7-07. CQ26-0158AN - Contract Template (MEP).pdf

The School District of Lee County

MECHANICAL, ELECTRICAL AND

PLUMBING (MEP) SERVICES

«Vendor_Name»

«RFQ_Title»

School Board Approved: «Board_Approval_Date»

MECHANICAL, ELECTRICAL AND PLUMBING (MEP) SERVICES AGREEMENT

(Construction Management Edition)

Table of Contents

ARTICLE 1 . - DESIGN PROFESSIONAL’S RESPONSIBILITY

ARTICLE 2 . - ADDITIONAL SERVICES OF DESIGN PROFESSIONAL

ARTICLE 3 . - OWNER’S RESPONSIBILITIES

ARTICLE 4 . – TIME

ARTICLE 5 . – COMPENSATION

ARTICLE 6 . - OWNERSHIP OF DOCUMENTS

ARTICLE 7 . - MAINTENANCE OF RECORDS

ARTICLE 8 . - INDEMNIFICATION

ARTICLE 9 . – DUTY TO DEFEND

ARTICLE 10 . - INSURANCE

ARTICLE 11 . - SERVICES BY DESIGN PROFESSIONAL’S OWN STAFF

ARTICLE 12 . - WAIVER OF CLAIMS

ARTICLE 13 . - TERMINATION OR SUSPENSION

ARTICLE 14 . - SECURING AGREEMENT/PUBLIC ENTITY CRIMES

ARTICLE 15 . - CONFLICT OF INTEREST

ARTICLE 16 . – MODIFICATION

ARTICLE 17 . - NOTICES AND ADDRESS OF RECORD

ARTICLE 18 . - MISCELLANEOUS

ARTICLE 19 . – COMPLIANCE WITH LAW

ARTICLE 20 . - EQUAL EMPLOYMENT OPPORTUNITY/NONDISCRIMINATION

ARTICLE 21 . - SCRUTINIZED COMPANIES

ARTICLE 22 . - DISPUTE RESOLUTION

ARTICLE 23 . – E-VERIFY

ARTICLE 24 . – SUPPLIER DEVELOPMENT

ARTICLE 25 . – FORCE MAJEURE

1 of 59 Initials __________ MEP Services for «RFQ_Title»

TABLE OF SCHEDULES

Schedule A Scope of Services

Schedule B Basis of Compensation

Schedule C Design Schedule

Schedule D Insurance Requirements Form

Schedule E Rate Schedule

Schedule F Truth in Negotiation Certificate

Schedule G Staffing Schedule and Professional Licensing

Schedule H Certificate of Substantial Completion

Schedule I Certificate of Occupancy

Schedule J Certificate of Final Inspection

Schedule K Federal Grants Terms and Conditions

Schedule L Owner’s RFQ Documents (RFQ No. «RFQ_No»)

Schedule M Consultants RFQ Submittal (RFQ No. «RFQ_No»)

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MECHANICAL, ELECTRICAL AND PLUMBING (MEP) SERVICES AGREEMENT

(Construction Management Edition)

THIS AGREEMENT (hereinafter “Agreement”) is made and entered into this this day of

, 20___,, by and between THE SCHOOL BOARD OF LEE COUNTY, FLORIDA, a body corporate under the laws of Florida, whose address is 2855 Colonial Blvd., Fort Myers, FL 33966 (hereinafter referred to as the “OWNER”), and «Vendor_Name», a Florida limited liability company OR corporation, whose business address is «Vendor_Address», «Vendor_City_State_and_Zip_Code», (hereinafter referred to as the “DESIGN PROFESSIONAL”).

W I T N E S S E T H:

WHEREAS, OWNER desires to obtain professional Mechanical, Electrical and Plumbing (MEP) services of DESIGN PROFESSIONAL concerning certain services for the design of «RFQ_Title» (hereinafter referred to as the “PROJECT”) located at «Project_Address» said services being more fully described in Schedule A, “Scope of Services”, which is attached hereto and incorporated herein; and

WHEREAS, on «RFQ_Release_Date», the OWNER issued Request for Qualifications No.

«RFQ_No» (“RFQ”) for the PROJECT; and

WHEREAS, in response to the RFQ, on «RFQ_Due_Date», the DESIGN PROFESSIONAL submitted a response, which is incorporated and attached hereto for said services and was awarded a contract;

and

WHEREAS, DESIGN PROFESSIONAL represents that it has expertise in the type of professional Mechanical, Electrical and Plumbing (MEP) services that will be required for the Project.

NOW, THEREFORE, in consideration of the mutual covenants and provisions contained herein, the parties hereto agree as follows:

ARTICLE 1. - DESIGN PROFESSIONAL’S RESPONSIBILITY

1.1 DESIGN PROFESSIONAL shall provide to OWNER professional Mechanical, Electrical and Plumbing (MEP) services (hereinafter referred to as the “SERVICES”) for the Project to which this Agreement applies. All design services to be provided by DESIGN PROFESSIONAL pursuant to this Agreement shall be in conformance with the Scope of Services described in Schedule A. Any requested deviations from the Scope of Services must be brought to OWNER’S attention in writing by DESIGN PROFESSIONAL, and any such deviations must be expressly approved by OWNER in writing, in order to be authorized.

1.2 The standard of care applicable to the services to be provided by the DESIGN PROFESSIONAL pursuant to this Agreement shall be that the DESIGN PROFESSIONAL will use the degree of care and skill ordinarily exercised under similar conditions by reputable and licensed design professional practicing Mechanical, Electrical and Plumbing (MEP) services of this scope and magnitude in Lee County, Florida. Subject to the foregoing standard, the DESIGN PROFESSIONAL shall be held to the standards of those DESIGN PROFESSIONALS with a similar level of expertise and skill in the design of HVAC renovation for an elementary school in its profession and shall be held accountable for the inclusion of all requirements of this Agreement. An evaluation of the DESIGN PROFESSIONAL’S performance will be made

3 of 59 Initials __________ during and at the conclusion of the Project. The results of such evaluations will determine the recommendations for future work by the DESIGN PROFESSIONAL with the OWNER.

