documents and information, nor for the proper fittings and construction of the Work, nor for the
furnishing of the materials or Work required by the Contract and not indicated on the plans,
drawings, and specifications.
9.6 At the expiration of FKAA's review and approval period, and when Monroe
County and FKAA have secured the right to perform Work on the treatment plant site, FKAA
shall issue OGDEN a Full Notice to Proceed and Contract Time shall commence.
9.7 Nothing in this Article is intended to grant FKAA the right or obligation to
supervise, direct, control or have authority over, or responsibility for, OGDEN's means,
methods, techniques, sequences, or procedures of construction, or the safety precautions and
programs incident thereto. FKAA will not be responsible for OGDEN's failure to perform the
Work in accordance with the Contract Documents or for any failure of OGDEN to comply with
all Applicable Laws.
9.8 During the period of time from issuance of the Limited Notice to Proceed and the
Full Notice to Proceed, OGDEN shall undertake only design, scheduling, submittal, surveying,
and such other Work as is precedent to beginning construction. OGDEN may mobilize its
construction equipment and construction personnel during that period of time, and mobilization
shall be paid in accordance with Section 7.1. No other request for mobilization payment will be
considered or approved by FKAA.
9.9 If the Effective Date does not occur, neither party shall be obligated or liable to
the other for any costs, expenses, lost profits, representations, or other financial impacts, and this
Project shall not proceed. However, the parties by mutual agreement may determine to continue
under such conditions and terms as the parties may establish.
ARTICLE 10
OGDEN's Responsibility
10.1 The parties acknowledge and agree that FKAA is purchasing, and OGDEN is
bound to deliver, the design and construction of a wastewater treatment system that shall be
constructed in accordance with the Contract Documents and shall comply with all Applicable
Laws, and the Standard Building Code where applicable.
10.2 All permits, licenses and approvals required by the Applicable Laws necessary for
the prosecution of Work and completion of the Project by OGDEN shall be secured and paid for
by OGDEN, except as otherwise may beprovided in this Contract. OGDEN shall make, at its
own cost and expense, any changes to the Project required by the permitting agencies that do not
constitute a Change in Law. It is OGDEN's responsibility to have and maintain appropriate
certificate(s) of competency, valid for the Work to be performed, including but not limited to
those for all persons working on the Project for whom a certificate of competency is required.
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10.3 OGDEN shall be fully responsible for the actions of all persons working on the
Project.
10.3.1 OGDEN shall, maintain a competent superintendent on the Project at all
times while Work is in progress to act as OGDEN's agent. OGDEN shall provide a
superintendent who is a competent superintendent capable of properly interpreting the
Contract Documents and is thoroughly experienced in the type of Work being performed.
Said superintendent shall have the full authority from OGDEN to receive instructions
from FKAA or its Project Representative and to execute any field order or Change Order
from FKAA or its Project Representative.
10.3.2 OGDEN shall provide competent, careful, and reliable foremen and
workmen with sufficient skill and experience to properly perform the Work assigned to
them. Said foremen and workmen shall make due and proper effort to execute the Work
in the manner prescribed in the Contract Documents.
10.3.3 Whenever FKAA determines that any person employed by OGDEN or
any of its subcontractors is incompetent, intemperate, disorderly, or insubordinate, FKAA
will provide OGDEN with written notice of that determination. OGDEN shall have ten
calendar days to investigate such matter and deliver a report to the Executive Director of
FKAA with its findings and recommendations. Should the Executive Director of FKAA
request OGDEN to remove the subject employee from the Project, OGDEN shall
immediately remove that person unless it timely invokes the dispute resolution
procedures of Article 16, in which case OGDEN may choose to delay the removal until
the conclusion of mediation. OGDEN will not thereafter employ the removed person on
any part of the Project without the written consent of FKAA. If OGDEN fails to remove
such person or persons, FKAA may withhold all payments that are or may become due,
or suspend the Work until OGDEN complies with such orders.
10.4 OGDEN shall give the Work the constant attention necessary to ensure the
scheduled progress and cooperate fully with FKAA or its Project Representative and with other
contractors at work in the vicinity.
10.5 Until FKAA's final acceptance of the Work, OGDEN shall take charge and
custody of the Work and take every necessary precaution against injury or damage to the Work
by the action of the elements or from any other cause whatsoever, arising either from the
execution or from the non -execution of the Work. OGDEN shall rebuild, repair, restore, and
make good, without additional expense to FKAA, all injury or damage to any portion of the
Work occasioned by any of the above causes before its completion and acceptance.
10.6 OGDEN shall comply with, and be bound by, the terms of OGDEN's "Drug Free
Work Place" policy as set forth in Appendix D.
10.7 OGDEN agrees to bind specifically every Subcontractor and consultant to the
applicable terms and conditions of this Contract for the benefit of FKAA.
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10.8 OGDEN shall provide and pay for all architecture, engineering, landscape
architecture, and land surveying services, materials, labor, water, tools, equipment, light, power,
transportation, and other facilities and services necessary for the proper execution and
completion of the Project, whether temporary or permanent, and whether or not incorporated in
the Project. OGDEN will be responsible for preparing all necessary designs (including proposed
facility and collection line locations), plans, drawings and specifications, and providing
construction management and facilities start up. OGDEN will be responsible for the provision,
installation, performance, maintenance, and/or repair of all materials, machinery, equipment,
staffing, expertise, structures, appurtenances, buildings, tanks, chemical feed systems,
instrumentation, access roads, buffer provisions, safety and security provisions, fire protection,
emergency and stand-by power generation, permits, sewer collection systems, sewer
rehabilitation work in accordance with Appendix E, corrective work, geotechnical information,
materials testing and approvals, and all other items needed to complete the Project in accordance
with the Contract Documents and all Applicable Laws. OGDEN will also be responsible for
maintenance and/or repair of all land, easements, and right-of-ways to its pre -construction
condition, and the decommissioning of all wastewater treatment disposal systems included
within the Project in accordance with the Contract Documents and all Applicable Laws.
OGDEN is in no way relieved of the responsibility for the performance of any and all equipment
or machinery furnished to the Project.
ARTICLE 11
FKAA's Responsibility
11.1 FKAA will assist OGDEN by placing at its disposal any available information
pertinent to the Project including previous reports, laboratory tests and inspections of samples,
materials and equipment; property, boundary, easement, rights -of -way, topographic and utility
surveys; property descriptions; and known zoning, deed and other land use restrictions.
11.2 FKAA will arrange for access to and make reasonable provision for OGDEN to
enter upon property of FKAA or Monroe County as required for OGDEN to perform the Work.
11.3 FKAA shall make payment to OGDEN when due as provided in Article 8.
11.4 FKAA shall provide OGDEN with the real property necessary and essential for
the completion of the Work, and FKAA will obtain necessary changes to or variances from
zoning requirements. FKAA shall pay all applicable property tax, if any, on the real property on
which the Facilities are located.
11.5 FKAA shall provide OGDEN with license agreements from private property
owners, or applicable orders, to allow OGDEN to connect each EDU to the collection system
and to decommission the existing wastewater treatment process, if any.
11.6 FKAA shall provide reasonable assistance to OGDEN in obtaining the permits
necessary to complete construction.
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11.7 FKAA shall not supervise, direct, or have control or authority over, nor be
responsible for, OGDEN's means, methods, techniques, sequences, or procedures of
construction, or the safety precautions and programs incident thereto, or for any failure of
OGDEN to comply with all Applicable Laws. FKAA will not be responsible for OGDEN's
failure to perform the Work in accordance with the Contract Documents.
ARTICLE 12
Changes in the Scope of Work
12.1 Without invalidating this Contract and without notice to any Surety, FKAA
reserves the right to make such changes from time to time in the character or quantity of the
Project as may be considered necessary or desirable to complete fully and acceptably the Project
in a manner satisfactory to FKAA. Any such change to the Work must be accomplished by
means of appropriate written Change Orders subject to Article 14 herein. FKAA will not be
liable for the costs associated with such changes to Work performed by OGDEN without
OGDEN obtaining written authorization from FKAA before commencing the performance of
that work.
12.2 FKAA and OGDEN will negotiate a price for any extra or additional work.
Where the costs are negotiated, OGDEN will submit an estimate to FKAA in terms of labor,
materials, equipment, overhead, and other expenses incurred solely as a result of the extra or
additional work.
12.2.1 The portion of the cost for equipment shall be based on the Blue Book
Rental Rate for Construction Equipment, published by the Machinery Information
Division of K-II Directory Corporation (version current at the time of the Work) in
accordance with the following:
12.2.1.1 Costs shall be provided on an hourly basis. Hourly rates
for equipment being operated or on standby shall be established by dividing the
Blue Book rates by 176. The itemizing rates in the columns labeled "Weekly",
"Daily", or "Hourly", shall not be used
12.2.1.2 Rates shall be adjusted using regional adjustments and rate
adjustment tables according to the instructions in the Blue Book.
12.2.1.3 Equipment required to be idled and on standby shall be at
50% of the Blue Book Ownership cost only. No more than eight (8) hours of
standby time each day will be considered for payment.
12.2.1.4 No additional overhead on equipment costs will be
allowed.
12.3 Where a price cannot be negotiated for such extra or additional work, FKAA will
pay in accordance with the following criteria:
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12.3.1 Labor- Payment will be based upon the actual costs of the labor extended
on the extra or additional work plus a markup of twenty percent (20%).
12.3.2 Material and Machinery — Payment will be based upon the actual costs
directly related to the extra or additional Work plus a markup of fifteen percent (15%).
12.3.3 Equipment — Payment for OGDEN owned Equipment will be paid as
described in Section 12.3, plus a markup of seven and one half percent (7.5%). Payment
for rented equipment shall be based upon the invoice cost, plus a markup of seven and
one half percent (7.5%).
12.3.4 Subcontractor Markup — FKAA will allow a markup of ten percent (10%)
on the first $50,000 and a markup of five percent (5%) on any amount over $50,000 on
any subcontract Work directly related to the extra or additional work.
12.3.5 General Liability & Bond — FKAA will allow a markup of one and one
half percent (1.5%) on the overall total cost of the extra or additional work for insurance
and bond.
12.4 The referenced markups in 12.3.1 through 12.3.5 include all indirect costs such as
increased home office and jobsite overhead, labor burden, and profit. No other compensation for
these indirect costs will be allowed.
ARTICLE 13
Field Orders
FKAA or its Project Representative shall have the right to approve and issue field orders
setting forth written interpretations of the intent of the Contract Documents and ordering minor
changes in contract execution, providing the field order involves no change in the total cost of
the Project, the time of performance, or otherwise contradicts or alters any other provision of this
Contract.
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ARTICLE 14
Change Orders
14.1 Changes in the quantity or character of Work within the scope of this Project that
are not properly the subject of field orders, including all changes resulting in changes in the total
cost of the Project or the time of performance, shall be authorized only by Change Orders
approved and issued by FKAA.
14.2 OGDEN shall not start Work requiring an increase in the Contract Price or
Contract Time until a Change Order setting forth the adjustments is approved in writing by
FKAA. FKAA's request for quotations shall not be considered authorization to proceed with the
Work prior to the issuance of a formal Change Order, nor shall such request justify any delay in
existing Work. Quotations shall include substantiating documentation with an itemized
breakdown of OGDEN and subcontractor costs, including labor, material, equipment, rentals,
approved services, overhead and profit. FKAA may require detailed cost data in order to
substantiate the reasonableness of the proposed costs.
14.3 Any compensation paid in conjunction with the terms of a negotiated Change
Order shall comprise total compensation due OGDEN for the Work or alteration defined in the
Change Order. By signing the Change Order, OGDEN acknowledges that the stipulated
compensation includes payment for the interruption of schedules, extended overhead, delay,
disruption, inefficiency, or any other impact claim or ripple effect, and by such signing OGDEN
specifically waives any reservation or claim for additional compensation in respect to the subject
Change Order.
14.4 On approval of any Change Order increasing the Construction Price, OGDEN
shall ensure that any applicable bonds and other guarantees are each increased accordingly.
14.5 In the event that FKAA and OGDEN are unable to agree upon a particular
Change Order, FKAA may issue the Change Order unilaterally, and OGDEN shall proceed with
the Work as set forth therein. The issuance of a unilateral Change Order by FKAA shall in no
way prejudice OGDEN's rights under Article 16.
ARTICLE 15
Claims
15.1 When OGDEN deems that extra compensation and/or time is due for work,
materials, or machinery not clearly covered in the Contract, caused by a Change in Law, an
Uncontrollable Circumstance or ordered by FKAA, OGDEN shall notify FKAA or its Project
Representative in writing of its intention to make a claim for extra compensation, and/or time
before beginning the claimed work. If OGDEN does not give such notification and does not
afford FKAA or its Project Representative proper opportunity for keeping strict account of the
actual costs and time, then OGDEN waives the claim for such extra compensation and/or time.
OGDEN's notice and FKAA's account of the costs and/or time does not establish the validity of
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the claim or the method for computing any compensation of such claim. If FKAA determines
that the claim is valid, payment will be made as provided in Articles 12 and 14.
15.2 The Contract Time and the Contract Price may only be changed by a written
Change Order from FKAA in accordance with Article 14.
15.3 Notice of the extent of the claim with supporting data shall be delivered within
thirty (30) calendar days after such occurrence (unless FKAA or its Project Representative
allows, in writing, an additional period of time to ascertain more accurate data in support of the
claim) and shall be accompanied by OGDEN's written statement and explanation of the claim
together with a statement that the adjustment claimed is the entire adjustment to which OGDEN
has reason to believe it is entitled as a result of the occurrence of said event.
15.4 FKAA or its Project Representative shall determine in writing all claims for
adjustment in the Contract Time or Contract Price in accordance with this Article. No claim for
an adjustment in Contract Time or Contract Price will be valid if not submitted in strict
accordance with the requirements of this Article. With regard to any claim for an adjustment of
the Contract Time, it shall be OGDEN's responsibility to prove to FKAA that the delay in the
time(s) of completion was caused specifically by a delay in a portion of the Work that was on the
critical path of the schedule.
15.5 No claim for damages or any claim other than for an extension of time shall be
made or asserted against FKAA by reason of any delays. OGDEN shall not be entitled to an
increase in the Contract Price or payment or compensation of any kind from FKAA for direct,
indirect, consequential, impact, or other costs, expenses or damages, including but not limited to,
costs of acceleration or inefficiency, arising because of delay, disruption, interference,
Uncontrollable Circumstance, or hindrance from any cause whatsoever, whether such delay,
disruption, interference or hindrance be reasonable or unreasonable, foreseeable or
unforeseeable, or avoidable or unavoidable; provided, however, that this provision shall not
preclude recovery of damages by OGDEN for hindrances or delays due solely to fraud, bad faith
or active interference on the part of FKAA. Otherwise, OGDEN shall be entitled only to
extensions of the Contact Time as the sole and exclusive remedy for such resulting delays, in
accordance with and to the extent specifically provided herein. The specific application of this
section to other provisions of this Contract shall not be construed as a limitation of any sort upon
the further application of this section.
15.6 A delay which extends the completion of the Work and which is caused by
circumstances beyond the control of OGDEN or its Subcontractors, material persons, suppliers,
or vendors including, but not limited to, acts of neglect by FKAA, by any employee or
representative of FKAA, any separate contractor employed by FKAA, an Uncontrollable
Circumstances, or Change in Law, is an excusable delay. The Contract Time will be extended
under this section in an amount equal to the time lost due to delays beyond the control of and
through no fault or negligence of OGDEN if a claim for any time extensions is made as provided
in Article 15 hereof. Failure of OGDEN to comply with Article 15 hereof as to any particular
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event of delay shall be deemed conclusively to constitute a waiver, abandonment and
relinquishment of any and all claims resulting from that particular event of delay.
15.6.1 No additional time or compensation will be granted to OGDEN for delays
caused by the effects of inclement weather, except for catastrophic events which actually
preclude all Work (i.e., hurricanes and declared states of emergency).
ARTICLE 16
Dispute Resolution
16.1 OGDEN recognizes that it is imperative that the Work on the Project proceed
uninterrupted and without delay. OGDEN shall carry on the Work during the resolution of all
claims, disputes and disagreements with FKAA. No Work shall be delayed or postponed
pending resolution of any such claim, dispute or disagreement except as FKAA and OGDEN
may otherwise agree in writing.
16.2 FKAA shall issue a written determination on any claim, dispute, or disagreement
that may arise during the course of this Contract, which shall be final and binding upon the
parties unless OGDEN requests, in writing, to negotiate the claim, dispute, or disagreement
pursuant to Section 16.3 within ten (10) calendar days of the written determination of FKAA.
16.3 Within thirty (30) calendar days of receipt of a written request to negotiate a
claim, dispute, or disagreement, executives of both FKAA and OGDEN, at levels at least one
step above the project personnel who were involved in the claim, dispute, or disagreement, shall
meet at a mutually acceptable time and place. The meeting of the executives is intended to
afford the parties the opportunity to exchange relevant information and to attempt to negotiate a
resolution of the claim, dispute, or disagreement. At the conclusion of the negotiation process,
or the expiration of thirty (30) calendar days from the date of OGDEN's written request to
negotiate, whichever is sooner, the participating FKAA executive will issue a written summary
of the negotiations, together with FKAA's decision on the claim, dispute, or disagreement. That
written decision shall be final and binding upon the parties unless OGDEN requests mediation in
accordance with Section 16.4 within ten (10) calendar days of the written decision. The
implementation of the executive negotiation procedure under this Section shall be a condition
precedent to OGDEN's commencement of litigation under this Contract.
16.4 Upon receipt of a written request from OGDEN to initiate mediation, FKAA shall
appoint an independent mediator who shall be qualified by education and/or experience on the
subject matter of the claim, dispute, or disagreement at issue. OGDEN may object to FKAA's
appointment, provided that the objection is both reasonable and based on a demonstration of
good cause. Within twenty (20) calendar days of the appointment of the independent mediator,
or within such other times as the parties may mutually agree in writing, the independent mediator
shall conduct a mediation session in an attempt to reach an amicable resolution of the claim,
dispute, or disagreement. In the event that the parties are unable to reach an amicable resolution
within thirty (30) calendar days of the appointment of the independent mediator, the written
decision of FKAA under Article 16.3 shall become final and binding upon the parties. OGDEN
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may, however, challenge the decision de novo by filing and serving a complaint in the Circuit
Court of the Sixteenth Judicial Circuit in and for Monroe County, sitting in Key West, Florida,
after OGDEN has achieved substantial completion of the entire Project.
16.4.1 Each party shall be responsible for the prompt payment of one-half of the
fees and expenses of the independent mediator incurred pursuant to this Section.
16.4.2 To the extent permitted by law, all negotiations, statements, and positions
made or taken during mediation shall be confidential and shall be treated as compromise
and settlement negotiations for purposes of the Federal and Florida Rules of Evidence.
16.5 The parties mutually agree that no litigation may be commenced before the
Project has attained substantial completion, and any litigation that, in any manner whatsoever,
relates to this Contract, or the performance of any party hereunder, shall be commenced in the
Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County, Florida, sitting in Key
West, Florida.
16.6 The dispute resolution procedures provided under this Article shall not relieve
OGDEN of the requirement to promptly comply with the initial determination of FKAA and to
perform any and all associated work
ARTICLE 17
Assignment & Subcontractors
17.1 Except as provided below, neither party to this Contract shall assign this Contract
or subcontract it as a whole without the written consent of the other, nor shall OGDEN assign
any monies due or to become due to it hereunder, without the prior written consent of FKAA. In
the event Key Largo, Florida, incorporates and FKAA desires to assign this Contract to the
government of the new municipality, FKAA may effect such assignment without the consent,
written or otherwise, of OGDEN, and OGDEN will execute any documents incidental to and
otherwise cooperate in said assignment. An assignment of the Contract to the government of the
incorporated municipality of Key Largo will in no way alter or affect the provisions of the
Contract or the rights, responsibilities or obligations of OGDEN under this Contract.
17.2 OGDEN shall notify FKAA in writing of the identities of each and every
engineer, designer, or other Subcontractor OGDEN proposes for the Project and identify the
portion of the Work for the Project each will perform. OGDEN shall have the continuing
obligation to notify FKAA of any change in Subcontractors. Notification of the names of
Subcontractors shall not relieve OGDEN from the prime responsibility of full and complete
satisfactory performance of all contractual obligations.
17.3 OGDEN shall not employ any major Subcontractor, supplier, or other individual
or entity, whether initially or as a replacement, against whom FKAA may have a reasonable
objection. FKAA shall notify OGDEN of any such objection within ten (10) business days of its
receipt of any such notification from OGDEN.
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17.4 OGDEN shall be fully responsible to FKAA for all acts and omissions of the
Subcontractors, suppliers, and other individuals or entities performing or furnishing any of the
Work just as OGDEN is responsible for OGDEN's own acts and omissions. Nothing in the
Contract Documents shall create for the benefit of any such Subcontractor, supplier, and other
individual or entity any contractual relationship between FKAA and any such Subcontractor,
supplier, and other individual or entity, nor shall it create any obligation on the part of FKAA to
pay or to see to the payment of any moneys due any such Subcontractor, supplier, and other
individual or entity except as may otherwise be required by the Applicable Laws.
17.5 OGDEN shall be solely responsible for scheduling the work of Subcontractors,
suppliers, and other individuals or entities performing or furnishing any of the Work under a
direct or indirect contract with OGDEN.
ARTICLE 18
Materials, Equipment, & Machinery
(Review & Comment)
18.1 All materials and machinery incorporated into the Work shall be as specified or, if
not specified, shall be of good quality, suitable for the Project, and new, except as otherwise
provided in the Contract Documents. With respect to all material or machinery purchased by
OGDEN, OGDEN warrants and guarantees that title to all materials and machinery covered by
any application for payment, whether incorporated in the Project or not, will pass to FKAA at the
time of payment free and clear of all liens, claims, security interests and encumbrances. If
requested by FKAA, OGDEN shall provide with subsequent applications for payment, invoices
receipted by the supplier(s) showing payment in full has been made.
18.2 All warranties and guarantees specifically called for by the Contract Documents
shall expressly run to the benefit of FKAA. If required by FKAA or its Project Representative,
OGDEN shall furnish satisfactory evidence (including reports of required tests) as to the source,
kind, and quality of materials and machinery. All materials, equipment, and machinery shall be
stored, applied, installed, connected, erected, protected, used, cleaned, and conditioned in
accordance with the instruction of the applicable supplier, except as otherwise may be provided
in the Contract Documents. OGDEN shall be responsible for providing proper storage and
protection for all materials, equipment, and machinery.
18.3 OGDEN shall submit to FKAA a proposed list of major material, equipment, and
machinery manufacturers and suppliers under Article 9. Wherever possible, OGDEN shall
specify multiple manufacturers or suppliers for each type or model of material, equipment, and
machinery OGDEN intends to use on, or incorporate in, the Project. Upon review and comment
by FKAA or its Project Representative, this list shall become the Material, Equipment, and
Machinery List for the Project.
18.4 Whenever an item of material, equipment, or machinery is specified or described
in the Material, Equipment and Machinery List, or in the Contract Documents, by using the name
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of a proprietary item or the name of a particular supplier or manufacturer, the specification or
description is intended to establish the type, function, appearance, and quality required. Unless
the specification or description contains or is followed by words reading that no like, equivalent,
or "or equal" item or no substitution is permitted, other items of material, equipment and
machinery or material, equipment and machinery of other suppliers may be submitted to FKAA
for review under the circumstances described below.
18.4.1 If in FKAA's discretion an item of material, equipment or machinery
proposed by OGDEN is functionally equal to that named in the Material, Equipment and
Machinery List and sufficiently similar so that no change in related Work will be
required, it may be considered by FKAA as an "or equal' item. For the purposes of this
paragraph, a proposed item of material, equipment or machinery will be considered
functionally equal to an item so named if. (a) in the exercise of reasonable judgment
FKAA determines that: (i) it is at least equal in quality, durability, appearance, strength,
and design characteristics; (ii) it will reliably perform at least equally well the function
imposed by the design concept of the completed Project as a functioning whole, and; (b)
OGDEN certifies that: (i) there is no increase in cost to FKAA; and (ii) it will conform
substantially, even with deviations, to the detailed requirements of the item named in the
Contract Documents.
18.4.2 If in FKAA's sole discretion an item of material, equipment or machinery
proposed by OGDEN does not qualify as an "or equal" item under paragraph 18.4.1, it
will be considered a proposed substitute item. OGDEN shall submit sufficient
information as provided below to allow FKAA to determine that the item of material,
equipment or machinery proposed is essentially equivalent to that named and an
acceptable substitute therefor. FKAA will not accept requests for review of proposed
substitute items of material, equipment or machinery from anyone other than OGDEN.
The procedure for review by FKAA will be as set forth in paragraph 18.4.1, and as
FKAA may decide is appropriate under the circumstances. OGDEN shall first make
written application to FKAA for review of a proposed substitute item of material,
equipment or machinery that OGDEN seeks to furnish or use. The application shall
certify that the proposed substitute item will perform adequately the functions and
achieve the results called for by the general design, be similar in substance to that
specified, and be suited to the same use as that specified. The application will state the
extent, if any, to which the use of the proposed substitute item will prejudice OGDEN's
achievement of substantial completion on time, whether or not use of the proposed
substitute item in the Work will require a change in any of the Contract Documents (or in
the provisions of any other direct contract with FKAA for Work on the Project) to adapt
the design to the proposed substitute item and whether or not incorporation or use of the
proposed substitute item in connection with the Work is subject to payment of any license
fee or royalty. All variations of the proposed substitute item from that specified will be
identified in the application, and available engineering, sales, maintenance, repair, and
replacement services will be indicated. The application will also contain an itemized
estimate of all costs or credits that will result directly or indirectly from use of such
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substitute item, including costs of redesign and claims of other OGDEN affected by any
resulting change, all of which will be considered by FKAA in evaluating the proposed
substitute item. FKAA may require OGDEN to furnish additional data about the
proposed substitute item.
18.4.3 FKAA will be allowed twenty (20) calendar days within which to evaluate
each proposal or submittal made pursuant to paragraphs 18.4.1 and 18.4.2. No "or equal"
or substitute will be ordered, installed or utilized until FKAA's or its Project
Representative's review and comment is complete, which will be evidenced by either a
Change Order for a substitute or an approved drawing for an "or equal." FKAA will
advise OGDEN in writing of any criticism or other negative determination within the
time allotted for review.
18.4.4 FKAA may require OGDEN to furnish at OGDEN's expense a special
performance guarantee or other surety with respect to any substitute.
(Plans, Drawings, and Specifications)
18.5 In accordance with Article 9, OGDEN shall submit conceptual plans, drawings,
and specifications for all material, equipment, machinery, fixtures, piping, wiring, fabricated
structures, apparatus, systems, and manufactured articles. The purpose of such plans, drawings,
and specifications is to demonstrate the suitability, efficiency, technique of manufacture,
installation requirements, details of the item, and evidence of its compliance or noncompliance
with the Contract Documents and the Applicable Laws.
