Contract-Design_Build.pdf

DESIGN-BUILD AGREEMENT

THE CITY OF FORT MYERS

And

For the project known as

1. WITNESSETH

This Design-Build Contract (“Contract”) is made and entered into this day of Tuesday, February 13, 2024 by and between THE CITY OF FORT MYERS hereinafter called CITY) and *** (hereinafter called Contractor).

City and Contractor, 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 profession engineering design and construction services;

WHEREAS, the DESIGN-BUILDER has reviewed *** 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 contract 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 Contractor hereby certifies that Contractor 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 Contractor 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 Contract shall exist between both parties consisting of:

2. INCORPORATION OF RECITALS

2.1. RECITALS

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

2.2. ORDER OF PRECEDENCE

***, including all addenda, answers to questions, the submitted response of the Design-Builder is hereby specifically made a part of this Contract as if the same had been set forth at length herein.

Unless addressed in ENTIRE CONTRACT/PRECEDENCE below, in the event of any conflict between the documents constituting this Contract, the documents shall be given precedence in the following order:

1) Permits from Agencies as required by law;

2) Change Orders;

3) This Contract;

4) Any Exhibits attached hereto;

5) Construction Plans;

6) *** and any addenda thereto; and

7) The Proposal submitted by DESIGN-BUILDER.

3. DEFINITIONS

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

Contract. Contract means 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.

Application for Payment. Application for Payment means 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 Contract.

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 Contract.

Change Order. Change Order shall mean a written order authorizing an addition, deletion, or revision in the Work or an adjustment in the Guaranteed Maximum Price or the Contract Time issued after execution of the Contract.

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

Contract Time. Contract Time means the number of calendar days stated in the Contract for completion of the Construction Phase of Work as amended by approved

Change Order(s). The commencement date of the Contract Time shall be the Notice to Proceed Date shown in the Notice to Proceed with Phase I.

Cost of the Work or Cost of Work means the direct or indirect field costs to perform the Services, which DESIGN-BUILDER must necessarily incur to properly perform in strict compliance with the Contract 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 Contract, measured from midnight to the next midnight.

Defective. Defective is 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 Contract.

Design-Build Documents. Design-Build Documents means 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. Design-Build Fee is 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.

Engineer of Record. Engineer of Record means CDM Smith. Engineer of Record is also included in the definition of "Professional" below.

Equal/Equivalent. Equal or Equivalent means 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. Final Completion means 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. Final Construction Documents means 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 Contract; 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). Guaranteed Maximum Price means 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 Contract.

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, means 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 Contract. 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 Contract 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. Project means the design and construction of the Westside Regional Water Reclamation Facility In-Plant Pump Station and Headworks Design-Build Project 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 Contract. 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 Contract 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 Contract in any respect.

Project Schedule. The Project Schedule means 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 Contract 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 Contract.

Punch List. Punch List means 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. Site shall mean 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. Subconsultant means 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 contract 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 Contract. Each Subconsultant shall possess all applicable valid and current trade licenses and all licenses necessary for the performance of the Work.

Subcontractor. Subcontractor means any person, firm or entity providing services, other than professional or consulting services which has a direct contract 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 Contract.

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

Submittals. Submittals mean 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. Substantial Completion means 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 Contract.

Substitution. Substitution means 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. Work means any and all authorized and approved work, materials supplies, tools, fixtures, labor, services, equipment, design, professional, construction management and contract 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 Contract.

4. PRELIMINARY MATTERS/NOTICES TO PROCEED/ASSUMPTION OF RISKS BY DESIGN-

BUILDER

4.1. ENTIRE CONTRACT/PRECEDENCE

The Contract consists of this document executed by the parties and any and all documents referenced herein and Attachments and Exhibits attached hereto as well as all Change Orders and Amendments. It is the intent of the Contract to describe the total Work. The documents of the Contract are complementary;

what is called for by one is as binding as if called for by all. If the DESIGN-BUILDER finds a conflict, error or discrepancy within this Contract regarding the Work or other documents of the RFQ, or between any of them, the DESIGN- BUILDER shall promptly notify the Project Manager in writing upon discovery of such conflict, error or discrepancy. In resolving such conflicts, errors, and discrepancies, the documents shall be given precedence in terms of the most stringent requirements as determined by the CITY and agreed to by all parties. Enforcement of the most stringent requirements shall be at the CITY'S option.