1.3 The DESIGN PROFESSIONAL shall review the program furnished by the OWNER to ascertain the requirements of the PROJECT and shall arrive at a mutual understanding of such requirements with the OWNER. It is anticipated that the OWNER will retain the services of a Construction Manager ("CONSTRUCTION MANAGER") who will also act as constructor (rather than a general contractor selected through a bid process). DESIGN PROFESSIONAL will retain the services of a MECHANICAL, ELECTRICAL AND PLUMBING (MEP) FIRM (hereinafter referred to as “MEP”) as required. If the OWNER retains a CONSTRUCTION MANAGER, the DESIGN PROFESSIONAL agrees to coordinate the DESIGN PROFESSIONAL’S design services with the CONSTRUCTION MANAGER so that the CONSTRUCTION MANAGER may review the DESIGN PROFESSIONAL’S design (at each stage of the design process) and provide input to the DESIGN PROFESSIONAL and the OWNER relative to construction cost estimating and constructability issues. Also, in such event, DESIGN PROFESSIONAL agrees to incorporate, whenever practicable and consistent with good design, and after OWNER’S written approval, all suggestions or recommendations timely made by CONSTRUCTION MANAGER with respect to the Project design.

1.4 The DESIGN PROFESSIONAL shall assist the OWNER in the preparation of the necessary bidding information, bidding forms, the Conditions of the Contract, and the form of Agreement between the OWNER and CONSTRUCTION MANAGER.

1.5 The DESIGN PROFESSIONAL shall verify that the Construction Documents (i.e., the drawings, plans, and specifications for the Project, any interpretations of the same, and any and all addenda, Construction Change Directives and/or Change Orders that modify the same) comply with all applicable laws, rules, regulations, ordinances and codes of all governmental authorities that have jurisdiction over the Project. The DESIGN PROFESSIONAL shall prepare all documents required by such governmental authorities to be filed or approved in connection with the Project (excluding site mechanical, electrical and plumbing design, which will be prepared by the MEP after coordination with the DESIGN PROFESSIONAL) and shall provide those documents to the DESIGN PROFESSIONAL for permitting.

1.6 The DESIGN PROFESSIONAL shall be a representative of, and shall advise and consult with, the OWNER during the administration of the Contract for Construction. The DESIGN PROFESSIONAL shall have authority to act on behalf of the OWNER only to the extent provided in this Agreement unless otherwise modified by written amendment.

1.7 The DESIGN PROFESSIONAL shall at all times have access to the Work wherever it is in preparation or progress.

1.8 If the DESIGN PROFESSIONAL causes any delay, the DESIGN PROFESSIONAL shall be responsible and liable to the OWNER for all damages, costs, losses and expenses incurred or suffered by the OWNER as a result thereof, including, but not limited to actual and consequential damages, as well as reasonable attorneys’ fees, provided the DESIGN PROFESSIONALS’ delay was the proximate cause of such damages, costs, losses and/or expenses.

1.9 The DESIGN PROFESSIONAL may authorize minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are consistent

4 of 59 Initials __________ with the intent of the Contract Documents. The DESIGN PROFESSIONAL shall notify OWNER in writing of all changes within five (5) calendar days of said change.

1.10 DESIGN PROFESSIONAL agrees to obtain and maintain throughout the period of this Agreement all such licenses as are required to do business in the State of Florida and in Lee County, Florida, including, but not limited to, all licenses required by the respective state boards and other governmental agencies responsible for regulating and licensing the professional services to be provided and performed by DESIGN PROFESSIONAL pursuant to this Agreement.

1.11 DESIGN PROFESSIONAL agrees that, when the services to be provided hereunder relate to a professional service which, under Florida Statutes, requires a license, certificate of authorization or other form of legal entitlement to practice such services, it shall employ and/or retain only qualified personnel to provide such services.

1.12 DESIGN PROFESSIONAL has employed and hereby designates «Contact_Name» to serve as DESIGN PROFESSIONAL'S representative (hereinafter referred to as the "Representative").

The Representative is authorized and responsible to act on behalf of DESIGN PROFESSIONAL with respect to directing, coordinating and administering all aspects of the services to be provided and performed under this Agreement. By execution of this Agreement, DESIGN PROFESSIONAL acknowledges that the Representative has full authority to bind and obligate DESIGN PROFESSIONAL on all matters arising out of or relating to this Agreement. DESIGN PROFESSIONAL agrees that the Representative shall devote whatever time is required to satisfactorily manage the services to be provided and performed by DESIGN PROFESSIONAL hereunder. Further, DESIGN PROFESSIONAL agrees that the Representative identified above shall not be removed by DESIGN PROFESSIONAL from the Project without OWNER'S prior approval, and if so removed must be immediately replaced with a person acceptable to

OWNER.

1.13 DESIGN PROFESSIONAL agrees that its senior staff, subconsultants and subcontractors who will perform any services for the Project are subject to OWNER’S reasonable approval.