18.6 OGDEN shall provide FKAA with shop drawings from the various
manufacturers, fabricators, and suppliers as requested by FKAA, for any or all major item of
machinery and materials identified on the Materials, Equipment, and Machinery List. All such
drawings and specifications shall be signed and sealed as required by Applicable Law by
OGDEN's or the fabricator's or vendor's engineer who must be registered in the State of Florida,
before submittal to FKAA.
18.7 OGDEN shall thoroughly review and check all plans, drawings, and specifications
and each and every copy shall show OGDEN's approval thereon.
18.8 Review and comment by FKAA of the items included on the Materials,
Equipment, and Machinery List, or the plans, drawings, and specifications provided under this
Article shall not relieve OGDEN from responsibility for errors or omissions of any sort.
18.9 If catalog sheets or prints of manufacturers' standard drawings are submitted to
FKAA under this Article, any additional information or changes on such drawings shall be
typewritten or lettered in ink.
18.10 OGDEN shall submit to FKAA four (4) copies of the documents required to be
submitted under this Article and Article 9. Resubmission shall be made in the same quantity.
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18.11 FKAA's review and comment will be general and shall not relieve OGDEN of
responsibility for the accuracy of such Drawings, nor for the proper fittings and construction of
the Work, nor for the furnishing of the materials or Work required by the Contract and not
indicated on the plans, drawings, and specifications.
18.12 OGDEN shall keep one (1) set of plans, drawings, and specifications marked with
FKAA or its Project Representative's acceptance at the Project Sites at all times.
ARTICLE 19
Working Plans and Drawings
FKAA or its Project Representative shall have the right to require OGDEN to clarify and
expand on the details of OGDEN's drawings, plans and specifications, to supplement them with
additional plans, drawings or additional information as the Project proceeds, all of which shall be
considered as part of the Contract Documents at no additional cost to FKAA. All plans and
drawings, general and detailed, are to be signed and sealed by a licensed engineer, registered in
the State of Florida, and are to be deemed a part of this Contract, and are intended to be mutually
complementary, so that any Work shown on the plans, though not specified in the specifications,
and any Work specified in the specifications though not shown on the plans, is to be executed by
OGDEN as part of this Contract. All things which in the opinion of FKAA may reasonably be
inferred from this Contract and Plans as developed by OGDEN and accepted by FKAA are to be
executed by OGDEN under the terms of this Contract; and FKAA or its Project Representative
shall determine whether the final plans prepared by OGDEN conform to the Contract
Documents. All plans, drawings, and specifications and related technical documentation shall be
submitted in electronic form and mylar copy and shall meet FDOT guidelines.
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ARTICLE 20
Materials and Machinery
(Procurement Process)
20.1 OGDEN shall identify on the attached Appendix K, all materials and machinery
that exceed $2,500.00 per item, or which when purchased in bulk exceed $2,500.00, and that are
required by the Contract Documents to satisfactorily complete the Project. OGDEN may not
purchase any such materials and machinery on this Project without obtaining the prior, written
consent of FKAA. Upon approval of the content of Appendix K, FKAA agrees to purchase
those materials and machinery identified therein directly from the supplier(s) through the
procedures set forth below, and the Contract Price shall be reduced by the cost of the materials
and machinery directly purchased by FKAA. The cost of any materials and machinery
purchased directly by FKAA shall be deducted from the monies due to OGDEN on the next
Application for Payment submitted by OGDEN. By purchasing the materials and machinery,
FKAA shall acquire full and sole title to the materials and machinery, but OGDEN shall be
required to inspect, accept delivery of and store the materials and machinery pending their
incorporation into the Project and shall be liable to FKAA for any negligence in meeting those
obligations. After accepting delivery of FKAA's materials and machinery purchased in
accordance herewith, OGDEN is not relieved of its obligation to protect the materials and
machinery from damage, loss, or destruction, nor is OGDEN relieved of its liability for
maintenance, repair and replacement of said materials and machinery under this Contract until
final acceptance by FKAA.
20.2 OGDEN must provide FKAA with written notice of its or its Subcontractors'
intent to purchase materials and machinery that qualify under section 20.1, a reasonable time
before the items must be ordered so that the progress of construction will not be delayed, but in
no event less than sixty (60) calendar days before the items are needed on the Project.
20.2.1 The written notice must state with specificity what materials and
machinery OGDEN or its Subcontractors intend to purchase, the supplier(s) of the
materials and machinery, identified by name, address and telephone number, the number
of similar items that are estimated to be used in constructing the Project; the unit price of
each item; and the date that each item is needed on the Project. A detailed Purchase
Order Form, a copy of which is attached to this Contract as Appendix J, shall accompany
the written notice.
20.3 Upon receipt of a Requisition, FKAA will review the requisition and, if approved,
FKAA shall, within five (5) business days, issue its own purchase order directly to the
supplier(s) of the materials and machinery, with delivery to be F.O.B. Project site. FKAA's
purchase order shall contain or be accompanied by FKAA's certificate of exemption and include
FKAA's exemption number, issue date and expiration date. FKAA shall furnish a copy of its
purchase order to OGDEN.
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20.4 Upon delivery of FKAA-purchased materials and machinery to the Project Sites,
FKAA shall take full and exclusive title to the materials and machinery. OGDEN shall inspect,
accept delivery of and store the materials and machinery pending incorporation into the Project
and shall verify that the materials and machinery delivered are good quality, in good and
workable condition, comply with the specifications and are fully in accordance with the purchase
order. OGDEN shall be responsible for preserving, protecting and enforcing any warranties for
the materials and machinery delivered to the Project Sites. OGDEN shall be liable to FKAA for
any failure to perform or negligence in the performance of these obligations.
20.5 After verifying that the delivery of FKAA-purchased materials and machinery is
in accordance with the purchase order and fulfilling all other obligations contained in this
Article, OGDEN shall, within five (5) business days of the delivery, forward approved invoices
to FKAA. FKAA shall review and approve the invoices and, if approved, process the invoices
and issue payment directly to the supplier(s) within thirty (30) calendar days of receipt of the
approved invoices from OGDEN.
20.6 On behalf of FKAA, OGDEN shall purchase and maintain builder's risk
insurance sufficient to cover the value of any FKAA-purchased materials and machinery from
the time that FKAA takes title to the materials and machinery until the time that the materials
and machinery are incorporated into the Project. FKAA shall reimburse OGDEN for the
premiums paid by OGDEN to secure the described insurance coverage relating to the materials
and machinery. FKAA shall be named as the insured party on the policy and shall receive any
proceeds of insurance related to the materials and machinery in the event of a loss.
20.7 In addition, FKAA agrees to reimburse OGDEN for the sales tax it incurs on the
first two hundred thousand ($200,000.00) dollars spent by OGDEN to purchase miscellaneous
items that do not exceed the $2,500.00 threshold required by Section 20.1. These purchases are
subject to a maximum sales tax of 7.5%, or a maximum sales tax credit/FKAA payment of
$15,000. OGDEN shall submit to FKAA documentation, including photocopied invoices, which
establish that the miscellaneous items purchased were Design/Build contract items, and the
amount of each purchase, prior to FKAA approving payment.
ARTICLE 21
OGDEN to Check Drawings and Data
OGDEN shall take measurements and verify all dimensions, conditions, quantities and
details shown on drawings, schedules, or other data received from FKAA, and shall notify
FKAA of all errors, omissions, conflicts and discrepancies found therein. Failure to discover or
correct errors, conflicts or discrepancies shall not relieve OGDEN of full responsibility for
unsatisfactory work, faulty construction, or improper operation resulting therefrom nor from
rectifying such condition at OGDEN's own expense. OGDEN will not be allowed to take
advantage of any error or omission.
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ARTICLE 22
Security
OGDEN shall provide a Project security program to protect Work, stored products,
equipment, materials, and machinery from theft and vandalism, and to protect premises from
entry by unauthorized persons. In the event any such materials, equipment, machinery and
supplies are lost, stolen, damaged, or destroyed prior to final acceptance, OGDEN shall replace
the same without cost to FKAA.
ARTICLE 23
Field Engineering
23.1 OGDEN shall provide and pay for field engineering services required for the
Project. This Work shall include the following elements:
23.1.1 Survey work required in execution of the Project.
23.1.2 Civil, structural or other professional engineering services specified, or
required to execute OGDEN's construction methods.
23.1.3 Geotechnical explorations necessary for the execution of the Project.
23.1.4 Materials testing and approval from the appropriate governmental or
private authority.
ARTICLE 24
Field Layout of the Work and Record Drawings
24.1 The entire responsibility for establishing and maintaining a line and grade in the
field lies with OGDEN. OGDEN shall maintain an accurate and precise record of the location
and elevation of all roadway, bridge and wall grades, pipe lines, conduits, structures, manholes,
handholds, fittings and the like and shall deliver these records in good order to FKAA as the
Work is completed. These records shall serve as a basis for "record" drawings. The cost of all
such field layout and recording work is included in the Contract Price.
24.2 OGDEN shall maintain in a safe place at the Sites one (1) record copy of all
drawings, plans, specifications, addenda, change orders and field orders in good order, annotated
to show all changes made during construction, and in a format compatible with CADD
equipment. These record documents will be available to FKAA or its Project Representative for
reference. Upon completion of the Project, these record documents shall be delivered to FKAA
24.3 At the completion of the Project, OGDEN shall turn over to FKAA one (1) set of
reproducible drawings (Mylars) that accurately reflect the "as built" conditions of the Project and
in an electronic format compatible with FKAA and FDOT specifications and guidelines. The
"as -built" drawings shall be sealed by a surveyor, registered in the State of Florida, and shall be
in a GIS format and in Arc Info. All changes made to the construction documents, either as
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clarifications or as changes, will be reflected in the plans. The changes shall be submitted at least
r monthly to FKAA or its Project Representative. These "as built" drawings must be delivered on
Maryland found to be acceptable by FKAA prior to final payment.
ARTICLE 25
Inspection of the Project
25.1 FKAA staff and its Project Representative shall at all times have access to the
Project, and OGDEN shall provide proper facilities for such access.
25.1.1 Should the Contract Documents, Standard Building Code, FDOT
specifications, any Applicable Laws, or any public authority require any work for the
Project to be specially tested or approved, OGDEN shall give to FKAA or its Project
Representative at least five (5) business days notice of readiness of the Work for
inspection and testing. If the testing or approval is to be made by an authority other than
FKAA, timely notice shall be given of the date fixed for such testing. Inspections shall be
made promptly, and, where practicable, at the source of supply. If any Work for the
Project should be covered up without approval or consent of FKAA or its Project
Representative, it must, if required by FKAA, be uncovered for examination and properly
restored at OGDEN's expense.
25.1.2 Reexamination and re -testing of any Work for the Project may be ordered
by FKAA; and if so ordered, OGDEN must uncover such Work. If such Work is found
Ad to be in accordance with the Contract Documents, FKAA shall pay the cost of
uncovering, reexamining, re -testing, replacement, and recovering and grant an extension
of Contract Time for any substantiated delay to Contract Completion. If such Work is not
in accordance with the Contract Documents, OGDEN shall pay such cost and shall be
granted no time extension.
25.2 FKAA's field representative shall have no authority to permit deviations from,
relax any of the provisions of, nor waive any requirement contained in the Contract Documents
without the written permission or instruction of FKAA. FKAA's field representative are
authorized to call to the attention of OGDEN a failure of the Work, materials, or machinery to
conform the Contract Documents, and have the authority to reject non -conforming Work,
materials, or machinery or suspend a specific item of non -conforming Work until any questions
at issue can be referred to and decided by FKAA. The presence of any FKAA representative in
no way lessens the responsibility of OGDEN. Neither the inspection by FKAA or any of their
employees or designees, nor any order by FKAA for payment of money, nor any payment for, or
acceptance of, the whole or any part of the Work by FKAA, nor any extension of time, nor any
possession taken by FKAA or its employees or designees, shall operate as a waiver of any
provision of this Contract, or any power herein reserved to FKAA, or any right to damages
herein provided, nor shall any waiver by FKAA of any breach in this Contract be held to be a
waiver of any other or subsequent breach.
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25.3 Final Inspection for Acceptance: When OGDEN has completed all the Work;
OGDEN may request an inspection for acceptance. FKAA will make an inspection for
acceptance within seven (7) business days after such notice. If, at the inspection for acceptance,
FKAA determines that OGDEN has completed all construction provided for and contemplated
by the Contract Documents to FKAA's satisfaction, FKAA will consider such inspection as the
final inspection. If, however, at any inspection for acceptance, FKAA determines that any of
OGDEN's Work is unsatisfactory, in whole or in part, FKAA will give OGDEN the necessary
instructions in the form of a "punch list(s)" as to the replacement of material and the
performance or re -performance of the Work necessary to achieve final completion and
acceptance. OGDEN will immediately comply with and execute such instructions. Upon
satisfactory completion of the designated remedial Work, FKAA will make another inspection
that FKAA will consider as the final inspection if FKAA determines that OGDEN has
satisfactorily completed the remedial Work required by the punch list(s). Acceptance or final
payment to OGDEN shall not be final and conclusive or release OGDEN from any liability with
regards to latent defects, fraud, or such gross mistakes as may amount to fraud, or as regards
FKAA's rights under the warranty.
25.4 The payment of any compensation, regardless of its character or form, or the
giving of any gratuity or the granting of any valuable favor by OGDEN to any FKAA
representative or consultant, is forbidden, and any such act on the part of OGDEN will constitute
a breach of this Contract.
ARTICLE 26
Defective Work
26.1 FKAA or its Project Representative shall have the authority to reject or
disapprove Work that FKAA finds to be defective. If required by FKAA or its Project
Representative, OGDEN shall promptly either correct all defective Work or remove it from the
Project and replace it with non -defective Work. OGDEN shall bear all cost to correct such
defective Work or remove it from the Project and replace it with non -defective Work.
26.2 If, within one (1) year after final completion, any Work is found to be defective or
not in accordance with the Contract Documents, OGDEN shall correct it promptly without cost
to FKAA, after receipt of written notice from FKAA to do so unless FKAA has given OGDEN a
written acceptance of such conditions. Nothing contained in this Section 26.2 shall be construed
to establish any limitation with respect to any other obligation that OGDEN might have under
the Contract Documents or under the Operations Agreement.
26.3 Should OGDEN fail or refuse to remove or correct any defective Work or to make
any necessary repairs in an acceptable manner, and in accordance with the requirements of this
Contract within the time indicated in writing, FKAA shall have the authority, after ten (10)
calendar days written notice, to cause the unacceptable or defective Work to be removed or
corrected, or make such repairs as may be necessary to be made at OGDEN's expense. Any
expense incurred by FKAA in making these removals, corrections or repairs, which OGDEN has
failed or refused to make shall be paid for out of any monies due or which may become due to
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OGDEN, or may be charged against the bond or guaranty. Continued failure or refusal on the
part of OGDEN to make any or all necessary repairs promptly, fully, and in acceptable manner
shall be sufficient cause for FKAA to declare this Contract forfeited, in which case FKAA, at its
option, may purchase materials, tools, and equipment and employ labor or may contract with any
other individual, OGDEN or corporation, or may proceed with its own forces to perform the
Work. All costs and expenses incurred thereby shall be charged against the defaulting OGDEN,
and the amount thereof deducted from any monies due, or which may become due to OGDEN, or
shall be charged against the bond or guaranty. Any Work performed by FKAA, as described in
this Section, shall not relieve OGDEN in any way from its responsibility for the Work performed
by it.
26.4 Failure to reject any defective Work or material shall not in any way prevent later
rejection when such defect is discovered or obligate FKAA to final acceptance.
ARTICLE 27
Damage to Existing Facilities, Equipment or Utilities
27.1 It will be OGDEN's responsibility to ascertain and verify the location of existing
utilities and to preserve all existing utilities whether shown on the drawings or not. If OGDEN
encounters utility conflicts during construction, OGDEN shall give sufficient notice to the
owners of the utilities so that they may make the necessary adjustments or cooperate with
OGDEN in the making of such adjustments. OGDEN understands that FKAA makes no
representations as to the location of any utilities, and that it is expressly contemplated that
OGDEN will encounter conflicts with existing utilities on the Project. No claim for damages,
additional expense, or for an extension of time shall be made or asserted against FKAA by
reason of any conflicts with existing utilities. FKAA or its Project Representative will be
available to assist OGDEN and to approve field changes to resolve conflicts with any such
existing utility.
27.2 OGDEN shall provide FKAA with pre -construction and post -construction
videotapes of the entire Project, including the lands upon and under which the Facilities will be
located. OGDEN shall exercise care and take all precautions during excavation and construction
operations to prevent damage to any existing facilities (which shall include, but not be limited to
trees, shrubs, landscaping, lawns, sod, etc.), equipment, utilities, or private property. Any
damage caused by OGDEN shall be reported immediately to FKAA or its Project Representative
and such Work shall be repaired and/or replaced by OGDEN to its pre -construction condition in
a manner approved by FKAA. All costs to repair and/or replace any damage caused by OGDEN
to existing facilities, equipment, landscaping, driveways, roadways, or utilities shall be the sole
responsibility of OGDEN and such repair or replacement shall be performed expeditiously
without cost to FKAA.
27.3 Except where otherwise restricted by Applicable Laws, OGDEN may not replace
mailboxes and other items of personal property located within the right-of-way. If OGDEN
discovers such items within the publicly owned right-of-way, and within the planned
construction area, OGDEN shall cooperate with the owner in relocating the item(s) on the real
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property of the owner, outside of the publicly owned right-of-way. OGDEN shall exercise care
and take all precautions during the relocation of such items to prevent damage thereto.
27.4 If any damage or loss is caused by OGDEN to other property at the Project Sites
or adjacent thereto, including trees, shrubs, lawns, walks, pavements, driveways, roadways,
structures and utilities not designated for removal, relocation or replacement in the course of
construction, all costs to repair and/or replace any such damage to pre -construction conditions
shall be the sole responsibility of OGDEN and such repair or replacement shall be performed
expeditiously without cost to FKAA. Should any claim be made because of the performance of
the Work, OGDEN shall attempt to promptly settle with such other party by negotiation or
otherwise resolve the claim by other dispute resolution procedure or at law.
27.4.1 OGDEN shall provide a telephone "hot line" to receive notice of customer
complaints and service interruptions. Should FKAA receive notice of any such complaint
or interruption, it shall promptly forward the notice to OGDEN.
27.5 OGDEN shall provide protection for finished Work at all times and protect
adjacent work during cleaning operations, and make good any damage resulting from neglect of
this precaution.
27.6 Protection of Work shall include protecting of Work that is factory finished,
during transportation, storage, during and after installation. Where applicable and as required,
OGDEN shall close off spaces of areas where certain Work has been completed to protect it from
any damage caused by others during their operations.
27.7 OGDEN shall store materials and machinery and shall be responsible for and shall
maintain partly or wholly finished Work during the continuance of the contract and until the final
acceptance of the Project. If any materials, machinery, or part of the Work should be lost,
damaged, or destroyed by any cause or means whatsoever, including but not limited to damage
by the elements, theft or vandalism, OGDEN shall satisfactorily repair and replace the same at
OGDEN's own cost. Restoration and repair of such loss, damage or destruction shall not be
cause for an increase in the Contract Price or any extension of the time of completion. OGDEN
shall maintain suitable and sufficient guards and barriers, and at night, suitable and sufficient
lighting for the prevention of accidents.
27.8 To all applicable portions of Project where preparatory Work is part of Work
thereon, OGDEN shall carefully examine surfaces over which finished Work is to be installed,
laid or applied, before commencing with the Work. OGDEN shall not proceed with said Work
until defective surfaces on which Work is to be applied are corrected to the satisfaction of FKAA
or its Project Representative.
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ARTICLE 28
Lands for Work
28.1 OGDEN understands and agrees that FKAA has agreed to obtain the necessary
lands, easements, licenses, zoning variances, and right-of-ways required to construct the Project,
relieving OGDEN of this obligation in the RFP. OGDEN understands that FKAA has not
performed or otherwise provided any geotechnical study or other information on any such
property. Therefore, except as otherwise provided in this Article, OGDEN understands and
agrees that FKAA will have no responsibility for differing subsurface physical conditions at
those locations; that no claim shall be made or asserted, other than for an extension of time,
against FKAA by reason of any delay arising as a result of any failure of FKAA to provide such
lands, easements, licenses, zoning variances, and right-of-way on the date needed; and that no
additional compensation shall be claimed as a result of such differing subsurface conditions or
failure of FKAA to provide the land.
28.2 In the event that OGDEN uncovers subsurface hazardous or toxic waste, or
archaeological finds, that are of an unusual nature and differ materially from those ordinarily
encountered in the Florida Keys and generally recognized as inherent in the Work, OGDEN
shall:
28.2.1 immediately discontinue the Work in that vicinity and notify FKAA's
Project Representative,
28.2.2 treat the possible presence of hazardous or toxic wastes, or the possible
presence of an archaeological find, with extraordinary caution, and shall make every
effort to minimize the spread of any hazardous or toxic waste into uncontaminated areas,
and to protect any archaeological finds.
28.2.3 in the event that OGDEN encounters hazardous or toxic waste in the
performance of the Work or in the operation of the Facilities that has not been introduced
therein by OGDEN, FKAA shall be responsible for the removal, remediation,
transportation, and disposal of such hazardous or toxic waste at its cost and expense.
FKAA shall locate and arrange with an authorized third party to provide clean-up,
removal, and transportation services for the hazardous waste, and to administer such
processes. Should OGDEN be delayed in completion of the Project as a consequence of
uncovering hazardous or toxic waste, FKAA will issue a Change Order adjusting the
Contract Time in accordance with Articles 14 and 15. OGDEN shall not be compensated
monetarily for any delay resulting from the uncovering of such hazardous of such
hazardous or toxic waste or archeological finds.
28.2.4 not resume the Work in that vicinity until so directed by FKAA.
28.3 OGDEN shall be especially alert for the presence of tanks or barrels; discolored
earth, metal, wood, ground water, etc.; visible fumes; abnormal odors; excessively hot earth;
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smoke; or other conditions that appear abnormal as possible indicators of hazardous or toxic
wastes.
28.4 OGDEN shall provide FKAA with a listing of all real property, easements, and
right-of-ways that will be necessary and essential to construct the Project in accordance with
Article 9. If during the course of performance of the Work, OGDEN determines that additional
real property, easements, or right-of-ways are necessary and essential to the construction of the
Project, OGDEN shall provide FKAA written notice of such determination at least ninety (90)
calendar days prior to date said property, easement, or right-of-way is needed for the Project. No
real property, easement, or right-of-way over private property shall be deemed necessary or
essential if alternative real property, easements, or right-of-ways is otherwise available or
obtainable. If the parties agree that the said real property, easement, or right-of-way is necessary
and essential, FKAA shall take the required steps to obtain that property, easement, or right-of-
way for use on the Project, provided however, that no compensation shall be due and no claim
shall be made or asserted, other than for an extension of time, against FKAA by reason of any
delay arising as a result of any failure of FKAA to provide such lands on the date needed.
28.5 OGDEN understands and agrees that any Work performed by it on private
property must be pursuant to written license agreement with the property owner, by court order,
or by order of Monroe County or the State of Florida, Department of Health ("FDOH"). FKAA
will obtain license agreements from owners of private property located within the Project, or
such orders as may be necessary, to allow OGDEN to connect every permitted EDU located
within the limits of the Project as of October 31, 1999. Unless otherwise provided in this
Contract, OGDEN shall remain liable for the connection of all existing EDU's as of October 31,
1999, through substantial completion of the Project.
28.5.1 In the event that FKAA has been unable to secure a necessary license or
order ninety (90) calendar days prior to OGDEN's scheduled substantial completion date
as indicated on its most recent, FKAA approved, Project Schedule, or thirty three (33)
months after issuance of the full notice to proceed, whichever is later, OGDEN will
provide FKAA with a credit of nine hundred and sixty four ($964.00) dollars for each
such EDU. OGDEN will then be relieved of responsibility to perform Work on that EDU
under this Contract without receiving additional compensation through Article 14.
28.5.2 OGDEN understands and agrees that no claim shall be made or asserted
against FKAA by reason of any delay arising as a result of any failure by FKAA to obtain
any license by the date OGDEN has scheduled to perform the Work on that parcel of real
property.
28.6 OGDEN is solely responsible for the protection and repair of private property,
and expressly agrees to schedule the performance of its Work in order that it will enter onto a
particular parcel of private property no more than three (3) times during the Project, and to
complete the interconnection in less than seven (7) calendar days for a private residence, or ten
(10) calendar days for a commercial establishment. FKAA assumes no responsibility for damage
to private property caused by OGDEN in such instances.
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28.7 When storing materials on private property, OGDEN shall submit in writing the
property owner's authorization to do so and provide any and all permits that may be required at
no expense to FKAA. OGDEN shall be fully responsible for any and all damage caused to that
property or any building or facility located thereon, and the restoration of that property upon
OGDEN discontinuing the use thereof.
ARTICLE 29
Legal Restrictions and Traffic Provisions
29.1 OGDEN shall conform to all Applicable Laws with regard to labor employed,
hours of Work and OGDEN's general operations. OGDEN shall also conduct its operations so as
not to close any thoroughfare, nor interfere in any way with traffic on railway, highways, or
water, without the written consent of the proper authorities, including but not limited to the
FDOT. No road or street shall be closed to the public, except with the permission of FKAA,
Monroe County, FDOT, Police, and Fire Department.
29.2 With the timely assistance of OGDEN, FKAA will obtain lane closure permits,
where applicable, from the Florida Department of Transportation, and a copy of the permit will
be provided to OGDEN. OGDEN shall abide by all regulations and conditions stipulated in the
permit(s), and such conditions and requirements are hereby made a part of this Contract.
OGDEN shall examine the permit(s) granted to the FKAA by the FDOT, and any failure to do so
will not relieve OGDEN from compliance with the requirements stated therein.
29.3 OGDEN shall conduct its Work at all times so to ensure the least possible
obstruction to traffic, or inconvenience to the general public and residents in the vicinity of the
Work. Fire hydrants on or adjacent to the Work shall be kept accessible. OGDEN shall make all
necessary provisions to maintain public access to sidewalks, public telephones, and the proper
functioning of all gutters, sewer inlets, drainage ditches, and irrigation ditches. No open
excavation shall be left overnight. All open excavation within the roadway shall be backfilled
and a temporary asphalt patch applied, or covered by properly secured temporary steel sheeting,
prior to darkness each day. A temporary cold asphalt patch is acceptable.