Any Work that may reasonably be inferred from the Contract as being required to produce the intended result shall be supplied whether or not it is specifically called for. Work, materials, or equipment described in words which, so applied, have a well-known technical or trade meaning shall be deemed to have such recognized meaning.

4.2. 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 Contract at a later date.

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.

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.

4.3. 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 Contract shall consist of the design and permitting of the Project. CITY agrees to pay to DESIGN-BUILDER an amount not to exceed $100,000.00 for completion of the above Phase I services.

4.4. COMMENCEMENT OF WORK AND NOTICES TO PROCEED

1. The Contract 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 contract and the DESIGN-BUILDER has delivered to the CITY Insurance Certificates in accordance with the Contract.

2. The DESIGN-BUILDER shall begin the Work on the date the Contract 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 Contract.

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.

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. 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.

4.5. ASSUMPTION OF RISKS BY DESIGN-BUILDER

1. Except as otherwise provided in this Contract, 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.

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.

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 Contract.

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. DESIGN-BUILDER'S DUTIES AND RESPONSIBILITIES

5.1. GENERAL DUTIES AND OBLIGATIONS OF DESIGN-BUILDER RELATED TO ENTIRE WORK.

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 Contract 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.

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 Contract 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.

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.

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. 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 Contract, 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.

5.1 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.

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:

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

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

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

6.4. lnclude all documents required for regulatory agency approvals.

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.

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.

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.

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.

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 Contract. 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 Contract.

10. CUMULATIVE RESPONSIBILITIES, DUTIES AND OBLIGATIONS. The responsibilities, duties and obligations imposed upon DESIGN-BUILDER by this Contract, 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.

11. DESIGN-BUILDER'S PERSONNEL

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 Contract.

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 Contract 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.

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 Contract, 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 Contract and to otherwise manage the contractual provisions and requirements set forth in this Contract, 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 Contract.

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 Contract without first presenting explanations therefore and obtaining the CITY's prior written consent.

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 Contract so that all Work will be provided, performed and completed in a timely and diligent manner in accordance with the Project Schedule and this Contract.

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 Contract is in effect.

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.

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.

14.1 If the Contract 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.

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 Contract.

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.

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 Contract.

15. UNCOVERING THE WORK

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.

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 Contract 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 Contract.

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 Contract.

17. PROTECTION OF PERSONS AND PROPERTY

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 contractors 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.

17.2 Reserved.

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.

17.4 Reserved.

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.

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.

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.

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.

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 Manager for consideration of such substitute. Requests for substitutions shall be subject to review and approval by CITY and the Project Manager. No substitute shall be incorporated into the Design-Build Documents or ordered or installed without the prior written approval from the Project Manager. In addition to the information described below, the application shall contain an itemized estimate of all costs or credits that may result directly or indirectly from acceptance of such substitute, including costs of redesign, delays and maintenance all of which shall be considered by the Project Manager in evaluating the proposed substitute. Approval of any change in costs as a result of acceptance of the substitute by the Project Manager shall be by adjustment within the GMP or by Change Order.

19.1 All applications for substitution by the DESIGN-BUILDER shall be reviewed and approved by the Engineer of Record prior to its submittal to the Project Manager.

19.2 For proposed substitutions during construction, the DESIGN-BUILDER and Engineer of Record shall certify in writing that the proposed substitute will perform the duties imposed by the Final Construction Documents and shall be equal or equivalent to that specified.

