Draft_Agreement.pdf

FIXED PRICE

DESIGN AND CONSTRUCTION AGREEMENT

BETWEEN CITY AND DESIGN BUILDER

This FIXED PRICE DESIGN AND CONSTRUCTION AGREEMENT BETWEEN CITY AND DESIGN BUILDER (the “Agreement”) is made and entered into by and between the City of Plant City, a Florida Municipal Corporation (the “City”) and ____________________________________________________ (the “Design Builder”). This Agreement is executed under seal and shall be effective on _______________ (“Effective Date”).

This Agreement is for the design and construction of a project identified as: Playground and Fully Automated Splash Pad System (the “Project”).

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, City and Design Builder agree as follows:

ARTICLE 1

THE CONTRACT AND THE CONTRACT DOCUMENTS

(A) The Contract: The Contract between Design Builder and City, of which this Agreement is a part, consists of the Contract Documents. The Contract shall be effective on the date this Agreement is effective.

(B) The Contract Documents: The Contract Documents consist of this Agreement, the Design Scope Specification, all Design Documents hereafter prepared by Design Builder and approved by City in accordance with this Agreement, Change Orders and Field Orders issued hereafter, any other written amendments executed by City and Design Builder, as well as the following (if any): Request for Proposal #24-025RC-JR-RFQ, and any addenda thereto, including Project Summary, Scope of Services, Specifications, and Requirements, Respondent Responsibilities, Conceptual Examples 1-7, and Payment and Performance Bond, all of which are hereby incorporated herein by reference and made a part hereof. Notwithstanding, no deviations in the Design Builder’s Executed Proposal from the City’s Request for Proposals or other Contract documents prepared by the City shall be incorporated herein unless expressly provided for in this Contract. Any conflict with the Design Builder’s Proposal and the Request for Proposals and other contract documents prepared by the City shall be construed in favor of the Contract Documents prepared by the City.

(C) Enumerated Documents Form Entire Contract: Documents not specifically enumerated in Paragraph 1 (B) of this Agreement are not Contract Documents.

(D) Complete Agreement: The Contract, together with Design Builder's and Surety's payment and performance bond for the Project, if any, constitute the entire and exclusive agreements between City and Design Builder with reference to the Project. The Contract supersedes any and all prior documents, discussions, communications, representations, understandings, negotiations or agreements by and between the parties.

(E) Contract Interpreted as A Whole: The Contract is intended to be an integral whole and shall be interpreted as internally consistent. Work required by any page, part, or portion of the Contract shall be required.

(F) Provision Of All Things Required: Anything that may be required, implied or inferred by the Contract Documents which make up this Contract, or any one or more of them, shall be provided by Design Builder for the Contract Price.

(G) Privity Only With Design Builder: Nothing contained in the Contract shall create, nor be interpreted to create, privity or any other relationship whatsoever between City and any person except Design Builder.

(H) Agreed Interpretation Of Contract Terms: When a word, term, or phrase is used in this Contract, it shall be interpreted or construed first, as defined herein; second, if not defined, according to its generally accepted meaning in the construction industry; and third, if there is no generally accepted meaning in the construction industry, according to its common and customary usage. Headings are used herein solely for convenience.

(I) Term “Include” Intended To Be Encompassing: “Include”, “includes”, or “including”, as used in the Contract, shall be deemed in all cases to be followed by the phrase, “without limitation”.

(J) Use Of Singular And Plural: Words or terms used as nouns in the Contract shall be inclusive of their singular and plural forms, unless the context of their usage clearly requires a contrary meaning.

(K) Definition Of Material Breaches Not Exhaustive: The specification herein of any act, failure, refusal, omission, event, occurrence or condition as constituting a material breach of the Contract shall not imply that any other, non-specified act, failure, refusal, omission, event, occurrence or condition shall be deemed not to constitute a material breach of the Contract.

(L) Order Of Precedence: In the event of any conflict, discrepancy, or inconsistency among any of the Contract Documents which make up this Contract, the following shall control:

(1) As between figures given on plans and scaled measurements, the figures shall govern;

(2) As between large scale plans and small scale plans, the large scale plans

(3) As between plans and specifications, the requirements of the specifications

(4) As between this document and the plans or specifications, this document shall govern.