ARTICLE 30
Safety and Protection
30.1 OGDEN shall be responsible for initiating, maintaining and supervising all safety
precautions and programs in connection with the Project. OGDEN shall take all necessary
precautions for the safety of, and shall provide the necessary protection to prevent damage,
injury or loss to:
30.1.1 All OGDEN employees and its Subcontractors on the Project and other
persons who may be affected thereby;
30.1.2 All the Work and all materials or machinery to be incorporated therein,
whether in storage on or off the Project Sites: and
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30.1.3 Other property at the Sites or adjacent thereto, including trees, shrubs,
lawns, walks, pavements, roadways, structures and utilities not designated for removal,
relocation or replacement in the course of construction.
30.2 OGDEN shall comply with all Applicable Laws for the safety of persons or
property or to protect them from damage, injury or loss; and shall erect and maintain all
necessary safeguards for such safety and protection. The complete Project shall include all
necessary permanent safety devices required by the Applicable Laws. Further, any features of
the Work (including FKAA-Furnished Equipment) subject to such safety regulations shall be
fabricated, furnished, and installed in compliance with these requirements. OGDEN and
manufacturers of equipment shall be held responsible for compliance with the requirements
included herein. OGDEN shall notify all equipment suppliers and Subcontractors of the
provision of this Article.
30.2.1 OGDEN shall observe and comply with all applicable local, State and
Federal Occupational Safety and Health Regulations during the prosecution of Work
under this Contract, including full compliance with the U.S. Department of Labor's
Occupational Safety and Health Standards as established in Public Law 91-96, and the
Florida Trench Safety Act (90-96, Laws of Florida).
30.3 To provide maximum safety and security, OGDEN shall erect and maintain all
necessary barricades, and any other temporary walls and structures as required, and boarding to
protect life and property during the period of construction. OGDEN shall be solely and
completely responsible for conditions of the jobsite, including safety of all persons (including
employees) and property during performance of the Work. This requirement shall apply
continuously and not be limited to normal working hours. Safety provisions shall conform to the
Applicable Laws. Where any of these are in conflict, the more stringent requirement shall be
followed. OGDEN's failure to thoroughly familiarize itself with the aforementioned safety
provisions shall not relieve it from compliance with the obligations and penalties set forth herein.
30.4 OGDEN shall notify owners of adjacent property and utilities when prosecution
of the Work may affect them. All damage, injury or loss to any property caused directly or
indirectly, in whole or in part, by OGDEN, any Subcontractor or consultant or anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be liable, shall be
remedied by OGDEN. OGDEN's duties and responsibilities for the safety and protection of the
Project under this Contract shall continue until such time as the entire Project is completed and
FKAA has issued a notice to OGDEN that the Project is acceptable.
30.5 OGDEN shall designate a responsible member of its organization at the Project
site whose duty shall be the prevention of accidents. This person shall be OGDEN's Designated
Representative unless otherwise designated in writing by OGDEN to FKAA.
30.6 The duty of FKAA to conduct construction review of OGDEN's performance is
not intended to include a review or approval of the adequacy of OGDEN's safety supervisor, the
safety program, or any safety measures taken in, on, or near the Project.
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ARTICLE 31
Interim Operations
31.1 In recognition that portions of the Facilities, including the treatment plant, will be
operational prior to the time that OGDEN attains substantial completion of the entire Project, the
parties have mutually agreed to establish a period of interim operations. The rights and liabilities
of both OGDEN and FKAA during the Interim Operations Period shall continue to be primarily
governed by this Contract, and the terms and conditions of the Operations Agreement shall not
be controlling until substantial completion of the entire Project, except to the extent that they
may apply to the performance requirements and obligations for the Facilities.
31.2 After such time as the treatment plant is fully permitted, operational and OGDEN
considers it to be in compliance with the Contract Documents and the Applicable Laws, OGDEN
may request FKAA to commence the Interim Operations Period. Within ten (10) calendar days
of receipt of such written request from OGDEN, FKAA or its Project Representative shall
perform an inspection for acceptance as provided under this Contract. The Interim Operations
Period shall in no event commence prior to OGDEN having obtained the exploratory injection
well permit from FDEP and the well is in operation.
31.3 If FKAA or its Project Representative determines that the treatment plant is
substantially complete and fully permitted, it shall provide OGDEN with certification of interim
acceptance and the Interim Operations Period shall commence as of the date certified by FKAA.
If FKKA or its Project Representative determines that OGDEN's Work on the treatment plant is
unsatisfactory, in whole or in part, FKAA will give OGDEN the necessary instructions in the
form of a "punch list(s)" as to the replacement of material or machinery and the performance or
re -performance of Work necessary to achieve interim acceptance of the treatment plant. Upon
satisfactory completion of the designated punch list items, FKAA will make another inspection
and if FKAA determines that OGDEN has satisfactorily completed the remedial Work required
by the punch list(s), FKAA shall accept the treatment plant for interim operations.
31.4 Subsequent to FKAA's interim acceptance of the treatment plant, but prior to
substantial completion of the entire Project, OGDEN may seek to have portions of the collection
system approved for Interim Payment. On the last calendar day of each month after
commencement of the Interim Operations Period, OGDEN may submit to FKAA the number of
EDU's that OGDEN connected to the collection system that month or the prior month as
applicable, and request FKAA or its Project Representative to conduct an inspection for
acceptance. Within ten (10) calendar days of receipt of such written request from OGDEN,
FKAA or its Project Representative shall perform an inspection for acceptance as provided under
this Contract.
31.5 If FKAA or its Project Representative determines that the portion of the collection
system contained within the monthly submittal is substantially complete and fully permitted, it
shall provide OGDEN with certification of interim acceptance, signifying the commencement of
interim operations payments for such EDU's that have been accepted by FKAA. If FKAA or its
Project Representative determines that OGDEN's Work on the portion of the collection system is
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unsatisfactory, in whole or in part, FKAA will give OGDEN the necessary instructions in the
form of a "punch list(s)" as to the replacement of material or machinery and the performance or
re -performance of Work necessary to achieve interim acceptance of that portion of the collection
system. Upon satisfactory completion of the designated punch list items, FKAA will make
another inspection and if FKAA determines that OGDEN has satisfactorily completed the
remedial Work required by the punch list(s), FKAA shall certify the portion of the collection
system for interim operations payment.
31.6 Interim operations payment shall be made at an individual EDU rate determined
by the number of Project EDU's divided into the annual base fee under the Operations
Agreement of $2,250,000.00, divided by twelve, for each month the EDU is connected to the
collection system and accepted by FKAA as provided in Article 31.5. Interim Operations
Payment shall be due to OGDEN beginning on the sixtieth (60) calendar day after FKAA or its
Project Representative has certified the EDU for interim acceptance.
31.7 Interim acceptance of the treatment plant or portions of the collection system shall
not be final and conclusive or release OGDEN from any liability with regards to protection of the
Work, latent defects, fraud, negligence, or as regards FKAA's rights under any warranty,
Performance Bond, Payment Bond, policy of insurance, or guaranty. OGDEN shall remain fully
and completely responsible for any and all repairs, maintenance and operations of the Facilities
under this Contract until such time as the entire Project has attained substantial completion, and
OGDEN hereby agrees to indemnify and hold FKAA harmless from any and all suits, claims,
fines, penalties, or other legal proceedings arising out of OGDEN's Interim Operation of the
Facilities under this Contract.
ARTICLE 32
Cleaning Up and Removal of Equipment
32.1 OGDEN shall keep the construction Sites free of rubbish and other materials and
restore to their pre -construction conditions those portions of the Sites not designated for
alteration by the Contract Documents. Clean up and restoration shall be accomplished daily
throughout the contract period and in such a manner as to maintain a minimum of nuisance and
interference to the general public and residents in the vicinity of the Work. OGDEN shall also
remove, when no longer needed, all temporary structures and equipment used in its operation. It
is the intent of this Specification that the construction areas and those other areas not designated
for alteration by the Contract Documents shall be immediately restored to original condition. All
clean up is subject to approval by FKAA, FDOT, or Monroe County, whichever has jurisdiction.
32.2 Prior to final acceptance of the Project, OGDEN shall remove all its waste
materials and rubbish from and about the Project as well as its tools, construction equipment,
machinery and surplus materials. If OGDEN fails to clean up at the completion of the Project,
FKAA may do so, and the cost thereof shall be charged to OGDEN.
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32.3 If a dispute arises between OGDEN and separate contractors as to responsibility
for cleaning up, FKAA may clean up and charge the cost thereof to the contractors responsible
therefore as FKAA shall determine to be just.
32.4 In case of termination of this Contract before completion for any cause
whatsoever, OGDEN, if notified to do so by FKAA, shall promptly remove any part or all of
OGDEN's equipment and supplies from the property of FKAA and shall remove all waste
materials and rubbish and clean up, failing which FKAA shall have the right to remove such
equipment and supplies at the expense of OGDEN.
ARTICLE 33
FKAA'S Right to Terminate the Contract
33.1 The following shall give FKAA the right to terminate this Contract with OGDEN:
33.1.1 Should OGDEN (a) persistently fail to begin the design and construction
of the Project within the time specified, or (b) fail to prosecute the Work to completion in
a diligent, efficient, workmanlike, skillful and careful manner and in accordance with the
schedule and the Contract Documents, or (c) fail to perform the Project with an adequate
amount or quality of workers and equipment or with sufficient materials to assure the
prompt completion of the Project without delay, or (d) shall perform the Work
unsuitably, or cause it to be rejected as defective and unsuitable, or (e) shall discontinue
the prosecution of the Project;
33.1.2 Should OGDEN become insolvent, or be declared bankrupt, or make an
assignment for the benefit of creditors, or fail to pay subcontractors or suppliers promptly
in accordance with the terms of its subcontracts; or
33.1.3 Should OGDEN fail to pay required taxes (unless being disputed pursuant
to Applicable Laws), or fail to maintain required insurance, bond, or guarantee, or
otherwise fail to perform any of its material obligations under this Contract, or otherwise
repudiates or breaches any of the terms of this Contract, including any applicable
warranties.
33.2 If the Executive Director of FKAA reasonably determines in his sole discretion
that OGDEN has met any of the criteria specified in section 33.1, FKAA may give notice in
writing to OGDEN and its Surety of such delay, neglect or default, specifying the same. Should
OGDEN, within a period of (10) business days after such notice, not proceed in accordance
therewith, or fail to cure the default or defect or otherwise commence the cure thereof and
diligently pursue the same to completion, then the Executive Director of FKAA may, upon
written certificate from FKAA's Project Representative of the fact of such delay, neglect or
default and OGDEN's failure to comply with such notice, terminate the services of OGDEN,
exclude OGDEN from the Sites and take the prosecution of the Project out of the hands of
OGDEN, and appropriate or use any or all materials, equipment, and machinery on the Project
Sites as may be suitable and acceptable.
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33.3 In the event of a termination under Section 33.2 above, OGDEN shall not be
entitled to receive any further payment from FKAA until the Project is finished.
33.4 In the event of a termination under Section 33.2 above, FKAA may enter into a
separate contract for the completion of the Project according to the terms and provisions of the
Contract Documents or use such other methods as in its opinion shall be required for the
completion of the Project in an acceptable manner.
33.5 In the event of a termination under Section 33.2 above, all damages, costs and
charges incurred by FKAA shall be deducted from any monies due or which may become due to
OGDEN. Actions will be instituted to recover on the posted bonds and guaranty. In case the
damages and expenses so incurred by FKAA shall be less than the sum which would have been
payable under this Contract, if it had been completed by OGDEN, then OGDEN shall be entitled
to receive the difference. If such damages and costs exceed the unpaid balance, then OGDEN
shall be liable and shall pay to FKAA the amount of said excess.
33.6 Should OGDEN contest a termination under Section 33.2 above, and it is
determined that OGDEN was not in default, OGDEN shall be entitled to receive payment from
FKAA for the Work satisfactorily completed and expenses incurred to the point of termination;
reasonable resolution of subcontractor, supplier and vendor commitments that had become due
prior to the date of termination; demobilization of OGDEN's equipment, materials, and
personnel; and the relocation of OGDEN's employees if necessary. FKAA's liability under this
Section shall specifically exclude all claims for lost profits and indirect, consequential, special,
or other damages not otherwise specifically set forth herein. This Section shall not apply if it is
determined by a court of competent jurisdiction that FKAA acted in bad faith in terminating
OGDEN under Section 33.2.
33.7 If either an Uncontrollable Circumstance, or Change in Law, shall occur relative
to a material obligation of OGDEN under this Contract, or if an Uncontrollable Circumstance or
Change in Law shall occur relative to the obligations or the ability of FKAA to continue
performance under this Contract, and such circumstance or event, or the effect thereof, shall
continue for a period of sixty (60) calendar days, FKAA, upon notice to OGDEN, may terminate
this Contract forthwith, and neither party shall incur any further liability or obligation other than
to pay for the Work satisfactorily completed and expenses incurred to the date of notification of
the termination. No claim for loss of anticipated profits will be considered.
33.8 In the event FKAA exercises its rights under this Article, OGDEN will be entitled
to no other compensation, including without limitation, no other payment for lost profits and
indirect, consequential, special, or other damages. Payment by FKAA under the Article, and
acceptance of those amounts by OGDEN, shall constitute a waiver of all claims by OGDEN and
shall release FKAA from all claims and all liability to OGDEN for all things done or furnished in
connection with the Work and for every act of FKAA and others relating to or arising out of the
Work. Unless otherwise agreed to in writing by FKAA, no payment shall operate to release
OGDEN or its Sureties from obligations under this Contract, the guaranty, warranties, and the
performance and payment bond(s).
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33.9 Should FKAA lose funding for the Project, or if a grant of funding is reduced or
,r terminated, through no fault of FKAA, then FKAA may terminate the Contract upon seven (7)
calendar days written notice to OGDEN (delivered by certified mail, return receipt requested),
with no further liability or obligation to OGDEN other than to pay for the Work satisfactorily
completed up to the date of notification of termination. If, however, the grant of funding is
reduced or terminated due to some fault or negligence on the part of FKAA, OGDEN shall be
entitled to receive compensation as set forth in Section 33.6.
33.10 Upon receipt of notice of termination, OGDEN shall promptly discontinue all
affected Work unless the notice of termination directs otherwise and deliver or otherwise make
available to the FKAA all data, drawings (including as built drawings), specifications, reports,
estimates, summaries and such other information as may have been required by this Contract
whether completed or in process.
33.11 OGDEN and FKAA mutually agree that termination of this Contract pursuant to
this Article, unless otherwise agreed to by both parties in writing prior to the termination of this
Contract, shall also act to terminate the Operations Agreement.
ARTICLE 34
OGDEN's Right to Stop Work or Terminate Contract
34.1 OGDEN shall have the right, upon fifteen (15) business days written notice to
FKAA, to stop Work or terminate this Contract upon the occurrence of any of the following:
34.1.1 Should FKAA fail to review and approve, or state in writing its reasons for
its non -approval of, any application for payment within forty-five (45) calendar days after
it is presented to FKAA by OGDEN for payment.
34.1.2 Should FKAA fail to make payment to OGDEN of amounts that are not in
dispute between the parties within sixty (60) calendar days after the time provided in
Article 7 for such payments to be made.
34.2 FKAA shall have the right to make any required payment, or state in writing the
reasons for non -approval of any application for payment, within the fifteen (15) business day
period, which shall preclude OGDEN's right to terminate this Contract. It is further agreed that
OGDEN may not stop the Work, or terminate this Contract, if there exists a bonafide dispute
over whether any such payment is actually due.
34.3 OGDEN shall also have the right to stop Work, request additional compensation
and time extension or terminate this Contract should FKAA fail to deliver the vacuum station
sites within six months following OGDEN's scheduled acquisition of the FDEP permit for each
station. The date of OGDEN's planned permit acquisition shall be determined in accordance with
OGDEN's most recent, FKAA approved, Project Schedule. In no event may OGDEN exercise its
rights under this section until the twelfth (12) month after issuance of the full notice to proceed.
34.4 In the event of OGDEN's termination of this Contract under this Article 34,
FKAA shall pay to OGDEN the amounts specified in Section 33.6.
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ARTICLE 35
Bonds, Indemnification and Insurance
35.1 On the Effective Date, OGDEN shall furnish a Performance Guaranty from
Ogden Energy Group as set forth in Appendix B.
35.2 Performance and Payment Bond (Surety): OGDEN shall furnish a Performance
Bond and Payment Bond in the form and containing all the provisions of the Performance and
Payment Bond attached hereto as Appendix C on the Effective Date.
35.2.1 The Bonds shall each be in the amount of one hundred percent (100%) of
the Contract Price guaranteeing to FKAA the completion and performance of the Project
covered in this Contract as well as full payment of all suppliers, material person, laborers,
or Subcontractors employed pursuant to this Project. Such Bonds shall be with a surety
company that is qualified pursuant to Section 35.2, Qualifications of Surety.
35.2.2 Such Bonds shall continue in effect for two years after completion and
acceptance of the Project with liability equal to one hundred percent (100%) of the
Contract Price.
35.2.3 Pursuant to the requirements of Section 255.05 (i) (a), Florida Statutes, as
may be amended from time to time, OGDEN shall ensure that the bonds referenced
above shall be recorded in the public records of Monroe County and shall provide FKAA
with evidence of such recording.
35.3 Qualifications of Surety:
35.3.1 Each bond required by this Contract must be executed by a surety
company of recognized standing, authorized to do business in the State of Florida as
surety, having a resident agent in the state of Florida and having been in business with a
record of successful continuous operation for at least five (5) years.
35.3.2 In addition to the above -minimum qualifications, the surety company must
meet at least one of the following additional qualifications:
35.3.2.1 The surety company shall hold a current certificate of
authority as acceptable surety on federal bonds in accordance with United States
Department of Treasury Circular 5260, Current Revisions. If the amount of the
Bond exceeds the underwriting limitation set forth in the circular, in order to
qualify, the net retention of the surety company shall not exceed the underwriting
limitation in the circular, and the excess risks must be protected by coinsurance,
reinsurance, or other methods in accordance with Treasury Circular 2926, revised
September 1, 1978 (31 CFR Section 223.10 and Section 223.111). Further, the
surety company shall provide FKAA with evidence satisfactory to FKAA, that
such excess risk has been protected in an acceptable manner.
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35.3.2.2 The surety company shall have at least the following
minimum ratings in the latest revision of Best's Insurance Report:
Amount of Bond Policy Holder's Rating Best Financial Size Category
500,001 to 1,000,000
B+
Class I
1,000,001 to 2,000,000
B+
Class II
2,000,001 to 5,000,000
A
Class III
5,000,001 to 10,000,000
A
Class IV
10,000,001 to 25,000,000
A
Class V
25,000,001 to 50,000,000
A
Class VI
50,000,001 or more
A
Class VII
35.4 Indemnification of FKAA:
35.4.1 In consideration
of one
thousand dollars ($1000.00), separately
acknowledged by OGDEN, and other valuable consideration, OGDEN shall indemnify,
defend, and hold harmless FKAA and all of its officers, agents and employees, from all
claims, losses, damages, costs, charges, fines, or expenses arising out of any acts, actions,
neglect, or omission by OGDEN or any of its subcontractors, materialmen, or suppliers,
during the performance of this Contract, whether direct or indirect, and whether to any
person or property to which FKAA or said parties may be subject, except that neither
OGDEN nor any of its subcontractors are liable under this Article for damages arising out
of the injury or damage to persons or property directly caused or resulting from the sole
or willful negligence of FKAA or any of its officers, agents, or employees. If it is
ultimately determined with finality by an impartial tribunal, so constituted as to make
such determination, that injury or damage to person or property was caused by the sole or
willful negligence of FKAA, FKAA will indemnify OGDEN for injury to person or
damage to property incurred by OGDEN through such sole or willful negligence.
35.4.2 In the event that FKAA seeks indemnity and/or a defense, FKAA shall
provide notice in writing to OGDEN specifying in detail the event, condition or
circumstance that has given rise to the indemnity claim. FKAA shall provide copies of
all documents in its possession relating to the claim to OGDEN and thereafter cooperate
with and assist OGDEN and its insurer in the defense and resolution of the claim.
35.4.3 OGDEN's obligation to indemnify, defend, and pay for the defense or at
FKAA's option, to participate and associate with FKAA in the defense and trial of any
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damage claim or suit, and any related settlement negotiations, arises within seven (7)
calendar days of OGDEN's receipt of FKAA's notice of claim for indemnification.
OGDEN's obligation to defend and indemnify FKAA within seven (7) calendar days of
receipt of such notice is not excused because of OGDEN's inability to evaluate liability,
or because OGDEN denies liability or deems FKAA to be solely or willfully negligent.
Only a final adjudication or judgment finding FKAA solely or willfully negligent excuses
OGDEN from the performance of this provision. If a judgment finding FKAA solely or
willfully negligent is appealed and the finding of sole willful negligence is reversed, then
OGDEN is obligated to indemnify FKAA for the cost of the appeal(s).
35.4.4 OGDEN shall not permit any laborer's, materialmen's, mechanic's or
other similar liens to be filed or otherwise imposed on any part of the Work or the
property on which the Work is performed as a result of OGDEN's failure to pay
Subcontractor's or other persons performing portions of the Work in accordance with the
relevant subcontract or agreement. If any such lien or claim is filed, OGDEN and its
Surety agree to indemnify, save harmless and, at FKAA's option, defend FKAA, its
officers, agents and employees, from and against any claims, losses, demands, causes of
actions, liability or suits of whatever nature arising out of or based upon the liens or
claims or that part of the Work covered thereby. If OGDEN does not cause such lien or
claim to be released or discharged (by payment, bonding or otherwise and as promptly as
possible), FKAA shall have the right to pay all sums necessary to obtain such release or
discharge and deduct all amounts so paid from the Contract Price and any monies due to
OGDEN.
35.4.5 OGDEN shall defend against and be liable for all fines or civil penalties
that may be imposed by a regulatory body for any violations that are a result of
OGDEN's, or any of its Subcontractors, acts, actions, neglect, or omission under this
Contract, other than those that are proven to have been caused by an Uncontrollable
Circumstance or Change in Law, provided that FKAA shall provide OGDEN with
prompt notice of the threatened imposition or assessment of any such fine or civil penalty
and thereafter provide all documents, information, and assistance reasonably requested by
OGDEN to defend against such threatened fines or civil penalties.
35.4.6 In carrying out any of the provisions of this Contract, or in exercising any
authority granted by the Contract, there will be no personal liability upon any public
official of FKAA, employee, agent or representative.
35.4.7 The indemnification provided above shall obligate OGDEN to defend at
its own expense to and through the appellate, supplemental or bankruptcy proceeding, or,
at FKAA's option, to provide for such defense of any and all claims of liability and all
suits and actions of every name and description that may be brought against the
indemnified party under the circumstances, but subject to the limitations, provided above
in this Article
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35.5 Insurance Requirements
35.5.1 Prior to the issuance of the limited notice to proceed under Article 9,
OGDEN shall deliver to FKAA certificates of insurance (and other evidence of insurance
requested by FKAA or any other additional insured) which OGDEN is required to
purchase and maintain under this Contract. OGDEN will ensure that the insurance
obtained will extend protection to all Subcontractors engaged by OGDEN. As an
alternative, OGDEN may require all Subcontractors to obtain insurance consistent with
the insurance required of OGDEN. OGDEN will not be permitted to commence Work
governed by this Contract (including pre -staging of personnel and Material and
Equipment) until satisfactory evidence of all required insurance has been furnished to
FKAA, FKAA has reviewed such evidence, FKAA has approved all required insurance
OGDEN will furnish under the Contract, and OGDEN has obtained the insurance
approved by FKAA. Delays in the commencement of the Work, resulting from the
failure to provide satisfactory evidence of the required insurance, shall not extend
deadlines specified in this Contract and any liquidated damages shall be imposed as if the
Work commenced as of the date of issuance of the Notice to proceed.
35.5.2 OGDEN shall maintain the required insurance throughout the entire tern
of the Contract and any extensions specified below. Failure to comply with this
provision may result in the immediate suspension of all Work until the required insurance
has been reinstated or replaced.
35.5.3 FKAA, at its sole option, has the right to request a certified copy of any or
all insurance policies required by this Contract.
35.5.4 All companies providing insurance policies must be authorized to conduct
business in the State of Florida and have a Best Rating of no less than A-VH.
35.5.5 The acceptance and/or approval of OGDEN's insurance shall not be
construed as relieving OGDEN from any liability or obligation assumed under this
Contract or imposed by law.
35.5.6 FKAA, its employees and officials, will be included as "Additional
Insured" on all policies, except for Workers' Compensation and Vehicle Liability
policies. In addition, FKAA will be named an "Additional Insured" and "Loss Payee" on
all policies covering FKAA-owned property.
35.5.7 OGDEN shall purchase and maintain such liability and other insurance as
is appropriate for the Work being performed and as will provide protection from claims
which may arise out of or result from OGDEN's performance of the Work and OGDEN's
other obligations under the Contract Documents, whether it is to be performed by
OGDEN, any Subcontractor in any tier or supplier, or by anyone directly or indirectly
employed by any of them to perform any of the Work, or by anyone for whose acts any
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of them may be liable. At a minimum, OGDEN shall purchase and maintain the
following insurance:
35.5.7.1 Workers' Compensation Insurance with limits sufficient to
respond to section 440 of the Florida Statutes. OGDEN shall also furnish
insurance covering claims under disability benefit and other similar employee
benefit acts.
35.5.7.2 Employers' Liability Insurance (coverage to be maintained
throughout the entire term of the Contract) with limits of not less than $3,000,000
for bodily injury by accident, $3,000,000 for bodily injury by disease (policy
limits) and $3,000,000 for bodily injury by disease (each employee).
35.5.7.3 Commercial General Liability Insurance (coverage to be
maintained throughout the life of the Contract) and include, as a minimum,
coverage for Premises Operations, Products and Completed Operations for two
(2) years after completion and acceptance of the Work, Independent Contractors,
Blanket Contractual Liability, Blanket Fire and Explosion Liability, Personal
Injury Liability, and Expanded Definition of Property Damage. The minimum
limits acceptable shall be $1,500,000 Combined Single Limit (CSL) or, if split
limits are provided, $1,000,000 bodily injury per person, $1,000,000 bodily injury
per occurrence and $500,000 for property damage. An Occurrence Form policy is
preferred. If coverage is provided on a Claims Made policy, its provisions should
include coverage for claims filed on or after the effective date of this Contract. In
addition, the period for which claims may be reported should extend for a
minimum of twelve (12) months following the acceptance of the Work by FKAA.
The policy shall include coverage for the XCU (explosion, collapse and
underground) exposures with full policy limits available for this exposure. If an
Umbrella or Excess policy is used to satisfy the above -required limits of liability,
the terms and conditions of the Umbrella or Excess policy must be no less
restrictive than the underlying primary liability policy.
35.5.7.4 Vehicle Liability Insurance (coverage to be maintained
throughout the life of the Contract) that shall include, as a minimum, liability
coverage for owned, non -owned and hired vehicles. The minimum acceptable
limits shall be $1,500,000 Combined Single Limit (CSL) or, if split limits are
provided, $500,000 bodily injury each person, $1,000,000 bodily injury each
occurrence and $500,000 for property damage.
