2-Appendix 2 Draft Agreement Documents.pdf

V.20260109.01

RFQu-25-004

SOLICITATION DOCUMENTS

Appendix 2: Draft Agreement

COVERSHEET

The Draft Single Project Design-Build Agreement is attached to this coversheet.

SINGLE PROJECT DESIGN-BUILD AGREEMENT

between

TOHOPEKALIGA WATER AUTHORITY

and

DB Firm Name regarding

DB - Lift Station - 05C (Toho East Lakeshore) Rehabilitation Project

TABLE OF CONTENTS

Article 1. CCNA Compliance Statement Article 2. Definitions

General Definitions Additional Clarifications

Article 3. Documents Incorporation Contract Documents Reference Standards Notification of Discrepancies, Omissions, Oversights, or Errors in Contract Document Interpretation of Contract Documents Priority of Documents Federal/State Financial Assistance Provisions Ownership of Documents Non-Publication

Article 4. Term of Agreement Term of Agreement Work Authorization Termination

Article 5. Project Team Generally Project Managers (PM) Design Professional Representative Key Personnel Removal of Personnel Relationship of the Parties Toho as Third-Party Beneficiary; Correlation and Intent of Documents Electronic Transmittals Toho's Duties, Obligations, and Responsibilities

Performance Expectations; DB Firm’s Representations and Responsibilities Article 6. Preconstruction Phase Services

Phase Scope Assignment Preconstruction Phase Initiation Project Site Inspection Design Development Bidding and Award Guaranteed Maximum Price Amendment

Preconstruction Services Fee Article 7. Construction Phase Services

Construction Phase Scope Construction Phase Initiation Assumption of Risks by Design-Build Firm Construction Management Miscellaneous Services Owner Direct Purchases

Article 8. Costs to be Reimbursed Generally Cost Classifications; Duplication Prohibited Cost of Construction General Conditions Costs Construction Contingency Allowance Owner’s Contingency Allowance Permit and Fee Allowance Bonds and Insurance Costs Construction Manager Fee

Bid Contingency Article 9. Costs Not to be Reimbursed

Generally Article 10. Discounts, Rebates, and Refunds

Generally Cash Discounts Trade Discounts

Article 11. Contract Time & Liquidated Damages Contract Time Progress of the Work Liquidated Damages

Article 12. Delays and Extension of Time Extension of Time Sole Remedy Unfavorable Weather Hurricane Preparedness Force Majeure

Article 13. Change Orders Change Orders; Change Order Requests Minor Changes in Work Change of Contract Time Change of Contract Amount Verbal Change Orders Request for Reconsideration Notification of Surety Waivers

Article 14. Value Engineering Intent and Objective Data Requirements Processing Procedures Computations for Reductions in Contract Amount Computations for Savings in Collateral Costs

Sharing Arrangement Article 15. Project Completion

Partial Utilization Substantial Completion Final Punch List Final Inspection Final Completion Close-Out Documents

Article 16. Payments to DB Firm Schedules Payment Agent Determination Applications for Payment Review and Payment Retainage Overpayment Prompt Payment to Subcontractors Application for Partial Release of Retainage Application for Final Punch List Payment

Final Payment Article 17. DB Firm's Obligation Article 18. Suspension of Work and Termination

Work Stoppage by Toho Suspension for Convenience Termination for Cause Termination for Convenience Termination during or at completion of Preconstruction Phase

Article 19. Warranty and Guarantees Generally Warranty Period Extended Warranties and Guarantees Extended Warranty Period Due to Defective Work

Article 20. Tests and Inspections Access to Work Tests and Inspections Uncovering Work

Article 21. Correction, Removal; Acceptance of Defective Work Correction or Removal of Defective Work Acceptance of Defective Work Toho’s Correction of Defective Work

Article 22. Contract Claims; Dispute Resolution Contract Claims Procedure Dispute Resolution Settlements Obligation to Continue Work

Article 23. Indemnity; Sovereign Immunity; Liability Indemnity Sovereign Immunity Liability Third-Party Beneficiaries

Article 24. Bonds, Insurance, and Waiver of Subrogation Bonds Insurance Waiver of Subrogation Obligation to Rebuild

Article 25. Records Administration, Management, and Retention Project Record Administration Records Maintenance Audits; Records Access Public Records Flow-Down Requirement

Article 26. Florida Vendor Eligibility Provisions E-Verification Public Entity Crimes Scrutinized Companies Discriminatory Vendors Anti-Trust Violators Countries of Foreign Concern Common Carrier Human Trafficking Incorporation of Certification Forms

Article 27. State and/or Federal Financial Assistance (if applicable) The Work Authorization will identify any State or Federal Financial Assistance Notice of Federal Financial Assistance Assistance with Federal Compliance Associated Costs Incorporation of Certification Forms

Article 28. General Terms (Alphabetical) Assignments and Successors Attorneys’ Fees and Costs Conflicts Construction and Representations Counterparts and Electronic Transmission of Signatures Governing Law Headings Jury Waiver Notices

Pre-Existing Hazardous Materials Remedies Severability Signatory Survivorship Venue Waiver Written Modification

