Exhibit_D_-_DB_Post_Selection_Documents.pdf

Design Build Construction Agreement

RFPXX-XXXX

DESIGN-BUILD CONSTRUCTION AGREEMENT

THIS DESIGN-BUILD CONSTRUCTION AGREEMENT (“AGREEMENT”) is made and entered into this day of ____________, 2022, by and between the City of

Orlando, Florida, a Florida municipal corporation (“CITY”) and

____________________________ a Florida for-profit corporation (“DESIGN-BUILDER”).

WHEREAS, CITY desires to obtain DESIGN-BUILDER’s professional design-build services (“Services”) for the project to be known as the __________________________ Project

(“Project”), according to the requirements in the CITY Request for Proposal RFPXX-XXXX, dated as of ________________ (the “Solicitation”), and as further described herein; and

NOW, THEREFORE, CITY and DESIGN-BUILDER, in consideration of the mutual covenants contained herein and given one party to the other, the sufficiency of which is hereby acknowledged, hereby agree as follows:

ARTICLE 1. DEFINED TERMS

Terms used in this DESIGN-BUILD AGREEMENT which are defined in the General

Conditions have the meanings assigned to them in the General Conditions.

ARTICLE 2. THE CONTRACT DOCUMENTS

The Contract Documents which comprise the entire agreement between CITY and

DESIGN-BUILDER are incorporated herein and made a part hereof, and consist of the following:

2.1 DESIGN-BUILD Agreement.

2.2 Certificates of Insurance and Endorsements.

2.3 Performance and Payment Bonds.

2.4 General Conditions.

2.5 Supplementary Conditions.

2.6 Addenda as issued.

2.7 Any Modification, including Change Orders and Field Orders.

2.8 Request for Proposal, Proposal, Summary of Costs, Affidavits, Certification and

Design Criteria.

2.9 General Requirements.

2.10 Design Requirements.

2.11 Pre-Construction Agreement and any amendments thereto.

2.12 Plans, Specifications and other design documents prepared and approved in accordance with Article 2.2 of the General Conditions.

2.13 Forms listed on page 00900-1.

ARTICLE 3. THE WORK

EXHIBIT "D"

3.1 Subject to and in accordance with the terms and provisions of the Contract

Documents, the DESIGN-BUILDER agrees to design and construct for the CITY the Project.

3.2 The DESIGN-BUILDER agrees to provide all the professional design services, labor, material, supplies, equipment, transportation, apparatus, light, energy, scaffolding and tools necessary for the proper design, construction and completion of the Work described in the Contract

Documents. Prior to the commencement of any part of the Work, the plans and specifications for that part of the Work must be approved by CITY, ENGINEER and all governmental authorities having jurisdiction thereof.

3.3 The DESIGN-BUILDER shall remain fully liable to CITY for the adequacy of the

Plans and Specifications and other documents, the ultimate and acceptable design and construction of the PROJECT, and for any errors and omissions that may exist thereon, whether the work is done in house by the DESIGN-BUILDER, by joint venture, or by retention of a design professional by the DESIGN-BUILDER.

3.4 The agreement of the parties hereto is that the DESIGN-BUILDER shall bear all costs and expenses of any kind, type or nature for Work specified in the Contract Documents and such additional work as may be reasonably inferred therefrom, and deliver to CITY at the Contract

Price, the Project as specified in the Contract Documents, which upon completion and delivery, shall be satisfactory to the CITY, ENGINEER and all governmental authorities having jurisdiction thereof.

3.5 The Plans and Specifications prepared by DESIGN-BUILDER, DESIGNER, and

Subcontractors in connection with the Project shall be a “work made for hire” and the CITY shall be vested with all rights of ownership thereto. Any use by the CITY of such Plans and

Specifications for other projects unrelated to this Project without the prior written consent of the

DESIGN-BUILDER shall be at the CITY’s sole risk.

