DESIGN-BUILD AGREEMENT

between

CITY OF FORT MYERS, FLORIDA

and

>[Design-Builder]

Table of Contents

WITNESSETH

RECITALS

ARTICLE 1 - DEFINITIONS

ARTICLE 2 - CONTRACT DOCUMENTS / ORDER OF PRECEDENCE

>ARTICLE 3 – TERM

>ARTICLE 4 - NOTICE

ARTICLE 5 - SCOPE OF WORK

5.1. DESIGN-BUILDER SHALL PROVIDE AND PERFORM ALL WORK NECESSARY FOR THE

COMPLETION OF THE ENTIRE PROJECT

5.2. QUALITY OF SCOPE OF WORK

>5.3. PHASE I - DESIGN SERVICES

5.4. ASSUMPTION OF RISKS BY Design-Builder

5.5. Design-Builder'S DUTIES AND RESPONSIBILITIES

5.6. DUTIES AND OBLIGATIONS OF Design-Builder SPECIFICALLY RELATED TO

PROFESSIONAL SERVICES

ARTICLE 6 - PROJECT SCHEDULE/AGREEMENT TIME/COMPLETION

6.1. PROJECT SCHEDULE DETAIL

6.2. CONDITIONS FOR NOTICES TO PROCEED

6.3. AGREEMENT TIME

6.4. SUBSTANTIAL COMPLETION

6.5. PARTIAL UTILIZATION

6.6. FINAL COMPLETION

6.7. LIQUIDATED DAMAGES

ARTICLE 7 - CHANGE ORDER PROCEDURE FOR CHANGES TO THE WORK

7.1. CLAIMS BY THE Design-Builder

7.2. CHANGE OF GMP

7.3. PRICING OF CHANGES TO THE WORK

7.4. CHANGE OF AGREEMENT TIME

ARTICLE 8 - THIRD-PARTY BENEFICIARY; CORRELATION AND INTENT OF DOCUMENTS

ARTICLE 9 - ASSIGNMENT OF ALL AGREEMENTS AND AGREEMENTS

ARTICLE 10 - REPRESENTATION OF THE Design-Builder

10.1. REPRESENTATIONS AND WARRANTIES

10.2. COVENANTS

10.3. FINAL CONSTRUCTION DOCUMENTS

10.4. RIGHT TO AUDIT RECORDS

10.5. COMPLIANCE WITH REQUIREMENTS

ARTICLE 11 - CITY'S DUTIES AND RESPONSIBILITIES PROJECT MANAGER'S STATUS/

DESIGNATION OF PROJECT MANAGER

11.1. CITY'S PROJECT MANAGER

11.2. RESIDENT ENGINEER AND OTHER PERSONNEL

11.3. FURNISHING OF SITE

11.4. MAKING PAYMENTS

11.5. PROJECT MANAGER'S STATUS

11.6. DUE DILIGENCE

ARTICLE 12 - RELATIONSHIP OF PARTIES

12.1. CITY'S RIGHTS

12.2. Design-Builder AS INDEPENDENT CONTRACTOR

12.3. NO PARTNERSHIP OR JOINT VENTURE

12.4. THE CITY'S ACTION FOR THE CITY'S OWN PROTECTION ONLY

12.5. GOOD FAITH AND FAIR DEALING

ARTICLE 13 - OBLIGATIONS OF THE DESIGN-BUILDER

13.1. CONTRACT DOCUMENTS

13.2. WARRANTY

13.3. CONFLICTS, ERRORS, OR DISCREPANCIES

13.4. EQUIPMENT

13.5. INSPECTIONS AND TESTING

13.6. NON-DISCRIMINATION

13.7. NAME CHANGE

13.8. PATENTS, ROYALTIES AND COPYRIGHTS

13.9. PERMITS, TAXES, LICENSES

13.10. RECORD RETENTION

13.11. SUBCONTRACTORS

13.12. REPAIR OF PROPERTY DAMAGE CAUSED BY THE DESIGN-BUILDER

13.13. SAFETY

13.14. SAFETY DATA SHEETS (SDS)

13.15. DESIGN-BUILDER’S PROJECT MANAGER

13.16. TRUTH-IN-NEGOTIATIONS CERTIFICATE

13.17. QUALITY CONTROL

13.18. PERIODIC AND FINAL CLEANING

13.19. CORRECTION OF WORK

13.20. REPORTS

13.21. ALL DRAWINGS

13.22. QUALIFIED PERSONNEL

13.23. REMOVAL OF PERSONNEL

13.24. EQUIPMENT

13.25. CITY’S CONSTRUCTION PROJECT MANAGEMENT PLATFORM SOFTWARE

13.26. RECOVERED MATERIALS

13.27. ADDITIONAL SERVICES

ARTICLE 14 – OBLIGATIONS OF THE CITY

14.1. DESIGNATION OF CITY’S PROJECT MANAGER

14.2. AVAILABILITY OF CITY INFORMATION

14.3. AVAILABILITY OF CITY DESIGNATED REPRESENTATIVES

14.4. ACCESS TO CITY PROPERTY

14.5. PLANS REVIEW

ARTICLE 15 – TIME AND SCHEDULE OF PERFORMANACE

15.1. NOTICE TO PROCEED / PURCHASE ORDER

15.2. TIME OF PERFORMANCE

15.3. Design-Builder WORK SCHEDULE

15.4. FAILURE TO PERFORM IN A TIMELY MANNER

15.5. EVENTS OF DEFAULT

15.6 - SUSPENSION OF WORK

15.7. PAYMENT AND PERFORMANCE BONDS

ARTICLE 16 - NOTICE OF CLAIM / WAIVER OF REMEDIES / NO DAMAGE FOR DELAY

16.1. NOTICE OF CLAIMS

16.2. REMEDIES AND NO DAMAGES FOR DELAY

ARTICLE 17 - INSURANCE

17.1. INSURANCE COVERAGES REQUIRED

>ARTICLE 18 – INDEMNIFICATION

ARTICLE 19 – LAWS

19.1. GOVERNING LAW / VENUE

19.2. ANTITRUST

19.3. CONFLICT OF INTEREST

19.4. RESERVED

>19.5. DISCRIMINATION

19.6. DRUG-FREE WORKPLACE

19.7. E-VERIFY

19.8. FLORIDA CIVIL RIGHTS ACT (FCRA)

19.9. FLORIDA PUBLIC RECORDS LAW

19.9. FLORIDA PUBLIC ENTITY CRIMES

19.10. FOREIGN CORPORATION

19.11. HUMAN TRAFFICKING

19.12. IMMIGRATION LAWS

19.13. SCRUTINIZED COMPANIES