ARTICLE 2

DESIGN BUILDER'S REPRESENTATIONS

(A) Specific Representations: In order to induce City to execute this Agreement and recognizing that City is relying thereon, Design Builder, by executing this Agreement, and without superseding, limiting, or restricting any other representation or warranty set forth elsewhere in this Agreement or the Contract, or implied by operation of law, makes the following express representations to City:

(1) Design Builder is professionally and fully qualified to act as the design professional and the general contractor for the Project and is, and will remain, licensed to practice engineering and architecture and general contracting by all public entities having jurisdiction over Design Builder or the Project;

(2) Design Builder will maintain all necessary licenses, permits or other authorizations necessary to act as Design Builder for the Project until Design Builder's duties hereunder have been fully satisfied;

(3) Design Builder has the expertise, experience, and knowledge as well as the necessary plant, personnel and financial capability to perform the Design Services and the Work in accordance with the terms of the Contract;

(4) Prior to the execution of this Agreement, Design Builder has visited and inspected the Project site and the local conditions under which the Project is to be designed, constructed and operated, and Design Builder has performed such tests, if any, as are necessary to determine the conditions under which the Work will be performed, and Design Builder accepts the conditions of the Work site and has taken those conditions into account in entering into the Contract; and

(5) Design Builder assumes full responsibility to City for the improper acts and omissions of its Subcontractors or others employed or retained by Design Builder in connection with the Project.

ARTICLE 3

REGULATORY GUIDELINES, REQUIREMENTS AND STANDARDS

(A) Generally: Design Builder shall perform all Design Services described in, contemplated by, inferable from, or necessary or desirable to achieve the objectives stated in the Design Scope Specification and the Contract, including all Design Services necessary for the Project to be properly constructed by Design Builder and used, operated and maintained by City in accordance with all applicable guidelines, requirements and standards.

“Design Services” means any and all architectural, engineering and design services required to be performed by Design Builder pursuant to the Contract and all labor, materials, supervision, equipment, computers, documents, and all other things necessary for the performance of such services. “Design Scope Specification” means the document prepared by City which specifies the general scope of the Design Services to be performed by Design Builder under the Contract, a copy of which is attached hereto as Exhibit “B” and is incorporated herein by reference. The Design Services shall be performed within the time provided by the Design Schedule for the performance of Design Builder's Design Services as provided in Paragraph 3(H) of this Agreement.

(B) City’s Review Of Design Services: Subject to Paragraph 13(G) of this Agreement, Design Builder shall submit all documents produced as part of the Design Services to City's Representative for review and approval in accordance with the terms of the Contract.

However, any such review or approval by City or City’s Representative shall not relieve Design Builder of or otherwise diminish its obligations under the Contract. City may direct Design Builder to make changes to any such documents in order to conform such documents to City’s objectives. Any such changes by Design Builder ordered by City shall not relieve Design Builder of its obligations hereunder unless, and only to the extent that, Design Builder notifies City in writing within seven (7) days of receipt of City’s directive to make such changes of any adverse impact on schedules, budgets, operational costs, operational performance, satisfaction of regulatory requirements, or other adverse impact that may result from such changes. Failure of Design Builder to submit its notice within said seven (7) day period shall constitute a waiver by Design Builder of any claim for an adjustment to the Contract Price, the Design Schedule, or the Contract Time.

(C) Preparation Of Site Information: Design Builder shall prepare, as necessary, surveys and topographic information including aerial photographs needed to establish line and grade of utility pipelines, location of property lines and easements. Utility easements, both construction and permanent, shall be referenced to property lines by field surveys, and plans shall include the location of any improvement as it relates to property lines.

(D) Retention Of Geotechnical Consultants: In preparing the Design Documents, Design Builder shall retain an experienced, qualified geotechnical consultant to evaluate all geotechnical considerations relating to the design and construction of the Project. Design Builder shall be responsible for designing the Project in accordance with the analyses and recommendations of its geotechnical consultant.

(E) Quality Of Design Services: Design Builder shall be responsible for the professional quality, completeness, accuracy, and coordination of Design Documents. Design Builder shall provide Design Services that will result in an operationally cost-efficient and economical facility that meets all environmental and regulatory requirements as of the date hereof, and uses the most appropriate available technology. Design Builder shall provide for all testing and inspections required by sound professional architectural and engineering practices and by governmental authorities having jurisdiction over the Project.

(F) Compliance With Laws And Regulatory Requirements: In providing Design Services, Design Builder shall comply with the lawful requirements of all federal, state, and local authorities having lawful jurisdiction over the Project. Design Builder shall design the Project to meet all applicable requirements of building control laws and regulations in relation to the design, construction, occupation, and operation of the Project, including, without limitation, environmental standards, fire and safety regulations, and requirements and compliance with all other applicable standards and codes.

(G) Duty To Correct Errors: Design Builder shall, without additional compensation, immediately correct any errors, omissions or deficiencies in its Design Services and Design Documents.

(H) Schedule Of Design Services: Design Builder shall submit for City's approval the Design Schedule for the performance of Design Builder’s Design Services which shall include allowance for reasonable time required for City’s review of submissions and for approvals of authorities having jurisdiction over the Project. The Design Schedule, when approved by City, shall not, except for good cause, be exceeded by Design Builder. Should Design Builder at any time during the course of performing the Contract, have any reason to believe that it will be unable to meet any completion date in accordance with the Design Schedule, it shall immediately notify City’s Representative in writing. In such notice, Design Builder shall state the reason for the delay including the party responsible, if any, and the steps being taken to remedy or minimize the impact of the delay. Failure of Design Builder to submit such notice shall constitute a waiver by Design Builder of any claim for an adjustment to the Contract Price, the Design Schedule, or the Contract Time. All extensions of time shall be governed by Articles 16 and 17 of this Agreement. Subject to the provisions of Paragraph 13(G) of this Agreement, City shall review and approve, where appropriate, the Design Schedule, or any portion thereof.