Article 29. Entire Agreement

RFQu-##-###

SINGLE PROJECT DESIGN-BUILD AGREEMENT

between

TOHOPEKALIGA WATER AUTHORITY

and

DB Firm Name regarding

DB - Lift Station - 05C (Toho East Lakeshore) Rehabilitation Project

THIS SINGLE PROJECT DESIGN-BUILD AGREEMENT (“AGREEMENT”) is made and entered into between TOHOPEKALIGA WATER AUTHORITY, an independent special district established pursuant to Chapter 189, Florida Statutes, by special act of the Florida Legislature, with its principal place of business located at 951 Martin Luther King Boulevard, Kissimmee, Florida 34741 (“Toho”), and DB Firm Name, a DB Firm Type of the State of State Name that is authorized to do business in the State of Florida, with its principal place of business located at DB Firm Name Address (“DB Firm”), in consideration of the mutual covenants contained herein and for other good and valuable considerations, the receipt and sufficiency of which are hereby mutually acknowledged. Toho and DB Firm may be herein referred to individually as the “Party” or collectively as the “Parties”.

This Agreement is a result of the competitive selection and negotiation processes required by Section 287.055, Florida Statutes, otherwise known as the “Consultants’ Competitive Negotiation Act” or “CCNA.” The Agreement as defined in the CCNA. The Agreement authorizes, and governs the Project within the scope of the RFQu with an estimated construction costs above the limit established by section 287.055(1)(g), Florida Statutes.

General Definitions

Unless stated otherwise in the Contract Documents, words or phrases that have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning.

For the purposes of the Contract, the capitalized terms are as to be understood as they are first defined, either by use of bold parenthetical reference or as found within bold quotation marks throughout the Contract Documents.

In addition to the aforementioned capitalized and emboldened terms, the following words and phrases used in this Contract shall have the following meaning ascribed to them unless the context clearly indicates otherwise:

1. “Agreement” shall mean this written document signed by Toho and DB Firm that, among other things, identifies the Contract Documents.

2. “Amendment” shall mean a binding change, revision, alteration, or modification of the Contract terms, in a tangible form signed by both Parties after the Effective Date, including but not limited to any Change Order, Preconstruction Amendment, or GMP Amendment.

3. “Application for Payment” shall mean the document prepared by DB Firm, in a form acceptable to Toho, to request progress and/or final payments related to the Construction Phase of the Contract, and which is to be accompanied by such supporting documentation as is required by the Contract Documents.

4. “Board” shall mean the Toho Board of Supervisors, the governing body of Toho.

5. "Change Order" shall mean a document which is signed by DB Firm and Toho after the approval of the GMP Amendment that authorizes an addition, deletion, or revision in the authorized Work and/or an adjustment in the applicable GMP, Contract Amount, or Contract Times, and as more specifically described in Article 13: Change Orders.

6. “Construction Contingency Allowance” shall mean an allowance used in accordance with Section 8.5: Construction Contingency Allowance.

7. “Construction Documents” shall mean the design, Drawings, Plans, and Specifications for construction of the Project.

8. "Construction Manager Fee” shall mean the amount established in the Contract for DB Firm’s profit for the Construction Phase, per Section 8.9: Construction Manager Fee and the Preconstruction Amendment.

9. “Construction Phase Commencement Date” shall mean the date the Construction Phase of a Project begins, in accordance with Section 7.2: Construction Phase Initiation.

10. "Contract" shall mean the legally enforceable agreement pursuant to which DB Firm provides Services to Toho as memorialized in the Contract Documents, as may be amended from time to time.

11. “Contract Amendment” shall mean a binding change, revision, alteration, or modification of the Contract terms, in a form signed by both Parties after the Effective Date, including but not limited to any Change Order, Preconstruction Amendment, or GMP Amendment.

12. “Contract Amount” shall mean the total compensation payable by Toho to DB Firm under the Contract, less the Preconstruction (Design) Services Fee, for a particular Project. This term is distinguishable from the GMP, and only includes the amount of the Cost of Construction, General Services Costs, and Construction Manager Fee actually earned by DB Firm over the course of a Project. The Construction Amount shall only include the Construction Contingency, Owner’s Allowance, Permit and Fee Allowance, and/or Bid Contingency (when applicable) to the extent such contingencies or allowances have actually been released to DB Firm in accordance with the conditions of the Contract. The Contract Amount shall never exceed the Project GMP.

13. “Contract Claim” shall mean a written demand or written assertion by one of the Parties seeking as a matter of right, the payment of a certain sum of money and/or adjustment or interpretation of the Contract Time and/or the Contract Amount, and as otherwise discussed in Article 22: Contract Claims; Dispute Resolution.

14. "Contract Documents" shall mean the written documents that define the roles, responsibilities, and Work under the Contract, and shall consist of those documents identified in Article 3.

15. “Contract Time” shall mean the period from the Construction Phase Commencement Date until Substantial Completion of the Work.

16. “Day” shall mean one calendar day, unless otherwise specifically referred to as a “business day”.

a. A “business day” is any day that is an official working day of Toho, specifically excluding Saturdays, Sundays, and Holidays (as defined below).

b. When pluralized, “days” and “business days” shall mean consecutive calendar or consecutive business days.

c. When any period of time is referred to in the Contract Documents by either “days” or “business days”, it shall be computed to exclude the first day and include the last day of such period. If a period is determined by calendar days and the last day of such period falls on a Saturday, Sunday, or Holiday, such day shall be omitted from the computation.