35.5.7.5 Insurance assuring that, in carrying out any of the
provisions hereof in exercising any authority granted by the Contract, there would
be no personal liability upon any public official.
35.5.7.6 Builder's Risk Insurance on an All Risk of Loss form (to be
maintained throughout the life of the Contract and until the Project is accepted by
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FKAA) covering loss caused by theft, windstorm, hail, explosion, riot, civil
commotion, aircraft, vehicles, smoke, fire, collapse and flood. Transit and off -site
storage coverage must be included, and permission granted for partial occupancy
during construction without affecting the coverage. The policy limits shall be no
less than the amount of the finished Project and coverage shall be provided on a
completed value basis. Property located on the construction premises that is
intended to become a permanent part of the Project shall be included as property
covered.
35.5.7.7 Installation Floater Insurance (to be maintained throughout
the life of the Contract and until the Project is accepted by FKAA) covering
machinery and Equipment while being transported, installed and tested and
covering loss caused by fire, explosion, civil commotion vehicles, aircraft,
lightning, collapse, vandalism, flood, windstorm, strikes, malicious mischief, hail,
and riots. The policy limits shall be no less than the amount of the machinery and
Equipment being installed.
35.5.8 The policies of insurance OGDEN required by this Article to be purchased
and maintained shall:
35.5.8.1 with respect to insurance required by Section 35.5.2,
include as additional insureds (subject to any customary exclusion in respect of
professional liability) FKAA and its Project Representative all of whom shall be
listed as additional insureds, and include coverage for the respective officers,
directors, partners, employees, agents, and other consultants and Subcontractors
of each and any of all such additional insureds, and the insurance afforded to
these additional insureds shall provide primary coverage for all claims covered
thereby;
35.5.8.2 include at least the specific coverages and be written for not
less than the limits of liability provided herein or required by Laws or
Regulations, whichever is greater;
35.5.8.3 include completed operations insurance;
35.5.8.4 include contractual liability insurance covering OGDEN's
indemnity obligations under this Contract;
35.5.8.5 contain a provision or endorsement that the coverage
afforded will not be canceled, reduced, materially changed or renewal refused
until at least thirty (30) days prior written notice has been given by insurer or its
agent to FKAA and OGDEN and to each other additional insured to whom a
certificate of insurance has been issued (and the certificates of insurance furnished
by OGDEN pursuant to paragraph 35.5.1 will so provide);
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35.5.8.6 remain in effect at least until final payment and acceptance
of the Project and at all times thereafter when OGDEN may be correcting,
removing, or replacing defective Work in accordance with the Contract
Documents; and
35.5.8.7 with respect to completed operations insurance, and any
insurance coverage written on a claims -made basis, remain in effect for at least
two (2) years after final payment and acceptance of the Project (and OGDEN
shall furnish FKAA and each other additional insured to whom a certificate of
insurance has been issued, evidence satisfactory to FKAA and any such additional
insured of continuation of such insurance at final payment and one year
thereafter).
35.5.9 In addition to the insurance required to be provided by OGDEN
under the Contract, FKAA, at FKAA's option, may purchase and maintain at
FKAA's expense FKAA's own liability insurance as will protect FKAA against
claims which may arise from operations under the Contract Documents.
35.6 Professional Liability Insurance: OGDEN shall provide, pay for and maintain in
force at all times during the services to be performed Professional Liability Insurance covering
the design, engineering, and construction Work performed by OGDEN and any of its
Subcontractors, with the limits of liability provided by such policy to be no less than Five
Million Dollars ($5,000,000), with a deductible (if applicable) not to exceed $100,000 each
claim. Coverage written on a "claims made" basis must remain in force for two (2) years after
acceptance of the Project by FKAA. The policy(ies) must be endorsed to provide FKAA with at
least thirty (30) days written notice of cancellation and/or restriction. OGDEN shall notify
FKAA in writing within thirty (30) calendar days of any claims filed or made against the
Professional Liability Insurance Policy.
35.7 Assignment: OGDEN and all Subcontractors shall and hereby do assign to
FKAA all return premiums, premium refunds, dividends and other monies due to or which may
become due in connection with the insurance, all of which shall inure to the benefit of FKAA.
OGDEN and all Subcontractors shall execute such other further assignments and documentation
as may be required to effectuate this assignment.
35.8 Subrogation and Waiver: OGDEN hereby waives, and shall require all its
Subcontractors to waive, all rights of recovery against FKAA, the Board of FKAA
Commissioners, its officers, agents and employees, which rights of recovery OGDEN may have
or may acquire pursuant to deductible clauses in, or inadequacy of limits of, any policies of
insurance that are in any way related to the Work and that are secured by OGDEN.
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ARTICLE 36
Reuse
36.1 The parties expressly recognize the desirability of implementing a reclaimed
water re -use system on this Project. Therefore, OGDEN agrees that it will design and construct
the Project Facilities in such a manner that will both facilitate the addition of a re -use system in
the future and minimize the expense associated with the implementation of such a system.
36.2 Should FKAA implement a re -use system during the term of this Contract,
OGDEN shall perform all Work related to the design, construction, operation, and maintenance
of the re -use system in accordance with the terms and conditions of this Contract and the
Operations Agreement. FKAA and OGDEN shall negotiate compensation and the completion
time in accordance with the provisions of Article 10, and FKAA shall issue written change
orders as are necessary. Similarly, FKAA and OGDEN shall negotiate compensation for
operation, maintenance, and repair of the reuse system in accordance with the provisions of
Article 12 of the Operations Agreement.
36.3 The approved uses, application sites, quantities, assurances of long-term re -use of
reclaimed water, conditions under which re -use may take place, and recipients of re -use water
shall be determined by FKAA, consistent with the requirements of FDEP, based upon a re -use
feasibility study to be completed by OGDEN at no additional cost to FKAA. The completed
study shall be submitted to FKAA no later than October 15, 2000. Any proposal for re -use
justified by the study shall be subject to acceptance by the FKAA and, in the event financing for
the re -use facilities is contemplated from FDEP, by FDEP. No claim for delay in Project
implementation or completion shall be made as a result of undertaking the study, the required
review, design, permitting, or construction of any resulting re -use facilities. FKAA and OGDEN
will mutually establish delivery procedures and payment provisions that will govern the
operation, maintenance, and repair of any re -use system by OGDEN throughout the entire term
of the Operations Agreement. Such delivery procedures shall address the reclaimed water
quality, disinfection, storage, distribution, monitoring, and application rates as well as the
handling of reject water. If re -use is to implemented by mutual agreement of OGDEN and
FKAA, the construction and operation of the re -use system would be incorporated into the
Project without precluding OGDEN from maintaining construction schedules or operation and
maintenance schedules.
ARTICLE 37
Miscellaneous Contract Provisions
37.1 ROYALTIES AND PATENTS: All fees, royalties, and claims for any invention,
or pretended invention, or patent of any article, material, arrangement, appliance or method that
may be used upon or in any manner be connected with the construction of this Project or
appurtenances, are hereby included in the prices stipulated in this Contract for said Project.
37.2 DATUM: All elevations are referred to as National Geodetic Vertical Datum
(N.G.V.D.) of 1929, or such datum identified in the Design -Build Criteria Package.
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37.3 RIGHTS OF VARIOUS INTERESTS: Whenever Work being done by FKAA's
forces or by other contractors is contiguous to Work covered by this Contract, the respective
rights of the various interests involved shall be established by FKAA to secure the completion of
the various portions of the Work in general harmony.
37.4 OWNERSHIP OF DOCUMENTS: Drawings, specifications, designs, models,
photographs, computer electronic discs, reports, surveys, and other data provided in connection
with this Contract are and shall become and remain the property of FKAA, but subject to any
conditions or limitations upon use thereof to the extent the intellectual property rights therein are
owned by third parties whether the Project for which they are made is executed or not. Prior to
the final completion of construction services under this Contract, there shall be established a
record set of as built plans and specifications, both electronically and on full size Mylar
drawings, which shall bear the approval of OGDEN's consultant and the concurrence of FKAA's
Project Representative. In the event of termination of this Contract, any reports, photographs
surveys, and other data and documents prepared by OGDEN, whether finished or unfinished,
shall become the property of FKAA and shall be delivered by OGDEN to FKAA within fourteen
(14) calendar days of OGDEN's receipt of notice of the termination. If applicable, FKAA may
withhold any payments then due to OGDEN until OGDEN complies with the provisions of this
section.
37.5 RECORDS: OGDEN shall keep such records and accounts and require any and
all architects, consultants and Subcontractors to keep records and accounts as may be necessary
in order to record complete and correct entries as to personnel hours charged to this engagement.
Such books and records will be available at reasonable times for examination and audit by
FKAA and for the required retention period of the Florida Public Records Act (Chapter 119, Fla.
Stat.), if applicable, or, if the Florida Public Records Act is not applicable, for a minimum period
of three (3) years after termination of this Contract. If any audit has been initiated and audit
findings have not been resolved at the end of the retention period or three (3) years, whichever is
longer, the books, records, and accounts shall be retained until resolution of the audit findings. If
the Florida Public Records Act is determined by OGDEN to be applicable to OGDEN's records,
OGDEN shall comply with all requirements thereof; OGDEN and FKAA shall violate no
confidentiality or non -disclosure requirement of either federal or state law. Any incomplete or
incorrect entry in such books, records, and accounts shall be a basis for FKAA's disallowance
and recovery of any payment upon such entry.
37.6 NO CONTINGENT FEE: OGDEN warrants that it has not employed or retained
any company or person, other than a bonafide employee working solely for OGDEN to solicit or
secure this Contract and that it has not paid or agreed to pay any person, company, corporation,
individual or firm, other than a bona tide employee working solely for OGDEN, any fee,
commission, percentage, gift, or other consideration contingent upon or resulting from the award
or making of this Contract. For the breach or violation of this provision, FKAA shall have the
right to terminate this Contract without liability at its discretion, to deduct from the Contract
Price, or otherwise recover, the full amount of such fee, commission, percentage, gift or
consideration.
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37.7 REPRESENTATIVE OF FKAA AND OGDEN: It is recognized that questions in
the day-to-day conduct of the Project will arise. FKAA shall designate and shall advise OGDEN
in writing, of one (1) or more representatives to whom all communications pertaining to day-to-
day conduct of the Project shall be addressed. OGDEN shall likewise inform FKAA in writing
of the representative of OGDEN to whom matters involving the day-to-day conduct of the
Project shall be addressed.
37.8 ALL PRIOR AGREEMENTS SUPERSEDED: The Contract Documents
incorporate and include all prior negotiations, correspondence, conversations, agreements or
understandings applicable to the matters contained herein, and the parties agree that there are no
commitments, agreements or understandings concerning the subject matter of this Contract that
are not contained in the Contract Documents. Accordingly 'it is agreed that no deviation from the
terms hereof shall be predicated upon any representations or agreements whether oral or written.
It is further agreed that no modification, amendment or alteration in the terms or conditions
contained herein shall be effective unless contained in a written document executed with the
same formality and of equal dignity herewith.
37.9 OCCUPATIONAL SAFETY REQUIREMENTS: OGDEN shall take all
precautions necessary for the protection of life, health, and general occupational welfare of all
persons, including employees of both OGDEN and FKAA, until OGDEN has completed the
Work required under the Contract Documents. OGDEN shall at all time comply with applicable
Federal, State, and local laws, provisions, and policies governing safety and health, including 29
CFR 1926, including all subsequent revisions and updates.
37.10 TRUTH -IN -NEGOTIATION: Signature of this Contract by OGDEN shall act as
the execution of a truth -in -negotiation certificate stating that wage rates and other costs
supporting the compensation of this Contract are accurate, complete, and current at the time of
contracting. The original contract amount and any additions thereto shall be adjusted to exclude
any significant sums, by which FKAA determines the base fee, or any subsequent change order,
was increased due to inaccurate, incomplete, or non -current wage rates and other factual unit
costs. All such contractual adjustments shall be made within one (1) year following the end of
this Contract.
37.11 INTERPRETATION: The parties hereto acknowledge and agree that the
language used in this Contract expresses their mutual intent, and no rule of strict construction
shall apply to either party hereto. The headings contained in this Contract are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Contract. All
personal pronouns used in this Contract shall include the other gender, and the singular shall
include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein,"
"hereof," "hereunder," and "hereinafter" refer to this Contract as a whole and not to the particular
sentence, paragraph or Section where they appear, unless the context requires otherwise.
Whenever reference is made to a Section or Article of this Contract, such reference is to the
Section or Article as a whole, including all of the subsections and subparagraphs of such Section
or Article, unless the reference is expressly made to a particular subsection or subparagraph of
such Section or Article.
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37.12 CONDITION PRECEDENT TO CONTRACT: It is understood by the parties to
this Contract that all duties and obligations as set forth herein for the Design and Construction
Phases of the Project (with accompanying Support Facilities if applicable), including the
issuance of any notice to proceed, are contingent upon and shall not be binding upon FKAA until
such time as OGDEN has obtained all necessary permits, authorizations, and approvals of
whatever nature from the appropriate governmental entities or regulatory bodies that may be
required for the construction of the Project with accompanying support facilities as set forth in
Article 5, entitled Scope of Work, and delineated in the drawings to be prepared by OGDEN and
approved by FKAA in accordance with Article 9. The parties hereto acknowledge that as of the
date of execution of this Contract certain necessary governmental approvals, including, but not
limited to, those matters set forth above, may not have been obtained by OGDEN in order to
lawfully commence the Project. FKAA shall not be responsible or liable for any damages of any
nature whatsoever, including but not limited to, direct, indirect, consequential, impact or other
costs and expenses, which may arise as a result of, or connected to, the failure of any
governmental entity, refusing to grant any necessary approval, permit, variance or any other
required consent which may be necessary to commence construction of the Project, or which
may arise as a result of any delay in the granting of any such approval, permit, variance or other
required consent.
37.13 PUBLIC ENTITY CRIME STATEMENT: OGDEN represents that the execution
of this Contract will not violate Section 287.133(2)(a), F.S., ("Public Entity Crimes Act") which
provides, in part, that a person or affiliate who has been placed on the convicted vendor list
following a conviction for a public entity crime may not submit a bid on a contract to provide
any goods or services to FKAA, may not submit a bid on a contract with FKAA for the
construction or repair of a public building or public Work, may not submit bids on leases of real
property to FKAA, may not be awarded or perform Work as a contractor, supplier,
Subcontractor, or consultant under a contract with FKAA, and may not transact business with
FKAA in excess of the threshold amount provided in Section 287.017, Florida Statutes, for
CATEGORY TWO for a period of 36 months from the date of being placed on the convicted
vendor list. Violation of this section by OGDEN shall result in termination of this Contract by
FKAA without penalty. In addition to the foregoing, OGDEN further represents that there has
been no determination, based on an audit, that it committed an act defined by Section 287.133
Florida Statutes, as "public entity crime" and that it has not been formally charged with
committing an act defined as a "public entity crime" regardless of the amount of money involved
or whether OGDEN has been placed on the convicted vendor list.
37.14 JOINT PREPARATION: The preparation of this Contract has been a joint effort
of the parties and the resulting document shall not, solely as a matter of judicial construction, be
construed more severely against one of the parties than the other by virtue of the fact that it may
have been physically prepared by one party or its attorneys.
37.15 SEVERANCE: In the event this Contract or a portion of this Contract is found by
a court of competent jurisdiction to be invalid, the remaining provisions shall continue to be
effective unless it effects material obligations of FKAA or OGDEN, or if FKAA elects to
Key Largo Wastewater Treatment System 64 of 67
Design/Build Contract
10 May 2000
terminate this Contract or renegotiate its terms. The election to terminate this Contract based
upon this provision shall be made within seven (7) business days after the finding by the court
becomes final.
37.16 WAIVER: No waiver of any provision of this Contract shall be effective unless it
is in writing, signed by the party against whom it is asserted and any such written waiver shall
only be applicable to the specific instance to which it relates and shall not be deemed to be a
continuing or future waiver.
37.17 CONFLICTS: Neither OGDEN nor its employees shall have or hold any
continuing or frequently recurring employment or contractual relationship that is substantially
antagonistic or incompatible with OGDEN's loyal and conscientious exercise of judgment
related to its performance under this Contract. OGDEN agrees that none of its employees shall,
during the term of this Contract, serve as an adverse or hostile expert witness against FKAA in
any legal or administrative proceeding in which he or she is not a party, unless compelled by
court process, nor shall such persons give sworn testimony or issue a report or writing, as an
expression of his or her opinion, which is adverse or prejudicial to the interests of FKAA in any
such pending or threatened legal or administrative proceeding. The limitations of this section
shall not preclude such persons from representing themselves in any action or in any
administrative or legal proceeding regarding this Contract. In the event OGDEN is permitted to
utilize Subcontractors to perform any services required by this Contract, OGDEN agrees to
prohibit such Subcontractors, by written contract, from having any conflicts as within the
meaning of this section.
37.18 CONSEQUENTIAL DAMAGES: Neither party shall be liable to the other for
special or consequential damages except as otherwise provided in this Contract.
37.19 The maximum aggregate amount of Liquidated Damages that may be recovered
by FKAA against OGDEN and Ogden Energy Group, Inc. under this Contract shall be twelve
million ($12,000,000.00) dollars. OGDEN and Ogden Energy Group, Inc., shall in addition to
the performance and payment bonds, be separately and independently liable for Liquidated
Damages in excess of the penal sum of the bonds.
37.20 SUCCESSORS AND ASSIGNS: The terms of this Contract shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and permitted
assigns.
ARTICLE 38
Hurricane Precautions
38.1 During such periods of time in Key Largo as are designated by the United States
Weather Service as being a hurricane watch or warning, OGDEN, at no cost to FKAA, shall take
all precautions necessary to respond to all threatened storm events, regardless of whether FKAA
or its Project Representative has given notice of the same.
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10 May 2000
38.2 Compliance with any hurricane watch or warning precautions specific to the
Florida Keys will not constitute additional Work.
38.3 Suspension of the Work caused by a threatened or actual storm event, regardless
of whether FKAA or its Project Representative has directed such suspension, will entitle
OGDEN to additional Contract Time as an excusable delay, and shall not give rise to a claim for
compensation.
Key Largo Wastewater Treatment System 66 of 67
Design/Build Contract
10 May 2000
IN WITNESS WHEREOF, the parties hereto have executed this Contract on the day
and date first above written, in
counterparts each of whom shall, without proof or accounting for the other counterpart be
deemed an original Contract.
WITNESSES:
ATTEST:
Clerk
CONTRACTOR:
Ogden Water Systems of Key Largo, Inc.
By
Title
Date
Florida Key Aqueduct Authority
By
Title
Date
Key Largo Wastewater Treatment System 67 of 67
Design/Build Contract
10 May 2000
APPENDIX A
WASTEWATER MANAGEMENT FACILITIES
1. Consistent with Monroe County growth management policies, Project facilities
shall be designed to accommodate the wastewater treatment plant flows listed in the tabulation
given below. The treatment plant shall meet Class I reliability criteria. Standby power, odor
control, and protection for Flood Zone V shall be provided.
Condition Average Daily Flow
Average Daily Flow on an Annual Basis 2.2 million gallons per day
Average Daily Flow on a Maximum Month Basis 2.8 million gallons per day
Peak Hourly Flow 4,000 gallons per minute
Parameter Onerational Criteria
Carbonaceous Biochemical Oxygen Demand (CBOD5)
Annual Average
5 milligrams per litre
Total Suspended Solids
Annual Average
5 milligrams per litre
Total Nitrogen, expressed as N
Annual Average
3 milligrams per litre
Total Phosphorus, expressed as P
Annual Average
1 milligrams per litre
Microbiological
Basic Disinfection
2. The collection/transmission system shall provide for transmission of both
minimum scouring flow and peak hourly flow to the treatment plant consistent with sound
engineering practice. Traffic bearing lids shall be provided for vacuum pits. Standby power,
odor control, negative buoyancy for vacuum pits, and vacuum station and pumping station
protection for Flood Zone V shall be provided. The selection of the size or capacity rating of
collection/transmission components shall be limited as follows: Facilities shall be provided and
appropriately sized to serve existing developed properties throughout the entire Project service
area; additional capacity to accommodate service allowed under the County's growth
management policies shall be provided; manufacturers' recommendations shall be followed; and
sound engineering practice shall be used. Compliance with all local, state, and federal
environmental protection policies, ordinances, rules, regulations, and statutes shall be required.
3. The deep injection well disposal system shall be provided in accordance with
Class I well construction specifications as established in Department of Environmental
Protection rules. The well system shall include redundancy such that the entire permitted flow
can be injected while any part of the system is not being used.
CONTINUING GUARANTY
This CONTINUING GUARANTY is dated as of the day of , 2000
("Guaranty") and is made by OGDEN ENERGY GROUP, a corporation (the "Guarantor"), to
the FLORIDA KEYS AQUEDUCT AUTHORITY and MONROE COUNTY, FLORIDA
(collectively, "FKAA")
FOR GOOD AND VALUABLE CONSIDERATION RECEIVED, and as a condition
precedent to the obligations of FKAA under a Design/Build Contract, dated , and
an Operation and Maintenance Agreement, dated , pertaining to wastewater
treatment and collection system to serve the island of Key Largo between Mile Markers 91 and
106, FKAA Project No. 4004-00, entered into between Ogden Water Services Key Largo, Inc.
(the "Company") and FKAA (collectively, the "Agreements"), the Guarantor, for itself and its
successors and assigns, hereby absolutely and unconditionally guarantees to FKAA, and its
successors and assigns, the due performance and full and prompt payment when due of any and
all obligations and indebtedness of the Company, or its successors and assigns, to FKAA
pursuant to or arising out of the Agreements, including but not limited to the Company's
obligations under the bonds, warranties and insurance policies secured or to be secured pursuant
to the Agreements.
The word "indebtedness" is used herein in its most comprehensive sense and includes
any and all advances, debts, obligations and liabilities, now or hereafter made, incurred or
created or held or to be held by FKAA for its own account or as agent for another, or otherwise,
whether created directly or acquired by assignment, or otherwise, whether voluntary or
involuntary, and however arising, whether due or not, absolute or contingent, liquidated or non -
liquidated, and whether the Company may be liable individually or jointly with others, or
whether recovery upon such indebtedness may be or hereafter become barred by any statute of
limitations, or whether such indebtedness may be or hereafter become otherwise unenforceable,
provided such indebtedness arises pursuant to or out of the Agreements, the bonds, warranties or
the relationship created thereby. This is a Continuing Guaranty relating to the Company's
obligations and indebtedness, including that arising under subsequent or successive transactions
between the Company and FKAA, which shall either continue or increase the obligations or the
indebtedness, and is not limited as to amount.
The obligations hereunder are joint and several, and independent of the obligations of the
Company or its Surety, and a separate action or actions may be brought and prosecuted against
the Guarantor, whether action is brought against the Company or its Surety or whether the
Company or its Surety may be joined in any such action or actions. This is a guaranty of
performance and payment and not of collection, and this Guaranty shall remain in full force and
effect throughout the term of the Agreements and so long as any obligation of the Company, or
its successors and assigns, under or arising out of the Agreements, the bonds, the warranties or
the relationship created thereby are unfulfilled.
All capitalized terms not defined in this Guaranty shall have the meaning given to those
terms in the Agreements.
The Guarantor hereby absolutely and unconditionally guarantees to FKAA, for its benefit
and that of its successors and assigns, the full and prompt performance of all obligations of the
Company, its successors and assigns, under the Agreements in accordance with the terms and
conditions thereof.
The Guarantor authorizes FKAA, without notice or demand, and without affecting the
Guarantor's liability hereunder, from time to time, and on any number of occasions, to renew,
amend, compromise, extend, accelerate, reinstate or otherwise change the terms of the
Agreements, or any part thereof, as provided in the Agreements. The Guarantor acknowledges
and agrees that no act or omission of any kind by FKAA shall affect or impair this Guaranty, and
FKAA shall have no duties in respect thereof to the Guarantor. FKAA may, without notice,
assign this Guaranty in whole or in part.
The Guarantor waives any right to require FKAA to (a) proceed against the Company or
its Surety; (b) proceed against or exhaust any security held from the Company; or (c) pursue any
other remedy in FKAA's power whatsoever. The Guarantor waives any defense arising by
reason of any disability or other defense of the Company or by reason of the cessation from any
cause whatsoever of the liability of the Company. Until all obligations of the Company to
FKAA shall have been performed in full, the Guarantor shall have no right of subrogation, and
waives any right to enforce any remedy which FKAA now has or may hereafter acquire against
the Company or its Surety, and waives any benefit of, and any right to participate in, any bond or
security now or hereafter held by FKAA. The Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of dishonors and notices of acceptance
of this Guaranty and of the existence, creation or incurring of new or additional obligations as
provided in the Agreements. The Guarantor covenants to cause the Company to maintain and
preserve the enforceability of any instruments now or hereafter executed in favor of FKAA, and
to take no action of any kind which might be the basis for a claim that the Guarantor has any
defense hereunder other than performance in full of all obligations of the Company to FKAA
under the Agreements. The Guarantor hereby indemnifies FKAA against loss, cost or expense
by reason of the assertion by the Guarantor of any defense hereunder based upon any such action
or inaction of the Company. The Guarantor waives any right or claims of right to cause a
marshaling of the Company's assets. No delay on the part of FKAA in the exercise of any right,
power or privilege under the documentation with the Company or under this Guaranty shall
operate as a waiver of any such right, power or privilege.
In addition to all liens upon, and rights or setoff against, the monies, securities, or other
property of the Guarantor given to FKAA by law, FKAA shall have a lien upon and a right of
setoff against all monies, securities and other property of the Guarantor now or hereafter in the
possession of or on deposit with FKAA, whether held in a general or special account of deposit,
or for safekeeping, or otherwise; and every such lien and right of setoff may be exercised without
notice to or demand upon the Guarantor. No lien or right of setoff shall be deemed to have been
waived by any act or conduct on the part of FKAA, or by any neglect to exercise such right of
setoff or to enforce such lien, or by any delay in so doing; and every right of setoff and lien shall
continue in full force and effect until such right of setoff or lien is specifically waived or released
by an instrument in writing executed by FKAA.
2
Any indebtedness of the Company now or hereafter held by the Guarantor is hereby
subordinated to any indebtedness of the Company to FKAA; and such indebtedness of the
Company to the Guarantor, if FKAA so requests, shall be collected, enforced and received by the
Guarantor as trustee for FKAA and be paid over to FKAA on account of the indebtedness of the
Company to FKAA, but without reducing or affecting in any manner the liability of the
Guarantor under the other provisions of this Guaranty.