19.14. TRUTH-IN-NEGOTIATION CERTIFICATE

ARTICLE 20 – IMPROPER USE OF FACILITIES

ARTICLE 21 – WAIVER OF BREACH

ARTICLE 22 - OWNERSHIP OF DOCUMENTS AND MAINTENANCE OF RECORDS

22.1. DOCUMENTS

22.2. SOFTWARE, COMPUTER SYSTEMS, AND DATABASES

22.3. CITY AGENTS, EMPLOYEES, AND REPRESENTATIVES

22.4. INSPECTION

22.5. ADEQUATE RECORDS

ARTICLE 23 -HEADINGS

ARTICLE 24 – RESERVATION OF RIGHTS

ARTICLE 25 - FAILURE TO ENFORCE

ARTICLE 26 - FORCE MAJEURE

ARTICLE 27 - RESERVED

ARTICLE 28 - SEVERABILITY

ARTICLE 29 – CONTINGENT FEES PROHIBITION

ARTICLE 30 - PURCHASE ORDERS

>ARTICLE 31 - OWNER DIRECT PURCHASES

ARTICLE 32 – DELIVERY

ARTICLE 33 – ACCEPTANCE OF MATERIALS/SERVICES

ARTICLE 34 – DISCONTINUED ITEMS

ARTICLE 35 - RETURNS

>ARTICLE 36 – INTERNET/WEB-BASED SERVICES

>ARTICLE 37 - SOFTWARE LICENSES

>ARTICLE 38- PRICE ADJUSTMENT

ARTICLE 39 - PAYMENT

39.1. DESIGN BUILDER'S COMPENSATION

39.2. DESIGN-BUILD FEE

39.3. COST OF WORK

39.4. SCHEDULE OF VALUES

39.5. APPLICATIONS FOR PAYMENT

39.6. PROGRESS PAYMENT FOR CONSTRUCTION SERVICES

39.7. RETAINAGE

39.8. APPROVAL AND TIME OF PAYMENTS

39.9. PREREQUISITES TO PROGRESS PAYMENTS

39.10. APPLICATION FOR FINAL PAYMENT

39.11. DOCUMENTATION REQUIRED FOR FINAL PAYMENT

39.12. STORED MATERIALS

39.13. CLEAR TITLE

39.14. COST OF CLAIMS

39.15. DESIGN-BUILDER'S CONTINUING OBLIGATION

39.16. WAIVER OF CLAIMS

39.17. CONTINGENCY

ARTICLE 40 - TERMINATION OF WORK

40.1. TERMINATION FOR CAUSE

40.2. TERMINATION FOR CONVENIENCE

40.3. TERMINATION FOR FAILURE TO PERFORM IN A TIMELY MANNER

40.4. TERMINATION FOR FAILURE TO NEGOTIATE A GMP

ARTICLE 41 - DISPUTE RESOLUTION

ARTICLE 42- CONTRACT EXECUTION

ARTICLE 43 - MISCELLANEOUS

43.1. CITY APPROVAL

43.2. EXHIBITS

43.3. CUMULATIVE REMEDIES

44.4. AUTHORITY TO SIGN AGREEMENT

44.5. SALES TAX

44. ACCEPTANCE

DESIGN-BUILD AGREEMENT

WITNESSETH

This Design-Build Agreement (“Agreement”) is made and entered into on the effective date as indicated in the Notice to Proceed by and between THE CITY OF FORT MYERS hereinafter called CITY) and >VendorName (hereinafter called Design-Builder).

City and Design-Builder, in consideration of the mutual covenants hereinafter set forth, agree as follows:

WHEREAS, the CITY has determined that it is necessary to retain a Designer-Builder to provide professional engineering design and construction services;

WHEREAS, the Design-Builder has reviewed >Enter the Solicitation Title and Number and Addenda required pursuant to this Agreement and is qualified, willing and able to provide and perform all such services in accordance with its terms.

WHEREAS, the CITY, through a selection process conducted in accordance with the requirements of law and CITY policy, has determined that it would be in the best interest of the CITY to award a Agreement to Design-Builder for the rendering of those services described in the Scope of Services.

NOW, THEREFORE, in consideration of the mutual covenants, terms and provisions herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the CITY and Design-Builder agree as follows:

WHEREAS, the Design-Builder hereby certifies that Design-Builder has been granted and possesses valid, current licenses to do business in the State of Florida, in Lee County, and the City of Fort Myers, issued by the respective State Boards and Government Agencies responsible for regulating and licensing the Services to be provided and performed by the Design-Builder pursuant to this Agreement; and

NOW, THEREFORE in consideration of the mutual covenants, terms and provisions contained herein, the parties hereto agree that with the mutual acceptance of this Agreement, as indicated hereinafter by the execution of this Agreement by both parties, that a Agreement shall exist between both parties consisting of:

RECITALS

The foregoing Recitals are true and correct, and the recitals and instruments referred to therein are hereby incorporated herein by reference.