17. “DB Firm Pre-Purchase(s)” shall mean purchases of long lead time materials and equipment by DB Firm that occur prior to the Construction Phase Commencement Date, as further discussed in Section 6.5B: Long Lead Equipment Identification.

18. "Defective Work" shall mean Work that:

a. Is unsatisfactory, faulty, or deficient;

b. Does not conform to the Contract Documents;

c. Does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents; and/or

d. Has been damaged prior to issuance of the Certificate of Final Completion, unless responsibility for the protection thereof has been assumed by Toho at Substantial Completion.

19. “Design Amendment” shall be the final, mutually executed version of the document found in Attachment 2: Draft Preconstruction Amendment, as negotiated by the Parties..

20. “Design Criteria” shall mean Toho’s design criteria included in the RFQu.

21. “Design Professional” shall mean individual, firm or entity, which provides design and/or professional services, whether architectural, engineering or surveying, and which is engaged by the DB Firm.

22. “Direct Costs” or “Cost of Construction” shall mean those costs directly linked to the physical construction of a Project and include the costs found in Section 8.3: Cost of Construction.

23. “Drawings” or “Plans” shall mean the drawings, plans, or reproduction thereof, which show scope, character, location, dimensions, and other details of the Work to be performed and which are included in the Construction Documents.

24. "Effective Date" shall be the date on which the last signatory hereto shall execute this Agreement, and it shall be the date on which this Agreement shall go into effect.

25. “Electronic Document” shall mean any Contract-related communications, attachments to communications, data, documents, drawings, information, or graphics, including but not limited to Shop Drawings and other Submittals, that are in an electronic or digital format.

26. “Electronic Means” shall mean electronic transmittal, upload/download from a secure Party website (including Procore), or other means that allow: (a) the reliable transmission of Electronic Documents; (b) the documentation of transmissions, including sending and receipt;

(c) printing of the transmitted Electronic Document by the recipient; (d) the storage and archiving of the Electronic Document by sender and recipient; and (e) the use by recipient of the Electronic Document for purposes permitted by the Contract. Electronic Means does not include the use of text messaging or consumer social media services.

27. “Field Order” shall mean a written order issued by Toho which requires minor changes in the Work but does not change the GMP, Contract Amount, or the Contract Times.

28. “Final Completion” shall mean the stage in the progress of the Work when Toho determines that the Work is 100% complete, including but not limited to all items on the Final Punch List, as evidenced by a Certificate of Final Completion issued by Toho in accordance with the Contract Documents. To the extent the terms “Final Acceptance” or “Acceptance” are used in the Contract Documents, such term shall mean Toho’s issuance of a Certificate of Final Completion.

29. “Final Punch List” shall mean the post-Substantial Completion single list of items and the estimated cost to complete each such item to render complete, satisfactory, and acceptable the construction services purchased by Toho, in accordance with Section 218.735(7), Florida Statutes.

30. “General Conditions” shall mean operations, procedures, and indirect costs that are not directly linked to construction, but are essential for DB Firm to successfully execute the Project.

31. “Guaranteed Maximum Price” or “GMP” shall mean the amount established in the GMP Amendment as the maximum amount for which Toho will be obligated to compensate DB Firm for the Final Completion of the Project, regardless of actual costs. The GMP includes without limitation all work reasonably inferable from the Construction Documents as they exist at the time the GMP Amendment is approved.

32. “GMP Amendment” shall mean the amendment developed by DB Firm as part of the Preconstruction Phase Services, and approved by Toho’s Board of Supervisors, that establishes the GMP and meets the requirements set forth in Section 6.7: Guaranteed Maximum Price Amendment.

33. “Holidays” shall mean the following legal holidays designated by Toho: New Year's Day, Martin Luther King Jr. Day, Memorial Day, Juneteenth, Independence Day, Labor Day, Thanksgiving Day and Day after Thanksgiving, Christmas Eve and Christmas Day. Holidays falling on Saturday will be observed Friday, Holidays falling on Sunday will be observed Monday.

34. “Key Personnel” shall include without limitation, DB Firm’s principals in charge, Project managers, persons possessing professional licenses, certifications, or registrations, and other non-administrative personnel whose education, training, and experience qualifies them to perform material elements of the Work provided under the Contract. This definition shall not apply to personnel temporarily assigned to perform Work under the Contract for durations of one week or less.

35. “Laws and Regulations”, “Laws”, or “Regulations” shall mean all applicable laws, statutes, rules, regulations, ordinances, codes, and binding decrees, resolutions, and orders of all governmental bodies, agencies, authorities, and courts having jurisdiction.

36. “Liens” shall mean charges, security interests, or encumbrances upon Contract-related funds, real property, or personal property. Liens are prohibited on Toho’s real property.

37. “Milestone” shall mean a principal event in the performance of the Work that the Contract requires DB Firm to achieve by an intermediate completion date, or by a time prior to Substantial Completion of all the Work.