The Guarantor agrees to pay reasonable attorneys' fees and all other expenses which may
be incurred or expended by FKAA in the enforcement of the Company's or its Surety's
obligations and/or of this Guaranty, whether suit be brought or not, and in the event suit is
brought, then for all services in trial and appellate courts. The Guarantor does hereby waive the
right to trial by jury on any claims or actions arising hereunder or resulting from the obligations
referred to herein. Any litigation which may arise by and between FKAA and the Guarantor
shall be commenced and/or maintained in the Circuit Court of the Sixteenth Judicial Circuit in
and for Monroe County, Florida, sitting in Key West, Florida, or other appropriate state court in
that venue, and Monroe County, Florida, sitting in Key West, Florida, shall be the exclusive
venue for any such action.
Upon the default of the Company with respect to any of its obligations or liabilities to
FKAA, or in case the Company or the Guarantor shall become insolvent or make an assignment
for the benefit of creditors, or if a petition in bankruptcy or for corporate reorganization or for an
arrangement be filed by or against the Company or the Guarantor, or in the event of the
appointment of a receiver for the Company or for the Guarantor or their properties, or in the
event that a judgment is obtained or warrant of attachment issued against the Company or the
Guarantor, or in the event FKAA deems itself insecure, or should FKAA request additional
security and the Guarantor or the Company should fail to provide the same, all or any part of any
indebtedness of the Company and of the obligations and liabilities of the Guarantor to FKAA,
whether direct or contingent, and of every kind and description, shall, without notice or demand,
at the option of FKAA, become immediately due and payable and shall be paid forthwith by the
Guarantor.
It is not necessary for FKAA to inquire into the powers of the Company, or the officers,
directors, partners or agents acting or purporting to act in the Company's behalf, and any
agreement reached or indebtedness made or created in reliance upon the professed exercise of
such powers shall be guaranteed hereunder.
The Guarantor acknowledges that FKAA has been induced by this Guaranty to enter into
the Agreements with the Company, and would not do so without this Guaranty, and this
Guaranty shall, without further reference or assignment, pass to, and may be relied upon and
enforced by, any successor or assignee of FKAA.
This Guaranty shall continue notwithstanding the dissolution, termination of, increase,
decrease or change in personnel of the Guarantor.
The Guarantor represents and warrants by the execution of this Guaranty that:
3
(a) The Guarantor is a corporation, organized and existing under the laws of the State
of Delaware and has all requisite power and authority to enter into and perform all of its
obligations under this Guaranty;
(b) The execution, delivery and performance by the Guarantor of this Guaranty has
been duly authorized by all necessary action and the Guaranty constitutes a legal, valid and
binding obligation of the Guarantor enforceable in accordance with its terms;
(c) The execution, delivery and performance by the Guarantor of this Guaranty does
not and will not: (i) violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award which is currently in effect and to which the
Guarantor is subject; or (ii) result in a breach of or constitute a default under the provisions of
any indenture, loan or credit agreement or any other agreement, lease or instrument, to which the
Guarantor is subject or by which it, or its property, is bound;
(d) The Guarantor has obtained all authorizations, consents, approvals, licenses,
exemptions of or filings or registrations, with all commissions, boards, bureaus, agencies and
instrumentalities, domestic or foreign, available as of the date hereof, necessary for the due
extension, delivery and performance by the Guarantor of this Guaranty; and
(e) There are no actions, suits or proceedings pending (except for actions, suits or
proceedings which may have been filed, but for which no notice has been received by, or process
served upon, the Guarantor) or, to the knowledge of the Guarantor, threatened against the
,,, Guarantor or any of its property, before any court, arbitrator or governmental department,
commission, board, bureau, agency or instrumentality which, if determined adversely to the
Guarantor, would singly or in the aggregate, have a material adverse effect on the ability of the
Guarantor to perform its obligations under this Guaranty that have not been disclosed in writing
to the FKAA.
The Guarantor further represents and warrants that the Guarantor, as of the date of
execution of this Guaranty, has a credit rating equal to A-2 or better from Moody's Investors
Services, Inc. ("Moody's") and A or better from Standard & Poor's Corporation ("Standard &
Poor's") (or if neither Moody's nor Standard & Poor's continues to exist, has a comparable
rating from another nationally recognized rating agency). Should Guarantor's credit rating fall
below the minimum ratings warranted by the Guarantor in this paragraph, the Guarantor shall
immediately notify the FKAA and shall within ten (10) days of being advised of its credit rating,
deliver to FKAA a letter of credit securing the Guarantor's obligations hereunder. The terms and
conditions of the Guarantor's letter of credit shall be such as are satisfactory to FKAA, in its sole
discretion, and the financial institution or other entity issuing the letter of credit shall be
approved by the FKAA in advance in writing.
No amendment, modification or waiver of any portion of this Guaranty shall be effective
unless the same shall be in writing and signed by the FKAA.
No delay or omission to exercise any right, remedy, power or privilege accruing upon any
default, omission or failure of performance hereunder will impair any such right, remedy, power
4
or privilege or be construed to be a waiver thereof, but any such right, remedy, power or
privilege may be exercised from time to time and as often as may be deemed expedient. In the
event any provision contained in this Guaranty is breached by the Guarantor and thereafter duly
waived in writing by FKAA, that waiver will be limited to the particular breach so waived and
will not be deemed to waive any other breach hereunder. No waiver, amendment, release or
modification of this Guaranty will be established by conduct, custom or course of dealing, but
solely by an instrument in writing duly executed by the party against whom that waiver,
amendment, release or modification is sought to be enforced.
Wherever possible, each provision of this Guaranty shall be interpreted in such manner as
to be effective and valid under applicable law; however, if any provision of this Guaranty shall
be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating, affecting or impairing the remainder of
such provision or the remaining provisions of this Guaranty. The parties shall endeavor in good
faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions,
the economic effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
This Guaranty and the rights and obligations of FKAA and the Guarantor shall be
governed and construed in accordance with the laws of the State of Florida, and the Guarantor
hereby consents to the jurisdiction of the Florida courts with respect to all claims arising out of
this Agreement.
Any notices or communications required or permitted hereunder shall be in writing and
shall be sufficiently given if telexed or cabled, delivered in person, or sent by certified or
registered mail, return receipt requested, postage prepaid, as follows:
If to the Guarantor:
Ogden Energy Group
[Insert Address]
If to FKAA:
FKAA
[Insert Address]
Changes in the respective addresses to which such notices may be directed may be made
from time to time by any party by written notice to the other party. All other notices shall be
deemed to have been given upon receipt.
IN WITNESS WHEREOF, the Guarantor has duly authorized the execution and delivery
of this Guaranty as of the date first above written.
G
OGDEN ENERGY GROUP
By:
Title:
APPENDIX C
Performance Bond
Payment Bond
APPENDIX D:
Ogden's Drug Free Workplace Policy
APPENDIX E
EXISTING WASTEWATER COLLECTION SYSTEMS
Ogden shall evaluate the condition of all sewer systems tributary to the
collection/transmission system designed and built under this contract. Sewer systems, in all
cases, exclude the plumbing and fixtures located within and under buildings. Sewers, manholes,
cleanouts, pump station wet wells, and force mains determined to be structurally failing or
admitting excessive infiltration/inflow shall be rehabilitated by Ogden at no additional cost to
FKAA provided either of the following conditions exists: FKAA has accepted from the tributary
sewer system owner the responsibility to operate and maintain the facilities prior to final
completion of all Project Facilities; or there is a mutual agreement between Ogden, the owner(s)
of such facilities, and FKAA that such rehabilitation is to be provided absent FKAA
responsibility. Sewer system rehabilitation shall be performed on a cost-effective basis. FKAA
shall establish an enforceable sewer use policy that identifies criteria to be considered in the
determination of the need for sewer system rehabilitation. All sewer systems for which FKAA
has responsibility to operate and maintain shall be covered by the Operations Contract at no
increase in cost to FKAA.
The sewer systems for which FKAA has responsibility to operate and maintain shall be
identified in the Contract Documents. The Silver Shores community has been evaluated by
Ogden and found to be in need of rehabilitation as of the effective date of this agreement.
APPENDIX F:
Approved Schedule of Values
AC,W
LIMITED NOTICE TO PROCEED
Florida Keys Aqueduct Authority
Contract No.: Design/Build of Wastewater Treatment System Date:
Servicing Key Largo, Florida
4004-00
Ogden Water Systems Key Largo, Inc.
Date of Notice: .2000
Dear Ogden Water Systems Key Largo, Inc.:
In accordance with the terms of the Contract Documents for the performance of the Work
for in the referenced project, you are hereby authorized to commence with the design,
scheduling, submittal, and other portions of the Work other than actual construction as of the
date of this notice.
OGDEN shall have sixty (60) calendar days from the date of this notice in which to
complete the documents and other information set forth in Article 9 of the Contract Documents.
Florida Keys Aqueduct Authority
APPENDIX I
NOTICE TO PROCEED
Florida Keys Aqueduct Authority
Contract No.: Design/Build of Wastewater Treatment System Date:
Servicing Key Largo, Florida
4004-00
Date of Notice:
Ogden Water Systems Key Largo, Inc.
2000
Calendar Days: 913 Days for Phase I; 1095 Days for Phase H
Dear Ogden Water Systems Key Largo, Inc.:
In accordance with the terms of the Contract Documents for the performance of the Work
included in the referenced project, you are hereby authorized to begin Work on or before the
Effective Date of Notice provided above, which shall constitute the date of the Commencement
of the Contract Time.
The Substantial Completion dates for construction work and the commencement of
operations under the Operations & Maintenance Agreement are as specified above.
Liquidated damages shall be deducted from the Contract Price for failure to attain
substantial completion of each Phase on the date indicated, including any extensions thereof, in
accordance with the Contract Documents.
Florida Keys Aqueduct Authority
APPENDIX J:
FKAA Purchase Order
APPENDIX K:
Schedule of Materials and Machinery for FKAA Purchase
APPENDIX L
CHANGE ORDER AGREEMENT
Florida Keys Aqueduct Authority
Contract No.: Design/Build of Wastewater Treatment System Change Order No.:
Servicing Key Largo, Florida
4004-00
Ogden Water Systems Key Largo, Inc.
The following changes to the Contract are hereby made part of the Contract documents.
I. ORIGINAL CONTRACT PRICE $
Price of all previous Change Orders $
PRICE of this Change Order $
The Current Contract Price including this Change Order $
II. ORIGINAL CONTRACT COMPLETION DATE
Original Contract Time
Total of all previous Contract Time Adjustments
Contract Time Adjustment this Change Order
Revised Contract Time
Revised Completion Date
III. WORK CHANGED BY THIS CHANGE ORDER
All requirements of the original Contract Documents shall remain in full force and effect except as modified
herein. Work affected by this Change Order is subject to all provisions of the original Contract Documents not
specifically changed by this Change Order. FKAA and OGDEN agree that the contract time adjustment and the sum
agreed to in this Change Order constitutes a full and complete settlement of the issues set forth in this Change Order.
OGDEN accepts the terms of this Change Order as full compensation for all costs of equipment, manpower, materials,
overhead, profit, and delay damages, and for all its costs, whether direct or indirect, or whether incurred now or in the
future, related to the issues set froth in this Change Order.
ACCEPTED BY DESIGNBUILDER:
APPROVED BY FKAA:
Title: Date: Title:
Date:
APPENDIX M
UNILATERAL CHANGE ORDER
Florida Keys Aqueduct Authority
Contract No.: Design/Build of Wastewater Treatment System Change Order No.:
Servicing Key Largo, Florida
4004-00
Ogden Water Systems Key Largo, Inc.
The following changes to the Contract are hereby made part of the Contract documents.
I. ORIGINAL CONTRACT PRICE $
Price of all previous Change Orders $
PRICE of this Change Order $
The Current Contract Price including this Change Order $
II. ORIGINAL CONTRACT COMPLETION DATE
Original Contract Time
Total of all previous Contract Time Adjustments
Contract Time Adjustment this Change Order
Revised Contract Time
Revised Completion Date
III. WORK CHANGED BY THIS CHANGE ORDER
All requirements of the original Contract Documents shall remain in full force and effect except as modified
herein. Work affected by this Change Order is subject to all provisions of the original Contract Documents not
specifically changed by this Change Order. By acceptance of this change order OGDEN does not waive any rights it
may have under the Contract Documents.
APPROVED BY FKAA:
Title: Date:
APPENDIX N:
Interim Operations Invoice
APPENDIX O
CERTIFICATE OF SUBSTANTIAL COMPLETION
Phase I
Florida Keys Aqueduct Authority
Contract No.: Design/Build of Wastewater Treatment System Date:
Servicing Key Largo, Florida
4004-00
Ogden Water Systems Key Largo, Inc.
TO: Ogden Water Systems Key Largo, Inc.
Project Manager
The Work performed under this Contract on Phase I, as identified below, has been
reviewed and found to be substantially completed and all documents required to be submitted by
OGDEN for substantial completion have been received and accepted. The Date of Substantial
Completion for Phase I is hereby established as
Substantial completions means the date when all conditions and requirements of permits
and regulatory agencies have been satisfied by OGDEN and the Work is sufficiently complete in
accordance with the Contract Documents so that the Project (or defined portion of the Project) is
available for full-time use by FKAA for the purposes for which it was intended. Substantial
completion shall not be deemed to have occurred until FKAA or its Project Representative has
made an inspection of the construction to determine the status of completion and a written
certificate of substantial completion has been issued by FKAA. Substantial completion of an
operating facility shall be that degree of completion that has provided a minimum of seven (7)
continuous days of successful, trouble -free operation, which period shall begin after all
performance and acceptance testing has been successfully demonstrated to FKAA, and all
permits required to operate the Key Largo wastewater treatment system have been obtained by
OGDEN, including the exploratory injection well permit, but not the operating injection well
permit. All machinery contained in the Work, plus all other components necessary to enable
operation of the Facilities in the manner that was intended, shall be complete on the substantial
completion date.
A list of items to be completed or corrected prior to Final Completion, which may be
amended or supplemented, is attached hereto. The failure to include any items on such list does
not alter the responsibility of OGDEN to complete all Work in accordance with the Contract
Documents.
PREPARED and APPROVED BY FKAA:
Un
Date
Director of Environmental Services
ACCEPTED BY OGDEN:
Date
Title:
APPENDIX P
CERTIFICATE OF SUBSTANTIAL COMPLETION
Florida Keys Aqueduct Authority
Contract No.: Design/Build of Wastewater Treatment System Date:
Servicing Key Largo, Florida
4004-00
Ogden Water Systems Key Largo, Inc.
TO: Ogden Water Systems Key Largo, Inc.
Project Manager
The Work performed under this Contract on Phases I and H has been reviewed and found
to be substantially completed and all documents required to be submitted by OGDEN for
substantial completion have been received and accepted. The Date of Substantial Completion for
the Project is hereby established, which is also the date of commencement of any and all
applicable warranties required by the Contract Documents.
Substantial completions means the date when all conditions and requirements of permits
and regulatory agencies have been satisfied by OGDEN and the Work is sufficiently complete in
accordance with the Contract Documents so that the Project is available for full-time use by
FKAA for the purposes for which it was intended. Substantial completion shall not be deemed
to have occurred until FKAA or its Project Representative has made an inspection of the
construction to determine the status of completion and a written certificate of substantial
completion has been issued by FKAA. Substantial completion of all operating facilities shall be
that degree of completion that has provided a minimum of seven (7) continuous days of
successful, trouble -free operation, which period shall begin after all performance and acceptance
testing has been successfully demonstrated to FKAA, and all permits required to operate the Key
Largo wastewater treatment system have been obtained by OGDEN, including the exploratory
injection well permit, but not the operating injection well permit. All machinery contained in the
Work, plus all other components necessary to enable operation of the Facilities in the manner
that was intended, shall be complete on the substantial completion date.
A list of items to be completed or corrected prior to Final Completion, which may be
amended or supplemented, is attached hereto. The failure to include any items on such list does
not alter the responsibility of OGDEN to complete all Work in accordance with the Contract
Documents. The date for Final Completion of the Work shall be sixty (60) calendar days from
the date of this certificate.
PREPARED and APPROVED BY FKAA:
LOM
Director of Environmental Services
ACCEPTED BY OGDEN:
Date
By: Date
Title:
APPENDIX Q
CERTIFICATE OF FINAL ACCEPTANCE
Florida Keys Aqueduct Authority
Contract No.: Design/Build of Wastewater Treatment System Date:
Servicing Key Largo, Florida
4004-00
Ogden Water Systems Key Largo, Inc.
Design/Builder
TO: Ogden Water Systems Key Largo, Inc.
Project Manager
A joint inspection of the Project as described in the Contract Documents has been made
by FKAA and OGDEN on (date), and the Project is hereby accepted by
FKAA, subject to the provisions of the Contract Documents for the warranty period.
PREPARED and APPROVED BY FKAA:
Lo
Director of Environmental Services
ACCEPTED BY OGDEN:
Date
By: Date
Title:
APPENDIX R
OGDEN'S AFFIDAVIT
AND PARTIAL RELEASE OF LIEN
Contract No.: Design/Build of Wastewater Treatment System Date:
Servicing Key Largo, Florida
4004-00
Ogden Water Systems Key Largo, Inc.
BEFORE ME, the undersigned authority, personally appeared ,
who after being by me first duly sworn, deposes and says that:
1. He or She is of Ogden Water Services Key Largo, Inc.,
the latter doing business in the State of Florida, (hereinafter called "OGDEN").
2. OGDEN, pursuant to the Contract dated , with Florida
Keys Aqueduct Authority, (hereinafter referred to as "FKAA"), has heretofore furnished or
caused to be furnished labor, material and services for the design and construction of certain
improvements as more particularly set forth in the Contract.
3. OGDEN represents that payment, less applicable retention, have been made
through the periods covered by previous payments received from FKAA, to (1) all
subcontractors, and (2) for all materials and labor used in or in connection with the performance
of the Work.
4. OGDEN hereby releases FKAA from any claim, demand, lien, or obligation
under the Contract for the labor, services, Work, and/or materials covered by the preceding
application for payment.
5. OGDEN represents further that it has complied with Federal, State, and local tax
and wage laws, including Social Security laws and Unemployment Compensation laws, and
Workmen's Compensation laws insofar as applicable to the performance of this Contract.
6. This Affidavit and Partial Release of Lien is made by OGDEN with full
knowledge of the applicable laws of the State of Florida. In addition to such rights as may be
afforded to OGDEN under said Applicable Laws, OGDEN expressly agrees to indemnify and
save FKAA harmless from any and all actual costs and expenses, including reasonable attorney's
fees, arising out of claims by laborers, sub -contractors or materialmen who might claim that they
have not been paid for services or material furnished by or through OGDEN in connection with
the Work up to, and including, the preceding application for payment.
1 of 2
(Corporate Seal) BY:
Title:
SWORN TO and subscribed before me this day of , 20
(Notary Seal) By:
Notary Public
My Commission Expires:
2 of 2
APPENDIX S
OGDEN'S FINAL
AFFIDAVIT AND RELEASE OF LIEN
Contract No.: Design/Build of Wastewater Treatment System Date:
Servicing Key Largo, Florida
4004-00
Ogden Water Systems Key Largo, Inc.
BEFORE ME, the undersigned authority, personally appeared
who after being by me first duly sworn, deposes and says that:
1. He or She is of Ogden Water Services Key Largo, Inc.,
the latter doing business in the State of Florida, (hereinafter called "OGDEN").
2. OGDEN, pursuant to the Contract dated , with Florida
Keys Aqueduct Authority, (hereinafter referred to as "FKAA"), has heretofore furnished or
caused to be furnished labor, material and services for the design and construction of certain
improvements as more particularly set forth in the Contract.
3. OGDEN represents that all work to be performed under the Contract has been
fully completed and that all persons and firms who furnished material, labor and/or services
incident to the completion of said work have been paid in full.
4. OGDEN, for and in consideration of final payment in the amount of
$ , and all other previous payments made by FKAA to OGDEN, does hereby
waive, release, remise and relinquish OGDEN's right, if any, to claim, demand or impose a lien
or liens for work done or material and/or services furnished or any other class of liens
whatsoever, on any of the premises owned by FKAA on which improvements have been
completed in connection with the Contract.
5. The acceptance by OGDEN of the final payment shall constitute a waiver of all
claims by OGDEN and shall release FKAA from all claims and all liability to OGDEN for all
things done or furnished in connection with the Work and for every act of FKAA and others
relating to or arising out of the Work. Unless otherwise agreed to in writing by FKAA, no
payment, final or otherwise, shall operate to release OGDEN or its Sureties from obligations
under this Contract, the Performance and Payment Bond(s), and other bonds and warranties as
herein provided.
6. OGDEN herein makes this Affidavit and Final Release of Lien for the express
purpose of inducing FKAA to make final disbursement and payment to OGDEN in the amount
of $
1 of 2
7. This Affidavit and Final Release of Lien is made by OGDEN with full knowledge
of the applicable laws of the State of Florida. In addition to such rights as may be afforded to
OGDEN under said applicable laws, OGDEN expressly agrees to indemnify and save FKAA
harmless from any and all actual costs and expenses, including reasonable attorney's fees, arising
out of claims by laborers, sub -contractors or materialmen who might claim that they have not
been paid for services or material furnished by or through OGDEN in connection with the work
performed under the Contract.
8. To the best of OGDEN's knowledge and belief, the following is a list of all
material men or laborers who have filed a Notice to Owner with FKAA:
NAME
1.
2.
3.
4.
ADDRESS
AMOUNT DUE (If known)
(Attach a separate sheet if necessary)
OGDEN herein does hereby represent that he has authority to execute a full and final
release of lien for and in behalf of OGDEN as set forth above.
(Corporate Seal) BY:
Title:
SWORN TO and subscribed before me this day of , 2000.
(Notary Seal)
By:
Notary Public
My Commission Expires:_
2 of 2
APPENDIX T
SUBCONTRACTOR'S FINAL WAIVER
AND RELEASE OF LIEN UPON FINAL PAYMENT
Florida Keys Aqueduct Authority
Contract No.: Design/Build of Wastewater Treatment System Date:
Servicing Key Largo, Florida
4004-00
Ogden Water Systems Key Largo, Inc.
Design/Builder
The undersigned lienor, in consideration of the final payment in the amount of
$ , hereby waives and releases its lien and right to claim a lien for
labor, services or materials furnished to Ogden Water Services of Key Largo, Inc. on the Project
for Florida Keys Aqueduct Authority ("FKAA").
Dated On .20
Lienor's Name
Address
By:
(Signature)
Printed Name
SWORN TO and subscribed before me this day of , 2000.
(Notary Seal)
Notary Public
My Commission Expires:
APPENDIX U
ARCHITECTURAL QUALITY
The wastewater treatment facilities and all wastewater transmission facilities shall be
appropriately placed on sites to minimize visual impacts. The architecture of all
buildings shall be in keeping with the surrounding neighborhood aesthetics.
Landscaping shall provide for the use of plants that are indigenous to the Florida Keys.
Ogden must obtain the approval of FKAA of site plans, equipment layout, building
elevations, landscape design, building architecture, and color renderings as part of the
conceptual and preliminary plans and drawings.
May 10, 2000 Draft
Key Largo Wastewater Treatment System
OPERATION & MAINTENANCE AGREEMENT
The Florida Keys Aqueduct Authority
�Zi
Ogden Water Systems Key Largo, Inc.
Dated _, 2000
N
7
Table of Contents
ARTICLE 1
Definitions
5
ARTICLE 2
General Understandings
10
ARTICLE 3
Scope of Services - Ogden
10
ARTICLE 4
Scope of Services - FKAA
15
ARTICLE 5
Term
15
ARTICLE 6
Compensation
15
ARTICLE 7
Manner of Performance
16
ARTICLE 8
Changes in the Scope of Services
18
ARTICLE 9
Claims
19
ARTICLE 10
Change Orders
20
ARTICLE 11
Defective Work
20
ARTICLE 12
Dispute Resolution
21
ARTICLE 13
Indemnity, Liability, and Insurance
23
ARTICLE 14
Re -use
24
ARTICLE 15
Termination - FKAA
25
ARTICLE 16
Termination - OGDEN
27
ARTICLE 17
Emergencies & Hurricane Precautions
28
ARTICLE 18
Miscellaneous Agreement Provisions
28
Key Largo Wastewater Treatment System
Operation & Maintenance Agreement
10 May 2000
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APPENDICES
A. Facilities Characteristics and Operating Requirements
B. Base Fee Adjustment Formula
C. Insurance Coverage
1. Performance Bond
2. Guaranty
D. OGDEN's Drug -Free Workplace Policy
E. Wastewater Management Parameters
F. Memorandum of Service Commencement Date
G. Change Order
H. Unilateral Change Order
I. Invoice
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Operation & Maintenance Agreement
10 May 2000
THIS AGREEMENT is made and entered into on this day of ,
2000 (hereinafter "Effective Date"), by and between the Florida Keys Aqueduct Authority
(hereinafter "FKAA"), and Ogden Water Systems Key Largo, Inc. (hereinafter "OGDEN").
WITNESSETH
WHEREAS, Monroe County, Florida ("Monroe County") through the Monroe County
Office of Budget and Management and the Board of Commissioners, authorized the issuance and
publication of a request for proposals dated September 8, 1999, for the design, construction,
operation and maintenance of a wastewater collection system and treatment facilities for Key
Largo, Florida;
WHEREAS a technical evaluation panel was established by Monroe County and
composed of representatives from the United States Environmental Protection Agency ("EPA"),
the Florida Department of Environmental Protection ("FDEP") and other agencies;
WHEREAS, FKAA has the authority to enter into contracts for the design, construction,
improvement, enlargement, operation and maintenance of facilities such as the Facilities in
accordance with its bylaws and organizational documents;
WHEREAS, Monroe County authorized FKAA to design, build, own and operate the
Facilities;
WHEREAS, Monroe County, through its Board of Commissioners, requested FKAA to
enter into contract negotiations with OGDEN for the design, construction, operation and
maintenance of the Facilities by its Resolution No. 093-2000, dated February 17, 2000;
WHEREAS, the Facilities will be owned by FKAA and located on land and within
rights -of -way and easements acquired by FKAA and made available to OGDEN by FKAA;
WHEREAS, FKAA and OGDEN have, consistent with Monroe County's request to
FKAA, negotiated the terms and conditions pursuant to which OGDEN will provide the design,
engineering, construction, equipment, start-up, testing, operation and maintenance of the
Facilities;
WHEREAS, OGDEN will design, construct, equip, start up, test, operate and maintain
the Facilities pursuant to this Agreement and a design/build contract ("Design/Build Contract")
to be executed contemporaneously herewith;
WHEREAS, FKAA desires to receive, and OGDEN desires to provide, operation and
maintenance services under the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual terms, conditions, covenants and
obligations contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, FKAA and OGDEN agree as follows:
Key Largo Wastewater Treatment System 4 of 33
Operation & Maintenance Agreement
10 May 2000
ARTICLE 1
Definitions
The following terms, when used in this Agreement have the meaning described herein:
1.1 Affiliate means any person, corporation, or other entity directly or indirectly
controlling or controlled by another person, corporation or other entity or under direct or indirect
common control with such person, corporation, or other entity.