ARTICLE 4

PRELIMINARY CONSULTATION AND PROJECT ANALYSIS

(A) Determining The Project Objectives: Prior to the preparation of the Preliminary Design as required by Article 5 below, Design Builder shall first consult in detail with City, and shall carefully analyze any information furnished by City concerning requirements of the Project, including but not limited to, any design, construction, scheduling, budgetary or operational requirements, limitations, and objectives, as well as the Design Scope Specification.

(B) Report On Project Requirements And Objectives: Based on its study and analysis, and no later than ten (10) days after the effective date of the Contract, Design Builder shall prepare and submit to City a written report detailing Design Builder’s understanding and analysis of the Project requirements and identifying any design, construction, scheduling, budgetary, operational, or other problems which may result from said requirements. The written report of Design Builder shall also include proposed solutions, including design alternatives if appropriate, addressing each of the identified problems. Design Builder shall review such report with City and shall implement such changes as City may require as provided in Paragraph 3(B) of this Agreement.

ARTICLE 5

PRELIMINARY DESIGN

(A) Time For Preliminary Design: Not later than ________ days after reviewing with City the written report required by Paragraph 4(B) above (if the foregoing blank not filled in, then within a reasonable time so as not to delay Substantial Completion), Design Builder shall prepare and submit to City a Preliminary Design for the Project.

(B) Contents Of Preliminary Design: The Preliminary Design shall address all requirements of the Project and shall include, without limitation, the following:

(1) Preliminary drawings which illustrate each of the basic components of the Project including the size, scale, location, dimensions, and character of each building structure;

(2) Preliminary drawings which illustrate each exterior view of the Project;

(3) Preliminary drawings which illustrate a floor plan for each room, office, and functional area of the Project and the dimensions thereof;

(4) Preliminary drawings and specifications illustrating and describing the architectural, electrical, mechanical, structural, and manufacturing systems of the Project;

(5) A written description of the materials and equipment to be incorporated into the Project and the location of same;

(6) Any other documents or things required to illustrate, describe or depict the Preliminary Design and the conformity of same with the requirements of the Design Scope Specification and the Contract.

(C) To Be Reviewed With City: Design Builder shall review with City the Preliminary Design and shall incorporate any changes ordered by City with respect to said Preliminary Design or with respect to the requirements of the Project.

(D) Authorization To Proceed With Detailed Design: After review of the Preliminary Design and incorporation of any changes ordered by City, City shall authorize Design Builder in writing to commence preparing the Detailed Design, or such part thereof as directed by City.

ARTICLE 6

DETAILED DESIGN

(A) Time For Preparation: Not later than ninety (90) days after City has authorized Design Builder to commence with the Detailed Design as provided in Paragraph 5(D) above (if the foregoing blank not filled in, then within a reasonable time so as not to delay Substantial Completion), Design Builder shall prepare and submit to City the complete Detailed Design.

(B) The Detailed Design: The Detailed Design shall include all Design Documents which shall describe with specificity all elements, details, components, materials, and other information necessary for the complete construction of the Project and the rendering of the Project fully operational for its intended purposes, including satisfaction of all testing, permitting, qualifications, certifications, validations, and obtaining regulatory approvals by all applicable regulatory authorities required to render the Project and all its components operational and functionally and legally usable for their intended purpose. Subject to the provisions of Paragraph 13(G) of this Agreement, City shall review and approve, where appropriate, the Design Documents, or any portion thereof.

(C) Design Documents: “Design Documents” means all the design documents provided by Design Builder and approved by City pursuant to the Contract including, without limitation, those for use in constructing the Project, performing the Work, and the rendering of the Project fully operational, and shall include, without limitation, detailed plans, drawings, specifications, manuals, and related materials prepared by or on behalf of Design Builder.

(D) Review by City: Design Builder shall review with City the Design Documents at the 50%, 90% and 100% completion levels. Design Builder shall address all City comments and concerns expressed by the City during the reviews before proceeding to the next level of design. All changes required shall be incorporated into the Design Documents and documents shall be re-submitted to the City.

ARTICLE 7

CONSTRUCTION SERVICES

(A) General Intent: Design Builder shall perform all Work necessary to construct the Project in accordance with the Contract and to render the Project and all its components operational and functionally and legally usable for their intended purpose.