38. “Open-Book Process” shall mean the process used for establishing costs and subsequent GMP. The process requires the cost to be developed in a completely transparent and competitive manner, with no hidden costs or inflated amounts. Transparency means full, confidential disclosure of all the details and can include third party verification, when required or requested by Toho. Construction estimates shall be based on the actual cost of the Work.

This can mean actual labor, expenses, materials, equipment, and production rates for the self-performed scope, combined with stand-alone Subcontractor quotes or subcontracts.

39. “Owner’s Advisor” shall mean (“OA”) the licensed design professional appropriate to the project employed or retained by Toho to serve as Toho’s representative pursuant to Section 287.055(9)(c), Florida Statutes.

40. “Owner’s Contingency Allowance” shall mean an allowance used in accordance with Section 8.6: Owner’s Contingency Allowance.

41. “Owner Direct Purchase” shall mean a direct purchase of materials or equipment by Toho for use in a public works project, as further discussed in Section 7.6: Owner Direct Purchases, and in compliance with the procedures as outlined in Rule 12A-1.094, Florida Administrative Code.

42. “Payment Bond” Work shall mean the security furnished by DB Firm and its Surety pursuant to Section 255.05, Florida Statutes, as a guarantee that DB Firm will pay bills for material, labor, services, and supplies used directly or indirectly in the prosecution of the Work; the covered amount of the Payment Bond is separate and distinct from the covered amount of the Performance Bond.

43. “Performance Bond” shall mean the security furnished by DB Firm and its Surety pursuant to Section 255.05, Florida Statutes, as a guarantee that DB Firm will perform its obligations in accordance with the terms of the Contract; the covered amount of the Performance Bond is separate and distinct from the covered amount of the Payment Bond.

44. “Permit and Fee Allowance” shall mean an allowance established in the GMP Amendment to cover certain permits and fees as further described in Section 8.7: Permit and Fee Allowance. This is a pass-through cost and no mark-ups are allowed.

45. “Preconstruction Amendment” shall be the final, mutually executed version of the document found in Attachment 2: Draft Preconstruction Amendment, as negotiated by the Parties..

46. “Preconstruction Phase Commencement Date” shall be the date the Preconstruction Phase of the Contract begins, in accordance with Section 6.3: Preconstruction Phase Initiation.

47. “Preconstruction Services” shall mean Work performed by DB Firm for the Project prior to the GMP Amendment.

48. “Preconstruction Services Fee” shall be the fee paid to DB Firm for Preconstruction Services as further described in Section 6.8: Preconstruction Services Fee.

49. “Progress Schedule” shall mean a schedule, prepared and maintained by DB Firm, describing the sequence and duration of the activities comprising DB Firm’s plan to accomplish the Construction Phase of the Work within the Contract Time.

50. “Project” shall mean the entire improvement of which this Contract forms a part as identified in Work Authorization (may be used interchangeably with “Work” or “Services”).

51. “Project Manager” or “PM” shall mean person designated by Toho in any Work Authorization to provide direct interface with DB Firm with respect to Toho's responsibilities.

52. “Project Site” shall mean the land(s) or area(s) upon or in which the Project will be located and upon which Work is to be performed by DB Firm, including right-of-way and easements, and other such land(s) or area(s) furnished by Toho which are designated for the use of DB Firm.

53. “Project Team” is comprised of DB Firm and Toho (and the OA at Toho’s request).

54. “Public Records” shall mean records as defined in Section 119.011(12), Florida Statutes, as may be amended.

55. “Request for Qualifications” or “RFQu” shall mean the request for qualifications used by Toho to solicit the award of this Agreement, and all Solicitation Documents (as defined in such RFQu) inclusive of any attachments or addenda thereto.

56. “Shop Drawings” shall mean all Drawings, cut sheets, diagrams, illustrations, schedules and other data which are specifically prepared by or for DB Firm to illustrate some portion of the Work and all illustrations, brochures, standard schedules, performance charts, instructions, diagrams and other information prepared by a Subcontractor and submitted by DB Firm to illustrate material or equipment for some portion of the Work, specifically indicating how DB Firm will comply with the Contract Documents.

57. “Specifications” shall mean parts of the Contract Documents identified as "Specifications" and organized into Divisions. Specifications include general requirements and technical descriptions of materials, equipment, construction systems, standards, and workmanship (“Technical Provisions” may be used interchangeably).

58. “Subcontractor” shall mean all contractors, subcontractors, consultants, subconsultants, suppliers, experts, and other persons or entities retained, engaged, or otherwise utilized by DB Firm to perform any portion of its obligations, covenants, or duties under this Contract.

59. “Substantial Completion” shall mean that date when:

a. The Work is complete in accordance with the Contract Documents thereof, including any specific deliverables provided in the GMP Amendment, with the exception of the minor items identified during inspection of the Work by Toho; and

b. The Work can be utilized for the beneficial use of Toho and for the purposes for which it is intended, as evidenced by successful completion of all specified pre-operational start-up and demonstration tests and issuance of a Certificate of Substantial Completion by Toho in accordance with the Contract Documents.

The terms “Substantially Complete” and “Substantially Completed” as applied to the Work refer to Substantial Completion thereof.