ARTICLE 1 - DEFINITIONS

The following words and expressions shall, wherever they appear in the Agreement, be construed as follows:

AGREEMENT. this document executed by the DESIGN- BUILDER and CITY and any and all documents referenced herein and any Attachments or Exhibits attached hereto as well as all subsequent Change Orders or Amendments.

AGREEMENT TIME. the number of calendar days stated in the Agreement for completion of the Construction Phase of Work as amended by approved

APPLICATION FOR PAYMENT. the form which is to be used by Design-Builder in requesting a progress or final payment and which shall include such supporting documentation as is required by this Agreement.

APPROVAL. When applied to approval from the CITY, this term shall mean approval which is, at a minimum, evidenced by a written document authored or initialed by the CITY and subject to the formalities imposed by specific provisions in this Agreement.

CHANGE ORDER. a written order authorizing an addition, deletion, or revision in the Work or an adjustment in the Guaranteed Maximum Price or the Agreement Time issued after execution of the Agreement.

CITY. Is the City of Fort Myers, a municipal corporation of the State of Florida and its authorized designees, agents and employees.

COST OF THE WORK the direct or indirect field costs to perform the Services, which Design-Builder must necessarily incur to properly perform in strict compliance with the Agreement Documents.

Cost of the Work includes any additional costs due to acceleration of the Work to overcome delays, only to the extent such delays were not caused or contributed to, in whole or in part, by the negligence of the Design-Builder, or its Subcontractors or other persons over whom Design-Builder or any Subcontractor exercise control is legally responsible. Cost of the Work excludes all items covered by the Phase I - Design Services, Design-Build Fees and all markups on payments to Subcontractors. Cost of the Work includes all items within the scope of General Conditions as defined herein, unless such items are expressly excluded from Cost of Work.

DAY. One (1) calendar day when used in the Agreement, measured from midnight to the next midnight.

DEFECTIVE. an adjective which refers to Work that is faulty, deficient or otherwise does not conform to the Final Construction Documents or the requirements of this Agreement.

DESIGN-BUILD DOCUMENTS. all documents, from preliminary to as-builts, including, but not limited to design documents, design drawings, plans, construction drawings, specifications, data, studies, surveys, calculations, permit applications, estimates, photographs, reports, memoranda, letters, sketches, renderings, approved submittals, and other documents prepared by DESIGN- BUILDER and/or its Professionals, Subconsultants, and/or Subcontractors, that fix, depict and/or describe the size, quality and character of the entire Project or any portion of the Project.

DESIGN-BUILD FEE. included within the Guaranteed Maximum Price and shall mean all fees, costs and expenses to be paid to members of the Design-Builder's team (e.g. architects, engineers, Subcontractors, Subconsultants, professionals etc.) to manage, design and construct the Project, excluding materials and labor for actual construction. Design-Build Fee shall include all, overhead, profits and corporate administrative costs.

EFFECTIVE DATE. The date as indicated on the Notice to Proceed.

ENGINEER OF RECORD. is also included in the definition of "Professional" below.

EQUAL/EQUIVALENT. a product, service, component or system which is demonstrated, to the satisfaction of the CITY, to be equal or equivalent to the product, service, component or system specified. The CITY shall be the sole judge of acceptability of an Equal or Equivalent.

FINAL COMPLETION. the date the Work, including but not limited to all Punch List items (as defined herein below), has been completed to the CITY'S satisfaction.

FINAL CONSTRUCTION DOCUMENTS. the approved and permitted Design-Build Documents, which are developed, prepared and created by the Design-Builder and reviewed and approved in writing by the CITY, setting forth in detail all Work, including, but not limited to, all labor, materials, equipment, and services necessary to construct the Project. Final Construction Documents shall be prepared by Design-Builder in accordance with the following:

(i) The Project Schedule;

(ii) The Guaranteed Maximum Price (GMP);

(iii) The Design-Builder's Proposal submitted in response to the RFQ;

(iv) All documents and requirements of this Agreement; and

(v) Any and all other document(s) agreed to by CITY and Design-Builder.

Once the Final Construction Documents for the Project have been approved in writing by the CITY, no changes shall be made thereto without the express written consent of the CITY.

GENERAL CONDITIONS. Cost of General Conditions is included within the Guaranteed Maximum Price and shall include general DESIGN- BUILDER Project expenses during construction. General Conditions include mobilization, field offices, superintendent(s), construction lay-out and as-built surveying, temporary utilities, temporary security fences, temporary safety-related protection, dust control, pest control, temporary hoists, scaffolding, project sign etc.

GUARANTEED MAXIMUM PRICE (GMP). the maximum compensation to be paid hereunder by the CITY to Design-Builder for all salaries and fees including but not limited to the Design-Build Fee, costs, expenses, taxes, reimbursable costs and expenses, general conditions, profits and costs of all labor, services, equipment, tools, supplies, fixtures and materials incurred or used by Design- Builder in providing and performing all the Work required to complete the Project.

NONCONFORMANCE REPORT. A written notice from the Project Manager to the Design-Builder reporting on an aspect of Defective Work which requires the immediate correction of same by the Design-Builder.

NOTICE TO PROCEED WITH PHASE I - DESIGN SERVICES. Notice to Proceed with Design Services means CITY's written authorization to Design-Builder to commence professional design and consulting services for the Work under this Agreement.

NOTICE TO PROCEED WITH PHASE II - CONSTRUCTION SERVICES. Notice to Proceed with Construction Services means CITY'S written authorization to Design-Builder to commence construction of the Project, including mobilization.

PROFESSIONAL. any individual, firm or entity, which provides design or professional services, whether architectural, engineering or surveying, and which is engaged by Design-Builder in providing and performing the Work for which Design-Builder is Contractually obligated, responsible and liable to provide and perform under this Agreement. Each Professional shall possess all applicable, valid and current licenses necessary to do business in the State of Florida and the CITY for the performance of the Work. The CITY expressly disclaims any responsibility, liability or obligations whatsoever for or under any Agreement entered into between DESIGN- BUILDER and the Professional and further states that CITY shall not be responsible for any payments or any other obligations due or owing to the Professional.