1.2 Agreement means this the entire and integrated contract between FKAA and
OGDEN, for the operation and maintenance of the Facilities, which supersedes all prior
negotiations, representations, or contracts concerning the Services, either written or oral.
1.3 Applicable Law means each and every law, rule, regulation, requirement, order,
permit, judgment, decree, or ordinance of every kind whatsoever issued by any government
entity, as in effect during the term of this Agreement, applicable to or affecting the Facilities, this
Agreement, and all persons engaged in the work to be performed under this Agreement.
1.4 Base Fee means the fee paid by FKAA to OGDEN in accordance with Article 6,
as adjusted from time to time in accordance with this Agreement.
1.5 Biologically Toxic Substances means any substance or combination of substances
contained in the plant influent in sufficiently high concentrations so as to interfere with the
biological processes necessary for the removal of the organic and chemical constituents of the
wastewater required to meet the discharge requirements of the Applicable Law. Biologically
toxic substances include but are not limited to, heavy metals, phenols, cyanides, pesticides,
herbicides, and priority, pollutants as listed by EPA at any time, or any substance that would
violate the state, local or EPA industrial standards or any applicable sewer use ordinance.
1.6 Business Dav means any day that is neither a Saturday, a Sunday, nor a legal
holiday as designated by the State Legislature or Cabinet as holidays, which include, but are not
limited to, New Year's Day, Martin Luther King's Birthday, Memorial Day, Independence Day,
Labor Day, Veterans' Day, Thanksgiving Day, and Christmas Day.
1.7 Calendar Dav means every day shown on the calendar, ending and beginning at
midnight.
1.8 Change in Law means any of the following events or conditions having, or which
may reasonably be expected to have, an effect on the performance by the parties of their
respective obligations under this Agreement:
(1) The enactment, adoption, promulgation, modification, or repeal, after the
Effective Date, of any federal, state, or local law, ordinance, code, rule, regulation, or
other similar legislation or the change in interpretation, after the Effective Date, of any
federal, state, or local law, ordinance, code, rule, regulation, official permit, license or
Key Largo Wastewater Treatment System 5 of 33
Operation & Maintenance Agreement
10 May 2000
N
approval by any regulatory entity having jurisdiction with respect to the operation or
maintenance of the Facilities; or
(2) The imposition, after the Effective Date, of any material conditions on the
issuance, modification or renewal of any official permit, license, or other approval
necessary for the operation or maintenance of the Facilities, which necessitates or make
advisable a capital project, modifies OGDEN's guarantees of the Facilities' performance
or establishes requirements with respect to the design, operation, or maintenance of the
Facilities which are more burdensome than the most stringent requirements: (a) in effect
on the Effective Date, or (b) agreed to by FKAA in any applications for official permits,
licenses, or approvals for the Facilities, other than any requirements set forth in said
applications to comply with future laws, ordinances, codes, rules, regulations, or similar
legislation.
For purposes of part (1) of this definition, no enactment, adoption, promulgation, or modification
of laws, ordinances, codes, rules, regulations, or similar requirement or enforcement policy with
respect to any such requirement shall be considered a Change in Law if, as of the Effective Date,
such laws, ordinances, codes, rules, regulations, or similar requirement would have directly
affected the continued operation and maintenance of the Facilities by FKAA during and after the
Interim Operations Period in the absence of this Agreement and either such law, ordinance, code,
rule, regulation, or similar requirement was either officially proposed by the responsible agency
and published in final form in the Federal Register or equivalent federal, state, or local
publication and thereafter becomes effective without further action, or enacted into law,
promulgated or issued as a draft for comments by the appropriate state or local body before the
Effective Date.
1.9 Chan-ge Order means a written document issued by FKAA under Article 10
ordering a change in the scope or cost of the Services rendered by OGDEN under this
Agreement.
1.10 Collection System means all components of the sewer collection system from the
point of connection at the wastewater treatment plant site boundary including gravity lines,
vacuum pits, vacuum lines, vacuum stations, force mains, and manholes.
1.11 Cost means the total of all costs determined on an accrual basis in accordance
with generally accepted accounting principles, including but not limited to direct labor, labor
overhead, chemicals, materials, supplies, utilities, equipment, maintenance, repair, and outside
services.
1.12 Facilities shall mean all of the property and rights, both tangible and intangible,
that the FKAA owns or uses or subsequently acquires or uses in conjunction with the operation
and maintenance of the Key Largo Wastewater Treatment System as constructed under the
Design/Build Contract, including by way of example and not limitation, the following:
1.12.1 All real property and interests, rights, or uses of real property whether
recorded in the public records or not.
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Operation & Maintenance Agreement
10 May 2000
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1.12.2 All wastewater facilities, including reuse and reclaimed water, treatment
plants, wells, collection, transmission, distribution, pumping, effluent, vacuum, and
disposal systems of every kind and description, including by way of example and not
limitation, all lift stations, pumps, generators, controls, tanks, sewers rehabilitated under
the Design/Build Contract, distribution, collection or transmission facilities, valves,
meters, service connections, and all other physical facilities and subsequent installations
used in the operation of the wastewater treatment system.
1.12.3 All equipment, tools, machinery, parts, inventory, laboratory equipment,
and other personal property used in connection with the operation of the wastewater
treatment system.
1.12.4 All easements and licenses in favor of, or otherwise lawfully available to,
1.12.5 All surveys and water and wastewater drawings, plans, engineering
designs, blueprints, plans and specifications, maintenance and operating manuals,
engineering reports, calculations, non-proprietary computer models, business records and
all other information controlled by or in the possession of FKAA or OGDEN (both in
original and electronic formats) that relates to the description and operation of the
wastewater treatment system.
1.12.6 All necessary regulatory approvals subject to all conditions, limitations,
restrictions contained therein; all permits and other governmental authorizations and
kw approvals of any kind necessary to construct, operate, expand, use and maintain the
wastewater treatment system.
M
1.13 FDEP means the State of Florida, Department of Environmental Protection.
1.14 FDOT means the State of Florida, Department of Transportation.
1.15 FKAA means the Florida Keys Aqueduct Authority, or its authorized
representative, whose address is: 1100 Kennedy Drive, Key West, Florida 33040
1.16 Interim Operations means operation of the less than entire Facilities prior to
substantial completion of the entire Project under the Design/Build Contract.
1.17 Machinery means any and all complex devices, tools, facilities, or other
apparatuses, together with the necessary supplies for upkeep and maintenance thereof, that are to
be incorporated into the Facilities and that are or will become the property of FKAA.
1.18 Maintenance means those routine and/or repetitive activities required or
recommended by the equipment manufacturer or OGDEN, or which are otherwise necessary to
maximize the service life of the equipment, sewer, parts, and Facilities. Maintenance also
includes repairs made necessary as a result of improper, or lack, of maintenance.
Key Largo Wastewater Treatment System
Operation & Maintenance Agreement
10 May 2000
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1.19 Material means any substance to be incorporated into, or consumed by, the
operation of the Facilities that are, or will, become the property of FKAA under this Agreement
or the Design/Build Contract.
1.20 Notice as used in the Agreement or any Applicable Law shall signify a written
communication delivered in person, via facsimile, or by certified or registered mail to be
addressed to the last business address known to the person or entity giving notice, and addressed
to the following individuals:
FKAA
Executive Director
Deputy Director
Director of Environmental Services
OGDEN
Executive Vice President
General Counsel
Project Manager
1.21 OGDEN means Ogden Water Systems of Key Largo, Inc., or its authorized
representative, whose address is: 40 Lane Road, Fairfield, NJ 07007. All references to OGDEN
shall include any and all third parties under contract or control of OGDEN, and all references to
any such third party shall also be deemed to be a reference to OGDEN. OGDEN shall include a
design professional engineering and a design/build firm as set forth in Section 287.005, Florida
Statutes.
1.22 OGDEN's Proposal means the transmittal letter, technical proposal and cost
proposal to design, build, and operate a wastewater collection and treatment system to serve the
Key Largo area of Monroe County, Florida, submitted to Monroe County in response to the
Request for Proposals, together with any addenda thereto and any clarifications and explanations
provided by OGDEN.
1.23 Project means the design and construction of a wastewater treatment plant and
collection system(s) to serve the island of Key Largo, Florida, under the Design/Build Contract,
between Mile Markers 91 and 106, including all existing or permitted Equivalent Dwelling Units
within that area as of October 31, 1999; FKAA Project No. 4004-00.
1.24 Repair means the non-routine/non-repetitive restoration of, or the replacement of
a part or the putting back together of FKAA equipment, machinery, or piping, which is
inoperable or broken as required for operational continuity, safety, and performance generally
resulting from failure, or to avert a failure, of the Facilities.
1.25 Request for Proposals ("RFP") means the documents issued by Monroe County
seeking competitive proposals for the design, construction, and operation of the Project,
including any addenda thereto.
1.26 Service Commencement Date means the date on which OGDEN attains
substantial completion on the entire Facilities as identified in the Design/Build Contract, and as
certified in the Memorandum of Service Commencement Date.
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Operation & Maintenance Agreement
10 May 2000
1.27 Services means everything required to be furnished and done for and relating to
the Facilities by OGDEN pursuant to this Agreement commencing on the date that OGDEN
attains the Service Commencement Date as defined in this Agreement and certified on the
Memorandum of Service Commencement Date. Services shall include the employment and
furnishing of all labor, materials, equipment, supplies, tools, storage, transfer, transportation,
insurance, delivery, and other things and services of every kind whatsoever necessary for the full
performance and completion of OGDEN's operation, maintenance, repair, processing, and
related obligations under this Agreement and all of OGDEN's administrative, accounting, record
keeping, notification, and similar responsibilities of every kind whatsoever under this Agreement
pertaining to such obligations.
1.28 Sure means the corporate body that is bound by the performance bond required
under Appendix C with and for OGDEN and that is responsible for the performance of the
Agreement and the payment of all legal debts pertaining thereto, subject to the terms, conditions
and limits of the performance bond.
1.28 Uncontrollable Circumstance means an event or condition, whether affecting the
Facilities, the Project, FKAA or OGDEN, that materially and adversely affects the ability of
either party to perform any obligation under this Agreement if such act, event or condition is
beyond the reasonable control and is not also the result of the willful or negligent action,
inaction, or fault of the party relying thereon as justification for not performing an obligation or
complying with any condition of this Agreement. Such acts or events may include, but shall not
be limited to, the following, if they meet the requirements of the foregoing sentence:
1.28.1 an act of God, including a hurricane, landslide, lightning, earthquake,
flood, drought, sabotage, or similar disturbance;
1.28.2 the failure of any Federal, State, public or private utility having
jurisdiction in the area in which the Facilities are located to provide and maintain utilities,
services, water or power transmission lines to the Facilities, which are required for the
construction, start-up, testing, operation, or maintenance of the Facilities;
1.28.3 governmental preemption of materials or services in connection with a
public emergency; and
1.28.4 any illegal activity by a third party that materially interferes with the
operation or maintenance of the Facilities.
1.29 Wastewater Treatment System(s) includes, but not be limited to, the land,
easements, rights -of -way, machinery, materials equipment, structures, buildings, tanks, chemical
feed systems, odor control processes, instrumentation, access roads, buffer provisions, safety and
security provisions, fire protection, emergency and stand-by power generation, disposal, and
sewer collection systems, including but not limited to land, easements, rights -of -way, buffer
provisions, piping, pumps, vacuum equipment (including valves, pits and tanks) and
appurtenances, structures, buildings, instrumentation, access roads, and power supply.
Key Largo Wastewater Treatment System 9 of 33
Operation & Maintenance Agreement
10 May 2000
ARTICLE 2
General Understandings
2.1 All grounds, Facilities, materials, and machinery owned by FKAA, or acquired by
FKAA, shall remain the property of FKAA.
2.2 This Agreement shall be governed by and interpreted in accordance with the laws
of the State of Florida.
2.3 This Agreement shall be binding upon the successors and assigns of each of the
parties, but neither party will assign this Agreement without the prior written consent of the other
party. Consent shall not be unreasonably withheld.
2.4 This Agreement, including Appendices, is the entire Agreement of the parties, and
supersedes all prior negotiations, representations, or agreements, either written or oral
concerning the Services. Wherever used, the terms "OGDEN" and "FKAA" shall include the
respective officers, agents, directors, elected or appointed officials, and employees.
ARTICLE 3
Scope of Services - OGDEN
3.1 Within the design capacity and capability of the Project, OGDEN shall manage,
operate, and maintain the Facilities so that effluent from the Facilities meets the requirements
specified in Appendix A and any Applicable Laws. OGDEN may alter the process and/or
Facilities to achieve the objectives of this Agreement or an expanded service area with prior
written approval of FKAA.
3.2 OGDEN shall operate the Facilities twenty four (24) hours per day, seven (7) days
per week, or as designated for the specific facility to meet demands. The Facilities shall be
operated and maintained to give the best practical treatment for the existing conditions and meet
the minimum specified quality levels, or the levels required by the Applicable Laws, whichever
is more stringent. The means and methods to meet or exceed these performance requirements
shall be at OGDEN's discretion, and OGDEN shall be wholly responsible for meeting or
exceeding the general performance requirements.
3.2.1 OGDEN's failure to meet or exceed the applicable performance
requirements will only be excused in those instances where the failure was caused
entirely by an Uncontrollable Circumstance as defined in this Agreement. In the event an
Uncontrollable Circumstance prohibits OGDEN from meeting the applicable
performance requirements, OGDEN shall immediately take all reasonable steps to stop
the discharge of non -compliant effluent and to bring the Facilities into compliance with
the performance requirements.
3.3 OGDEN shall assist FKAA by providing administrative, technical, and analytical
services including testing, monitoring, recordkeeping, and reporting in connection with FKAA's
implementation of an industrial pretreatment program. OGDEN shall also assist FKAA in
Key Largo Wastewater Treatment System 10 of 33
Operation & Maintenance Agreement
10 May 2000
A
reviewing any industrial pretreatment applications submitted by new and existing businesses.
The reasonable costs of administrative, technical, review and analytical services in connection
with FKAA's industrial pretreatment program shall be included in OGDEN's Base Fee.
OGDEN shall cooperate with FKAA's enforcement program, but FKAA shall be responsible for
any enforcement, litigation, or permit related activities relating to such industrial pretreatment
program.
3.4 OGDEN shall maintain, pay, and perform any sampling and laboratory analysis
required by any permitting authority at no additional cost to FKAA. Results of such sampling or
analysis shall be reported to FKAA in a prompt and timely manner.
3.5 OGDEN shall develop and implement a preventive maintenance program, a copy
of which shall be delivered to FKAA for review and comment a minimum of thirty (30) days
prior to commencing operation of the treatment plant. Any such program shall include all
lubrications, adjustments, inspections, monitoring, and repair as necessary to maintain the
Facilities throughout the term of this Agreement.
3.6 OGDEN shall provide and document all corrective, and predictive maintenance,
and all necessary repairs for the Facilities in accordance with the procedures outlined in
OGDEN's preventive maintenance program. FKAA shall have the right to inspect these records
during normal business hours.
3.7 OGDEN shall promptly pay, or assume, all costs associated with any and all
repairs (minor and/or major) for the Facilities throughout the entire term of this Agreement.
OGDEN shall supply FKAA with a monthly accounting of repairs made to the Facilities. In the
event an Uncontrollable Circumstance necessitates repairs, proceeds from property insurance
maintained by FKAA in accordance with this Agreement shall be applied to the cost of any such
necessary repair.
3.8 If in the sole and reasonable opinion of FKAA's Director of Environmental
Services, maintenance or repairs have been unreasonably delayed, FKAA shall so inform
OGDEN in writing and give the specific details of the maintenance or repairs, and OGDEN shall
respond within five (5) business days explaining in detail all reasons for the delay. If FKAA
determines that the delay is within the control of OGDEN, OGDEN shall be so notified, and
shall commence the necessary work within ten (10) business days from the date of receipt of
FKAA's determination. If OGDEN fails to commence, or timely complete, the subject work,
FKAA may take steps to perform the specific items of work with its own forces or through the
use of a third party. The cost of completing this work shall be deducted from the monthly
payment of the Base Fee to OGDEN.
3.9 OGDEN shall not use the Facilities for any purpose other than as contemplated
herein, or as approved by FKAA in writing. OGDEN shall have the right to propose changes in
the services; provided, however, that no such change shall impair the ability of OGDEN to meet
its performance requirements or comply with any other obligation under this Agreement or the
Design/Build Contract; and provided further that all such changes shall be treated as if
constituting a proposed Change Order under Article 10 hereof, and shall not be effective until
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there has been compliance with the analogous procedures specified therein. OGDEN shall, at its
cost, have the right, with the consent of FKAA, to make modifications to the Facilities which do
not adversely affect the ability of OGDEN to satisfy its obligations hereunder and OGDEN shall
promptly notify FKAA of its intent to implement any such modifications.
3.10 OGDEN will install and maintain an inventory control system for spare parts,
materials, and machinery, and provide FKAA with a monthly inventory of all such spare parts,
materials, and machinery that are being stored at the Facilities.
3.11 OGDEN shall provide and maintain computer -based records at the Facilities for
all maintenance, repairs, process control, and laboratory management for the Facilities, including
without limitation, Daily Wastewater Treatment Process Control & Optimization Reports,
Project Manager's Weekly Reports, Monthly DMR Reports, Monthly Operations Reports,
Annual Reports, As -built Records, Standard Operating & Procedures Manuals, and Operations &
Maintenance Manuals. FKAA shall retain title to and have the right to inspect and copy these
and any other applicable records during normal business hours.
3.12 OGDEN shall maintain a system for receiving and responding to customer calls
twenty four (24) hours a day, seven (7) days a week. OGDEN shall respond to service
complaints, system breaks and stoppages in a timely and efficient manner. If in the sole and
reasonable opinion of FKAA's Director of Environmental Services, OGDEN has unnecessarily
delayed in responding to a customer complaint, system breaks or stoppages FKAA shall so
inform OGDEN in writing, and OGDEN shall respond within five (5) business days explaining
in detail all reasons for the delay. If FKAA determines that the delay is within the control of
OGDEN, OGDEN shall be so notified, and shall commence the necessary work within ten (10)
business days from the date of receipt of the FKAA's determination. If OGDEN fails to
commence, or timely complete, the subject work, FKAA may take steps to perform the specific
items of work with its own forces, or through the use of a third party. The cost of completing
this work shall be deducted from the monthly payment of the Base Fee to OGDEN.
3.13 OGDEN shall, as soon as reasonably practicable under the circumstances, but no
later than either eight (8) hours or any period prescribed by the Applicable Laws, whichever is
earlier, notify and provide FKAA with any and all information as the same becomes available
relative to any activity, problem, event or circumstance that threatens or may threaten the public
health, safety or welfare of the residents of Key Largo.
3.14 OGDEN shall provide training for its personnel in areas of operation,
maintenance, repair, safety, supervisory skills, laboratory, industrial pretreatment, and energy
management. This training will include both plant -specific and wastewater field material. At the
request of FKAA, OGDEN shall also provide emergency operation, maintenance, and repair
training to FKAA personnel.
3.15 OGDEN shall establish, have in effect and implement an effective quality
assurance and quality control ("QA/QC") program relative to the Facilities. Such program shall
be designed to assure accuracy and precision of wastewater treatment. A copy of such QA/QC
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program shall be forwarded to FKAA prior to the date of commencement of treatment plant
operations.
3.16 OGDEN will develop and implement an organized in-house safety program. That
will include regularly scheduled safety training sessions for all plant personnel; standard
operating procedures for chemical handling, confined space entry, and emergency response; and
the care and use of the proper safety equipment to perform these procedures.
3.17 OGDEN shall staff the Facilities with employees who have met the applicable
certification requirements of the State of Florida and the federal government.
3.18 OGDEN shall prepare all required permit reports and submit these to FKAA for
transmittal to appropriate agencies within the time allowed by the applicable agency. OGDEN
shall pay for all required permit renewal fees, annual inspection fees and laboratory certification
fees.
3.19 OGDEN shall dispose of screenings, grit, and sludge/wastewater biosolids
("Process Residue") at the site(s) designated by FKAA. The costs incurred by OGDEN in the
disposal of such Process Reside shall be included in the Base Fee paid to OGDEN under Article
6. As between OGDEN and FKAA, title and ownership of influent, effluent, and Process
Residue shall remain with FKAA notwithstanding disposal services rendered by OGDEN. The
planned disposal site for such Process Residue is the landfill, Dade County,
Florida. If planned methods or disposal sites, or costs of disposal at such sites, are changed due
to a Change in Law or an Uncontrollable Circumstance, each such event may constitute a change
in the scope of Services and may entitle OGDEN to an adjustment in the Base Fee for all such
disposals as provided in Article 6.4.
3.20 OGDEN shall provide twenty-four (24) hour per day access to the Facilities for
FKAA's personnel, provided that FKAA must give OGDEN reasonable notice of its intent to
enter any of the Facilities. OGDEN shall provide master keys for the Facilities to FKAA. All
visitors to the Facilities shall comply with OGDEN's operating and safety procedures.
3.21 OGDEN shall maintain security at all treatment plant and vacuum station
Facilities on a twenty four (24) hour, seven (7) days per week basis. Security shall include
perimeter fencing, signage, and automated alarm monitoring, where applicable.
3.22 OGDEN agrees to enforce materials, equipment, and machinery warranties and
guarantees, and shall maintain any such warranty or guarantee on any and all materials,
equipment, and machinery purchased by or on behalf of FKAA.
3.23 OGDEN shall operate the entire Facilities at no additional cost to the FKAA so
that odor and noise shall be effectively controlled and that no unreasonable disturbance or
disruption to adjacent neighborhoods shall result. If FKAA's Director of Environmental
Services determines, in its sole and reasonable discretion, that OGDEN has failed to perform
under this Section, FKAA shall so inform OGDEN in writing, and OGDEN shall respond within
five (5) business days explaining in detail reasons for the failure. If FKAA determines that the
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failure is within the control of OGDEN, OGDEN shall be so notified, and shall commence the
necessary work within ten (10) business days from the date of receipt of the FKAA's
determination. If OGDEN fails to commence, or timely complete, the subject work, FKAA may
take steps to perform the specific items of work with its own forces, or through the use of a third
party. The cost of completing this work shall be deducted from the monthly payment of the Base
Fee to OGDEN.
3.24 OGDEN agrees to comply with all Applicable Laws in the performance of this
Agreement, including but not limited to, supplying reports concerning effluent quality,
monitoring, and process control procedures.
3.25 OGDEN shall pay for all telephone services and other utilities used or consumed
in or at the Facilities, provided however, that FKAA shall maintain electric service for the
Facilities in the name of FKAA and shall make payment thereon as due, deducting that amount
from the monthly payment of the Base Fee to OGDEN.
3.26 OGDEN agrees to comply with, and be bound by, the terms of OGDEN's "Drug
Free Work Place" policy as set forth in Appendix E.
3.27 OGDEN shall maintain the appearance and cleanliness of all Facilities in a neat
and orderly condition and provide those custodial services normally associated with the
maintenance of a business office or plant, as applicable. This shall include regularly watering,
mowing, fertilizing, pruning, removing weeds, and otherwise maintaining the landscaping of all
buildings and plants.
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ARTICLE 4
Scope of Services — FKAA
4.1 FKAA shall maintain all existing Project easements and licenses that have been
granted to FKAA, and FKAA shall obtain any and all additional interests in real property that
FKAA agrees to be necessary and appropriate for OGDEN to perform the Services.
4.2 FKAA shall pay all property, franchise, or other taxes associated with the
Facilities, if any, but specifically excluding any and all payroll and sales taxes associated with
OGDEN's Service under this Agreement.
4.3 FKAA shall be responsible for providing all billing and collection services to the
customers of the Key Largo wastewater treatment system.
4.4 FKAA shall implement and enforce an industrial pretreatment program with
assistance from OGDEN as provided in Article 3.3.
4.5 FKAA shall make payment to OGDEN as provided in Article 6.
4.6 FKAA shall obtain, maintain, and renew the insurance coverages set forth in
Appendix C.
4.7 FKAA shall promptly notify OGDEN of complaints received by FKAA from the
wastewater system customers.
ARTICLE 5
Term
The Initial Term of this Agreement shall be twenty (20) years commencing on the date
certified as the Service Commencement Date, unless terminated as provided herein or in the
Design/Build Contract.
ARTICLE 6
Compensation
6.1 Beginning on the thirtieth (30) day of the month following the Service
Commencement Date as certified in the Memorandum of Service Commencement (attached as
Appendix F), FKAA shall pay to OGDEN as compensation for Services performed under this
Agreement, an annual Base Fee of two million two hundred and fifty thousand dollars
($2,250,000.00), which shall be payable as follows:
6.1.1 One -twelfth (1/12) of the Base Fee shall be due and payable on the
thirtieth (30) day of each month after the Service Commencement Date has been
certified.
6.1.2 OGDEN shall submit an invoice to FKAA for each preceding billing
month no later than the tenth (IOth) day of each month.
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6.1.3 FKAA shall pay OGDEN the Base Fee reflected in said invoice, less any
disputed amounts between the parties and amounts paid by FKAA for electrical service,
on the thirtieth (30th) day of that month.
6.2 Adjustments to the annual Base Fee shall be determined in accordance with
Appendix B.
6.3 Any other compensation payable to OGDEN is due within thirty (30) calendar
days of FKAA's receipt and approval of OGDEN's invoice, or as specified in a Change Order.
6.4 In the event that a material change in the scope of services provided by OGDEN
occurs, FKAA and OGDEN will negotiate a commensurate adjustment in Base Fee if OGDEN
can reasonably demonstrate such need, and such need is supported by documentation reasonably
satisfactory to FKAA.
6.5 FKAA may, and reserves the right to, withhold all or part of any payment for the
failure of OGDEN to fulfill any material obligation, or a repeated and persistent failure to fulfill
any obligation, found in this Agreement. If the Executive Director of FKAA determines that
OGDEN has failed to fulfill any material obligation, or OGDEN has repeatedly and persistently
failed to fulfill any obligation, FKAA will provide OGDEN with written notice of its intent to
withhold all or part of any payment. OGDEN shall have ten (10) calendar days from its receipt
of the notice from FKAA to commence the remedy of its failure, and shall not receive payment
until OGDEN has promptly performed the obligation. In addition, FKAA reserves the right to
withhold from any payment any disputed amounts between OGDEN and FKAA. FKAA will
release all other amounts due as provided herein.
6.6 FKAA shall pay simple interest at an annual rate of six (6%) percent on
undisputed payments not paid to OGDEN within sixty (60) calendar days of the payment due
date, such interest accruing from the due date of the payment. No interest shall accrue on
payments made to OGDEN within thirty (30) calendar days of the payment due date.