ARTICLE 4. LIQUIDATED DAMAGES

The CITY and DESIGN-BUILDER recognize that time is of essence of this Agreement and that CITY will suffer financial loss if the Work is not completed within the times specified in

Article 5.2 below, plus any extensions thereof allowed in accordance with Article 12 of the

General Conditions. They also recognize the delays, expense and difficulties involved in proving, in a legal or arbitration proceeding, the actual loss suffered by CITY if the Work is not completed on time. Accordingly, instead of requiring any such proof, CITY and DESIGN-BUILDER agree that as liquidated damages for delay (but not as a penalty) DESIGN-BUILDER shall pay CITY

One Thousand Dollars ($1,000.00) for each day that expires after the time specified in Article 5.2 for Substantial Completion until the Work is substantially complete.

ARTICLE 5. TIME OF COMMENCEMENT AND COMPLETION

5.1 DESIGN-BUILDER shall commence the Work to be performed under this

Agreement upon the date stated in the Notice to Proceed.

5.2 Time is of the essence for all Work under this Agreement; the time of Substantial

Completion of the Work as described in Article 14.13 of the General Conditions shall be

________________ (____) days starting when the Contract Time starts to run as provided in

Article 2.1 of the General Conditions. The Work shall be completed, ready for final payment in accordance with Article 14.14 of the General Conditions, within thirty (30) days after the actual date of Substantial Completion.

5.3 DESIGN-BUILDER shall complete the Work in accordance with the Work

Schedules required by SECTION 01311 of the Contract Documents. Such Work Schedules shall be satisfactory to the CITY, both in regard to the substantial and final completion dates. In no event shall the Work to be performed under this Agreement and the Contract Documents be considered completed until all construction items required by the drawings, plans and specifications have been fully completed and approved by the CITY, ENGINEER, and all governmental authorities having jurisdiction thereof, and a Certificate of Final Inspection and

DESIGN-BUILDER’s Release have been issued.

ARTICLE 6. DESIGN-BUILDER'S DUTIES AND STATUS

6.1 The DESIGN-BUILDER hereby represents and warrants to CITY that DESIGN-

BUILDER is skilled and experienced in the design and construction of projects of the type depicted in the Proposal Documents, and that the DESIGN-BUILDER by careful examination has satisfied itself as to the general area in which the improvements are to be located, including, but not by way of limitation, climate conditions, available labor supply and cost, all local governmental requirements, and available equipment supply and cost as well as all other items which in the

DESIGN-BUILDER’s judgement could in any manner affect the timely performance of the

Work.

6.2 The DESIGN-BUILDER recognizes the relationship of trust and confidence established between him and the CITY by the Contract Documents. He covenants with the CITY to furnish his best skill and judgement, to cooperate with the CITY to incorporate in the Work only materials which shall be new and of the best of the kind of grades specified to insure that all workmanship shall be to the best of the recognized standard known to the various trades, to furnish efficient business administration and supervision, to keep at all times an adequate supply of workers and materials at the site, and to prosecute the completion of the Work in the best and soundest way and in the most expeditious and economical manner consistent with the interests of the CITY. It shall be the DESIGN-BUILDER’s sole responsibility to procure and evaluate any and all topographical surveys, soil tests, drainage plans and any other engineering reports, plans or tests required to insure that sufficient information is available for the completion of the Work. Any additional work, regardless of its nature and scope, required as a result of said surveys, tests, reports or plans in order to complete the Work shall be performed at DESIGN-BUILDER’s sole cost and expense.

6.3 In addition to the foregoing, DESIGN-BUILDER shall:

(a) before ordering any material or doing any work, verify all measurements at the existing site and insure the correctness of same. No additional compensation will be allowed or paid on account of any difference between actual dimensions and measurements indicated in the

Proposal Documents. Any differences which may be found shall be submitted to the CITY for instructions before proceeding with the Work.