PROJECT. the design and construction and shall mean and include, but not be limited to, each and everything included in the Final Construction Documents, together with all design, permitting, regulatory compliance and other "soft costs" associated with the Project.

PROJECT MANAGER. An individual employed by the CITY and assigned under the supervision of the City Manager to manage and administer the Project which is the subject of this Agreement. The Project Manager will provide direct contact and communication between the CITY and Design- Builder with respect to providing information, assistance, guidance, coordination, and review of the Design-Builder's Work pursuant to this Agreement and any authorized Change Order(s). The Project Manager shall not be authorized to, and shall not, issue any verbal or written request or instruction or approval to Design-Builder that might have the effect, or that might be interpreted to have the effect, of modifying or changing this Agreement in any respect.

PROJECT SCHEDULE. The schedule, showing the sequence and schedule of the Design-Builder's furnishing of all labor, services, equipment and materials for the Project. The Project Schedule consists of Project Schedule Summaries which establish major milestones for the project, and the Project

SCHEDULE DETAIL (to be prepared by Design-Builder and accepted by the CITY) showing in detail the sequence and schedule of the Design-Builder's Work for the Project. The Project Schedule Summaries will be prepared, accepted and approved by the parties after the completion of the Design Phase of the Project and will be attached and incorporated herein as an Exhibit to this Agreement at a later date. The Project Schedule Detail shall be submitted by Design-Builder for review and approval of CITY Prior to the Notice to Proceed with Phase II -Construction Services. The Project Schedule may be amended, modified or revised only in accordance with the terms of this Agreement.

PUNCH LIST. the approved list(s) of incomplete and/or deficient Work that shall be completed by Design-Builder after Substantial Completion or beneficial occupancy but before Final Completion can be achieved.

SITE. the area on which the Design-Builder's construction Work is to be performed and such other areas that may be designated as such by the Final Construction Documents, and upon which the Project and associated improvements are to be constructed by Design-Builder.

SUBCONSULTANT. any person, firm or entity offering or providing professional and/or consulting services which is not included in the definition of Professional and which has a direct Agreement with Design-Builder or with any other Subconsultant for the performance of any part of the Design- Builder's obligations in providing and performing the Work for which Design-Builder is contractually obligated, responsible and liable under the Agreement. Each Subconsultant shall possess all applicable valid and current trade licenses and all licenses necessary for the performance of the Work.

SUBCONTRACTOR. any person, firm or entity providing services, other than professional or consulting services which has a direct Agreement with Design-Builder or with any other Subcontractor for the performance of any part of the Design-Builder'S obligations in providing and performing the Work for which Design-Builder is Contractually obligated, responsible and liable under the Agreement. Each

Subcontractor shall possess all applicable valid and current trade licenses and all licenses necessary for the performance of the Work.

SUBMITTALS. all drawings, diagrams, illustrations, schedules, samples, test results, and other data which are specifically prepared by Design-Builder, its Professionals, Subconsultants, or Subcontractors, or any manufacturers, fabricators, suppliers or distributors, and submitted by Design-Builder to illustrate some portion of the Work, and all illustrations, brochures, standard schedules, performance charts, instructions, diagrams, and other information prepared by Design- Builder, and/or its Professionals, Subconsultants, or Subcontractors, or any manufacturers, fabricators, suppliers or distributors, and submitted by Design-Builder to illustrate material or equipment for some portion of the Work, at no additional cost to the CITY.

SUBSTANTIAL COMPLETION. the date the Work is complete, with the exception of Punch List items, and the Project is available for its intended use by CITY as evidenced by a fully executed Certificate of Substantial Completion which has been prepared and certified by the Engineer of Record after approved by, and at the discretion of, the Project Manager for full compliance with the pertinent requirements of this Agreement.

SUBSTITUTION. a product, service, component or system which is not Equal or Equivalent to that specified but is proposed by Design-Builder in lieu of that specified. The acceptability of a substitute shall be based on the data submitted and the benefit to the CITY. The CITY shall be the sole judge of acceptability.

WORK. any and all authorized and approved work, materials supplies, tools, fixtures, labor, services, equipment, design, professional, construction management and Agreement administration services for the design, Site development and construction of the Project performed and provided by Design-Builder (and its agents, employees, Subconsultants, Professionals, and Subcontractors) pursuant to this Agreement.

ARTICLE 2 - CONTRACT DOCUMENTS / ORDER OF PRECEDENCE

The Contract Documents, which comprise the entire agreement between the City and the Contract Manager concerning the Work consist of this document plus: Attachment A-Scope of Services, Attachment B-Bid Schedule/ Schedule of Values and also incorporate by reference in order of precedence:

1) Amendments created after execution of the Contract 2) Permits (if applicable), 3) This Agreement 4) Solicitation addenda and written questions/answers via OpenGov Q&A incorporated by reference 5) Plans/Drawings, incorporated by reference 6) Solicitation, incorporated by reference 7) Design-Builder(s) submittal, incorporated by reference 8) Certificates of Insurance, incorporated by reference.

If there is a conflict between the contract and solicitation the more stringent applies.

>ARTICLE 3 – TERM

This Agreement will be in effect on the effective date and Phase 1 shall end >__ days later, unless amendments have otherwise been executed.

The City has the right to cancel or terminate this contract as described in these documents.