Attached hereto as Schedule G – Staffing Schedule and Professional Licensing is a listing of DESIGN PROFESSIONAL’S senior staff who have been assigned to the Project, as well as the subconsultants and subcontractors who will be used by DESIGN PROFESSIONAL on the Project. None of the senior staff, subconsultants and subcontractors identified in Schedule G – Staffing Schedule and Professional Licensing shall be removed by DESIGN PROFESSIONAL from the Project without OWNER’S prior written approval (such approval not to be unreasonably withheld), and if so removed shall be immediately replaced with a person or firm reasonably acceptable to OWNER. DESIGN PROFESSIONAL further agrees, within fourteen (14) calendar days of receipt of a written request from OWNER, to promptly remove and replace the Representative, or any other personnel employed or retained by DESIGN PROFESSIONAL, or any subconsultants or subcontractors or any personnel of any such subconsultants or subcontractors engaged by DESIGN PROFESSIONAL to provide and perform services or work pursuant to the requirements of this Agreement, whom OWNER shall request in writing to be removed, which request may be made by OWNER with or without cause.

1.14 DESIGN PROFESSIONAL represents to OWNER that it has expertise in the type of professional Mechanical, Electrical and Plumbing (MEP) services that will be required for the

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Project. Drawings shall be prepared in electronic AutoCAD format and the Project Manual shall be prepared as an electronic MS Word document per OWNER'S standards. DESIGN PROFESSIONAL agrees that all services to be provided by DESIGN PROFESSIONAL pursuant to this Agreement shall be subject to OWNER’S reasonable review and approval and shall be in accordance with all applicable published laws, statutes, ordinances, codes, rules, regulations (including utility regulations), state fire marshal requirements and the Florida Building Code, as well as the requirements of any governmental agencies which regulate or have jurisdiction over the Project or the services to be provided and performed by DESIGN PROFESSIONAL hereunder. In the event of any conflicts in these requirements, DESIGN PROFESSIONAL shall promptly notify OWNER of such conflict in writing and utilize its experienced professional judgment in Mechanical, Electrical and Plumbing (MEP) design to resolve the conflict. OWNER’S approval of the design documents in no way relieves DESIGN PROFESSIONAL of its obligation to deliver complete and accurate documents necessary for successful construction of the Project.

1.15 DESIGN PROFESSIONAL agrees not to divulge, furnish or make available to any third person, firm or organization, without OWNER’S prior written consent, or unless incident to the proper performance of DESIGN PROFESSIONAL’S obligations hereunder, or in the course of judicial or legislative proceedings where such information has been properly subpoenaed, any non-public information concerning the services to be rendered by DESIGN PROFESSIONAL hereunder, and DESIGN PROFESSIONAL shall require all of its employees, agents, sub-consultants and subcontractors to comply with the provisions of this paragraph.

1.16 In addition to any other presentation or meeting requirements placed upon DESIGN PROFESSIONAL elsewhere in this Agreement, DESIGN PROFESSIONAL shall provide the following services with respect to presentations, meetings and technical liaisons as part of its Basic Services and at no additional cost to OWNER:

1.16.1 Prior to the commencement of design activities, OWNER and DESIGN PROFESSIONAL shall conduct a pre-design conference for the purpose of discussing issues relative to the Project, plans preparation and submittal procedures and to convey to DESIGN PROFESSIONAL such items to be provided by OWNER as may be available at that time.

1.16.2 DESIGN PROFESSIONAL shall make presentations to OWNER at any point in the Project development if issues should arise which make additional presentations, other than those listed elsewhere in this Agreement, necessary in OWNER’S best interest.

1.16.3 DESIGN PROFESSIONAL shall use industry standard project administration software and programs that can interface and integrate with OWNER’S information technology (IT) systems and submit to OWNER, not later than the tenth (10th) day of each month, a progress report. The progress report shall reflect Project design and construction status, conditions of the Project, estimated Substantial Completion date and, any deviations from schedule or requirements and reasons therefore, if any, plus a recommendation for obtaining satisfactory progress and construction. The reports shall be written and/or graphic and may be in any one or more of the following forms:

narrative description; photographs; graphic depictions; bar charts and/or graphs.

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1.16.4 DESIGN PROFESSIONAL shall participate in regular Project Conferences with OWNER’S staff as noted in Schedule A. These meetings shall be scheduled by OWNER at a location in Lee County, Florida, to be designated by OWNER.

1.16.5 DESIGN PROFESSIONAL shall attend, as technical advisor or agent of OWNER, as directed by OWNER, all meetings or hearings conducted by permitting agencies or public bodies in connection with any permit required for the construction of the Project.

1.16.6 DESIGN PROFESSIONAL shall keep accurate minutes of all meetings and distribute copies to all attending. All meetings shall be coordinated with OWNER’S staff. Meeting minutes shall be distributed within four (4) calendar days of the meeting date.

1.16.7 DESIGN PROFESSIONAL shall coordinate all questions concerning design standards and codes with the appropriate offices and departments of OWNER, as identified by OWNER'S Project Manager (as such term is defined in Article 3 of this Agreement).

DESIGN PROFESSIONAL shall keep OWNER'S Project Manager informed of changes or requirements issued by any of those offices or departments.

1.17 DESIGN PROFESSIONAL agrees, for both itself and all of its subconsultants and subcontractors, to comply with all of OWNER’S rules and regulations with respect to safety and security at the OWNER'S facilities, as said rules and regulations may be modified and amended by OWNER from time to time.

1.18 OWNER may have one or more representatives visit the site of the Project from time to time, or on a full-time basis, as the construction progresses. DESIGN PROFESSIONAL shall not interfere with the functions of said representatives and will cooperate and work with said representatives. No action or failure to act by a representative shall relieve DESIGN PROFESSIONAL from any of its duties or obligations hereunder.