20. USE OF THE SITE

20.1 The DESIGN-BUILDER shall confine its equipment, the storage of materials and equipment, and the operations of its workers to the areas permitted by law, ordinances, permits, or the requirements of the Contract. The DESIGN-BUILDER shall not unreasonably encumber the Site with materials and equipment. Any loss or damage to any equipment or materials of DESIGN- BUILDER or any Subcontractor is solely at the risk of the DESIGN-BUILDER.

20.2 The DESIGN-BUILDER shall not load or permit any part of any structure to be loaded in any manner that will endanger the structure. The DESIGN-BUILDER shall not subject any part of the Project or adjacent property to stresses or pressures that will endanger them. Prior to beginning Work on the Project, DESIGN-BUILDER shall supply to the Project Manager a list of all employees, Subcontractors, and Subconsultants who will be working on the Site and shall state the anticipated duration of each individual's Work on the Site. DESIGN-BUILDER shall update this list from time to time, as necessary, to reflect any changes to the list during the course of the Work. DESIGN- BUILDER shall be responsible for securing the Site prior to departure each day.

21 SUBMITTALS AND SAMPLES

21.1 The DESIGN-BUILDER shall provide Submittals at a time sufficiently early enough to allow review, and to accommodate the rate of construction progress as indicated in the Project Schedule.

21.2 After checking and verifying all field measurements, the DESIGN-BUILDER shall stamp with verification approval and promptly submit to the Project Manager for review, who shall review and either reject or provide stamped approval of all Submittals and samples required by the Contract.

The DESIGN-BUILDER shall stamp the Submittal to certify in writing that the Submittal will perform the duties imposed by the Final Construction Documents. If rejected by the Project Manager, the Submittal shall be corrected, with the revisions to the former Submittal highlighted prior to resubmittal. The Project Manager shall review the resubmittal and either reject or provide stamped approval. The data shown on or with the Submittals shall be complete with respect to dimensions, materials and any other information necessary to enable the Project Manager to review the Submittal as required. At the time of each submission, the DESIGN-BUILDER shall give notice to the Project Manager of all deviations that the Submittal or sample may have from the requirements of the Contract.

21.3 The Project Manager will review and either approve or reject each Submittal and sample. The Project Manager's approval will not relieve the DESIGN-BUILDER of its responsibility for any deviations from the requirements of the Final Construction Documents. The approval of a separate item as such will not indicate approval of the assembly in which the item functions. The DESIGN- BUILDER shall make any corrections required by the Project Manager and resubmit the required number of corrected copies until approved. Except as otherwise provided within the Contract, the Project Manager will return prints of each Submittal to the DESIGN-BUILDER, with comments noted thereon, within 14 days following their receipt by the Project Manager.

21.4 The Project Manager shall review and either approve or reject all Submittals and samples.

The Project Manager's approval shall not relieve the DESIGN-BUILDER of its responsibility to secure separate approvals of applicable Professional(s), or for any deviations from the requirements of the Final Construction Documents.

21.5 No Work requiring a Submittal or sample submission shall commence until the submission has been approved by the Project Manager. Rejection of Submittals by the Project Manager shall not relieve the DESIGN-BUILDER of its responsibility to meet the milestones within the Project Schedule. A copy of each approved Submittal and each approved sample shall be kept in good order by the DESIGN-BUILDER at the Site and shall be available to the Project Manager.

21.6 To facilitate review, the DESIGN-BUILDER shall number consecutively each Submittal. This numbering system shall be in order of Submittal. Any resubmittal required shall have the same number as the original Submittal followed by a notation signifying that this is a second or third Submittal (e.g. #14 2nd Submittal). All Submittals shall provide a space for the DESIGN-BUILDER's and Project Manager's review stamp, preferably on the first page. The review of a particular Submittal will be undertaken only if the proper form is attached.

22. WORK BY OTHERS

22.1 The CITY may perform additional work related to the Project with its own forces or may authorize additional work by others directly contracting with DESIGN-BUILDER. The DESIGN- BUILDER shall provide the other contractors who are parties to such direct contracts, including, but not limited to, the other contractor's employees, agents, subcontractors, and suppliers (or the CITY's forces performing the additional Work),…