>ARTICLE 4 - NOTICE

4.1. All notices from the Design-Builder to the CITY, shall be in writing and deemed duly served if mailed by registered or certified mail to the CITY at the following electronic mail addresses:

Clerk@cityftmyers.com cfmpurchasing@cityftmyers.com leg@ftmyers.com

4.2. All notice from the CITY to the Design-Builder, shall be in writing and deemed duly served if mailed by registered or certified mail to the Design-Builder at the following address:

>Design-Builder’s Company Name

>Design-Builder's Point of Contact

>Design-Builder's Mailing Address

>Design-Builder's Phone Number

>Design-Builder's Email Address

4.3. Change or Address of Record. Either party may change its address of record by written notice to the other party given in accordance with the requirements of this article.

mailto:Clerk@cityftmyers.com mailto:cfmpurchasing@ftmyers.com

ARTICLE 5 - SCOPE OF WORK

The Work on the Project shall be conducted in two Phases. Phase I shall be the Design Services Phase. Phase II shall be the Construction Phase. The Scope of Work and Fee Schedule for Phase II shall be negotiated by the parties attached to and made a part of this Agreement at a later date.

Design-Builder acknowledges and agrees that its experience and expertise in the performance of the Scope of Work required under this Agreement, as represented in its Proposal submitted in response to the RSQ is a material inducement to CITY entering into this Agreement. The CITY does not make any representation and assumes no obligations or duties as to third parties concerning the quality, sufficiency or accuracy of the design and/or construction by Design-Builder of the Project or the absence of any defects. The CITY's review and approval of the Final Construction Documents, and each component thereof, and the construction of the Project, is and will be done as a matter of right only and not as a matter of obligation and shall not be a representation to any third party of the quality, soundness or integrity of the design and construction of the Project. The CITY is strictly relying on Design-Builder's expertise and experience with respect to the quality, sufficiency and accuracy of the Final Construction Documents and the construction of the Project, including but not limited to, the functional soundness and structural integrity of the Project. This Article shall survive the termination of this Agreement and shall continue in full force and effect so long as the possibility of any liability, claim or loss exists.

5.1. DESIGN-BUILDER SHALL PROVIDE AND PERFORM ALL WORK

NECESSARY FOR THE COMPLETION OF THE ENTIRE PROJECT

commensurate with the intended high quality of design and construction and low maintenance cost for the Project. The Scope of Work shall include, but is not limited to, providing and performing all Work necessary:

(i) for the design and construction of the Project; and

(ii) to furnish efficient design and construction administration, supervision and superintendence;

and

(iii) for Site development tasks, permitting, regulatory matters, approvals, testing, surveying, environmental mitigation, geotechnical, traffic, architectural, engineering, landscaping, security, interior design, acoustical, lighting, construction, post-construction, accounting and control, coordination and efficient management to facilitate completion of the Project.

5.2. QUALITY OF SCOPE OF WORK.

The Project, as designed and constructed, shall be functionally sound, technically proficient, developed with structural integrity, exhibit high quality engineering principles, and be in compliance with all governing laws, regulations, building codes, and requirements in effect as of the date of the issuance of the building permit.

>5.3. PHASE I - DESIGN SERVICES

The Phase I - Design Services Scope of Work and Fee Schedule for the Project is attached hereto as Exhibit A. This Phase of the Agreement shall consist of the design and permitting of the Project.

CITY agrees to pay to Design-Builder an amount not to exceed $>Agreement Amount for completion of the above Phase I services.

COMMENCEMENT OF WORK AND NOTICES TO PROCEED

5.3.1. The Agreement Time shall commence on the notice to proceed date indicated in the

Notice to Proceed with Phase I - Design Services. Notice to Proceed with Phase I - Design Services shall be issued by the Project Manager within thirty (30) days after the City Commission has approved the Agreement and the Design-Builder has delivered to the CITY Insurance Certificates in accordance with the Agreement.

5.3.2. The Design-Builder shall begin the Work on the date the Agreement Time commences. No Work shall be performed by the Design-Builder or its Professionals, Subconsultants, or Subcontractors, and no irrevocable commitments to vendors shall be made, until issuance of Notice to Proceed with Phase I - Design Services, at which time DESIGN- BUILDER may commence to perform design services in accordance with the requirements of this Agreement.

5.3.3. A separate Notice to Proceed with Phase II - Construction Services shall be issued by the Project Manager upon receipt of the required Payment Bond and Performance Bond. In the absence of written authorization from the Project Manager, no construction Work shall be performed by the Design-Builder and no irrevocable commitments to vendors for Phase II related services shall be made until a separate Notice to Proceed with Phase II - Construction Services is issued by the Project Manager.

5.3.4. PRE-DESIGN CONFERENCE(S). Before the Notice to Proceed with Phase I - Design Services is issued, conference(s) shall be held for review and acceptance of Design-Builder's initial Submittals, to establish procedures for handling Submittals and processing Applications for Payment and Change Orders, and to establish a working understanding among the parties as to the Work.

5.3.5. PRECONSTRUCTION CONFERENCE(S). Prior to the Notice to Proceed with Construction being issued, conference(s) shall be held for review and acceptance of the Design-Builder's Critical Path Method (CPM) Schedule, Final Schedule of Values, personnel and Subcontractor list, to review mobilization requirements, to establish procedures for handling shop drawings and other Submittals and Applications for Payment, and to establish a working understanding among the parties as to the Work.

5.4. ASSUMPTION OF RISKS BY Design-Builder

5.4.1. Except as otherwise provided in this Agreement, Design-Builder shall have a duty to anticipate and provide adequate contingencies for risks associated with the Work for the Project.

Design-Builder shall take into consideration, and factor into its Project Schedule and GMP, all Site conditions and difficulties involved in the completion of the Work, the variations in permitting time frames, and the time frames available to CITY for reviewing deliverables, schedules, and

Applications for Payment. Given this duty, Design-Builder should not request additional compensation or time to complete, if delays and complicating factors should have reasonably been anticipated.

5.4.2. Design-Builder shall become familiar with and prepare for the continuing operations of the plants during the course of construction. Design-Builder's GMP and Project Schedule, and any subsequent approved revisions thereto, shall sufficiently anticipate and include work delays due to plant operations.