(B) Work Defined: The term “Work” shall mean whatever is done by or required of Design Builder to perform and complete its duties relating to the construction of the Project under the Contract, including, without limitation, the following:

(1) Construction of the whole and all parts of the Project in full and strict conformity with the Contract;

(2) The provision and furnishing, and prompt payment therefor, of all labor, supervision, services, materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage, power, fuel, heat, light, cooling, other utilities and things required for the construction of the Project;

(3) The procurement and furnishing of all necessary building permits and other permits required for the construction of the Project;

(4) The creation and submission to City of detailed as-built drawings depicting all as-built construction;

(5) The furnishing of the payment and performance bond and insurance as required by the Contract;

(6) The furnishing of all equipment and product warranties, manuals, test results and user guides required by the Contract or otherwise reasonably available to Design Builder;

(7) The furnishing of all other services and things required or reasonably inferable from the Contract Documents, including the provisions of Article 9 below.

ARTICLE 8

TIME FOR CONSTRUCTION: THE CONTRACT TIME

(A) Notice Of Commencement: After City has approved the Design Documents for the Detailed Design, City shall issue a notice to commence the Work directing Design Builder to proceed with the Work on the date indicated in the notice (the “Commencement Date”). The notice to commence Work shall be issued at least ten (10) days prior to the Commencement Date.

(B) Time For Completion: Design Builder shall commence the Work on the Commencement Date, and the Work shall be carried out regularly and without interruption.

Design Builder shall substantially complete the Work not later than 270 calendar days after City’s written Notice to Proceed or such other date as may by Change Order be designated (the “Scheduled Completion Date”). The number of calendar days between the effective date of the Contract and the Scheduled Completion Date is the “Contract Time”. Design Builder shall achieve Final Completion of the Work no later than thirty (30) calendar days (a) after achieving Substantial Completion, or (b) the City’s delivery to the Design Builder the final punch list described herein; whichever is later.

(C) Liquidated Damages For Delay In Substantial Completion: Design Builder shall pay City the sum of ________________ Dollars ($_________) per day for each and every calendar day of unexcused delay in achieving Substantial Completion beyond the Scheduled Completion Date. Any sums due and payable hereunder by Design Builder shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by City, estimated at the time of executing this Agreement. Such liquidated damages shall apply regardless of whether Design Builder has been terminated by City prior to Substantial Completion so long as Design Builder's actions or inactions contributed to the delay. Such liquidated damages shall be in addition to and not in preclusion of the recovery of actual damages resulting from other defects in Design Builder's performance hereunder for matters other than delays in Substantial Completion. When City reasonably believes that Substantial Completion will be unexcusably delayed, City shall be entitled, but not required, to withhold from any amounts otherwise due to Design Builder an amount then believed by City to be adequate to recover liquidated damages applicable to such delays. If and when Design Builder overcomes the delay in achieving Substantial Completion, or any part thereof, for which City has withheld payment, City shall promptly release to Design Builder those funds withheld, but no longer applicable as liquidated damages.

(D) Liquidated Damages For Delay In Final Completion: If Design Builder fails to achieve Final Completion within 30 days of (i) the date of Substantial Completion or (ii) the City’s delivery to the Design Builder of the punch list described in Article 12(B), whichever is later, the Design Builder shall pay City the sum of ______________ Dollars ($___________) per day for each and every calendar day of unexcused delay in achieving Final Completion beyond the date set forth herein for Final Completion of the Work. Any sums due and payable hereunder by Design Builder shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by City, estimated at the time of executing this Agreement. Such liquidated damages shall apply regardless of whether Design Builder has been terminated by City prior to Final Completion so long as Design Builder’s actions or inactions contributed to the delay. Such liquidated damages shall be in addition to and not in preclusion of the recovery of actual damages resulting from other defects in Design Builder’s performance hereunder for matters other than delays in Final Completion. When City reasonably believes that Final Completion will be unexcusably delayed, City shall be entitled, but not required, to withhold from any amounts otherwise due to Design Builder an amount then believed by City to be adequate to recover liquidated damages applicable to such delays. If and when Design Builder overcomes the delay in achieving Final Completion, or any part thereof, for which City has withheld payment, City shall promptly release to Design Builder those funds withheld, but no longer applicable as liquidated damages.

(E) Time Is Of The Essence: All limitations of time set forth herein are material and time is of the essence of the Contract.

ARTICLE 9

ADDITIONAL DUTIES AND RESPONSIBILITIES OF DESIGN BUILDER

(A) Design Builder To Perform All Work Required By The Contract: The intent of the Contract is to require complete, correct and timely execution of the design and the Work.

Any and all Work that may be required, reasonably implied or reasonably inferred by the Contract, or any part of it, as necessary to produce the intended result shall be provided by Design Builder in accordance with Article 10 of this Agreement and without increase to the Contract Price.

(B) Strict Compliance With The Contract Documents: All Work performed by Design Builder shall be in strict compliance with the Contract. “Substantial compliance” is not strict compliance. Any Work not in strict compliance with the Contract is defective.