(b) provide on the Property suitable weather tight storage sheds for keeping all materials of a nature that must be protected from the elements. Said sheds shall be maintained by

DESIGN-BUILDER and removed at the completion of construction.

(c) purchase all materials in accordance with the accepted Work Schedule required by SECTION 01311 so as to avoid delays and substitutions when such materials are to be incorporated in the Work; said materials are to be stored on the Property in the sheds hereinabove referred to or in a bonded warehouse in the CITY’s name if the DESIGN-BUILDER is to be paid for such materials at the time of the delivery of such material to the CITY.

(d) Provide and maintain suitable temporary walkways (where needed) as well as fences and other structures as required by law and by other ordinances of governmental agencies having jurisdiction in such a manner as not to interfere with traffic in public streets. Access to fire hydrants and the protection of the public and adjacent property shall be provided at all times during the progress of the Work. Proper signs shall be posted at truck entrances, and all other possible driver and worker safety precautions shall be observed.

(e) The DESIGN-BUILDER shall be responsible for the proper care and protection of all of its materials and equipment delivered to the site; be responsible for any damage to its Work or material, from the date of the Contract Documents until the date the final payment is made hereunder; be responsible, without cost to the CITY, for any damage or loss which is the responsibility of the DESIGN-BUILDER under this Agreement; handle all material as directed by the CITY so that it may be inspected by the CITY; cover and protect all cement, lime and other material affected by the weather to keep them free from damage while they are being transported to the site and promptly remove from the Property or the Work any material found defective or in any way nonconforming with the provisions of the Contract Documents.

ARTICLE 7. DESIGN APPROVALS

The DESIGN-BUILDER shall timely submit to the Engineer, for review and approval, schematic design documents including, but not limited to, site plans, floor plans, elevations, sections and outline specifications which are based on and comply with the Design Criteria and the

Proposal Documents. The DESIGN-BUILDER shall timely submit to the Engineer, for review and approval, design development documents including, but not limited to, site plans, floor plans, elevations, enlarged floor plans, miscellaneous details and updated outline specifications which are based on and comply with the Design Criteria, the Proposal documents and the Engineer-approved schematic design documents. The DESIGN-BUILDER shall timely submit to the Engineer, for review and approval, final Plans and Specifications which shall be based on compliance with the

Design Criteria, the Proposal Documents and the Engineer-approved design development documents.

ARTICLE 8. CONTRACT PRICE

8.1 CITY shall pay DESIGN-BUILDER, in accordance with Article 14 of the General

Conditions, a Contract Price equal to DESIGN-BUILDER’s Fee (as defined in Article 8.2 hereof), plus the Cost of the Work (as defined in Article 8.3 hereof), subject to any GMP established in

Article 8.5 hereof, and any adjustments made in accordance with the General Conditions.

8.2 DESIGN-BUILDER’s fee (“Fee”) shall be:

_______________________________ Dollars ($___________), as adjusted in accordance with the following.

DESIGN-BUILDER’s Fee will be adjusted as follows for any changes in the Work:

_______Percent (___%) of the Cost of the Work.

8.3 The term cost of the work (“Cost of the Work”) shall mean costs reasonably incurred by DESIGN-BUILDER in the proper performance of the Work. The Cost of the Work shall include only the following:

(a) Wages of direct employees of DESIGN-BUILDER performing the Work at the Site or, with CITY’s agreement, at locations off the Site.

(b) Wages or salaries of DESIGN-BUILDER’s supervisory and administrative personnel engaged in the performance of the Work and who are located at the Site or working off-

Site to assist in the production or transportation of material and equipment necessary for the Work.

(c) Costs, including transportation, inspection, testing, storage and handling of materials, equipment and supplies incorporated or reasonably used in completing the Work.

8.4 The following shall be excluded from the Cost of the Work:

(a) Compensation for DESIGN-BUILDER’s personnel stationed at DESIGN-

BUILDER’s principal or branch offices.