60. “Surety” shall mean any corporation that executes, as Surety, any bond required under the Contract, including without limitation DB Firm’s payment and performance bonds.

61. “Toho” shall mean the Tohopekaliga Water Authority, the owner of the Project (“Owner” may be used interchangeably).

62. “Underground Facilities” shall mean all active or not-in-service underground lines, pipelines, conduits, ducts, encasements, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or systems at the Project Site, including but not limited to those facilities or systems that produce, transmit, distribute, or convey telephone or other communications, cable television, fiber optic transmissions, power, electricity, light, heat, gases, oil, crude oil products, liquid petroleum products, water, steam, waste, wastewater, storm water, other liquids or chemicals, or traffic or other control systems. An abandoned facility or system is not an Underground Facility.

63. "Value Engineering" is a project evaluation technique used during the Preconstruction Phase that seeks to reduce costs and/or increase value by analyzing the functional requirements of a Project's materials, methods, components, and subsystems consistent with specified performance, reliability, maintainability, aesthetic, safety, and security criteria to ensure that it provides the best use of available Project funds. This is distinguished from Construction Phase “Value Engineering”, which is as further described in Article 14: Value

Engineering, when such Article is used.

64. “Warranty Period” shall mean the period governed by Section 19.2: Warranty Period.

65. Work” or “Services” shall be used interchangeably with “Project”, and shall include all material, labor, services, documentation, tools, equipment, fuel, utilities, temporary facilities and all appliances, machinery, transportation, and appurtenances necessary to perform and complete the Project in accordance with the Contract Documents, and such additional items not specifically indicated or described which can be reasonably inferred as belonging to the item described in the Contract Documents or indicated and as required by good practice to provide a complete and satisfactory system(s) or structure(s).

Additional Clarifications

The words “must”, “will”, and “shall” are always mandatory and not discretionary; the word “may” is permissive.

Unless the context clearly indicates the contrary, where a clause involves two or more items, conditions, provisions, or events connected by the terms “and”, “or”, “either or”, or “and/or” such terms shall be interpreted as follows:

1. “And” indicates that all the connected terms, conditions, provisions or events shall apply.

2. “Or” indicates that the connected items, conditions, provisions or events may apply singly or in any combination.

3. “Either or” indicates that the connected items, conditions, provisions or events shall apply singly but not in combination.

4. “And/or” indicates that the connected items, conditions, provisions or events shall apply either singly or in combination.

The word “includes” shall not limit a term to the specific example but is intended to extend its meaning to all other instances or circumstances of like kind or character.

The words “herein”, “hereby”, “hereinafter”, “hereto”, “hereof”, and other equivalent words shall refer to this Contract as a whole, including any documents incorporated into this Contract whether by attachment or reference.

Regarding the terms “furnish”, “install”, “perform”, and “provide”:

1. The word “furnish”, when used in connection with services, materials, or equipment, means to supply and deliver said services, materials, or equipment to the Site, or some other specified location ready for use or installation and in usable or operable condition.

2. The word “install”, when used in connection with services, materials, or equipment, means to put into use or place in final position said services, materials, or equipment complete and ready for their intended use.

3. The words “perform” or “provide” when used in connection with services, materials, or equipment, means to furnish and install said services, materials, or equipment complete and ready for their intended use.

4. If the Contract Documents establish an obligation of DB Firm with respect to specific services, materials, or equipment, but do not expressly use any of the four words “furnish”, “install”, “perform”, or “provide”, then DB Firm shall furnish and install said services, materials, or equipment complete and ready for their intended use.

The words “signed” and “written” do not preclude use of Electronic Means. Contract records, including the Contract and Contract Amendments, may be created, executed, delivered, and retained via Electronic Means. Electronic signatures shall have the same legal effect for all purposes, including validity, enforceability and admissibility, as a handwritten signature, only if they evidence a Party’s intent to sign, leave a mark on the record that can be associated with the record, and may be saved with the record for later access by both Parties.

Incorporation

The following documents are hereby incorporated into this Agreement, by attachment:

Attachment 1 Scope of Services: RFQu Solicitation, Appendices, Exhibits, Addenda, and Submittal;

and Draft Task Authorization Attachment 2 Preconstruction Amendment (Template) Attachment 3 GMP Amendment (Template) Attachment 4 Toho’s Travel and Subsistence Policy Attachment 5 WIFIA Program Supplemental Terms and Conditions, if applicable Attachment 6 Construction Documents (Construction Drawings and Standards & Specifications) Attachment 7 TOH-240 - Anti Human Trafficking Affidavit

Contract Documents

The Contract Documents consist of this Agreement, as may be amended, and the following documents as may later be developed and agreed upon pertaining to a Project:

1. Work Authorization;

2. Preconstruction Amendment;

3. GMP Amendment (including the Project Manual, Construction Documents, and any other Project specific documents identified as Contract Documents); and

4. Other Amendment related with State or Federal funding requirements or otherwise agreed to by the Parties

The Contract Documents are complementary, and what is called for by one shall be as binding as if called for by all. The intent of the Contract Documents is to include all labor, materials, equipment, transportation, and incidentals necessary for the proper and complete execution of the Work for the Project. Materials or Work described in words which so applied have a well-known technical or trade meaning shall be held to refer to such recognized standards.