5.4.3. Design-Builder has ascertained such Site conditions as may be readily determined by inspection and inquiry, such as the location, accessibility and general character of the Site prior to executing this Agreement.

5.4.4. The Design-Builder assumes the risk for all costs associated with Site conditions which are foreseeable through the exercise of normal due diligence. It shall be the obligation of the Design- Builder to fully investigate the Site and provide sufficient contingency amounts for conditions which are foreseeable, and which may differ from those suggested by inspections and reports provided with the RFQ, or any addenda thereto. Provided, however, this Section is subject to the terms of Section "Design-Builder DUE DILIGENCE" below.

5.5. DESIGN-BUILDER'S DUTIES AND RESPONSIBILITIES

GENERAL DUTIES AND OBLIGATIONS OF Design-Builder RELATED TO ENTIRE WORK.

5.5.1. CITY has retained Design-Builder to provide the Work described herein. Since CITY has entrusted the Work to the Design-Builder, DESIGN- BUILDER shall use its professional expertise to protect the interest of the CITY at all times. The quality of Design-Builder's work shall be consistent with the requirements of this Agreement and with prevailing industry standards. Design-Builder shall ensure that its fees charged for the Work are fair, reasonable and consistent with fees charged locally for similar work.

5.5.2. COMPLY WITH ALL LAWS AND REGULATIONS. The Design-Builder shall give all notices and comply with all laws, ordinances, rules, and regulations applicable to the Work. If the Design- Builder observes that any part of the Agreement is contradictory to such laws, rules, and regulations, it shall notify the Project Manager promptly in writing. If the Design-Builder performs any work that it knows or should know to be contrary to such laws, ordinances, rules, and regulations, Design-Builder shall bear the cost for any such work performed.

5.5.3. FURNISH ALL WORK, LABOR AND MATERIALS. Design-Builder shall provide or cause to be provided all design and construction services, and shall furnish and pay for, all labor, materials, equipment, tools, construction equipment and machinery, appliances, transportation, heat, fuel, light, telephone, and sanitary utilities, and all other utilities, facilities, services, and incidentals necessary for providing, performing and completing the Work, whether temporary or permanent, incorporated or to be incorporated in the Work, and necessary for the execution, testing, initial operation, and completion of the Work.

5.5.4. Design-Builder understands and acknowledges that all documents and materials provided with the RFQ, and any addenda, are general and preliminary, and that Design-Builder shall not rely on the accuracy or completeness thereof. Design-Builder acknowledges that its duties hereunder shall not be excused or discharged in any respect based on the incompleteness or inaccuracy of any such documents or materials.

5.5.5. DUTY TO DESIGN AND CONSTRUCT WITHIN GMP. Design-Builder shall design and construct the Project within the GMP. If CITY requests the Design-Builder to revise or modify the Design-Build Documents at any time for compliance with the Agreement, then such requests shall not relieve the Design-Builder from its responsibility to deliver the Project within the GMP. In addition, Design- Builder shall monitor its costs during the design and construction of the Project and immediately advise the Project Manager of any deviations. Design-Builder shall submit a written explanation for such deviations, all of which are subject to CITY'S approval as set forth herein.

5.5.5.1 Should the Design-Builder produce Final Construction Documents which cause the total cost of the Project to exceed the GMP, said excess costs shall be born exclusively by the Design-Builder.

5.5.6. PERFORMANCE SPECIFICATIONS AND REQUIREMENTS FOR PROJECT. In developing and creating the Final Construction Documents and other Design-Build Documents and in performing the Work generally, Design-Builder shall, among other things:

5.5.6.1. Incorporate the requirements and criteria set forth in the RFQ and any modifications, revisions and addenda to any of them. However, notwithstanding the foregoing, inaccurate provisions of the RFQ, if any, shall not be incorporated into or considered a part of the Final Construction Documents, and

5.5.6.2. Comply with all governing laws, codes, regulations and ordinances of any governmental agency having or claiming to have jurisdiction over the Project; and

5.5.6.3. Develop in greater detail the intent of Design-Builder's RFQ Proposal, as submitted in response to the RFQ and as accepted by the CITY; and

5.5.6.4. lnclude all documents required for regulatory agency approvals.

5.5.7. ALTERNATIVE APPROACHES. Design-Builder shall review with the CITY alternative approaches to design and construction of the Project to save time and costs whenever possible.

5.5.8. PROGRESS REPORTS. During design and construction, Design-Builder shall keep CITY regularly advised of the progress and quality of all Work by providing Progress Reports every month in a form and content acceptable to Project Manager, advising CITY, among other things, of Design- Builder's adherence to or deviation from the Project Schedule. Design-Builder shall advise CITY of any and all identified causes for deviating from the Project Schedule as soon as those causes become evident.

5.5.8.1 Each monthly Progress Report shall include, but shall not be limited to, reports on:

(i) progress of Work during the previous thirty (30) days; the status of design, permitting, Site development and construction activities; an analysis of overall progress and budget compliance with cash flow analysis and an affirmation that deliverables will be on time and within the GMP; and an overall percentage of completion estimate;

(ii) if behind the Project Schedule, a proposed recovery plan;

(iii) list of problems and anticipated problems with corrective action planned or needed;

(iv) an outline of proposed activities and key tasks during the coming month in a "30 Day Look Ahead" schedule;

(v) any changes in personnel of the Design-Builder or of its Professionals, Subconsultants or Subcontractors;

(vi) results of any inspections, tests or Site visits;

(vii) any major deliveries of materials or large equipment, (also to be included in "30 Day Look Ahead" schedule); and

(viii) any other reasonable information covering Design-Builder's performance hereunder.

5.5.8.2. Each Progress Report shall be received by the CITY by the 10th day of the following month. If the 10th day falls on a Saturday or Sunday, the progress report must be received on the first Monday following the 10th day.