(b) Overhead and general expenses (i.e., expenses associated with DESIGN-

BUILDER’s principal office).

(c) The cost of DESIGN-BUILDER’s capital used in the performance of the

Work.

(d) If the parties have agreed on a GMP, costs that would cause the GMP, as adjusted in accordance with the Contract Documents, to be exceeded.

(e) The cost of correcting damaged or defective or non-conforming Work (or any resultant schedule delay) made necessary because of defective or non-conforming workmanship or materials, design errors or omissions or other causes attributable to the

DESIGN-BUILDER, Designer, subcontractors at all tiers or anyone else for whom they are responsible.

(f) Costs of the DESIGN-BUILDER’s General Conditions in connection with the construction phase (i.e., Site-related expenses).

8.5 DESIGN-BUILDER guarantees that the Contract Price shall not exceed the GMP of ________________________________________________________________ for the construction of the _______________________. DESIGN-BUILDER does not guarantee any specific line item provided as part of the GMP, but agrees that it will be responsible for paying all costs of completing the Work which exceed the GMP, as adjusted in accordance with the Contract

Documents. Documents used as a basis for the GMP shall be identified in the Summary of Costs.

The GMP includes a contingency (“Contingency”) in the amount of

___________________________ Dollars ($__________.00) which is available for DESIGN-

BUILDER’s use for costs that are incurred in performing the Work that are not included in a specific line item or the basis for a Change Order under the Contract Documents. Such costs are limited to trade buy-out differentials, overtime, acceleration, and Subcontractor defaults. Except as provided below, the Contingency is not available to the CITY, for changes in scope. DESIGN-

BUILDER shall provide the CITY with reasonable advance notice of all anticipated charges against the Contingency. Charges against the Contingency are subject to the CITY’s prior approval, which shall not be unreasonably withheld. Any amounts remaining in the Contingency at Final Completion shall be deducted from the Contract Price by Change Order.

8.6 General Conditions Fee.

Prior to commencement of the Construction Phase and after City acceptance of the GMP, the City will direct the DESIGN/BUILDER in writing to proceed into the Construction Phase.

The DESIGN/BUILDER’S compensation for expenses incurred during the Construction Phase

(hereafter also referred to as “General Conditions”) shall be a General Conditions Fee of

$________________. (However, the City retains the right to review the need and effectiveness of any employee or employees assigned by the DESIGN/BUILDER, should the Project

Manager question the need for the employee or employees). The General Conditions Fee shall be paid as follows: $__________ shall be paid in four (4) monthly payments of $____________ each. The first monthly payment application shall be submitted thirty (30) days following the issuance of the Notice to Proceed by the Project Manager and the final monthly payment shall be paid only when construction of the Project is finally completed and occupancy of the Project accepted by the City. If construction is authorized only for a part of the Project, the fee paid shall be proportionate to the amount of work authorized by the City.

(1) Adjustments in General Conditions Fee. For changes in the Project, the General

Conditions Fee shall be adjusted as follows: The DESIGN/BUILDER shall be paid an additional fee subject to negotiation if the DESIGN/BUILDER is placed in charge of reconstruction of an insured or uninsured loss excluding any condition that may have been caused from negligent acts by the DESIGN/BUILDER, subcontractors, or anyone for whom they may be responsible.

(2) Costs and Expenses Included in General Conditions Fee. The following are included in the DESIGN/BUILDER’S General Conditions Fee for services during the

Construction Phase:

(a) The DESIGN/BUILDER’S job site personnel to be assigned during the

Construction Phase, their duties and responsibilities to this Project and the duration of their assignments are shown on Exhibit “A”.

(b) Salaries or other compensation of the DESIGN/BUILDER’S employees at the job site.

(c) General job site operating expenses incurred in the management and supervision of the Project.

(e) Job site office supplies - includes paper, pencils, paper clips, file folders, staples, etc., and janitorial supplies (photo copy or blue print paper not included).