ARTICLE 2. - ADDITIONAL SERVICES OF DESIGN PROFESSIONAL

2.1 If authorized in writing by OWNER, DESIGN PROFESSIONAL shall furnish or obtain from others Additional Services of the types listed in Article 2 herein. All Additional Services shall be performed for an agreed upon (in advance) fixed fee. If OWNER and DESIGN PROFESSIONAL are unable to agree upon a fixed fee, then the services will be paid for by OWNER as indicated in Article 5. The following services, if not otherwise specified in Schedule A as part of Basic Services, shall be Additional Services, however, if any Additional Services are required or made necessary by any negligent act or omission of DESIGN PROFESSIONAL or any of DESIGN PROFESSIONAL'S consultants, such services shall be performed by the DESIGN PROFESSIONAL at no additional cost or expense to the OWNER:

2.1.1 Preparation of applications and supporting documents (except those already to be furnished under this Agreement) for private or governmental grants, loans or advances in connection with the Project.

2.1.2 Services resulting from significant changes in the program, general scope, extent or character of the Project or its design including, but not limited to, changes in size, complexity, OWNER’S schedule or character of construction; and revising previously accepted studies, reports, design documents or Contract Documents when such revisions are required by changes in laws, rules, regulations, ordinances, codes or orders

7 of 59 Initials __________ enacted subsequent to and not reasonably anticipated prior to the preparation of such studies, reports or documents, or are due to any other causes beyond DESIGN PROFESSIONAL’S control and fault.

2.1.3 The preparation of feasibility studies, cash flow and economic evaluations, rate schedules and appraisals.

2.1.4 Furnishing services of independent professional associates and consultants for other than the contract services to be provided by DESIGN PROFESSIONAL hereunder.

2.1.5 Assistance in connection with bid protests, rebidding (subject to the provisions of paragraph 2.1.2 above) or renegotiating contracts for construction, materials, equipment or services, except as otherwise provided for herein.

2.1.6 Providing any type of property surveys or related MEP services needed for the transfer of interests in real property and field surveys for design purposes and staking to enable contractors to proceed with their work and providing other special field surveys.

2.1.7 Preparing to serve or serving as a consultant or witness for OWNER in any litigation, or other legal or administrative proceeding, involving the Project (except for assistance in consultations which are included as part of the Basic Services to be provided herein).

2.1.8 Additional services rendered by DESIGN PROFESSIONAL in connection with the Project not otherwise provided for in this Agreement.

ARTICLE 3. - OWNER’S RESPONSIBILITIES

3.1 OWNER shall designate in writing a project coordinator to act as OWNER’S representative with respect to the services to be rendered under this Agreement (hereinafter referred to as the “Project Manager”). The Project Manager shall have authority to transmit instructions, receive information, interpret and define OWNER’S policies and decisions with respect to DESIGN PROFESSIONAL’S services for the Project. However, except as may be otherwise expressly authorized in writing by the School Board of Lee County, neither the Project Manager nor any other party is authorized to issue any verbal or written orders or instructions to DESIGN PROFESSIONAL that would have the effect, or be interpreted to have the effect, of modifying or changing in any way whatsoever the: (1) scope of services to be provided and performed by DESIGN PROFESSIONAL hereunder; (2) the time DESIGN PROFESSIONAL is obligated to complete all such services; or (3) the amount of compensation OWNER is obligated or committed to pay DESIGN PROFESSIONAL. Additional Services must be approved in writing in the form of a written and executed amendment to this Agreement prior to starting such services. OWNER will not be responsible for the costs of Additional Services commenced without its express prior written approval. Failure to obtain prior written approval for Additional Services waives DESIGN PROFESSIONAL’S claim that it performed Additional Services and instead such services will be deemed to be part of the Basic Services required of DESIGN PROFESSIONAL hereunder.

3.2 OWNER shall provide, if available, all criteria and information requested by DESIGN PROFESSIONAL as to OWNER’S requirements for the Project, including design objectives and constraints, space, Educational Specifications, capacity and performance requirements, 8 of 59 Initials __________ flexibility and expendability, and any budgetary limitations, which are not addressed within the Scope of Services.

3.3 Upon request from DESIGN PROFESSIONAL, OWNER will assist DESIGN PROFESSIONAL by making available to DESIGN PROFESSIONAL all reasonably available information in OWNER’S possession pertinent to the Project, including existing drawings, specifications, shop drawings, product literature, previous reports and any other data relative to design or construction of the Project.

3.4 OWNER shall arrange for access to and make all provisions for DESIGN PROFESSIONAL to enter the Project site to perform the services to be provided by DESIGN PROFESSIONAL under this Agreement. DESIGN PROFESSIONAL acknowledges that such access may be provided during times that are not the normal business hours of DESIGN PROFESSIONAL.

3.5 OWNER shall provide written notice to DESIGN PROFESSIONAL of any deficiencies or defects discovered by OWNER with respect to the services to be rendered by DESIGN PROFESSIONAL hereunder.

3.6 Wherever the terms of this Agreement refer to some action, consent, or approval (excluding approvals of Additional Services or changes to this Agreement) to be provided by OWNER or some notice, report or document is to be provided to OWNER, such reference to “OWNER” shall mean OWNER, OWNER’S staff, or OWNER’S designee, unless otherwise stated.

ARTICLE 4. – TIME

4.1 Services to be rendered by DESIGN PROFESSIONAL shall be commenced subsequent to the execution of this Agreement and upon written Notice of Authorization from OWNER for all or any designated portion of the Project and shall be performed and completed in accordance with the Design Schedule attached hereto and made a part hereof as Schedule C. Time is of the essence with respect to the performance of this Agreement. DESIGN PROFESSIONAL shall not be deemed in default of this Agreement to the extent that any delay in the performance of DESIGN PROFESSIONAL’s obligations results from any cause beyond its reasonable control.