Prior to commencing each portion of the Work, DB Firm shall first take all necessary field measurements and verify the applicable field conditions. After taking such measurements and verifying such conditions, DB Firm shall carefully compare such measurements and conditions with the requirements of the Contract Documents, taking into consideration all other relevant information known to DB Firm, for the purpose of identifying and bringing to the Toho Project Manager’s attention all conflicts or discrepancies with the Contract Documents.

Drawings are intended to show general arrangements, design, and extent of Work and are not intended to serve as Shop Drawings. Specifications are separated into divisions for convenience of reference only and shall not be interpreted as establishing divisions for the Work, trades, subcontracts, or extent of any part of the Work.

Reference Standards

Reference to standard specifications, manuals or codes of any technical society, organization or association or to Laws, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code, Laws in effect at the time the Construction Documents are permitted, except as may be otherwise specifically stated in the Contract Documents.

No provision of any such standard specification, manual, reference standard, or code, and no instruction of a Subcontractor, will be effective to change the duties or responsibilities of Toho and DB Firm from those set forth in the Contract Documents.

No such provision or instruction will be effective to assign to Toho any duty or authority to supervise or direct the performance of the Work, or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents.

Notification of Discrepancies, Omissions, Oversights, or Errors in Contract Document

DB Firm shall be responsible for notifying the Toho Project Manager in writing of all discrepancies, omissions, oversights, and/or errors of which DB Firm knew or should have known in the Contract Documents, including without limitation those as more specifically provided in Paragraphs B through E below. DB Firm shall provide written notice promptly, and in no event later than 14 days after it knew or reasonably should have known of such circumstances.

In the event of a discrepancy between or among the drawings, specifications or other Contract Document provisions, DB Firm shall immediately, in writing, notify the Toho Project Manager and, absent contrary written instruction from Toho, comply with the provision which is the more restrictive or stringent requirement upon DB Firm, as determined by Toho.

If during the performance of the Work, DB Firm discovers a conflict, error, or discrepancy in the Contract Documents, DB Firm shall notify the Toho Project Manager and, before proceeding with the Work affected thereby, shall obtain a written interpretation or clarification.

DB Firm shall, before the conditions are disturbed (except in a case of an emergency), notify the Toho Project Manager of any subsurface or latent physical condition uncovered or revealed at the Project Site that:

1. differs materially from conditions shown or indicated in the Contract Documents; or

2. is of unusual nature and differs materially from conditions ordinarily encountered and generally recognized as inherent in Work of the character provided for in the Contract Documents.

If DB Firm observes that portions of the Contract Documents are at variance with Laws, or with each other, DB Firm shall notify the Toho Project Manager and recommend changes.

If DB Firm fails to notify the Toho Project Manager of any of the circumstances described in Paragraphs B through E above which it knew or should have known before approval of the GMP Amendment, then any additional Work or changes in design or scope that may result from such circumstances shall not the basis of a Claim for an increase in the Contract Amount or Contract Time.

Interpretation of Contract Documents

Should DB Firm have any question concerning interpretation or clarification of the Contract Documents, which question lies outside DB Firm’s professional judgment consistent with its contractual responsibility, DB Firm shall promptly request a written interpretation, clarification, or additional detailed instructions from the Toho Project Manager before proceeding with the Work affected. Such written request shall be promptly submitted to the Toho Project Manager as to avoid meaningful delay in completion of the Work.

Should DB Firm proceed with the Work affected before receipt of the interpretation, clarification, or instructions from the Toho Project Manager, DB Firm shall replace or adjust any work not in conformance therewith and shall be responsible for any resultant damage or added cost.

Should any interpretation, clarification, or additional detailed instructions, in the opinion of DB Firm, constitute Work beyond the scope of the Contract that warrants an alteration in the Contract Time or Contract Amount, DB Firm must submit a Change Order Request in accordance with Article 13: Change Orders.

In the event of a dispute over the Contract, DB Firm shall submit a Contract Claim in accordance with Article 22: Contract Claims; Dispute Resolution.

Priority of Documents

In the event of discrepancies among the Contract Documents, priority shall be given in the following order:

First Contract Amendments other than GMP Amendment Second This Agreement Third Project specific Contract Amendments Fourth GMP Amendment Fifth Construction Documents Sixth Any other Project specific Contract Documents Seventh Preconstruction Amendment Eighth DB Firm;s Solicitation Response Ninth Solicitation Documents, including the RFQu

Federal/State Financial Assistance Provisions

In the event that all or a portion of this Contract is paid for using federal and/or state financial assistance, the related federal and/or state funding requirements (if any) shall take first priority, with the priority of all other documents being adjusted downward accordingly.

Ownership of Documents

All documents including, without limitation, detailed reports, plans, original drawings, survey field notebooks, and all other items and data (other than working papers), prepared or obtained by DB Firm, in connection with or relating to the Services are the property of Toho.

All Specifications, Drawings, and copies thereof furnished by Toho shall remain its property. Such documents shall not be used on non-Toho projects without further written authorization from Toho.

