1 EJCDC Progressive Design Build Agreement.docx

AGREEMENT

BETWEEN OWNER AND DESIGN-BUILDER FOR PROGRESSIVE DESIGN-BUILD

THIS AGREEMENT (“Agreement”) is entered into between Water Environment Services, an intergovernmental entity formed pursuant to Oregon Revised Statutes Chapter 190 (“Owner”), and xxx (“Design-Builder”).

PROJECT INFORMATION

Project: Sandy River Force Main River Crossing Project

Design-Builder: XXX Owner’s Advisor: XXX.

Engineer: Design-Builder has retained XXX (“Engineer”) for the performance of professional engineering services under this Contract.

Authorized Representatives: Owner and Design-Builder each hereby designates a specific individual authorized to act as representative with respect to the performance of responsibilities under this Contract. Such an individual shall have authority to transmit instructions, receive formal notices, receive information, and render decisions relative to this Contract on behalf of the respective party that the individual represents.

1. Owner’s Authorized Representative: Jessica Rinner; 150 Beavercreek Rd, Oregon City, OR 97045; jrinner@clackamas.us; 503-742-4551

2. Design-Builder’s Authorized Representative: XXX

TERMS

Unless otherwise defined in this Agreement, terms used in this Agreement will have the meanings stated in the General Conditions and Supplementary Conditions, further identified in Article 8 .

In consideration of the mutual covenants and obligations contained herein, Owner and Design-Builder further agree as follows:

ARTICLE 1 – THE WORK

1.01 General Description: Design-Builder shall complete all Work as specified or indicated in the Contract Documents including, but not limited to, the Scope of Work attached hereto as Exhibit A (“Scope of Work”) and incorporated herein. The Work is generally described as the design and construction of the following: A pipeline, approximately 8 inches in diameter and xx feet in length, carrying raw sewage from the Sandy River Lane Pump Station across the Sandy River.

1.02 Work Stages:

A. Phase 1 - Preliminary Stage: As set forth in more detail in the Scope of Work, Design-Builder shall perform the following services in Phase 1: Study and Report services; drafting of Preliminary Technical Documents; preparation of Construction Drawings and Construction Specification up to sixty (60) percent completion; and Construction Planning services as identified in the Scope of Work (including preparation of Component Guaranteed Maximum Price proposals or a single Guaranteed Maximum Price proposal).

B. Phase 2 - Completion Stage: If Owner and Design-Builder decide to advance to the Completion Stage through the adoption of a Guaranteed Maximum Price amendment, entered into pursuant to the General Conditions and Supplemental Conditions, then Design- Builder shall perform the following services in Phase 2: Completion of Construction Drawings and Construction Specifications, based on the Preliminary Technical Documents; Construction; Start-up, Testing, and Commissioning; and Correction Phase services.

ARTICLE 2 – CONTRACT TIMES

2.01 Time of the Essence

A. All time limits for Design-Builder’s attainment of Milestones, Substantial Completion, and completion and readiness for final payment, as stated in the Contract, are of the essence of the Contract.

2.02 Contract Times: Phase 1 - Preliminary Stage

A. Design-Builder shall review existing documentation and develop a 60% Design Document Package including a GMP and Permitting Strategy on or before April 1, 2027, to ensure timely permit approvals for construction.

2.03 Contract Times: Phase 2 - Completion Stage

A. The Work will be substantially completed on or before October 31, 2027.

B. The Work will be completed and ready for final payment on or before January 1, 2028.

C. The Contract will not expire until the completion of the Work, unless otherwise terminated by the parties in accordance with the terms of the Contract Documents.

2.04 Liquidated Damages;

A. Construction: Design-Builder and Owner recognize that time is of the essence as stated in Paragraph 2.01 and that Owner will suffer financial and other losses if the Work is not completed within the times specified in this Article 2, as such may be revised in accordance with the Contract. The parties also recognize the delays, expense, and difficulties involved in proving, in a lawsuit or arbitration proceeding, the actual loss suffered by Owner if the Work is not completed on time. Accordingly, instead of requiring any such proof, Owner and Design-Builder agree that as liquidated damages for delay (but not as a penalty):

1. Substantial Completion: Design-Builder shall pay Owner $500 for each day that expires after the time (as duly adjusted pursuant to the Contract) specified in Paragraph 2.03.B for Substantial Completion, until the Work is substantially complete.