4.2 Should DESIGN PROFESSIONAL be obstructed or delayed in the prosecution or completion of its services as a result of unforeseeable causes beyond the control of DESIGN PROFESSIONAL, and not due to its own fault or neglect, including but not restricted to acts of God or of public enemy, acts of government or of OWNER, then DESIGN PROFESSIONAL shall notify OWNER in writing within five (5) calendar days after commencement of such delay, stating the cause or causes thereof, or be deemed to have waived any right which DESIGN PROFESSIONAL may have had to request a time extension.

4.3 No interruption, interference, inefficiency, suspension or delay in the commencement or progress of DESIGN PROFESSIONAL’S services from any cause whatsoever, including those for which OWNER may be responsible in whole or in part, shall relieve DESIGN PROFESSIONAL of its duty to perform or give rise to any right to damages or additional compensation from OWNER. DESIGN PROFESSIONAL expressly acknowledges and agrees that it shall receive no damages for delay. DESIGN PROFESSIONAL’S sole remedy, if any, against OWNER will be the right to seek an extension of time to its schedule. This paragraph

9 of 59 Initials __________ shall expressly apply to claims for early completion, as well as claims based on late completion.

4.4 Should DESIGN PROFESSIONAL fail to commence, provide, perform or complete any of the services to be provided hereunder in a timely and diligent manner, in addition to any other rights or remedies available to OWNER hereunder, OWNER at its sole discretion and option may withhold any and all payments due and owing to DESIGN PROFESSIONAL until such time as DESIGN PROFESSIONAL resumes performance of its obligations hereunder in such a manner so as to establish to OWNER’S satisfaction that DESIGN PROFESSIONAL’S performance is back on schedule.

4.5 In addition to any other right under this Agreement, in the event Design Phase approvals are made by OWNER containing Mandatories, Provisos or similar conditions, the DESIGN PROFESSIONAL’S document approval payment will be withheld by OWNER until such Mandatories, Provisos, or similar conditional remarks have been satisfactorily resolved with OWNER by DESIGN PROFESSIONAL.

ARTICLE 5. – COMPENSATION

5.1 The fee schedule shall be based on the State of Florida, Department of Management

Services (DMS) Fee Guide Calculator for AE Services in effect at the time of the commencement of the negotiation of this Agreement. DESIGN PROFESSIONAL agrees to furnish to OWNER, after the end of each calendar month, a comprehensive and itemized statement of charges for the services performed and rendered by DESIGN PROFESSIONAL during that time period, and for any OWNER authorized reimbursable expenses as herein below defined, incurred and/or paid by DESIGN PROFESSIONAL during that time period. The monthly statement shall be in such form and supported by such documentation as may be required by OWNER. All such statements shall indicate the Purchase Order Number and Project Site description, which description shall include any relevant school name, if any.

5.2 OWNER agrees to reimburse DESIGN PROFESSIONAL for all necessary and reasonable reimbursable expenses incurred or paid by DESIGN PROFESSIONAL in connection with DESIGN PROFESSIONAL’S performance of the services, at its direct cost with no mark-up, to the extent such reimbursement is permitted. For the purposes hereof, the term “reimbursable expenses” shall be deemed to include the following:

5.2.1 All necessary fees paid by DESIGN PROFESSIONAL to governmental authorities, having jurisdiction over the Project, for securing required approval of the Project or any part of it.

5.2.2 DESIGN PROFESSIONAL shall obtain the prior written approval of OWNER before incurring any of the aforesaid reimbursable expenses, and absent such prior written approval, no expenses incurred by DESIGN PROFESSIONAL shall be deemed to be a reimbursable expense.

5.3 DESIGN PROFESSIONAL shall bear and pay all overhead and other expenses, except for the reimbursable expenses specified and defined above, incurred by DESIGN PROFESSIONAL in the performance of the services.

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5.4 Prior to authorizing DESIGN PROFESSIONAL to provide any services or to incur any reimbursable expenses under this Agreement, OWNER shall request DESIGN PROFESSIONAL advise OWNER in writing of (i) the DESIGN PROFESSIONAL’S estimated personnel time and the estimated fees associated therewith for the work proposed for the project; and (ii) the estimated charge to OWNER for the applicable reimbursable expenses. DESIGN PROFESSIONAL shall promptly supply such estimate to OWNER based on DESIGN PROFESSIONAL’S good faith analysis.

5.5 For Basic Services, as described in Article 1, and any other services included in Article 2 as part of Basic Services, Basic Compensation shall be computed as follows:

The stipulated sum of $ .

5.6 Progress payments for Basic Services in each phase shall total the following percentages of the total Basic Compensation payable:

5.7 The compensation provided for under Section 5.6, shall be the total and complete amount payable to DESIGN PROFESSIONAL for the services to be performed under the provisions of this Agreement, and shall include the cost of all materials, equipment, supplies and out-of-pocket expenses incurred in the performance of all services.

5.8 Construction Phase: The final Construction Phase payment of $ (10% of the Construction Phase of the Contract) to the DESIGN PROFESSIONAL is to be made after the OWNER approves the final release of retainage for the construction project. The remaining portion of the Construction Phase Fee should be billed according to the percentage of work completed in the Construction Phase of the Project.

PHASE PERCENTAGE OF COMPLETION FEE

Program Verification Condition Assessment

Phase I - Schematic Design

Fifteen Percent (15%) $

Phase II - Design Development

Twenty Percent (20%) $

Phase III - Construction Documents

Thirty Five Percent (35%) $

Bidding Five Percent (5%) $

Construction *see paragraph 5.4

Twenty Five Percent (25%) $

TOTAL One Hundred Percent (100%) $

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ARTICLE 6. - OWNERSHIP OF DOCUMENTS

6.1 Upon the completion or termination of this Agreement, as directed by OWNER, DESIGN PROFESSIONAL shall deliver, subject to payment for those services by the DESIGN PROFESSIONAL that are due and owing under this Agreement, to OWNER copies or originals of all records, documents, drawings, notes, tracings, plans, AutoCAD files, specifications, maps, evaluations, reports and other technical data, other than working papers, prepared or developed by or for DESIGN PROFESSIONAL under this Agreement ("Project Documents").