5.5.9. The Project Manager shall monitor Design-Builder's Work for compliance with Project standards and criteria, and may make recommendations and comments regarding the Work, solely for the protection of the CITY. However, DESIGN- BUILDER acknowledges that any such monitoring or recommendations by the Project Manager, or any failure of the Project Manager to monitor or make recommendations, shall not relieve the Design-Builder of any of its obligations under this Agreement. Any comments or suggestions to the Design-Builder by the Project Manager, if adopted and followed by the Design-Builder, shall not relieve the Design-Builder of its sole authority and responsibility for the adequacy and accuracy of its professional, design, development, management and/or construction services, in accordance with generally accepted architectural, engineering, development and/or construction practices, and this Agreement.

5.5.10. CUMULATIVE RESPONSIBILITIES, DUTIES AND OBLIGATIONS. The responsibilities, duties and obligations imposed upon Design-Builder by this Agreement, and the rights and remedies available to the CITY hereunder, shall be in addition to, and not a limitation of, any otherwise imposed or available by law, statute, regulation, code or ordinance.

5.5.11. Design-Builder'S PERSONNEL

5.5.11.1. Qualified Personnel. All professional and design services shall be performed by qualified engineers and other professionals selected and retained and paid by Design-Builder.

All professional and consulting services shall be performed by the Professionals and qualified subconsultants selected and paid and retained by Design-Builder. All construction services shall be performed by Design-Builder's qualified personnel or qualified Subcontractors selected and paid and retained by Design-Builder or by its Subcontractors. Design-Builder agrees, with respect to all Work to be provided and performed relating to professional services which, under Florida Statutes, require a license, certificate of authorization or other form of legal entitlement to practice such services, that it, its Subconsultants and Professionals shall employ and/or retain only personnel who are experienced, licensed, certified or otherwise legally entitled as aforesaid, to be responsible for all professional and consulting services to be provided pursuant to this Agreement.

5.5.11.2. Responsibility for Personnel's Performance. Design-Builder shall be responsible to the CITY for acts and omissions of Design-Builder and Design-Builder'S agents, employees, Professionals, Subconsultants, Subcontractors, and all other parties in privity of Agreement with Design-Builder and/or its Professionals, Subconsultants, or Subcontractors, which provide and/or perform any portion of the Work, including their agents and employees.

5.5.11.3. Design-Builder's Project Director. Design-Builder agrees to employ and designate, in writing, a qualified (and, if required by law, a licensed) Professional to serve as Design-Builder's Project Director, who shall be approved by the CITY. The Project Director shall be authorized and responsible to act on behalf of Design-Builder and shall have full authority to bind and obligate Design-Builder on any matter arising under this Agreement, unless substitute arrangements or individuals have been furnished to and approved by the CITY in writing. The Project Director shall be responsible for acting on Design-Builder's behalf to administer, coordinate and to interpret all aspects of the Work to be provided and performed under this Agreement and to otherwise manage the Agreementual provisions and requirements set forth in this Agreement, and all Change Order(s) issued hereunder. Design-Builder agrees that the Project Director shall devote whatever time is required to satisfactorily direct, supervise, coordinate and manage the Work provided and performed by Design-Builder under this Agreement.

5.5.11.4. Removal of Personnel. The Design-Builder shall not change any of those persons named in its Proposal unless mutually agreed to by the CITY and Design-Builder. In such case, the CITY shall have the right of approval of the qualifications of replacement personnel. Design- Builder agrees that, within fourteen (14) days of receipt of a written request from CITY, which is based upon grounds of nonperformance or illegal activity, to promptly remove and replace Design-Builder's Project Director, or any other personnel employed or retained by Design- Builder, or its Professionals, Subconsultants, or Subcontractors engaged by Design-Builder to provide and/or perform the Work, or any portion thereof. Any proposed substitution shall be subject to CITY'S prior written consent and said substitution shall be at no additional cost to the CITY. Notwithstanding the foregoing, nothing herein shall interfere nor be deemed to interfere with the right of Design-Builder, or its Professionals, Subconsultants, or Subcontractors to terminate its or their employees, or with any employee's employment or right to terminate his or her employment with DESIGN- BUILDER or its Professionals, Subconsultants, or Subcontractors. Design-Builder further agrees not to remove or reassign any members of its "Proposed Team" identified in its Proposal submitted in response to the RFQ during the term of this Agreement without first presenting explanations therefore and obtaining the CITY's prior written consent.

5.5.11.5. Adequate Staffing for Timely Accomplishment of Work. Design-Builder agrees to employ, engage, retain and/or assign an adequate number of personnel, and work additional shifts if necessary, throughout the period of this Agreement so that all Work will be provided, performed and completed in a timely and diligent manner in accordance with the Project Schedule and this Agreement.

5.5.12. PERMITS. Design-Builder agrees to prepare all applications and other supporting documentation and information necessary to submit for, and obtain all reviews, approvals, permits, licenses and inspections needed, with respect to the design, Site development and Work necessary for completion of the Project, including the Final Construction Documents and further agrees to secure said reviews, approvals, permits, licenses and inspections. Any fees required to be paid for such reviews, approvals, permits, licenses or inspections shall be paid by CITY to each respective governmental agency. All CITY impact fees and sewer capacity fees shall be paid for by the CITY.

Design-Builder shall be similarly responsible for preparing all required applications and other required and supporting documentation and information necessary to submit and obtain any renewals and/or extensions of reviews, approvals, permits, licenses or inspections that may be required while this Agreement is in effect.

5.5.13. COORDINATION. Design-Builder shall be responsible for the management, coordination and supervision of all design, permitting, and construction means, methods, techniques, sequences and procedures for completion of the Work.