EJCDC® D-512, Agreement Between Owner and Design-Builder for Progressive Design-Build.

Copyright © 2016 National Society of Professional Engineers, American Council of Engineering Companies, and American Society of Civil Engineers. All rights reserved.

2. Final Completion: After Substantial Completion, if Design-Builder shall neglect, refuse, or complete the remaining Work within the Contract Time (as duly adjusted pursuant to the Contract) for completion and readiness for final payment as required in the Supplemental Conditions, within the dates specified in Paragraph 2.03 above, then Design-Builder shall pay Owner $500 for each day that expires after such until the Work is completed and ready for final payment.

ARTICLE 3 – CONTRACT PRICE

3.01 Phase 1 Price

A. The Phase 1 Price means that portion of the Contract Price established for Design-Builder’s completion of the Phase 1 Work.

B. For performance of the Phase 1 Work, the Owner agrees to pay the Design-Builder an amount not to exceed XXX.

3.02 Phase 2 Price

A. The Phase 2 Price means that portion of the Contract Price established as compensation for the Phase 2 Work.

B. The Phase 2 Price will be set in accordance with the terms of the applicable sections of the General Conditions and the Supplemental Conditions including, but not limited to, Article 12, through the adoption of a Guaranteed Maximum Price amendment.

3.03 Fee and Price Table

D. General Conditions Fee Percentage

E. Cost of Construction

ARTICLE 4 – PAYMENT; INTEREST

4.01 Payments

A. All payments made under the Contract will be in accordance with the Contract Documents including, but not limited to, Article 14 of the Supplemental Conditions.

4.02 Interest Rate

A. All undisputed amounts shall bear interest on the terms and at the rate stated in Oregon Revised Statutes 279C.570, as amended.

ARTICLE 5 – INSURANCE AND BONDS

5.01 Insurance

A. Design-Builder and Owner shall obtain and maintain insurance as required by the General Conditions and Supplementary Conditions.

5.02 Performance, Payment, and Other Bonds

A. Design-Builder shall provide bonds in accordance with the requirements of Section 6.01 of the General Conditions and Supplemental Conditions.

ARTICLE 6 – DESIGN-BUILDER’S REPRESENTATIONS

6.01 Representations

A. Design-Builder makes the following representations for Owner’s reliance:

1. Design-Builder has examined and carefully studied the Contract Documents, and any data and reference items identified in the Contract Documents.

2. Design-Builder has visited the Site, conducted a thorough, alert visual examination of the Site and adjacent areas, and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work.

3. Design-Builder is familiar with and is satisfied as to all Laws and Regulations that may affect cost, progress, and performance of the Work.

4. Design-Builder has carefully studied all: (a) reports of explorations and tests of subsurface conditions at or adjacent to the Site, and all drawings of physical conditions relating to existing surface or subsurface structures at the Site, if any, that Owner has identified or made available to Design-Builder, especially with respect to Technical Data in such reports and drawings, and (b) reports and drawings relating to Hazardous Environmental Conditions, if any, at or adjacent to the Site, that Owner has identified or made available to Design-Builder, especially with respect to Technical Data in such reports and drawings.

5. Design-Builder has considered the information known to Design-Builder itself, and to Construction Subcontractors and Project Design Professionals that Design-Builder has selected as of the Effective Date; information commonly known to design professionals, design-builders, and contractors doing business in the locality of the Site; information and observations obtained from visits to the Site; the Contract Documents; and the Site-related reports and drawings (if any) identified in the Contract Documents or otherwise made available to Design-Builder, with respect to the effect of such information, observations, and documents on (1) the cost, progress, and performance of the Work; (2) the means, methods, techniques, sequences, and procedures of construction to be employed by Design-Builder; and (3) Design- Builder’s safety precautions and programs.

6. Based on the information and observations referred to in the preceding paragraph, Design-Builder agrees that no further examinations, investigations, explorations, tests, studies, or data are necessary prior to entry into the Contract at the Contract Price, subject to the Contract Times.

7. Design-Builder is aware of the general nature of work to be performed by Owner and others at the Site that relates to the Work as indicated in the Contract Documents.

8. Design-Builder has given Owner written notice of all conflicts, errors, ambiguities, or discrepancies that Design-Builder has discovered in the Contract Documents, and the written response from Owner is acceptable to Design-Builder.

9. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work.

10. Design-Builder’s entry into this Contract constitutes an incontrovertible representation by Design-Builder that without exception all prices in the Agreement are premised upon performing and furnishing the Work required by the Contract Documents.

ARTICLE 7 – ACCOUNTING RECORDS

7.01 Maintaining and Preserving Cost Records

A. Design-Builder shall keep such full and detailed accounts of materials incorporated and labor, services, and equipment utilized for the Work as may be necessary for proper financial management under this Agreement. Subject to prior written notice, Owner shall be afforded reasonable access during normal business hours to all Design-Builder’s records, books, correspondence, instructions, drawings, receipts, vouchers, memoranda, and similar data relating to cost-based or time-based compensation or reimbursement of any type or description, including but not limited to direct labor hours, standard rate hours, reimbursable expenses, change order pricing, and the Cost of the Work (if applicable). Design-Builder shall preserve all such documents for a period of six years after the final payment by Owner, or longer as may be otherwise required under the Contract Documents.

ARTICLE 8 – CONTRACT DOCUMENTS

8.01 Contents

A. The Contract Documents consist of the following:

1. This Agreement.

2. Scope of Work, attached hereto as Exhibit A.

3. 2016 EJCDC D-700 Standard General Conditions of the Contract between Owner and Design-Builder (“General Conditions”).

4. Supplementary Conditions, attached hereto as Exhibit B.

5. Conceptual Documents (Informational Only; Not Attached):

a. Sandy River Lane Forcemain and the Sandy River Lane Pump Station Vulnerability Mitigation – Geotechnical Engineering Considerations (GeoDesign; 2013)

b. Sandy River Force Main Vulnerability Mitigation (Century West; 2013)

6. Addenda.

7. Design-Builder’s Proposal. (Not Attached)

8. Proposal Amendment.

9. The following which may be delivered or issued on or after the Effective Date of the Contract and are not attached hereto:

a. Component Guaranteed Maximum Price Proposal(s).

b. Guaranteed Maximum Price Proposal.

c. Performance Bond (in the form provided by the Owner).

d. Payment Bond (in the form provided by the Owner).

e. Other Bonds.

f. Change Orders.

g. Record Drawings and Record Specifications B. The documents listed in Paragraph 8.01.A are attached to this Agreement and incorporated herein, except as expressly noted otherwise above or added by the parties at a later date through an amendment in accordance with the terms of the Contract Documents.

C. There are no Contract Documents other than those listed above in this Article 8.

D. The Contract Documents may only be amended, modified, or supplemented as provided in the General Conditions.

ARTICLE 9 – MISCELLANEOUS

9.01 Terms

A. Unless otherwise defined in this Agreement, terms used in this Agreement will have the meanings stated in the General Conditions and Supplementary Conditions.

9.02 Assignment of Contract

A. Unless expressly agreed to elsewhere in the Contract, the Design-Builder shall not assign any rights under or interests in the Contract without the written consent of the Owner, which shall not be unreasonably withheld.

9.03 Successors and Assigns

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

9.04 Severability

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

9.05 Design-Builder’s Certifications

A. Design-Builder certifies that it has not engaged in corrupt, fraudulent, collusive or coercive practices in competing for or in executing the Contract. For the purposes of this Paragraph 9.05:

1. “Corrupt practice” means the offering, giving, receiving or soliciting of anything of value to influence the action of a public official in the bidding process or in the Contract execution;

2. “Fraudulent practice” means an intentional misrepresentation of facts made (a) to influence the bidding process or the execution of the Contract to the detriment of Owner,

(b) to establish Bid prices at artificial non-competitive levels, or (c) to deprive Owner of the benefits of free and open competition;

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

4. “Coercive practice” means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Contract.

*Signature Page Follows*

By their signatures below, the parties to this Contract agree to the terms, conditions, and content expressed herein. This Agreement will be effective on the date both parties have signed below (which is the Effective Date of the Contract).

OWNER:

DESIGN-BUILDER:

By:

By:

Title:

Title:

Approved for Legal Sufficiency:

Attest:

Title:

Title:

Address for giving notices:

Address for giving notices:

License No.:

(where applicable)

EXHIBIT A – Scope of Work

See Attached