OWNER shall specify whether the originals of such Project Documents are to be delivered by DESIGN PROFESSIONAL. DESIGN PROFESSIONAL shall be solely responsible for all costs associated with delivering to OWNER the Project Documents. DESIGN PROFESSIONAL, at its own expense, may retain copies of the Project Documents for its files and internal use.

However, in order to protect the security and safety of the facility, the OWNER wishes to limit the number of copies of plans outside of the OWNER'S possession. Accordingly, DESIGN PROFESSIONAL agrees that said copies are not to be shared with anyone other than members of the DESIGN PROFESSIONAL'S staff and staff of subcontractors and consultants participating in the Project. DESIGN PROFESSIONAL shall not disclose any of the information exempted under Florida Statute Section 119.071(3)(b)(1) and (2).

6.2 All Project Documents in any form prepared, assembled or provided by the DESIGN PROFESSIONAL under this Agreement are and shall be the property of the OWNER including, as further described below, all copyrights inherent in them or their preparation.

6.3 The DESIGN PROFESSIONAL and the OWNER intend that, to the fullest extent permitted by law, the Project Documents produced or to be produced by the DESIGN PROFESSIONAL at the OWNER’S insistence and expense under this Agreement are conclusively considered “works made for hire” within the meaning and purview of Section 101 of the United States Copyright Act, 17 U.S.C., Section 101, et. seq., and that the OWNER will be sole copyright owner of all Project Documents and of all aspects, elements and components of them in which copyright can subsist, and of all rights to apply for copyright registration or prosecute any claim for infringement. To the extent that any of the Project Documents do not qualify as a “work for hire”, the DESIGN PROFESSIONAL hereby irrevocably grants, conveys, bargains, sells, assigns, transfers and delivers to the OWNER, its successors, and assigns, all rights, title and interest in and to the Project Documents and in and to all copyrights and all U.S. and foreign copyright registrations, copyright applications and all copyright renewals for them, and all other intangible, intellectual property embodied in or pertaining to the Project Documents prepared for the OWNER under the Agreement, and all good will relating to them, free and clear of all liens, claims or other encumbrances, to the fullest extent permitted by law. The DESIGN PROFESSIONAL shall include a substantially similar provision in the contracts between the DESIGN PROFESSIONAL and the DESIGN PROFESSIONAL’S consultants by which the DESIGN PROFESSIONAL’S consultants shall each similarly agree to all provisions described in this Article 6 in relation to the OWNER’S rights set forth herein.

6.4 As described above, the Project Documents are and shall remain the property of the OWNER, and the DESIGN PROFESSIONAL and the DESIGN PROFESSIONAL’S consultants shall have no interest in any of the Project Documents whatsoever, nor any right to utilize them or any designs based on them, except as provided in this Agreement in connection with this Project, and any reuse projects (as the term “Reuse Project” is defined in paragraph 6.5, below).

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6.5 In addition to using the Project Documents in connection with this Project, pursuant to the terms and conditions set forth in this Agreement, the OWNER shall have the right to use all of any portion of the Project Documents for other projects (hereinafter referred to as "Reuse Projects") without the approval of, or additional compensation to, the DESIGN PROFESSIONAL. The DESIGN PROFESSIONAL shall not be liable to the OWNER for injury or damage resulting from the reuse of any of the Project Documents if the DESIGN PROFESSIONAL is not involved in the Reuse Project. Prior to the reuse of any of the Project Documents for a project subsequent to this Project in which the DESIGN PROFESSIONAL is not involved, the OWNER will remove and obliterate from such documents all identification of the DESIGN PROFESSIONAL, including name, address and professional seal or stamp.

6.6 The provisions of paragraph 6.5 above notwithstanding, the OWNER shall have the option to retain the services of the DESIGN PROFESSIONAL in connection with reuse projects. The DESIGN PROFESSIONAL agrees that, for a period of 10 years from the date of substantial completion of this Project, the DESIGN PROFESSIONAL shall remain under contract (pursuant to this Agreement) to the OWNER to reuse the Project Documents in connection with one or more additional projects.

6.7 If, at any time prior to the expiration of the Reuse Period, the OWNER requests the DESIGN PROFESSIONAL to provide services in connection with the reuse of any of the Project Documents, the DESIGN PROFESSIONAL shall do so pursuant to the terms herein. In any such instance, the DESIGN PROFESSIONAL shall modify any and all civil engineering and site drawings in order to accommodate the improvements on the designated site for each such project. The fee to be paid to the DESIGN PROFESSIONAL for such services shall be equal to 2.3% for a high school. 2.4% for a middle school and 2.5% for an elementary school, of the OWNER'S total construction budget (i.e., the amount budgeted by the OWNER for construction, not including the costs of land acquisition, the costs of furniture, fixtures and equipment, any fees paid to the DESIGN PROFESSIONAL, or any fee paid to the CONSTRUCTION MANAGER or contractor) for such project at the time of reuse. The services which the DESIGN PROFESSIONAL shall provide in this regard shall include, but not necessarily be limited to, all civil engineering and layout of all buildings, sidewalks, parking, lighting, amenities (including, but not limited to, ball fields), and such other elements of the site as may be necessary for any such project, and shall also include all necessary off-site utilities and roadway improvements within two hundred (200) feet of the OWNER'S property line. If in connection with any such project it is necessary for the DESIGN PROFESSIONAL to make modifications to other portions of the Project Documents, the same shall be performed for a fixed fee, if the OWNER and DESIGN PROFESSIONAL are able to agree upon the same or, alternatively, based upon the DESIGN PROFESSIONAL 'S then-current hourly rates. The plan modifications and any code changes to which the fixed fee or hourly rates shall apply shall include OWNER required changes to the building only (and any changes to the site plan for off-site utilities and roadway improvements more than two hundred (200) feet from the OWNER'S property line). All other design services shall be deemed included in the percentage fee set forth above in this paragraph 6.7. The DESIGN PROFESSIONAL shall also provide Construction Administration for each such project in accordance with the provisions of this Agreement and the then current edition of Document AIA A201, for which the DESIGN PROFESSIONAL shall be compensated either by a fixed fee, if the OWNER and DESIGN PROFESSIONAL are able to agree upon the same, or, alternatively, 13 of 59 Initials __________ based upon the DESIGN PROFESSIONAL 'S then-current hourly rates for such construction administration services.