DB Firm may retain reproducible copies of all documents for its files, at its cost. DB Firm and its subcontractors shall not make such documents available to any individuals or organizations without the prior written approval of Toho, which may be withheld at Toho’s absolute and sole discretion.

The reproducible set of the Construction Documents shall be returned to Toho upon Final Acceptance of the Work or termination of the Contract, whichever occurs first. Toho reserves all rights of any copyright, patent, or license it may have with respect to the Construction Documents.

DB Firm may rely on the Design Criteria Package to the extent DB Firm (1) has acted in good faith reliance on such documents and (2) such reliance is reasonable in light of DB Firm’s responsibilities under this Contract. DB Firm is responsible for the Construction Documents, and Toho DISCLAIMS ANY WARRANTY THAT THEY ARE WITHOUT DEFECT.

Non-Publication

DB Firm shall not publish or release to the media any documents or information relating to the Contract without prior written approval of Toho.

Term of Agreement

The term of this Agreement shall commence on the Effective Date and shall end after five (5) years, unless otherwise terminated or extended as provided herein. The Agreement will be extended only to accommodate completion of a particular Project commenced before the end of the term. The Agreement will not otherwise be renewed or extended.

Work Authorization

Work Authorization will include an estimated term sufficient for a Project’s Contract Time, which ultimately will be established by the GMP Amendment. Work Authorization may terminate on a date later than the date this Agreement expires, in which case the Parties agree that the term of this Agreement is automatically extended for the related Project until final completion of the Project, unless earlier terminated as provided herein. A particular Project’s Contract Time may be changed as provided in Section 13.3: Change of Contract Time. An extension of Contract Time will be deemed to extend the term of the related Work Authorization by the same amount of time. Extension of the Agreement under this section applies only when the expiration of the Work extends beyond the expiration of the Agreement. This section does not apply when the Work Authorization expires or is cancelled by Toho prior to the expiration of the Agreement.

Termination

Toho may terminate the Agreement as provided in Article 18: Suspension of Work and Termination.

Termination of the Agreement will operate to terminate Work Authorization.

Generally

The Project Team shall work jointly during design and through the completion of the Warranty Phase.

DB Firm shall provide leadership to the Project Team on all matters relating to the Preconstruction and Construction Phases, including delegating tasks to its Subcontractors.

Project Managers (PM)

The Parties have designated the individuals listed in the Preconstruction Amendment as the Project Managers who shall serve as each Party’s single representative with which the other Party shall coordinate.

Each such individual shall have the authority to transmit instructions, receive information, interpret, and deliver their respective Party’s policy and decisions pertinent to the Services with respect to matters arising out of or relating to this Contract. Such individuals may collectively be referred to as the “Contract PMs”.

Each Party shall be entitled to rely on decisions and determinations made by, and communications given to or received from, the other Party’s designated Project Manager, to the extent such decisions, determinations, or communications do not amend or modify the terms and conditions of this Contract, including without limitation authorizing any Additional Services or modifying the Contract Amount.

Unless otherwise specifically required to be sent in accordance with Section 28.9: Notices, any communications sent to either of the Contract PMs by email to the addresses provided above shall be considered received on the first full business day following the date it was sent by the sending Party. Each Party acknowledges its responsibility to advise the other Party in the event of any change in the respective Party’s Project Manager’s contact information as soon as practicable.

The Contract PMs, together with any additional Toho or DB Firm staff, shall be made available during regular business hours to communicate and meet in order to assess, discuss, and review the Project’s status and DB Firm’s performance under the Contract.

The individual designated by DB Firm to be DB Firm PM must be approved by Toho and no substitutions will be allowed without prior written approval by Toho.

Re-designation of either Contract PMs may be completed by providing notice to the other Party in accordance with Section 28.9: Notices and no formal amendment to the Contract shall be required.

Toho reserves the right, in its sole discretion require that DB Firm replace DB Firm PM should Toho determine doing so would best serve Toho’s interests or Toho’s objectives for the Contract.

No claims for an increase in compensation or Contract term based on Toho’s use of this provision will be valid.

Design Professional Representative.

Design Professional’s representative(s) shall be as shown in the Work Authorization or Preconstruction Amendment.

Toho may request DB Firm to designate particular Design Professional’s representative(s) to a Project.

Key Personnel

The Preconstruction Amendment shall identify DB Firm’s Key Personnel assigned to a Project for the Preconstruction Phase. The GMP Amendment shall revise the assignment to identify the Key Personnel for the Construction Phase.

DB Firm has made a material representation to Toho, upon which Toho has reasonably relied when deciding to award the Contract to DB Firm, that the individuals listed in the Preconstruction Amendment would be the Key Personnel assigned to the Project.

DB Firm shall not remove such Key Personnel from a Project; provided, however, that the removal of such personnel due to their incapacity, voluntary termination, or termination due to just cause will not constitute a violation of the Contract.

Toho will require that, at a minimum, any proposed replacement Key Personnel have equal or greater qualifications and experience as the Key Personnel being replaced, as determined by Toho using its sole discretion. DB Firm shall not make any changes in Key Personnel until written notice is made to and approved by Toho in writing.

Toho’s consent and approval of any such Key Personnel shall not be deemed as Toho’s endorsement of the expertise, competence, or ability of the Key Personnel, and shall in no way release or discharge DB Firm from its obligations, covenants, and duties to perform the Services contemplated under the Contract.