(f) Minor expenses at the site, such as long distance telephone calls, telephone service, expressage, postage, and similar petty cash items in connection with the Project to be billed at cost.

(g) Costs for trash and debris control and removal from the site.

(h) Costs for such temporary facilities during construction, as approved by the

City, including temporary water, heat, power, sanitary facilities, and telephones.

ARTICLE 9. TERMINATION OF CONTRACT BY CITY

9.1 The CITY may terminate the services of the DESIGN-BUILDER as provided in

Article 15 of the General Conditions.

9.2 In the event of termination, CITY will pay to DESIGN-BUILDER, fair compensation, either by purchase or rental, at the election of the CITY, for any equipment of

DESIGN-BUILDER retained and used to complete the Work. DESIGN-BUILDER shall execute and deliver all such papers and documents and take all such steps (including the assignment of any of its contractual rights related to the Work) as the CITY may require.

ARTICLE 10. PAYMENT PROCEDURES

DESIGN-BUILDER shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed by ENGINEER as provided in the General Conditions.

10.1 Progress Payments. CITY shall make progress payments on the basis of DESIGN-

BUILDER’s Applications for Payment as recommended by ENGINEER, in accordance with

Article 14 of the General Conditions.

10.1.1 Upon completion of the Work, progress payments will be in the amount equal to ninety-five percent (95%) of the Work completed, and the CITY will pay an amount equal to ninety-five percent (95%) of materials and equipment not incorporated in the Work but delivered and suitably stored on site, less in each case the aggregate of payments previously made. In no event shall payments for materials and equipment stored exceed ninety–five percent (95%) of the value of the related cost for the specific item of work shown in the breakdown of Contract Price regardless of the stated value of the materials or equipment. CITY may, at its sole option, pay an amount equal to ninety-five percent (95%) of materials and equipment not incorporated in the

Work stored offsite if stored in a manner acceptable to CITY, as stated above for on-site stored materials. When payment to DESIGN-BUILDER is made for stored materials and equipment, DESIGN-BUILDER shall submit invoices marked paid by the supplier with the next month's request for payment to document that DESIGN-BUILDER has paid for said materials and equipment or the previously paid amount for stored materials shall be deducted from any remaining payment(s) or retainage for any stored materials not so properly documented.

10.2 Final Payment. Upon final completion and acceptance of the Work in accordance with paragraph 14.9.1 of the General Conditions, CITY shall pay the remainder of the Contract

Price as provided in said paragraph 14.9.1

10.3. Living Wage. DESIGN-BUILDER, as well as its DESIGNER and Subcontractors at all tiers, shall pay to all of their employees providing services pursuant to a contract with the

CITY, a living wage for the time spent providing services to the CITY. (This provision does not include general administrative personnel unless they are assigned to a CITY project.) “Living wage” means compensation for employment of not less than $15.00 per hour for straight time, exclusive of FICA, unemployment taxes, and workers compensation insurance and employee benefits. Necessary payroll documentation shall be provided to confirm compliance with this provision and the DESIGN-BUILDER shall allow the CITY to audit (at DESIGN-BUILDER’s place of business) its payroll records to determine if compliance has been achieved. Failure to comply with the provision may result in termination of the contract and/or preclusion from future

CITY contracts at the sole option of the CITY.

10.4. Responsible Contractor’s Policies.

10.4.1. The DESIGN-BUILDER, when paying its workers on this Project, shall pay such workers an hourly wage, based on classification for the Orlando region established by the

Davis-Bacon Act (40 U.S.C. 276a-7) as supplemented by the Department of Labor regulations

(29 CFR part 5) (hereinafter “hourly wage”). Additionally, DESIGN-BUILDER shall provide said workers with health benefits. DESIGN-BUILDER may satisfy this health benefits requirement by providing to its workers on this project either 1) health benefits through a bona fide program or 2) by increasing the hourly wage by 20%. Evidence of the existence of a bona fide health benefits program must be submitted to the CITY with the bid at the time of bid opening. The CITY, in its sole discretion, will determine whether a bona fide health benefits program is acceptable to the CITY. Payment of the appropriate wages must be documented in