6.8 The foregoing provisions of this Article 6 relating to reuse of the Project Documents shall apply to any project of which the OWNER provides written notice to the DESIGN PROFESSIONAL before the end of the Reuse Period, in relation to which the DESIGN PROFESSIONAL shall provide the services described above in this Article 6, even if the providing of such services extends beyond the end of the Reuse Period.

ARTICLE 7. - MAINTENANCE OF RECORDS

7.1 DESIGN PROFESSIONAL shall keep adequate records and supporting documentation which concern or reflect its services hereunder. The records and documentation shall be retained by DESIGN PROFESSIONAL for a minimum of five (5) years from the date of termination of this Agreement or the date the Project is completed, or such longer period of time as may be required by law or this Agreement, whichever is later. OWNER, or any duly authorized agents or representatives of OWNER, shall have the right to audit, inspect and copy all such records and documentation as often as they deem necessary during the period of this Agreement and during the period noted above in which the records are to be retained;

provided, however, such activity shall be conducted only during normal business hours.

7.2 The records specified above in paragraph 7.1 include accurate time records, which DESIGN PROFESSIONAL agrees to keep and maintain, from day to day, showing the time expended by each principal and employee of DESIGN PROFESSIONAL in performing the services and therein specifying the services performed by each, with all such time records to be kept within one-half of an hour. At the request of OWNER, or as specified in the Schedule A – Scope of Services, DESIGN PROFESSIONAL shall furnish to OWNER any of the aforesaid time records, as well as invoices or proofs showing DESIGN PROFESSIONAL’S incurrence and/or payment of any reimbursable expenses.

7.3 PUBLIC RECORDS NOTICE: If DESIGN PROFESSIONAL has questions regarding the application of Chapter 119, Florida Statutes, to its duty to provide public records related to the agreement, contact the Custodian of Public Records, PublicRecords@LeeSchools.Net, (239) 461-8420, 2855 Colonial Blvd., Fort Myers, Florida 33966.

DESIGN PROFESSIONAL is required to comply with the Florida Public Records Law, Chapter 119, Florida Statutes, in the performance of its duties under this Agreement and shall specifically:

a) Keep and maintain public records required by the OWNER to perform the work or services hereunder.

b) Upon request from the OWNER’S custodian of public records, provide the OWNER with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in the Chapter 119, Florida Statutes or as otherwise provided by law.

mailto:PublicRecords@LeeSchools.Net

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c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the term of the Agreement, as well as following completion of the Agreement if DESIGN PROFESSIONAL does not transfer the records to the OWNER.

d) Upon completion of the Agreement, transfer, at no cost, to the OWNER all public records in possession of DESIGN PROFESSIONAL or keep and maintain public records required by the OWNER to perform the service. If DESIGN PROFESSIONAL transfers all public records to the OWNER upon completion of the Agreement, DESIGN PROFESSIONAL shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If DESIGN PROFESSIONAL keeps and maintains public records upon completion of the Agreement, DESIGN PROFESSIONAL shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the OWNER, upon request of the OWNER’S custodian of public records, in a format that is compatible with the information technology systems of the OWNER.

e) The failure of the DESIGN PROFESSIONAL to comply with the provisions set forth herein shall constitute a default and material breach of this Agreement, which may result in immediate termination, with no penalty to the OWNER.

ARTICLE 8. - INDEMNIFICATION

To the fullest extent permitted by law, the DESIGN PROFESSIONAL shall indemnify and hold harmless the OWNER, and its officers and employees (“Indemnitees”) from and against all claims, liabilities, damages, losses, and costs including, but not limited to, reasonable costs and attorneys’ fees at the pre-trial, trial and appellate levels, arising out of, resulting from or incidental to DESIGN PROFESSIONAL’S performance under this Agreement to the extent caused by negligence, recklessness, or intentional wrongful conduct of the DESIGN PROFESSIONAL or other persons employed or utilized by the DESIGN PROFESSIONAL in the performance of this Agreement. The remedy provided to the Indemnitees by this indemnification shall be in addition to and not in lieu of any other remedy available under the Agreement or otherwise. This indemnification obligation shall not be diminished or limited in any way to any insurance maintained pursuant to the Agreement otherwise available to the DESIGN PROFESSIONAL. The remedy provided to the Indemnitees by this indemnification shall survive this Agreement. A claim for indemnity pursuant to this provision shall be commenced within the period established under Florida law for commencement of an action founded on the design, planning, or construction of an improvement to real property. The provisions of this paragraph are intended to require the DESIGN PROFESSIONAL to furnish the greatest amount of indemnification allowed in accordance with Section 725.08, Florida Statutes. To the extent any indemnification requirement contained in this Agreement is deemed to be in violation of any law, that provision shall be deemed modified so that the DESIGN PROFESSIONAL shall be required to furnish the greatest level of indemnification to the Indemnitees as was intended by the parties hereto.