(C) Supervision Of The Work: The Work shall be strictly supervised and directed using Design Builder's best and highest skill and effort, Design Builder bearing full responsibility for any and all acts or omissions of those engaged in the Work on behalf of Design Builder.

(D) Warranty Of Workmanship And Materials: Design Builder warrants and guarantees to City that all labor furnished to progress the Work under the Contract will be competent to perform the tasks undertaken and is the best quality obtainable, that the product of such labor will yield only first-class results in strict compliance with the Contract, that materials and equipment furnished will be of high quality and new unless otherwise permitted by the Contract, and that the Work will be of high quality, free from faults and defects and in strict conformance with the Contract. Any and all Work not strictly conforming to these requirements shall be considered defective and shall constitute a breach of Design Builder's warranty.

(E) Commencement Of Guarantee And Warranty Periods: Special or specific guarantees and warranties which are required by the Contract to run for a fixed period of time shall commence running on the date of Substantial Completion of all the Work.

(F) Design Builder’s Schedule Of Construction: Design Builder, within fifteen (15) days after the Commencement Date, shall submit to City, for its information, and comply with, Design Builder's Schedule of Construction for completing the Work by the Scheduled Completion Date. The Schedule of Construction shall reflect the performance of all Work on week days and non-holidays. The Schedule of Construction shall be a detailed critical path (CPM) schedule in a form acceptable to City. The Schedule of Construction shall be revised at least monthly and shall be revised to reflect conditions encountered from time to time and shall be related to the entire Project. Each such revision shall be furnished to City. Strict compliance with the requirements of this Paragraph shall be a condition precedent for payment to Design Builder, and failure to strictly comply with said requirements shall constitute a material breach of the Contract.

(G) Record Copy Of Contract Documents: Design Builder shall continuously maintain at the site, for the benefit of City, an updated copy of the Contract, including one record copy of the Contract Documents marked to record on a current basis changes, selections and modifications made during construction. Additionally, Design Builder shall maintain at the site, for the benefit of City, a copy of all Shop Drawings, Product Data, Samples, and other Submittals. Upon Final Completion of the Work, or upon City's request, all of the documents described in this Paragraph shall be finally updated and delivered to City and shall become the property of City.

(H) Review And Approval Of Submittals: Design Builder shall review, study, and approve, or take other necessary action upon all Shop Drawings, Product Data, Samples, and other Submittals to ensure that the Project will be constructed in a timely fashion in strict compliance with the Contract.

(I) City’s Option To Review Submittals: City shall, in its discretion, have the right to review and approve Submittals, and if City so elects, Design Builder shall not perform any portion of the Work as to which City has required submittal and review until such Submittal has been approved by City’s Representative. Approval by City, however, shall not be evidence that Work installed pursuant thereto conforms with the requirements of the Contract nor shall such approvals relieve Design Builder of any of its responsibilities or warranties under the Contract. If City elects to review Submittals, Design Builder shall maintain a Submittal log which shall include, at a minimum, the date of each Submittal, the date of any resubmittal, the date of any approval or rejection, and the reason for any approval or rejection. Design Builder shall have the duty to carefully review, inspect and examine any and all Submittals before submission of same to City. Shop Drawings and other Submittals from Design Builder do not constitute a part of the Contract.

(J) Procurement And Review Of Warranties: Design Builder shall procure from all Subcontractors and Suppliers and shall transmit to City, all warranties required by the Contract. Design Builder shall review all such warranties and shall certify to City that the warranties are in strict compliance with the requirements of the Contract.

(K) Procurement Of Operations And Maintenance Documentation: Design Builder shall prepare or procure and shall transmit to City all documentation required by the Contract regarding the operation and recommended maintenance programs relating to the various elements of the Work.

(L) As-Built Drawings: Design Builder shall prepare and provide to City a complete set of all as-built drawings which shall be complete and, except as specifically noted, shall reflect performance of the Work in strict compliance with the requirements of the Contract.

(M) Compliance With Labor Laws: Design Builder shall assume all labor responsibility for all personnel assigned to or contracted for the performance of the Work and agrees to strictly comply with all its obligations as employer with respect to said personnel under all applicable labor laws.

(N) Testing, Inspections, And Approvals: Design Builder shall be responsible for procuring all tests and inspections required by sound professional practices and by governmental authorities having jurisdiction over the Project, and shall assume the cost of such tests and testing. Design Builder shall submit certified results of such tests to City. If the laws, ordinances, rules, regulations or orders of any public authority having jurisdiction require any Work to be specifically inspected, tested, or approved, Design Builder shall assume full responsibility therefor, pay all costs in connection therewith and furnish to City the required certificates of inspection, testing or approval.

(O) City's Regulations And Applicable Laws: Design Builder shall, during the course of the Work, comply with any regulations or guidelines prescribed by City. Design Builder warrants that it will comply with all public laws, ordinances, rules and regulations applicable to the services to be performed under the Contract, including without limitation, those relating to the terms and conditions of the employment of any person by Design Builder in connection with the Work to be performed under the Contract.