5.5.14. TESTS AND INSPECTIONS. Design-Builder shall procure and furnish, at its sole cost and expense, all required tests and inspections for the Project, including but not limited to, structural, mechanical, chemical, electrical, geotechnical, construction, materials and other laboratory or on- Site tests, inspections and reports obtained and necessary for completion of design and construction. Such testing services shall be provided by qualified testing subconsultants independent of Design-Builder and acceptable to the CITY. A testing program meeting the requirements for all Construction Work shall be clearly described in the Final Construction Documents.

5.5.14.1 If the Agreement or laws, ordinances, rules, regulations or orders of any public authority having jurisdiction require any Work to specifically be inspected, tested, or approved by someone other than the Design-Builder, the Design-Builder shall coordinate and secure same.

5.5.14.2 Design-Builder shall furnish the Project Manager with all test and inspection reports regardless of who ordered or the reason. For all inspections, tests, and approvals on any Work prepared, performed, or assembled away from the Site, the Design-Builder shall furnish the Project Manager with the required certificates of inspection, testing, or approval. All tests will be in accordance with the methods prescribed by the American Society for Testing and Materials (ASTM) or such other organization(s) as may be appropriate to the particular requirement of the law or the Agreement.

5.5.14.3 The CITY will be responsible for obtaining independent testing of materials. The CITY may at any time, at its option, obtain independent testing and inspections of the Work or any portion thereof. In such event, the Design-Builder shall provide 48-hours' notice to the Project Manager of readiness of the Work to be so tested and/or inspected and shall provide the testing agency prompt and full access to the Work. If the CITY's independent testing and inspection indicates materials or Work in place that fail to pass acceptability tests, then Design-Builder shall correct such materials or Work until acceptable test results are obtained. The costs to correct said materials or Work, as well as the costs of all such failed tests and re-tests, shall be borne solely by the Design-Builder.

5.5.14.4 Neither observations by the Project Manager nor inspections, tests, or approvals by persons other than the Design-Builder shall relieve the Design-Builder of its obligations to perform the Work in accordance with the requirements of the Agreement.

5.5.15. UNCOVERING THE WORK

5.5.15.1 If any Work required to be inspected, tested or approved is covered contrary to the request of the Project Manager, the Work shall, if requested by the Project Manager, be uncovered for observation, inspection, testing or approval and replaced at the Design-Builder's expense.

5.5.15.2 If any Work has been covered in accordance with the Final Construction Documents which the Project Manager has not specifically requested to observe, and if the Project Manager considers it necessary or advisable that the covered Work be inspected or tested by others, the Design-Builder, upon written request of the Project Manager, shall uncover, expose, or otherwise make available for observation, inspection, or testing that portion of the Work in question, furnishing all necessary labor, material, and equipment. If it is found that such Work is Defective, the Design-Builder shall bear the expense of such uncovering, exposure, observation, inspection, testing, and satisfactory reconstruction. If, however, such Work is not found to be Defective, the Design-Builder may be allowed an adjustment in the GMP or an extension of the Agreement Time, or both, directly attributable to such uncovering, exposure, observation, inspection, testing, and reconstruction, if it makes a claim in accordance with the requirements of this Agreement.

5.5.16. PATENT FEES AND ROYALTIES. The Design-Builder shall pay all license fees and royalties and assume all costs associated with any invention, design, process, or device which is the subject of patent rights or copyrights held by others and is necessary for completion of the Work required by this Agreement.

5.5.17. PROTECTION OF PERSONS AND PROPERTY

5.5.17.1 Design-Builder shall be solely responsible for initiating, maintaining and providing supervision of safety precautions and programs in connection with the Work. Design-Builder shall take precautions for the safety of, and shall provide reasonable protection to prevent damage, injury, or loss to:

(i) employees of the Design-Builder and its Professionals, Subconsultants, and Subcontractors, and any other persons on or about the Site, including but not limited to agents, employees and independent Design-Builders of CITY, and of any other governmental authority or agency;

(ii) the Work and the Project, including any and all materials and equipment to be incorporated therein; and

(iii) other property at or adjacent to the Site, or any portion thereof.

5.5.17.2 Reserved.

5.5.17.3 The Design-Builder shall comply with all applicable laws, ordinances, rules, regulations, and orders of any public body having jurisdiction for the safety of persons or property Design-Builder shall erect and maintain, as required by the conditions and progress of the Work, all necessary safeguards for safety and protection. Design-Builder shall notify owners of adjacent property and utilities when execution of Work may affect them prior to start of Work.

All damage, injury, or loss to any property caused directly or indirectly, in whole or in part, by the Design-Builder, any Subcontractors, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, shall be remedied by the Design-Builder.

5.5.17.4 Reserved.

5.5.17.5 The Design-Builder shall designate a responsible member of its organization whose duty shall be the prevention of accidents at the Site. During construction, this person shall be the Design-Builder's on-site superintendent unless otherwise designated in writing by the Design-Builder to the Project Manager.

5.5.17.6 The Design-Builder shall immediately notify the Project Manager of all events involving personal injuries to any person on the Site, whether or not such person was engaged in the construction of the Project, or resulting in property damage of any amount, and shall file a written report on such injury or property damage with the Project Manager within five (5) days of the occurrence.

5.5.17.7 In emergencies affecting the safety of persons, the Work, or property at the Site or adjacent thereto, the Design-Builder, is obligated to prevent or mitigate threatened damage, injury, or loss. Design-Builder shall give the Project Manager written notice of the emergency situation and actions taken within 24 hours of the incident.

5.5.18. SECURITY. During Construction Work and through the Substantial Completion date, Design- Builder shall be responsible for keeping the Site and the Project, as well as all materials located on or off the Site, secure from damage or theft. Design-Builder agrees to repair any damage to the Site or the Project and to replace any materials damaged, lost or stolen from the Site or Project at its sole expense.

5.5.19. SUBSTITUTE MATERIALS AND EQUIPMENT. If the Design-Builder wishes to furnish or use a proposed substitute of materials or equipment after the GMP has been established, it shall make written application to the Project…