DB Firm shall provide personnel to assist with procurement, submittal reviews, cost estimating, scheduling, safety, quality control, clerical, and any other duties necessary to ensure all activities are performed in a timely and satisfactory manner.

Removal of Personnel

Toho hereby reserves the right to demand removal and replacement of any Key Personnel, employee, or representative of DB Firm or any Subcontractor deemed by Toho, in its sole discretion, to be failing to effectively perform or provide the Services required under the Contract, or who is otherwise demonstrating improper conduct. No claims for an increase in Contract Amount or Contract Time based on Toho’s use of this provision shall be valid.

The foregoing notwithstanding, any failure by Toho to demand such removal shall not relieve DB Firm of its obligation to ensure such Key Personnel, employees, and representatives of DB Firm provide the Services in a manner that meets the standard of performance and complies with the Contract.

Relationship of the Parties

DB Firm shall be acting as an independent contractor at all times during the performance of the Work.

No provision in the Contract shall create an employment or agent relationship between the Parties, between Toho and any Subcontractor, or between Toho and any employee of DB Firm or any Subcontractor.

In no event shall DB Firm be considered to be an agent of Toho, nor shall Toho be deemed to have control over, charge of, or any responsibility for construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work, notwithstanding any of the rights and authority granted Toho in the Contract Documents.

DB Firm shall be solely responsible to all Subcontractors and all those employed by DB Firm and/or its Subcontractors for their costs, expenses, fees, and profits, if any, in performing the Work.

Toho as Third-Party Beneficiary; Correlation and Intent of Documents

The Contract Documents shall not be construed to create a contractual relationship of any kind between any persons or entities other than Toho and DB Firm, with the exception of Toho’s third-party beneficiary rights. Toho shall be an intended third-party beneficiary of DB Firm’s contracts for design, engineering, and construction services for a Project.

DB Firm shall ensure that its Project-related agreements with others expressly identify Toho as an intended third-party beneficiary so as to enable Toho to maintain a cause of action directly against such others as necessary for any errors and omissions related to the Project. DB Firm shall provide evidence of such contractual provisions to Toho upon request, and DB Firm agrees not to modify such provisions.

DB Firm shall incorporate all the applicable obligations of the Contract into its respective contracts, agreements, subcontracts, supply agreements, purchase orders and insurance policies.

Toho shall not be responsible or liable for, or assume any obligations whatever for, any agreement entered into between DB Firm and any third party. Toho shall not be responsible for any payments due and/or owing to any third party.

Should Toho or DB Firm suffer injury or damage to its person or property because of any error, omission, or act of the other or of any of their employees, agents, or others for whose acts they are legally liable, claim should be made in writing to the other party within a reasonable time of the first observance of such injury or damage.

DB Firm and its Subcontractors shall remain independent contractors and shall have no power, nor shall any of them represent that they have any power, to bind Toho or to assume or create any obligations, expressed or implied, on behalf of Toho. DB Firm, in providing and performing the Work, shall only represent Toho in the manner and to the extent specifically set forth in writing in the Contract. Toho neither assumes nor accepts any obligation, commitment, responsibility or liability which may result from any representation(s) by DB Firm not specifically provided for and authorized by the Contract. With respect to its performance of the Work, DB Firm shall promote the best interests of Toho.

Nothing contained in the Contract shall be deemed to create a partnership or joint venture relationship between DB Firm and Toho.

The authority herein conferred upon Toho and any action taken by Toho or any of its agents or employees in making inspections of the Site, procuring sworn statements and/or waivers of lien, and/or reviewing and approving any portion of the Construction Documents before or after their creation will be taken by Toho, Project Manager, and by their agents or employees for their own protection only. Neither Toho, nor the Project Manager, nor any of their agents or employees, shall be deemed to have assumed any responsibility of DB Firm or any other person or entity as a result of any such action herein authorized or taken by them with respect to furthering the proper construction and equipping of the Project, performance of any construction, contracts or agreements, or prevention of claims from construction liens.

Toho and DB Firm shall assume toward one another a relationship of good faith and fair dealing.

Electronic Transmittals

Toho and DB Firm may send, and shall accept, Electronic Documents transmitted by Electronic Means.

Toho and DB Firm shall jointly develop protocols for transmittal by Electronic Means, which shall be made part of the Project’s Preconstruction Amendment and GMP Amendment. Such protocols shall be consistent with Laws governing Public Records, including section 119.0701(2), Florida Statutes. All Public Records stored electronically must be provided to Toho, upon request from Toho’s custodian of public records, in a format that is compatible with the information technology systems of Toho.

Subject to any governing protocols for Electronic Means, when transmitting Electronic Documents by Electronic Means, the transmitting party makes no representations as to long-term compatibility, usability, or readability of the Electronic Documents resulting from the recipient’s use of software application packages, operating systems, or computer hardware differing from those used in the drafting or transmittal of the Electronic Documents.

Toho's Duties, Obligations, and Responsibilities

Toho shall furnish, as indicated in the Contract Documents, the lands upon which the Work is to be performed, rights-of-way…