(P) Compliance With Construction Regulations: Design Builder shall perform the Work in accordance with all construction codes, laws, ordinances or regulations applicable to the design and execution of the Work. Any fine or penalty which may be imposed as consequence of any violation of this provision shall be paid by Design Builder, and Design Builder shall indemnify and hold City harmless from all loss, damages, and expense, including attorney's fees, resulting from any such violation or alleged violation.

(Q) Permits, Licenses And Notices: All construction and building permits, licenses and authorizations necessary for the construction of the Project shall be secured and paid for by Design Builder. Design Builder shall notify City's Representative when it has received said permits, licenses and authorizations and upon receipt shall supply City with copies of same.

The originals of said permits, licenses and authorizations shall be delivered to City upon completion of the Work, and receipt of such documents by City shall be a condition precedent to final payment. Design Builder shall also give and maintain any and all notices required by applicable laws pertaining to the construction of the Work.

(R) Conditions To Site Access: While on City's property, all Design Builder’s employees and Subcontractors shall confine themselves to areas designated by City’s Representative and will be subject to City’s badge and pass requirements, if any, in effect at the site of the Work. At no time shall the Design Builder’s employees and Subcontractor’s encroach on to private property unless Design Builder obtained written permission from the City.

(S) Site Safety And Security: Design Builder shall take all reasonable steps and legally required measures at the site to comply with applicable safety regulations and standards and to adequately protect the Work, stored materials, and temporary structures located on the premises, and to prevent unauthorized persons from entering upon the site. Design Builder shall at all times safeguard City's property and employees from injury or loss in connection with the performance of the Contract. Design Builder shall at all times safeguard and protect its own partially or completely finished Work and that of the adjacent property and all adjacent work from damage. Design Builder shall protect City's equipment, apparatus, machinery, and other property and all adjacent work with boarding and other safeguards so as to keep the premises free from dampness, dirt, dust, or other damage and shall remove all such temporary protection upon completion of the Work.

(T) Repair Of Collateral Damages: Unless otherwise instructed by City, Design Builder shall repair and return to original condition all buildings, streets, curbs, sidewalks, utilities or other facilities affected by Design Builder’s performance of the Work, all without additional cost to City.

(U) Cleaning The Site: Design Builder shall keep the site reasonably clean during performance of the Work. Upon Final Completion of the Work, Design Builder shall thoroughly clean the site and the Project and remove all waste, debris, trash and excess materials or equipment, together with Design Builders property therefrom.

(V) City’s Access To Work: At all times relevant to the Contract, Design Builder shall provide access to the Work to City and its designees without formality or other procedure.

(W) Decisions Regarding Aesthetic Effect: City’s decisions in matters relating to aesthetic effect shall be final if consistent with the intent of the Contract.

(X) Design Builder To Remain An Independent Contractor: In the performance of the Contract, Design Builder’s status as an independent contractor shall not be modified or diminished by reason of any instructions issued by City or City's Representative to Design Builder or any of Design Builders employees, Subcontractors, or representatives.

(Y) Inspection Upon Arrival, During Installation, And After Installation. Upon arrival of any materials, supplies, systems, equipment, fixtures, furnishings, and other items at the Project site, whether procured by the Design Builder, the City, or otherwise, the Design Builder shall inspect such items for damage, for compliance with the Contract Documents and for compliance with all shipping documents and shall arrange for the proper storage and security of such items. Design Builder shall also provide for and monitor the proper and timely installation of all such items on the Project. After such items are installed or made ready for use, Design Builder shall again inspect all such items for damage and shall arrange for and monitor testing of all such items for compliance with the Contract Documents and readiness for use on the Project. If damage is discovered, the Design Builder shall immediately notify, in writing, the supplier, shipper, and City’s Representative of such damage and shall lodge and pursue all appropriate claims associated with such damages.

(Z) Design Builder shall perform the work in accordance with the Contract Documents.

Design Builder shall supervise and direct the work, using the Design Builder’s best skill and attention. Design Builder shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures; and for coordinating all portions of the work under this Contract, unless expressly specified in writing under the Contract Documents. Design Builder shall be responsible to the City for acts and omissions of the Design Builder’s employees, sub-contractors, suppliers, and their agents and employees, and other persons or entities performing portions of the work under a contract with the Design Builder or his sub-contractors or suppliers, of any tier. The Design Builder shall not be relieved of obligations to perform the work in accordance with the Contract Documents either by activities or duties of the City, in administration of the Contract, or by tests, inspections or approvals required or performed by persons other than the Design Builder.

Design Builder shall be solely responsible for jobsite safety. In the event the Design Builder determines that any construction activities required under the Contract Documents may not be performed in a safe manner, Design Builder shall give immediate written notice to the City and shall not proceed with that portion of the work without further written instructions from the City.