ARTICLE 9. – DUTY TO DEFEND

9.1 The duty to defend under this Article 9 is independent and separate from the duty to indemnify, and the duty to defend exists regardless of any ultimate liability of the DESIGN PROFESSIONAL, OWNER and any indemnified party. The duty to defend arises immediately

15 of 59 Initials __________ upon presentation of a claim by any party and written notice of such claim being provided to DESIGN PROFESSIONAL. DESIGN PROFESSIONAL’s obligation to defend under this Article 9 will survive the expiration or termination of this Agreement until it is determined by final judgment that an action against the OWNER or an indemnified party for the matter indemnified hereunder is fully and finally barred by the applicable statute of limitations.

9.2 The OWNER shall be liable only to the extent of its obligations under this Agreement, and no officer, director, partner, agent or employee of the OWNER shall ever be personally or individually liable with respect to this Agreement.

PURSUANT TO SECTION 558.0035 FLORIDA STATUTES, AN

INDIVIDUAL EMPLOYEE OR AGENT OF DESIGN PROFESSIONAL

MAY NOT BE HELD INDIVIDUALLY LIABLE FOR NEGLIGENCE,

PROVIDED THAT DESIGN PROFESSIONAL MAINTAINS THE

PROFESSIONAL LIABILITY INSURANCE REQUIRED UNDER THIS

AGREEMENT AND ANY DAMAGES ARE SOLELY ECONOMIC IN

NATURE AND THE DAMAGES DO NOT EXTEND TO PERSONAL

INJURIES OR PROPERTY NOT SUBJECT TO THE AGREEMENT.

ARTICLE 10. - INSURANCE

10.1 During the term of this Agreement DESIGN PROFESSIONAL shall provide, pay for, and maintain, with companies satisfactory to OWNER, the types of insurance described herein.

All insurance shall be from responsible companies duly authorized to do business in the State of Florida. Simultaneously with the execution and delivery of this Agreement by DESIGN PROFESSIONAL, DESIGN PROFESSIONAL has delivered to OWNER properly executed Certificates of Insurance, evidencing the fact that DESIGN PROFESSIONAL shall acquire and put in place the insurance coverages and limits required hereunder. In addition, certified, true and exact copies of all insurance policies required shall be provided to OWNER, on a timely basis, if requested by OWNER. These Certificates and policies shall contain provisions that thirty (30) calendar days’ written notice by registered or certified mail shall be given OWNER of any cancellation, intent not to renew, or reduction in the policies’ coverages, except in the application of the Aggregate Limits Provisions. DESIGN PROFESSIONAL shall also notify OWNER, in a like manner, within twenty-four (24) hours after receipt, of any notices of expiration, cancellation, non-renewal or material change in coverages or limits received by DESIGN PROFESSIONAL from its insurer, and nothing contained herein shall relieve DESIGN PROFESSIONAL of this requirement to provide notice. In the event of a reduction in the aggregate limit of any policy to be provided by it hereunder, DESIGN PROFESSIONAL shall immediately take steps to have the aggregate limit reinstated to the full extent permitted under such policy. All insurance coverages of DESIGN PROFESSIONAL shall be primary to any insurance or self-insurance program carried by OWNER applicable to this Project.

10.2 All insurance policies required by this Agreement shall include the following provisions and conditions by endorsement to the policies:

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10.2.1 The term “The School Board of Lee County, Florida” shall include the Lee County School Board, a body corporate, the Lee County Public School System and all Authorities, Boards, Bureaus, Commissions, Divisions, Departments and offices thereof and individual members and employees thereof in their official capacity, and/or while acting on behalf of the Lee County School Board.

10.2.2 All insurance policies, other than the Professional Liability policy and the Workers Compensation policy, provided by DESIGN PROFESSIONAL to meet the requirements of this Agreement shall name The School Board of Lee County, Florida, as that name is defined in 10.2.1, above, as an additional insured as to the operations of DESIGN PROFESSIONAL under the Contract Documents and shall contain a severability of interest provisions.

10.2.3 Companies issuing the insurance policy or policies shall have no recourse against OWNER for payment of premiums or assessments for any deductibles which all are at the sole responsibility and risk of DESIGN PROFESSIONAL.

10.2.4 All insurance coverages of DESIGN PROFESSIONAL shall be primary to any insurance or self-insurance program carried by OWNER applicable to this Project, and the “Other Insurance” provisions of any policies obtained by DESIGN PROFESSIONAL shall not apply to any insurance or self-insurance program carried by OWNER applicable to this Project.

10.2.5 The Certificates of Insurance, which are to be provided pursuant to paragraph 10.1 above, must identify the specific project name, as well as the site location and address.

10.2.6 All insurance policies shall be fully performable in Lee County, Florida, and shall be construed in accordance with the laws of the State of Florida.

10.2.7 All insurance policies to be provided by DESIGN PROFESSIONAL pursuant to the terms hereof must expressly state that the insurance company will accept service of process in Lee County, Florida and that the exclusive venue for any action concerning any matter under those policies shall be in the appropriate state court situated in Lee County, Florida.

10.3 The acceptance by OWNER of any Certificate of Insurance for this Project evidencing the insurance coverages and limits required in this Agreement does not constitute approval or agreement by OWNER that the insurance requirements have been met or that the insurance policies shown on the Certificates of Insurance shall comply with the requirements of this Agreement.

10.4 Before starting and until…