ARTICLE 7
Manner of Performance
7.1 OGDEN is, and shall be, in the performance of this Agreement, an independent
contractor, and not an employee or agent of FKAA. All persons engaged in the performance or
provisions of services under this Agreement, either as an employee of OGDEN or subcontractor,
shall at all times, and in all places, be subject to OGDEN's sole direction, supervision, and
control. OGDEN shall exercise control over the means and manner in which its employees and
subcontractors perform or provide the services under this Agreement.
7.2 OGDEN represents that it has, or will, secure at its own expense, all necessary
personnel required to perform the services under this Agreement. Personnel of OGDEN shall
not be employees of or have any contractual relationship with FKAA, nor shall such personnel
or employee of OGDEN be entitled to any benefits from FKAA, including but not limited to,
pensions and health and worker's compensation benefits.
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7.3 OGDEN shall provide to FKAA, within thirty (30) calendar days of the
commencement of operation of the treatment plant, a staffing plan clearly designating the
number of employees and titles of each person, OGDEN will employ to provide the required
services under this Agreement. Any such plan shall include the name, responsibility, authority,
and qualifications of each such employee. OGDEN shall amend the staffing plan as necessary
throughout the term of this Agreement to insure that it accurately reflects the composition of
OGDEN's personnel.
7.4 OGDEN represents that any employee permanently assigned to the Key Largo
Wastewater Treatment System as detailed in the staffing plan set forth in Section 7.3, shall be
solely assigned to that system, shall have no other responsibilities, and will perform no other
work for OGDEN or any of its Affiliates outside of that system without the prior written consent
of FKAA.
7.4.1 Whenever FKAA determines that any person identified in Section 7.3 is
incompetent, intemperate, disorderly, or insubordinate, FKAA will provide OGDEN with
written notice of FKAA's determination. OGDEN shall have ten (10) calendar days to
investigate such matter and deliver a report to the Executive Director of FKAA with its
findings and recommendations. Should the Executive Director of FKAA request OGDEN
to remove the subject employee from the Project, OGDEN shall immediately remove that
person unless it timely invokes the dispute resolution procedures of Article 16, in which
case OGDEN may choose to delay the removal until the conclusion of mediation.
OGDEN will not thereafter employ the discharged person on any part of the Project
without the written consent of FKAA. If OGDEN fails to remove such person or
persons, FKAA may withhold all payments that are or may become due, or suspend the
Work until OGDEN complies with such orders.
7.5 OGDEN shall at all times comply with the provisions of the Public Records Law,
Chapter 119, Florida Statutes.
7.6 OGDEN shall, with the assistance of FKAA, continuously maintain all permits,
licenses, and approvals required under the Applicable Law to provide the required services under
this Agreement. Proof of all such permits, licenses, and approvals shall be submitted to FKAA
at least annually and upon request.
7.7 OGDEN shall comply with all Applicable Laws for the safety of persons or
property or to protect them from damage, injury or loss, and shall erect and maintain all
necessary safeguards for such safety and protection. Further, any additions or repairs to the
Facilities shall be subject to such safety regulations and shall be fabricated, furnished, and
installed in compliance with those requirements. OGDEN and manufacturers of materials and
machinery shall be held responsible for compliance with any and all Applicable Laws.
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ARTICLE 8
Changes in the Scope of Services
8.1 Without invalidating this Agreement and without notice to any Surety, FKAA
reserves the right to make such changes from time to time in the Facilities as may be considered
necessary as a result of a Change in Law, Uncontrollable Circumstance, or at the discretion of
FKAA. Any such change must be accomplished by means of appropriate written Change Orders
subject to Article 10.
8.2 If the change in the Facilities gives rise to any extra or additional work not
originally contemplated by this agreement, FKAA and OGDEN will negotiate a price for that
work and services. Where the costs are negotiated, OGDEN will submit an estimate to FKAA in
terms of labor, materials, equipment, overhead, and other expenses incurred solely as a result of
the extra or additional work.
8.2.1 The portion of the cost for equipment shall be based on the Blue Book
Rental Rate for Construction Equipment, published by the Machinery Information
Division of K-II Directory Corporation (version current at the time of the work) in
accordance with the following:
8.2.1.1 Costs shall be provided on an hourly basis. Hourly rates for
equipment being operated or on standby shall be established by dividing the Blue
Book rates by 176. The itemizing rates in the columns labeled "Weekly",
"Daily", or "Hourly", shall not be used.
8.2.1.2 Rates shall be adjusted using regional adjustments and rate
adjustment tables according to the instructions in the Blue Book.
8.2.1.3 Equipment required to be idled and on standby shall be at 50% of
the Blue Book Ownership cost only. No more than eight (8) hours of standby
time each day will be considered for payment.
8.2.1.4 No additional overhead on equipment costs will be allowed.
8.3 Where a price cannot be negotiated for such extra or additional work, FKAA will
pay in accordance with the following criteria:
8.3.1 Labor- Payment will be based upon the actual costs of the labor extended
on the extra or additional work plus a markup of twenty percent (20%).
8.3.2 Material and Machinery — Payment will be based upon the actual costs
directly related to the extra or additional work plus a markup of fifteen percent (15%).
8.3.3 Equipment — Payment for OGDEN owned Equipment will be paid as
described in Section 8.2, plus a markup of seven and one half percent (7.5%). Payment
for rented equipment shall be based upon the invoice cost, plus a markup of seven and
one half percent (7.5%).
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8.3.4 Subcontractor Markup — FKAA will allow a markup of ten percent (10%)
on the first $50,000 and a markup of five percent (5%) on any amount over $50,000 on
any subcontract work directly related to the extra or additional work.
8.3.5 General Liability & Bond — FKAA will allow a markup of one and one
half percent (1.5%) on the overall total cost of the extra or additional work for insurance
and bond.
8.4 The referenced markups in 8.3.1 through 8.3.5 include all indirect costs such as
increased home office and jobsite overhead, labor burden, and profit. No other compensation for
these indirect costs will be allowed.
ARTICLE 9
Claims
9.1 When OGDEN deems that extra compensation is due for services, work,
materials, or machinery not clearly covered in this Agreement, caused by an Uncontrollable
Circumstance, a Change in Law, or ordered by FKAA, OGDEN shall notify FKAA in writing of
its intention to make a claim for extra compensation; before beginning the claimed work. If
OGDEN does not give such notification and does not afford FKAA proper opportunity for
keeping strict account of the actual costs, then OGDEN waives its claim for such extra
compensation. OGDEN's notice and FKAA's account of the costs does not establish the validity
of the claim or the method for computing any compensation of such claim. If FKAA determines
that the claim is valid, payment will be made as provided in Article 8.
9.2 The Base Fee may only be changed by a written Change Order from FKAA.
9.3 Notice of the extent of the claim with supporting data shall be delivered within
thirty (30) calendar days after such occurrence (unless FKAA allows, in writing, an additional
period of time to ascertain more accurate data in support of the claim) and shall be accompanied
by OGDEN's written statement and explanation of the claim together with a statement that the
adjustment claimed is the entire adjustment to which OGDEN has reason to believe it is entitled
as a result of the occurrence of said event.
9.4 FKAA shall determine in writing all claims for adjustment of the Base Fee, or for
additional compensation in accordance with this Article. No claim will be valid if not submitted
in strict accordance with the requirements of this Article.
9.5 Additional work caused by an Uncontrollable Circumstance or a Change in Law
beyond the control of OGDEN or its Subcontractors, material persons, suppliers, or vendors,
shall be compensable under this Agreement. Any additional compensation and/or adjustment to
the Base Fee resulting from either an Uncontrollable Circumstance or a Change in Law shall be
granted through a written Change Order issued by FKAA in accordance with the terms and
conditions of this Agreement, but only upon documentation and substantiation of such amounts
by OGDEN.
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ARTICLE 10
Change Orders
10.1 Changes to the Base Fee, the scope of services, and the performance of additional
or extra work, shall be authorized only by written Change Orders approved and issued by FKAA.
10.2 OGDEN shall not undertake any additional or extra work until a Change Order
setting forth the adjustments, compensation, and other applicable terms is approved in writing by
FKAA. FKAA may request quotations from OGDEN for any such work; however, FKAA's
request for quotations shall not be considered authorization to proceed with the work prior to the
issuance of a formal Change Order. Quotations from OGDEN shall include substantiating
documentation with an itemized breakdown of OGDEN and subcontractor costs, including labor,
material, machinery, equipment, rentals, approved services, overhead and profit, in accordance
with Article 8. FKAA may require detailed cost data in order to substantiate the reasonableness
of the proposed costs.
10.3 Any compensation paid in conjunction with the terms of a negotiated Change
Order shall comprise total compensation due OGDEN for the work or alteration defined in the
Change Order. By signing the Change Order, OGDEN acknowledges that the stipulated
compensation includes payment for the interruption of schedules, extended overhead, delay,
disruption, inefficiency, and any other impact claim or ripple effect, and by such signing
OGDEN specifically waives any reservation or claim for additional compensation in respect to
the subject Change Order.
10.4 On approval of any Change Order increasing the Base Fee, OGDEN shall ensure
that any applicable bonds and other guarantees are each increased accordingly.
10.5 In the event that FKAA and OGDEN are unable to agree upon a particular
Change Order, FKAA may issue the Change Order unilaterally, and OGDEN shall proceed with
the work as set forth therein. The issuance of a unilateral Change Order by FKAA shall in no
way prejudice OGDEN's rights under Article 12.
ARTICLE 11
Defective Work
11.1 FKAA shall have the authority to reject or disapprove any item of maintenance,
repair, or additional work performed by OGDEN or any of its subcontractors that FKAA finds to
be defective. If required by FKAA, OGDEN shall, as directed, promptly correct all defective
work or remove it from the Facilities and replace it with non -defective work. OGDEN shall bear
all costs to correct such defective work or remove it from the Facilities and replace it with non -
defective work.
11.2 Should OGDEN fail or refuse to remove or correct any such defective work or to
make any necessary repairs in an acceptable manner and in accordance with the requirements of
this Agreement within the time indicated in writing, FKAA shall have the authority to cause the
unacceptable or defective work to be removed or corrected, or make such repairs as may be
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necessary to be made at OGDEN's expense. Any expense incurred by FKAA in making these
removals, corrections or repairs, which OGDEN has failed or refused to make shall be paid for
out of any monies due or which may become due to OGDEN, or may be charged against the
bond or guaranty. Continued failure or refusal on the part of OGDEN to make any or all
necessary repairs promptly, fully, and in acceptable manner shall be sufficient cause for FKAA
to declare this Agreement forfeited, in which case FKAA, at its option, may purchase materials,
tools, and equipment and employ labor, or may contract with any other individual, firm or
corporation, or may proceed with its own forces to perform the work. All costs and expenses
incurred thereby shall be charged against OGDEN, and the amount thereof deducted from any
monies due, or which may become due to OGDEN, or shall be charged against the bond or
guaranty. Any special or additional work performed, as described herein, shall not relieve
OGDEN in any way from its responsibility for the work performed by it.
11.3 Failure by FKAA to reject any defective work or material shall not in any way
prevent a subsequent rejection when such defect is discovered.
ARTICLE 12
Dispute Resolution
12.1 OGDEN recognizes it is imperative that the operation, maintenance, and repair of
the Facilities proceed uninterrupted and without delay. OGDEN shall carry on the required
Services during the resolution of all claims, disputes and disagreements with FKAA. No
Services shall be delayed or postponed pending resolution of any such claim, dispute or
disagreement except as FKAA and OGDEN may otherwise agree in writing.
12.2 FKAA shall issue a written determination on any claim, dispute, or disagreement
that may arise during the course of this Agreement. FKAA's determination shall be final and
binding upon the parties unless OGDEN requests, in writing, to negotiate the claim, dispute, or
disagreement pursuant to Section 12.3 within ten (10) calendar days of the written determination
of FKAA.
12.3 Within thirty (30) calendar days of receipt of a written request to negotiate a
claim, dispute, or disagreement, executives of both FKAA and OGDEN, at levels at least one
step above the project personnel who were involved in the claim, dispute, or disagreement, shall
meet at a mutually acceptable time and place. The meeting of the executives is intended to
afford the parties the opportunity to exchange relevant information and to attempt to negotiate a
resolution of the claim, dispute, or disagreement. At the conclusion of the negotiation process,
or the expiration of thirty (30) calendar days from the date of OGDEN's written request to
negotiate, whichever is sooner, the participating FKAA executive will issue a written summary
of the negotiations, together with FKAA's decision on the claim, dispute, or disagreement. That
written decision shall be final and binding upon the parties unless OGDEN requests mediation in
accordance with Section 12.4 within ten (10) calendar days of the written decision. The
implementation of the executive negotiation procedure under this Section shall be a condition
precedent to OGDEN's commencement of litigation under this Agreement.
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12.4 Upon receipt of a written request from OGDEN to initiate mediation, FKAA shall
appoint an independent mediator who shall be qualified by education and/or experience on the
subject matter of the claim, dispute, or disagreement at issue. OGDEN may object to FKAA's
appointment, provided that the objection is both reasonable and based on a demonstration of
good cause. Within twenty (20) calendar days of the appointment of the independent mediator,
or within such other times as the parties may mutually agree in writing, the independent mediator
shall conduct a mediation session in an attempt to reach an amicable resolution of the claim,
dispute, or disagreement. In the event that the parties are unable to reach an amicable resolution
within thirty (30) calendar days of the appointment of the independent mediator, the written
decision of FKAA under Article 12.3 shall become final and binding upon the parties. OGDEN
may, however, challenge the decision by filing and serving a complaint in the Circuit Court of
the Sixteenth Judicial Circuit in and for Monroe County, sitting in Key West, Florida, within
sixty (60) calendar days from the date of FKAA's decision, or the conclusion of mediation under
this Section, whichever is later.
12.4.1 Each party shall be responsible for the prompt payment of one-half of the
fess and expenses of the independent mediator incurred pursuant to this Section.
12.4.2 To the extent permitted by law, all negotiations, statements, and positions
made or taken during mediation shall be confidential and shall be treated as compromise
and settlement negotiations for purposes of the Federal and Florida Rules of Evidence.
12.5 If no legal action is filed and served upon FKAA within sixty (60) calendar days
from the date of FKAA's decision, or the conclusion of mediation under this Article, whichever
is later, OGDEN waives and relinquishes all right to present a challenge to such decision.
Neither the dispute resolution procedures provided under this Article, nor the filing and serving
of a complaint upon FKAA within the ninety (90) calendar days shall relieve OGDEN of the
requirement to promptly comply with the initial determination of FKAA and to perform any and
all associated work.
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ARTICLE 13
Indemnity, Liability, and Insurance
13.1 In consideration of one thousand dollars ($1000.00), separately acknowledged by
OGDEN, and other valuable consideration, OGDEN shall indemnify, defend, and hold harmless
FKAA and all of its officers, agents and employees, from all claims, losses, damages, costs,
charges, fines, or expenses arising out of any acts, actions, neglect, or omission by OGDEN or
any of its subcontractors, materialmen, or suppliers, during the performance of this Agreement,
whether direct or indirect, and whether to any person or property to which FKAA or said parties
may be subject, except that neither OGDEN nor any of its subcontractors are liable under this
Article for damages arising out of the injury or damage to persons or property directly caused or
resulting from the sole or willful negligence of FKAA or any of its officers, agents, or
employees. If it is ultimately determined with finality by an impartial tribunal, so constituted as
to make such determination, that injury or damage to person or property was caused by the sole
or willful negligence of FKAA, FKAA will indemnify OGDEN for injury to person or damage to
property incurred by OGDEN through such sole or willful negligence.
13.2 In the event that FKAA seeks indemnity and/or a defense, FKAA shall provide
notice in writing to OGDEN specifying in detail the event, condition or circumstance that has
given rise to the indemnity claim. FKAA shall provide copies of all documents in its possession
relating to the claim to OGDEN and thereafter cooperate with and assist OGDEN and its insurer
in the defense and resolution of the claim.
13.3 OGDEN's obligation to indemnify, defend, and pay for the defense or at FKAA's
option, to participate and associate with FKAA in the defense and trial of any damage claim or
suit, and any related settlement negotiations, arises within seven (7) calendar days of OGDEN's
receipt of FKAA's notice of claim for indemnification. OGDEN's obligation to defend and
indemnify FKAA within seven (7) calendar days of receipt of such notice is not excused because
of OGDEN's inability to evaluate liability, or because OGDEN denies liability or deems FKAA
to be solely or willfully negligent. Only a final adjudication or judgment finding FKAA solely
or willfully negligent excuses OGDEN from the performance of this provision. If a judgment
finding FKAA solely or willfully negligent is appealed and the finding of sole willful negligence
is reversed, then OGDEN is obligated to indemnify FKAA for the cost of the appeal(s).
13.4 OGDEN shall not permit any laborer's, materialmen's, mechanic's or other
similar liens to be filed or otherwise imposed on any part of the Facilities or the property on
which the Work is performed as a result of OGDEN's failure to pay Subcontractor's or other
persons performing portions of work or services in accordance with the relevant subcontract or
agreement. If any such lien or claim is filed, OGDEN and its Surety agree to indemnify, save
harmless and, at FKAA's option, defend FKAA, its officers, agents and employees, from and
against any claims, losses, demands, causes of actions, liability or suits of whatever nature
arising out of or based upon the liens or claims or that part of the work covered thereby. If
OGDEN does not cause such lien or claim to be released or discharged (by payment, bonding or
otherwise and as promptly as possible), FKAA shall have the right to pay all sums necessary to
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obtain such release or discharge and deduct all amounts so paid from the Base Fee and any
monies due to OGDEN.
13.5 OGDEN shall defend against and be liable for all fines or civil penalties that may
be imposed by a regulatory body for any violations that are a result of OGDEN's, or any of its
Subcontractors, acts, actions, neglect, or omission under this Agreement, other than those that are
proven to have been caused by an Uncontrollable Circumstance or Change in Law, provided that
FKAA shall provide OGDEN with prompt notice of the threatened imposition or assessment of
any such fine or civil penalty and thereafter provide all documents, information, and assistance
reasonably requested by OGDEN to defend against such threatened fines or civil penalties.
13.6 In carrying out any of the provisions of this Agreement, or in exercising any
authority granted by the Agreement, there will be no personal liability upon any public official of
FKAA, employee, agent or representative.
13.7 The indemnification provided above shall obligate OGDEN to defend at its own
expense to and through the appellate, supplemental or bankruptcy proceeding, or, at FKAA's
option, to provide for such defense of any and all claims of liability and all suits and actions of
every name and description that may be brought against the indemnified party under the
circumstances, but subject to the limitations, provided above in this Article.
13.8 Each party shall obtain and maintain insurance coverage and performance bonds
of a type and in the amounts described in Appendix C. Each party shall name the other party as
an additional insured on all insurance policies covering the Facilities and shall provide the other
party with satisfactory proof of insurance.
13.9 OGDEN shall furnish a performance and payment guarantee from Ogden Energy
Group in the form set forth in Appendix F.
ARTICLE 14
Re -use
14.1 The parties expressly recognize the desirability of implementing a reclaimed
water re -use system on this Project. Therefore, OGDEN agrees that it will operate and maintain
the Facilities in such a manner that will both facilitate the addition of a re -use system in the
future and minimize the expense associated with the implementation of such a system.
14.2 Should FKAA implement a re -use system during the term of this Agreement,
OGDEN shall perform all work related to the design, construction, operation, and maintenance
of the re -use system in accordance with the terms and conditions of this Agreement. FKAA and
OGDEN shall negotiate compensation and the completion time in accordance with the provisions
of Article 9, and FKAA shall issue written Change Orders as are necessary. Similarly, FKAA
and OGDEN shall negotiate compensation for operation, maintenance, and repair of the reuse
system in accordance with the provisions of Article 10.
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14.3 The approved uses, application sites, quantities, assurances of long-term re -use of
reclaimed water, conditions under which re -use may take place, and recipients of re -use water
shall be determined by FKAA, consistent with FDEP requirements, based upon a re -use
feasibility study to be completed by OGDEN under the Design/Build Contract. FKAA and
OGDEN will mutually establish delivery procedures and payment provisions that will govern the
operation, maintenance, and repair of any re -use system by OGDEN throughout the entire term
of this Agreement. Such delivery procedures shall address the reclaimed water quality,
disinfection, storage, distribution, monitoring, and application rates as well as the handling of
reject water. If re -use is to implemented by mutual agreement of OGDEN and FKAA, the
construction and operation of the re -use system would be incorporated into the Facilities without
precluding OGDEN from maintaining operation and maintenance schedules and associated
requirements.
ARTICLE 15
Termination - FKAA
15.1 The following shall give FKAA the right to terminate this Agreement with
OGDEN:
15.1.1 Should OGDEN (a) persistently fail to perform the services required under
this Agreement with an adequate amount or quality of workers and equipment or with
sufficient materials to assure the proper execution of the required services, or (b) perform
the services unsuitably, or (c) cause any portion of the Facilities to be rejected by any
governmental entity, or (c) discontinue its operation and maintenance of the Facilities;
15.1.2 Should OGDEN become insolvent, or be declared bankrupt, or make an
assignment for the benefit of creditors, or fail to pay subcontractors or suppliers promptly
in accordance with the terms of its subcontracts; or
15.1.3 Should OGDEN fail to pay required taxes (unless being disputed pursuant
to Applicable Laws), or fail to maintain required insurance, bond, or guarantee, or
otherwise fail to perform any of its material obligations under this Agreement, or
otherwise repudiates or breaches any of the terms of this Agreement.
15.2 If the Executive Director of FKAA reasonably determines in his sole discretion
that OGDEN has met any of the criteria specified in section 15.1, FKAA may give notice in
writing to OGDEN and its Surety of such delay, neglect or default, specifying the same. Should
OGDEN, within a period of (10) business days after such notice, not proceed in accordance
therewith, or fail to cure the default or defect or otherwise commence the cure thereof and
diligently pursue the same to completion, then the Executive Director of FKAA may terminate
the services of OGDEN, exclude OGDEN from the Sites and take the operation and maintenance
of the Facilities out of the hands of OGDEN, and appropriate or use any or all materials,
equipment, and machinery at the Facilities as may be suitable and acceptable.
15.3 In the event of a termination under Section 15.2 above, OGDEN shall not be
entitled to receive any further payment from FKAA until the Project is finished.
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15.4 In the event of a termination under Section 15.2 above, FKAA may enter into a
separate contract for the completion of the Project according to the terms and provisions of this
Agreement or use such other methods as in its opinion shall be required for the completion of the
Project in an acceptable manner.
15.5 In the event of a termination under Section 15.2 above, all damages, costs and
charges incurred by FKAA shall be deducted from any monies due or which may become due to
OGDEN. Actions will be instituted to recover on the posted bonds and guaranty. In case the
damages and expenses so incurred by FKAA shall be less than the sum which would have been
payable under this Agreement, if it had been completed by OGDEN, then OGDEN shall be
entitled to receive the difference. If such damages and costs exceed the unpaid balance, then
OGDEN shall be liable and shall pay to FKAA the amount of said excess.
15.6 Should OGDEN contest a termination under Section 15.2 above, and it is
determined that OGDEN was not in default, OGDEN shall be entitled to receive payment from
FKAA for the Work satisfactorily completed and expenses incurred to the point of termination;
reasonable resolution of subcontractor, supplier and vendor commitments that had become due
prior to the date of termination; demobilization of OGDEN's equipment, materials, and
personnel; and the relocation of OGDEN's employees if necessary. FKAA's liability under this
Section shall specifically exclude all claims for lost profits and indirect, consequential, special,
or other damages not otherwise specifically set forth herein. This Section shall not apply if it is
determined by a court of competent jurisdiction that FKAA acted in bad faith in terminating
OGDEN under Section 15.2.
15.7 If either an Uncontrollable Circumstance, or Change in Law, shall occur relative
to a material obligation of OGDEN under this Agreement, or if an Uncontrollable Circumstance
or Change in Law shall occur relative to the obligations or the ability of FKAA to continue
performance under this Agreement, and such circumstance or event, or the effect thereof, shall
continue for a period of sixty (60) calendar days, FKAA, upon notice to OGDEN, may terminate
this Agreement forthwith, and neither party shall incur any further liability or obligation other
than to pay for the Work satisfactorily completed and expenses incurred to the date of
notification of the termination. No claim for loss of anticipated profits will be considered.
15.8 In the event FKAA exercises its rights under this Article, OGDEN will be entitled
to no other compensation, including without limitation, no other payment for lost profits and
indirect, consequential, special, or other damages. Payment by FKAA under the Article, and
acceptance of those amounts by OGDEN, shall constitute a waiver of all claims by OGDEN and
shall release FKAA from all claims and all liability to OGDEN for all things done or furnished in
connection with the services and for every act of FKAA and others relating to or arising out of
the Facilities. Unless otherwise agreed to in writing by FKAA, no payment shall operate to
release OGDEN or its Sureties from obligations under this Agreement, the guaranty, warranties,
and the performance bond.
15.9 Should FKAA lose funding for the Facilities, or if a grant of funding is reduced or
terminated, through no fault of FKAA, then FKAA may terminate the Agreement upon seven (7)
calendar days written notice to OGDEN (delivered by certified mail, return receipt requested),
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with no further liability or obligation to OGDEN other than to pay for the Work satisfactorily
completed up to the date of notification of termination. If, however, the grant of funding is
reduced or terminated due to some fault or negligence on the part of FKAA, OGDEN shall be
entitled to receive compensation as set forth in Section 15.6.
15.10 Upon receipt of notice of termination, OGDEN shall promptly discontinue all
Services unless the notice of termination directs otherwise and deliver or otherwise make
available to the FKAA all data, drawings (including as built drawings), specifications, reports,
estimates, summaries and such other information as may have been required by this Agreement
whether completed or in process.
ARTICLE 16
OGDEN's Right to Stop Work or Terminate Agreement
16.1 OGDEN shall have the right, upon fifteen (15) business days written notice to
FKAA, to stop Work or terminate this Agreement upon the occurrence of any of the following:
16.1.1 Should FKAA fail to review and approve, or state in writing its reasons for
its non -approval of, any application for payment within forty-five (45) calendar days after
it is presented to FKAA by OGDEN for payment.
16.1.2 Should FKAA fail to make payment to OGDEN of amounts that are not in
dispute between the parties within sixty (60) calendar days after the time provided in
Article 7 for such payments to be made.
16.2 FKAA shall have the right to make any required payment, or state in writing the
reasons for non -approval of any application for payment, within the fifteen (15) business day
period, which shall preclude OGDEN's right to terminate this Agreement. It is further agreed
that OGDEN may not stop the Work, or terminate this Agreement, if there exists a bonafide
dispute over whether any such payment is actually due.
16.4 In the event of OGDEN's termination of this Agreement under this Article 16,
FKAA shall pay to OGDEN the amounts specified in Section 15.6.