ARTICLE 10

GUARANTEED MAXIMUM PRICE

(A) Guaranteed Maximum Price. Within fifteen (15) days after commencement of the Construction Phase, Design Builder shall submit to the City a proposed GMP. If and when approved by City, the proposed GMP shall become the GMP for the Project and shall be entered in subparagraph (B) herein. The GMP shall be the maximum amount that Design Builder shall receive for achieving Final Completion in strict accordance with the Contract Documents and performance of all the Work and the Services required by the Contract Documents, subject to additions and deductions by written Change Order. All Subcontract Costs, Reimbursable Costs, or other costs of any kind incurred by Design Builder in connection with the Project in excess of the GMP shall be paid by Design Builder without reimbursement by City unless otherwise compensable by written Change Order pursuant to the Contract Documents. Should the combined sum of final Subcontract Costs, Reimbursable Expenses, Construction Phase Fee, and Design Phase Fee be less than the GMP, the resulting savings shall be shared with Seventy percent (70%) allocated to City and Thirty percent (30%) allocated to Design Builder.

(B) Amount Of GMP. The amount of the GMP shall be ($________________________).

(C) Lack Of Agreement On GMP. In the event that Design Builder and City are unable to agree on a GMP, City may, at its sole discretion, terminate this Agreement by written notice to Design Builder. In the event of such termination, City’s liability to Design Builder shall be limited to that portion of the Design Phase Fee actually earned and the Reimbursable Expenses actually and reasonably incurred by Design Builder in the performance of Design Phase Services up to the date of termination pursuant to this subparagraph; provided, however, that in no event shall the amount payable hereunder exceed the amount entered in subparagraph Paragraph 11(C).

ARTICLE 11

PAYMENT TO DESIGN BUILDER

(A) Payment Procedure: City shall pay Design Builder in accordance with the procedures set forth in Section 218.70, Florida Statutes (“Local Government Prompt Payment Act”) and this Article 11. As provided in Section 255.05(b), Florida Statutes, no payment shall be made to the Design Builder until Design Builder has provided the City with an original and a certified copy of the recorded payment and performance bond. Prior to recording, the bond must be reviewed by the City Attorney.

(B) Basis Of Compensation. City shall pay, and Design Builder shall accept, as full and complete compensation for Design Builder’s assumption and performance of all duties, obligations, Services and Work required by the Contract Documents, the combined sum of Design Phase Compensation plus Construction Phase Compensation, as defined herein;

provided, however, that such combined sum shall not exceed the Guaranteed Maximum Price set forth in Article 10.

(C) Design Phase Compensation. City shall pay Design Builder “Design Phase Compensation” consisting of: the Reimbursable Expenses Design Builder incurs in performance of Design Phase Services, plus the Design Phase Fee; provided, however, that the total of such Reimbursable Expenses and the Design Phase Fee shall not exceed ________________________ Dollars ($___________). The Design Phase Compensation shall be deemed to include, without limitation, such items as overhead, profit and all expenses incurred in performance of the Design Phase Services.

(D) Design Phase Fee. The “Design Phase Fee” shall be ________________________ Dollars ($__________). The Design Phase Fee shall be invoiced and paid in accordance with this Article;

provided, however, that at no time shall the cumulative percentage of the Design Phase Fee invoiced or paid exceed the cumulative percentage of completion of the Design For Construction.

(E) Construction Phase Compensation. For Design Builder’s performance of the Work and all Construction Phase Services in strict conformance with the Contract Documents, and subject to the GMP, City shall pay Design Builder “Construction Phase Compensation” consisting of: Subcontract Costs, plus Reimbursable Expenses incurred in performance of Construction Phase Services and the Work, plus the Construction Phase Fee. The Construction Phase Compensation shall be deemed to include, without limitation, such items as overhead, profit and all expenses incurred in performance of the Work and all Construction Phase Services.

(F) Construction Phase Fee. The “Construction Phase Fee” shall be ($________________). The Construction Phase Fee shall be invoiced and paid in accordance with this Article; provided, however, that at no time shall the cumulative percentage of the Construction Phase Fee invoiced or paid exceed the cumulative percentage of the Work actually complete, as measured against the Design Builder’s schedule of values.

(G) Schedule Of Values. Design Builder shall prepare and present to City’s Representative within ten (10) days after commencement of the Construction Phase, a proposed schedule of values allocating the actual cost of the Construction Work (which shall include all Subcontract Costs and Reimbursable Expenses to be incurred during the Construction Phase) among the different elements of the Construction Work. The Construction Phase Fee and any contingencies shall be shown as separate items. Design Builder’s schedule of values shall be prepared in such form, with such detail, and supported by such data as the City’s Representative may require to substantiate its accuracy. DESIGN BUILDER SHALL NOT

FRONT-END LOAD ITS SCHEDULE OF VALUES BY IMBALANCING IT OR BY INCREASING ANY

ELEMENT THEREOF IN EXCESS OF THE ACTUAL COST, AND SUCH ACTS SHALL CONSTITUT

A MATERIAL BREACH OF THIS AGREEMENT. Design Builder's proposed schedule of values shall be used in determining the amounts payable to Design Builder hereunder, but only after it has been acknowledged in writing by the Architect and the City’s Representative. The schedule of values may be amended when so acknowledged in writing by City’s Representative, and when Subcontracts are awarded and reasonable schedules of values in connection with such Subcontracts are received and agreed upon by Design Builder.

(H) Form Of Pay Requests And Backup Documentation. On or after the 1st day of each month after commencement of performance, but no more frequently than once monthly, the Design Builder may submit a payment request for the period ending on the last day of the prior month to the following:

Julie Garretson Parks & Recreation Director City of Plant City 1904 S. Park Road Plant City, FL 33563

With a copy to:

Kenneth W. Buchman, Esq.

City Attorney City of Plant City 302 West Reynolds Street Plant City, FL 33563

Said Payment Request shall be in such format and include whatever supporting information as may be required by the City. The City may retain five percent (5%) as retainage during the Project. The Design Builder may request payment for ninety-five percent (95%) of the Reimbursable Expenses and Subcontract Costs actually and reasonably incurred by Design Builder, and that portion of the Design Phase Fee, the Construction Phase Fee, or, if applicable, both, earned by Design Builder, in the performance of Services and the Work during the preceding period, less any Work that has been previously paid. The remaining five percent of the Reimbursable Expenses, Subcontract Cost and Fees earned by the Design Builder during the same month shall be retainage and shall not be invoiced. At no time shall the cumulative sum invoiced or paid exceed an amount equal to the GMP multiplied by the percentage of the Work actually and satisfactorily completed, less any retainage. The City shall promptly make payment to the Design Builder, unless the City has grounds pursuant to Section 255.078(6), Florida Statutes for withholding the payment of retainage.

Each such Payment Request shall be signed by the Design Builder and shall constitute the Design Builder's representation that the quantity of work has reached the level for which payment is requested, that the work has been properly installed or performed in strict compliance with this Contract, and that the Design Builder knows of no reason why payment should not be made as requested. Thereafter, the City shall review the Payment Request and may also review the work at the Project site or elsewhere to determine whether the quantity and quality of the work is as represented in the Payment Request and is in strict compliance with this Contract. The City shall approve in writing the amount which, in the opinion of the City, is properly owing to the Design Builder.

Each pay request shall separately show the amounts of Design Builder’s Design Phase Fee and Construction Phase Fee being claimed in connection with such pay request and any amounts claimed in connection with a Change Order. Pay requests shall also indicate Design Builder’s estimate of the percentage of completion of the Project and each element thereof according to the line items established in the schedule of values. Pay requests shall bear the appropriate job numbers designated by City’s Representative for approval. Pay requests shall be accompanied by documentation in support of Subcontract Costs and Reimbursable Expenses, if any, as City’s Representative may require. Pay requests and supporting documentation shall describe with reasonable particularity each Service rendered, the date thereof, the time expended in performing such Service, and the persons rendering such Service. Upon City’s Representative's request, Design Builder shall submit certified time sheets relating to such persons who have performed Services on the Project. All documents and records in the possession of Design Builder and its Subcontractors relating to Reimbursable Expenses and Subcontract Costs shall be made available to City or its designee for audit, inspection and copying immediately upon request by City’s Representative. Strict compliance with the requirements of this paragraph shall be a condition precedent to any payment, including Final Payment, under this Agreement.

(I) Surety Releases, Claim Waivers And Verified List Of Subcontractors. Each Pay Request shall be accompanied by separate Waiver of Right of Claim Against the Payment Bond in the form as provided in Section 255.05, Florida Statutes from each Contractor, subcontractor, lower tier subcontractor, laborer, supplier or other person or entity who has, or might have a claim against the City, or written consent from the surety regarding the project or payment as provided in Section 255.05(11), Florida Statutes. Provision for such surety releases or waivers of claim shall be a condition precedent to City’s duty to make payments to Design Builder. Design Builder shall also provide a verified list of all Contractors, Subcontractors, including suppliers of materials and systems incorporated into the Work.

(J) Certification Relating To Pay Requests. Each pay request shall bear the signature of Design Builder's project manager, which signature shall constitute Design Builder’s representation to City that the Services and the Work indicated in the pay request have progressed to the level represented, have been properly and timely performed as required herein, that no Work has been covered contrary to the request of the City’s Representative or the Architect, or contrary to any provision of the Contract Documents, that the Reimbursable Expenses and Subcontract Costs claimed in the pay request have been actually, necessarily, and reasonably incurred, that all obligations of Design Builder covered by prior pay requests have been paid in full, and that, to the best of Design Builder's knowledge, information and informed belief, the amount requested is currently due and owing, there being no reason known to Design Builder that payment of any portion thereof should be withheld.