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ARTICLE 17
Emergencies & Hurricane Precautions
17.1 During such periods of time as are designated by the United States Weather
Service as being a hurricane watch or warning, or in the event of another emergency affecting
the safety or protection of persons, the Facilities, or property adjacent thereto, or to avoid
imminent environmental contamination, OGDEN, at no cost to the FKAA and without special
instruction or authorization from FKAA, shall take all precautions necessary to respond to all
threatened events, to prevent or minimize such threatened damage, injury or loss.
17.2 Compliance with any hurricane watch or warning precautions specific to the
Florida Keys will not constitute additional work.
17.3 In the event of any emergency condition involving the Facilities which is found
by the FKAA to present a significant, immediate danger to public health, whether the cause of
OGDEN or otherwise, and OGDEN is either unable or unwilling to correct such condition,
FKAA may replace OGDEN without notice during the emergency condition, provided that at the
conclusion of any such condition, OGDEN shall be reinstated by FKAA. Provided further,
however, that FKAA shall not be obligated to reinstate OGDEN at the conclusion of the
emergency condition and may terminate this Agreement if OGDEN's inability or unwillingness
to correct such condition itself constitutes grounds for termination of this Agreement as provided
under Section 15.1. OGDEN shall not be entitled to any compensation for the time in which it
was removed.
17.3.1 If the emergency condition is found to have been caused by the fault, or
negligence, of OGDEN, OGDEN shall be liable for the costs incurred by FKAA in
replacing OGDEN, remedying the emergency condition, and repairing any damage
caused thereby, or making compensation to FKAA or other governmental entity, the
Facilities, or any effected third party.
ARTICLE 18
Miscellaneous Agreement Provisions
18.1 ROYALTIES AND PATENTS: All fees, royalties, and claims for any invention,
or invention, or patent of any article, material, arrangement, appliance or method that may be
used upon or in any manner be connected with the construction of this Project or appurtenances,
are hereby included in the prices stipulated in this Agreement for said Project.
18.2 DATUM: All elevations are referred to as National Geodetic Vertical Datum
(N.G.V.D.) of 1929, or such datum identified in the Design -Build Criteria Package.
18.3 OWNERSHIP OF DOCUMENTS: Drawings, specifications, designs, models,
photographs, computer electronic discs, reports, surveys, and other data provided in connection
with this Agreement are and shall become and remain the property of FKAA whether the Project
for which they are made is executed or not. Prior to the conclusion of the term of this Agreement,
there shall be established a record set of as built plans and specifications, both electronically and
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on full size Mylar drawings, which shall bear the approval of OGDEN. In the event of
termination of this Agreement, any reports, photographs surveys, and other data and documents
prepared by OGDEN, whether finished or unfinished, shall become the property of FKAA and
shall be delivered by OGDEN to FKAA within fourteen (14) calendar days of OGDEN's receipt
of notice of the termination. If applicable, FKAA may withhold any payments then due to
OGDEN until OGDEN complies with the provisions of this section.
18.4 RECORDS: OGDEN shall keep such records and accounts and require any and
all architects, consultants and Subcontractors to keep records and accounts as may be necessary
in order to record the operation, maintenance, and repair of the Facilities during the term of this
Agreement. Such records and accounts will be available at reasonable times for examination and
audit by FKAA and for the required retention period of the Florida Public Records Act (Chapter
119, Fla. Stat.), if applicable, or, if the Florida Public Records Act is not applicable, for a
minimum period of three (3) years after termination of this Agreement. If any audit has been
initiated and audit findings have not been resolved at the end of the retention period or three (3)
years, whichever is longer, the books, records, and accounts shall be retained until resolution of
the audit findings. If the Florida Public Records Act is determined by OGDEN to be applicable
to OGDEN's records, OGDEN shall comply with all requirements thereof; however, OGDEN
and FKAA shall violate no confidentiality or non -disclosure requirement of either federal or state
law. Any incomplete or incorrect entry in such books, records, and accounts shall be a basis for
FKAA's disallowance and recovery of any payment upon such entry.
18.5 NO CONTINGENT FEE: OGDEN warrants that it has not employed or retained
any company or person, other than a bonafide employee working solely for OGDEN to solicit or
secure this Agreement and that it has not paid or agreed to pay any person, company,
corporation, individual or firm, other than a bonafide employee working solely for OGDEN, any
fee, commission, percentage, gift, or other consideration contingent upon or resulting from the
award or making of this Agreement. For the breach or violation of this provision, FKAA shall
have the right to terminate this Agreement without liability at its discretion, to deduct from the
Base Fee, or otherwise recover, the full amount of such fee, commission, percentage, gift or
consideration.
18.6 REPRESENTATIVE OF FKAA AND OGDEN: It is recognized that questions in
the day-to-day conduct of the Services will arise. FKAA shall designate and shall advise
OGDEN in writing of one (1) or more representatives to whom all communications pertaining to
day-to-day conduct shall be addressed. OGDEN shall likewise inform FKAA in writing of the
representative of OGDEN to whom matters involving the day-to-day conduct shall be addressed.
18.7 ALL PRIOR AGREEMENTS SUPERSEDED: This Agreement incorporates and
includes all prior negotiations, correspondence, conversations, agreements or understandings
applicable to the matters contained herein, and the parties agree that there are no commitments,
agreements or understandings concerning the subject matter of this Agreement that are not
contained in herein. Accordingly, it is agreed that no deviation from the terms hereof shall be
predicated upon any representations or agreements whether oral or written. It is further agreed
that no modification, amendment or alteration in the terms or conditions contained herein shall
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be effective unless contained in a written document executed with the same formality and of
equal dignity herewith.
18.8 OCCUPATIONAL SAFETY REQUIREMENTS: OGDEN shall take all
precautions necessary for the protection of life, health, and general occupational welfare of all
persons, including employees of both OGDEN and FKAA. OGDEN shall at all times comply
with applicable Federal, State, and local laws, provisions, and policies governing safety and
health, including 29 CFR 1926, including all subsequent revisions and updates.
18.9 TRUTH -IN -NEGOTIATION: Signature of this Agreement by OGDEN shall act
as the execution of a truth -in -negotiation certificate stating that wage rates and other costs
supporting the compensation of this Agreement are accurate, complete, and current at the time of
contracting. The original Base Fee and any additions thereto shall be adjusted to exclude any
significant sums, by which FKAA determines the Base Fee, or any subsequent Change Order,
was increased due to inaccurate, incomplete, or non -current wage rates and other factual unit
costs. All such Agreement adjustments shall be made within one (1) year following the end of
this Agreement.
18.10 INTERPRETATION: The parties hereto acknowledge and agree that the
language used in this Agreement expresses their mutual intent, and no rule of strict construction
shall apply to either party hereto. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
All personal pronouns used in this Agreement shall include the other gender, and the singular
shall include the plural, and vice versa, unless the context otherwise requires. Terms such as
"herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to
the particular sentence, paragraph or Section where they appear, unless the context requires
otherwise. Whenever reference is made to a Section or Article of this Agreement, such reference
is to the Section or Article as a whole, including all of the subsections and subparagraphs of such
Section or Article, unless the reference is expressly made to a particular subsection or
subparagraph of such Section or Article.
18.11 CONDITION PRECEDENT TO AGREEMENT: It is understood by the parties to
this Agreement that all duties and obligations as set forth herein for the Design and Construction
Phases of the Project (with accompanying Support Facilities if applicable), including the
issuance of any notice to proceed, are contingent upon and shall not be binding upon FKAA until
such time as OGDEN has obtained all necessary permits, authorizations, and approvals of
whatever nature from the appropriate governmental entities or regulatory bodies that may be
required for the construction of the Project. The parties hereto acknowledge that as of the date of
execution of this Agreement certain necessary governmental approvals, including, but not
limited to, those matters set forth above, may not have been obtained by OGDEN in order to
lawfully commence the Project. FKAA shall not be responsible or liable for any damages of any
nature whatsoever, including but not limited to, direct, indirect, consequential, impact or other
costs and expenses, which may arise as a result of, or connected to, the failure of any
governmental entity, refusing to grant any necessary approval, permit, variance or any other
required consent which may be necessary to commence construction of the Project, or which
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M
may arise as a result of any delay in the granting of any such approval, permit, variance or other
required consent.
18.12 PUBLIC ENTITY CRIME STATEMENT: OGDEN represents that the execution
of this Agreement will not violate Section 287.133(2)(a), F.S., ("Public Entity Crimes Act")
which provides, in part, that a person or affiliate who has been placed on the convicted vendor
list following a conviction for a public entity crime may not submit a bid on a contract to provide
any goods or services to FKAA, may not submit a bid on a contract with FKAA for the
construction or repair of a public building or public Work, may not submit bids on leases of real
property to FKAA, may not be awarded or perform Work as a contractor, supplier,
Subcontractor, or consultant under a contract with FKAA, and may not transact business with
FKAA in excess of the threshold amount provided in Section 287.017, Florida Statutes, for
CATEGORY TWO for a period of 36 months from the date of being placed on the convicted
vendor list. Violation of this section by OGDEN shall result in termination of this Agreement by
FKAA without penalty. In addition to the foregoing, OGDEN further represents that there has
been no determination, based on an audit, that it committed an act defined by Section 287.133
Florida Statutes, as "public entity crime" and that it has not been formally charged with
committing an act defined as a "public entity crime" regardless of the amount of money involved
or whether OGDEN has been placed on the convicted vendor list.
18.13 JOINT PREPARATION: The preparation of this Agreement has been a joint
effort of the parties and the resulting document shall not, solely as a matter of judicial
construction, be construed more severely against one of the parties than the other by virtue of the
fact that it may have been physically prepared by one party or its attorneys.
18.14 SEVERANCE: In the event this Agreement or a portion of this Agreement is
found by a court of competent jurisdiction to be invalid, the remaining provisions shall continue
to be effective unless it effects material obligations of FKAA or OGDEN, or if FKAA elects to
terminate this Agreement or renegotiate its terms. The election to terminate this Agreement
based upon this provision shall be made within seven (7) business days after the finding by the
court becomes final.
18.15 WAIVER: No waiver of any provision of this Agreement shall be effective
unless it is in writing, signed by the party against whom it is asserted and any such written
waiver shall only be applicable to the specific instance to which it relates and shall not be
deemed to be a continuing or future waiver.
18.19 CONFLICTS: Neither OGDEN nor its employees shall have or hold any
continuing or frequently recurring employment or contractual relationship that is substantially
antagonistic or incompatible with OGDEN's loyal and conscientious exercise of judgment
related to its performance under this Agreement. OGDEN agrees that none of its employees
shall, during the term of this Agreement, serve as an adverse or hostile expert witness against
FKAA in any legal or administrative proceeding in which he or she is not a party, unless
compelled by court process, nor shall such persons give sworn testimony or issue a report or
writing, as an expression of his or her opinion, which is adverse or prejudicial to the interests of
FKAA in any such pending or threatened legal or administrative proceeding. The limitations of
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this section shall not preclude such persons from representing themselves in any action or in any
administrative or legal proceeding regarding this Agreement. In the event OGDEN is permitted
to utilize Subcontractors to perform any services required by this Agreement, OGDEN agrees to
prohibit such Subcontractors, by written contract, from having any conflicts as within the
meaning of this section.
18.20 CONSEQUENTIAL DAMAGES: Neither party shall be liable to the other for
special or consequential damages except as otherwise provided in this Agreement. This
limitation does not include damages to the Facilites or additional costs of future operations in the
event of an OGDEN default.
18.21 The maximum aggregate amount of damages that may be recovered by FKAA
against OGDEN and Ogden Energy Group, Inc. in the event of a default by OGDEN under this
Agreement, or a breach by Ogden Energy Group, Inc. under the guaranty, shall be ten million
(10,000,000.00) dollars.
18.22 SUCCESSORS AND ASSIGNS: The terms of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and permitted
assigns.
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Both parties indicate their approval of this Agreement by their signatures below.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and date first above written, in
counterparts each of which shall, without proof or accounting for the other counterpart be
deemed an original Agreement.
WITNESSES:
ATTEST:
Clerk
OGDEN WATER SYSTEMS
KEY LARGO, INC.:
By
Title
Date
Florida Key Aqueduct Authority
By
Title
Date
*****************
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APPENDIX A
Facilities Characteristics and Operating Requirements
A.1OGDEN will operate Facilities so that effluent will meet the requirement of all
applicable permits.
A.2The treatment means and methods shall meet, or exceed, permitted effluent standards.
OGDEN shall provide treatment unit processes to treat influent wastewater in order to comply
with all Advanced Wastewater Treatment (AWT) effluent permitted effluent standards, and
operate and maintain unit processes and equipment designed and constructed by OGDEN to
assure that AWT effluent permitted effluent standards are met.
A.30GDEN shall be responsible for assuring that odor control equipment, machinery and
other processes are maintained and operated throughout the entire Facilities, including the
treatment plant and vacuum stations to minimize odor complaints.
A.40GDEN shall be responsible for stabilizing and dewatering class A sludge in
compliance with all state and federal regulations and permits.
Notice of Claims
A.5 OGDEN shall notify the FKAA in writing of all incidents, events, or injuries
arising out of OGDEN's performance under this Agreement which may involve or create
liability for FKAA, or which may result in a claim, penalty, or fine against OGDEN of twenty
thousand dollars ($20,000.00) or more, including but not limited to, claims, penalties, or fines
relating to violations of the Applicable Laws, pollution at, on, or near the Facilities, workplace
injuries, and injuries to third parties. All notices to FKAA under this section shall be provided
promptly, and in no event shall such notice be provided after forty eight (48) hours of OGDEN
learning of the same.
APPENDIX B
BASE FEE ADJUSTMENT FORMULA
The base fee set forth in Section 6.1 of the Agreement shall be subject to an automatic
adjustment under the following methodology on an annual basis as follows:
An amount derived by the percentage change in the Gross
Domestic Product Implicit Price Deflector Index as published by
the United States Department of Commerce annually, and
authorized by the Florida Public Service Commission.
APPENDIX C
INSURANCE COVERAGE
OGDEN shall obtain and maintain the following types of insurance coverages, in the
following amounts:
1. Statutory workers' compensation as defined by Chapter 440, Florida Statutes,
encompassing all operations contemplated by this Agreement for all of employees, owners, and
officers of OGDEN. The Employers Liability policy shall have a minimum limit of
$5,000,000.00 per accident.
2. Comprehensive general liability insurance, with coverage to apply to the premises
and/or operations, products and/or completed operations, independent contractors, contractual
liability, and broad form property damage exposures with minimum limits of Five Million
Dollars ($5,000,000.00).
3. Comprehensive automobile liability insurance, with coverage to apply to owned
vehicles and/or hire and non -owned vehicles and employee non -ownership use with minimal
limits of $1,000,000.00 CSL (combined single limit).
4. Umbrella/Excess liability insurance with minimum limits of $30,000,000.00.
5. A performance bond in an amount of Ten Million Dollars ($10,000,000.00),
guaranteeing the performance of each and every matter and thing to be performed, kept, and
done by OGDEN under this Agreement in the form attached to this Appendix C.
6. A performance guarantee from Ogden Energy Group, Inc. in the form attached to
this Appendix C.
FKAA shall maintain:
1. Property damage insurance for all property owned by FKAA and operated by
OGDEN under this Agreement, with any property including equipment not properly or fully
insured being the financial responsibility of FKAA,
2. Liability insurance for all equipment owned by FKAA and operated by OGDEN
under this Agreement.
Bond No.
PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS,
That: Ogden Water Services Key Largo, Inc.
40 Lane Road, Fairfield, NJ 07007
(hereinafter called the Principal)
as Principal, and Federal Insurance Company, of 15 Mountain View Road, P.O. Box 1515,
Warren, New Jersey, 07037-1515, a corporation organized under the laws of the State of New
Jersey (hereinafter called the Surety), as Surety, are held and firmly bound unto Florida Keys
Aqueduct Authority (hereinafter Obligee),
in the sum of
($ .__) for the payment of which we, the said Principal and the said Surety,
bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally,
firmly by these presents.
Sealed with our seals and dated this
day of , 20 _
WHEREAS, the Principal entered into a certain Contract with Obligee dated ,
20_, for the operation, maintenance, and repair of the wastewater treatment and collection
system for Key Largo, Florida, in accordance with the terms and conditions of said Contract,
which is hereby referred to and made a part hereof as if fully set forth herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the above
bounden Principal shall well and truly keep, do and perform each and every, all and singular, the
matters and things in said Contract set forth and specified to be by said Principal kept, done, and
performed, at the times and in the manner in said Contract specified, or shall pay over, make
good and reimburse to the above named Obligee, all loss and damage which said Obligee may
sustain by reason of failure or default on the part of said Principal. then this obligation shall be
null and void, otherwise it shall remain in full force and effect subject, however, to the following
conditions:
1. Any suit under this bond must be instituted before the expiration of two (2) years
from the date on which final payment under the Contract falls due.
2. No right of action shall accrue on this bond to or for the use of any person or
corporation other than the Obligee named herein, or the heirs, executors, administrators, or
successors of the Obligee.
1 of 2
Ogden Water Services Key Largo, Inc.
By:
Its:
Federal Insurance Company
By:
Its:
2 of 2
APPENDIX D:
Ogden's Drugfree Workplace Policy
APPENDIX E
WASTEWATER MANAGEMENT FACILITIES
1. Consistent with Monroe County growth management policies, Project
facilities shall be designed to accommodate the wastewater treatment plant flows listed in
the tabulation given below. The treatment plant shall meet Class I reliability criteria.
Standby power, odor control, and protection for Flood Zone V shall be provided.
Condition
Average Daily Flow
Average Daily Flow on an Annual Basis
2.2 million gallons per day
Average Daily Flow on a Maximum Month Basis
2.8 million gallons per day
Peak Hourly Flow
4,000 gallons per minute
Parameter
Operational Criteria
Carbonaceous Biochemical Oxygen Demand (CBOD5)
Annual Average
5 milligrams per litre
Total Suspended Solids
Annual Average
5 milligrams per litre
Total Nitrogen, expressed as N
Annual Average
3 milligrams per litre
Total Phosphorus, expressed as P
Annual Average
1 milligrams per litre
Microbiological
Basic Disinfection
2. The collection/transmission system shall provide for transmission of both
minimum scouring flow and peak hourly flow to the treatment plant consistent with
sound engineering practice. Traffic bearing lids shall be provided for vacuum pits.
Standby power, odor control, negative buoyancy for vacuum pits, and vacuum station and
pumping station protection for Flood Zone V shall be provided. The selection of the size
or capacity rating of collection/transmission components shall be limited as follows:
Facilities shall be provided and appropriately sized to serve existing developed properties
throughout the entire Project service area; additional capacity to accommodate service
allowed under the County's growth management policies shall be provided;
manufacturers' recommendations shall be followed; and sound engineering practice shall
be used. Compliance with all local, state, and federal environmental protection policies,
ordinances, rules, regulations, and statutes shall be required.
3. The deep injection well disposal system shall be provided in accordance
with Class I well construction specifications as established in Department of
Environmental Protection rules. The well system shall include redundancy such that the
entire permitted flow can be injected while any part of the system is not being used.
APPENDIX F:
Memorandum of Service Commencement Date
R
APPENDIX F
MEMORANDUM OF SERVICE COMMENCEMENT DATE
As provided by the terms of the Operations and Maintenance Agreement between the
undersigned parties, it is hereby understood, agreed, and established that (i) the Service
Commencement Date is:
20 ;
and (ii) the term of the Operations and Maintenance Agreement shall run from:
20 through , 20
WITNESSES: OGDEN WATER SERVICES
KEY LARGO, INC.:
By_
Title
Date
Florida Key Aqueduct Authority
By_
Title
Date
*****************
APPENDIX H
UNILATERAL CHANGE ORDER
Florida Keys Aqueduct Authority
Contract No.: Operation and Maintenance of the Wastewater Change Order No.:
Treatment System
Servicing Key Largo, Florida
Ogden Water Systems Key Largo, Inc.
The following changes to the Base Fee are hereby made part of the Agreement:
I. ORIGINAL BASE FEE $
Increase from all previous Change Orders $
Increase of this Change Order $
The Current Base Fee including this Change Order $
II. ADDITIONAL COMPENSATION
Due OGDEN under this Change Order
III. ADDITIONAL WORK OR SERVICES
AUTHORIZED BY THIS CHANGE ORDER
All requirements of the original Contract Documents shall remain in full force and effect except as
modified herein. Work affected by this Change Order is subject to all provisions of the original Contract Documents
not specifically changed by this Change Order. By acceptance of this change order OGDEN does not waive any
rights it may have under the Contract Documents.
APPROVED BY FKAA:
Title: Date:
APPENDIX I:
Invoice
FLORIDA KEYS AQUEDUCT AUTHORITY
KEY WEST, FLORIDA
SUMMARY OVERVIEW
RESPONSE TO
BOCC RESOLUTION 093-2000
Section 1. "Enter into contract negotiations with Ogden Water Systems, Inc."
There have been eight separate day long negotiation sessions, five telephonic negotiation sessions
of 3-4 hour duration and numerous independent telephonic sessions to specific areas of finance,
engineering technical requirements, administration/construction management, rates, and legal.
Besides traditional negotiation procedures and requirements, the agreement and penning of what
was stated in the Ogden proposal to the County's RFP and what was not addressed has made for
extensive negotiations to find contractual language agreement. The interconnection of contract
language with determination of a rate structure and financial commitments/guarantees has made for
a multi -dimension negotiation.
Section 2. "Adding the optional 2.84 million reuse option to the project"
The reference and dollar value of the Ogden information on reuse was incomplete in nature as to
distribution costs, availability of customers, costs of water, etc. It was in essence a concept.
Reuse has been practicality addressed in the contract under DB Contract, Article 36 and O&M
Contract, Article 14. Ogden is to provide the public, BOCC, and FKAA a completed feasibility
err study on reuse by October 15s'.
"Providing for public outreach program and citizen complaints during construction"
Both Ogden and FKAA will have separate designated "resident coordinators" available in the
project area on a daily basis. A "hotline" will be available DB Contract, Article 27, Sec. 4.1) and
FKAA will continue to use public forums, internet, press, specific mailings to keep the public
informed and notified.
"Providing for coordination. —County Public Works and the County's road resurfacing
program"
Construction schedules, pre -construction physical reviews will be coordinated directly with Public
Works.
Section 3. "Highly recommended seek expert technical assistance reference contract
negotiations and construction management."
Cummings & Synder, P.A., construction, negotiation, litigation law.
Byrant, Miller & Olive, P.A., finance, utility operation & assessment
Southeast Investment Securities, Inc. Independent financial advisor (public financing)
Public Resources Management Group, Inc. (Public utility rate consultants)
Boyle Engineering, (Wastewater treatment plants, collection systems, vacuum systems)
FDEP, (Permitting and financing -state revolving loan program)
Section 4. "Report back to BOCC"
BOCC meeting, May 18a'.
Section 5. "Selection of sites, Growth Management Division"
FKAA has coordinate with GMD throughout the site selection process and attended all
Site selection forums. FKAA structured the contract to be signed pending the BOCC selection of a
plant site.
Section 6. " Keep costs as close as possible to the proposed $2,5000 per EDU and $35 per
EDU monthly, recognizing the need for FKAA administrative costs" (requirements for
negotiations construction management, and during the operations phase customer service.)
As the financial plan and rate structure indicates this recommendation has been followed and the
comparison to the actual Ogden System Development Fee and monthly rates have been made.
Section 7. "A series of at least three (3) public meetings. At least one devoted to site selection."
Actual public meetings exclusive of BOCC and FKAA Board meetings:
Two public site selection meetings. (Growth Management & FKAA.)
Four public input meetings. FKAA, main points of contracts, financial plan, rate policy and
structure. (May 4, May 10, May 11, and May 16�)
Section S. "Possible sites for wastewater treatment plant"
A Growth Management Division and BOCC function with FKAA in technical support.
Current contract language requires BOCC to designate site by June 3e.
Section 9. "RFP, Technical Evaluation Panel critical concerns per Exhibit 1"
Addressed under Exhibit 1. (below)
Section 10. Growth Management/ROGO concerns not allowing for excessive growth.
FKAA, DEP, EPA and GMD have participated in meetings and dialogue concerning the above.
Contract language reference limited permit parameters is found Design/Build contract, Appendix A
BOCC crafting other language for incorporation under the Land Use Plan.
Exhibit 1. TEP Recommendations.
Financial/performance guarantees/penalties.
Design/Build contract requires payment and performance bonds equal to 100% of the
construction costs by a state licensed surety, liquidated damages at $15,000 per day and
parent company corporate guarantee of an additional $ 10,000,000.00. O&M contract
has a $10,000,000.00 performance bond by state licensed surety and a parent company
guarantee.
2. Schedule substantial completion for core service.
Design/Build contract requires core service area completed in 30 months.
3. Site selection language and limited owner liability addressed in contract.
4. Restoration of private property.
Contractor to video tape and photograph all existing conditions. Property owner to
acknowledge. Contract calls for full restoration to original or equivalent condition.
5. Street resurfacing beyond patching.
RFP response and Ogden submitted cost proposal specifically did not include street
resurfacing. Any street resurfacing not in the County's 7 year plan would be an
additional costs to the County.
6. County responsibilities on private property.
FKAA to execute license agreement with property owners.
7. Prohibiting installing any "T" for future growth.
FKAA has approval authority of design/system drawings.
The initial design and installation does not contain extra T" connections for future
hookups.
8. Design capacity.
See Design/Build contract Appendix A.
9. Odor control.
Addressed in both the Design/Build contract and OM contract.
10. Service boundaries regardless of EDU count.
DB contract requires Ogden to connect and service all existing structures and any other
structures not built but officially permitted as of Oct. 1, 1999 with the officially
designated service area.
11. Traffic bearing vacuum pit lids. All pits lids to be traffic bearing in accordance with
specifications.
12. Equipment and materials selection.
FKAA has the right of review, rejection and approval.
13. Contingency for alternative sludge removal.
Addressed in OM contract inclusive of hazard waste sludge.
Currently all sludge to be transported to licensed facility in Dade County.
14. Valid cost proposal to June 13,2000.
FKAA has negotiated with this deadline as the final date for contract execution. And
Ogden price held.
15. County responsibilities for structuring the finance.
Per TEP discussions. County responsible. FKAA as the agency is responsible.
See financial plan.
Additional Specific Critical Issues.
1. Sales Tax savings.
Fully addressed in DB contract. Article 20.
2. Responsibility for site(s) procurement.
Addressed in DB contract.
3. Alternative disposal.
DEP requires deep well injection only. Re -use may be supplemental.
4. Costs/effluent/re use.
See BD contract Article 36.
5. Affordable housing.
Direct responsibility of contractor to provide any necessary construction personnel
housing.
6. Existing collection systems.
Addressed in rate policy and structure. Various alternates based on legal structure of
ownership, current permit status, etc.
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