DESIGN-BUILDER’s progress payment applications by the submission of certified payrolls by

DESIGN-BUILDER for the duration of this Agreement. Moreover, DESIGN-BUILDER shall require compliance with these provisions for health benefits, Davis-Bacon hourly wages and certified payrolls by all Subcontractors at every tier, and DESIGN-BUILDER will be held responsible for compliance by any Subcontractor or lower tier Subcontractor. Notwithstanding the foregoing, DESIGN-BUILDER acknowledges and agrees that no hourly wage paid on this project by the DESIGN-BUILDER and Subcontractors will be less than the living wage referenced in this Agreement.

10.4.2. The DESIGN-BUILDER and construction Subcontractors at all tiers shall each classify all of their workers as either independent contractors or employees in accordance with the requirements of Laws and Regulations. Workers who are employees as defined by Laws and

Regulations shall not be classified as independent contractors. The DESIGN-BUILDER and construction Subcontractors shall each provide written notice to their workers classified as independent contractors of their classification status within seven (7) days after contract award or within seven (7) days of hiring if hired subsequent to contract award. Documentation demonstrating compliance with this requirement for each worker classified as an independent contractor shall be submitted by the DESIGN-BUILDER with its first Application for Payment.

For those workers classified as independent contractors hired after submittal of the first

Application for Payment, documentation demonstrating compliance with this requirement shall be provided with the first Application for Payment submitted subsequent to the worker’s hiring.

10.4.3. The DESIGN-BUILDER and construction Subcontractors at all tiers shall each use the E-verify internet-based system operated by the United States Department of Homeland

Security to verify that all of their workers performing labor on the Project are eligible to work in the United States. Documentation of E-verify confirmation for each worker shall be submitted by the DESIGN-BUILDER with the first Application for Payment, or for those workers hired after submittal of the first Application for Payment, with the first Application for Payment submitted subsequent to the worker’s hiring.

10.4.4. Apprenticeship Program. The DESIGN-BUILDER shall comply with the

CITY’s Apprenticeship Program (“Program”) requirements. The goal of this Program is to have

10% of the DESIGN-BUILDER’s and first and second tier construction Subcontractors’ work hours sourced from registered State of Florida Pre-Apprenticeship/Apprenticeship Programs, if available. The DESIGN-BUILDER shall submit the Apprentice Utilization Plan at the Pre-

Construction Conference and submit a revised Apprentice Utilization Plan whenever a first or second tier construction Subcontractor is added or removed from the Project. Evidence of compliance, in the form of a Monthly Employment Report, shall be submitted with the

DESIGN-BUILDER’s progress payment applications. DESIGN-BUILDER shall include this provision in its contracts with first and second tier construction Subcontractors. Failure to comply with the provisions of this Article may result in termination of the contract and/or preclusion from award of future CITY contracts, at the sole option and discretion of the CITY.

10.4.5. The DESIGN-BUILDER shall post a copy of the CITY’s Living Wage and

Responsible Contractor’s policies at designated locations on the Project site as required by the

Contract Documents.

ARTICLE 11. MATERIALS AND WORKMANSHIP

11.1 The DESIGN-BUILDER shall furnish to CITY such certificates as may be required to show that the requirements of the CONTRACT DOCUMENTS have been satisfied. If several materials are specified by name for one use, DESIGN-BUILDER may select any of those so specified, and if an item or class of material is specified exclusively by trade name or by name of the maker or by catalog reference, only such items shall be used (unless the ENGINEER approves a substitution therefor in writing). DESIGN-BUILDER may substitute another material for one or more specified by name only after receiving prior written approval of ENGINEER therefor. DESIGN-BUILDER shall inform the ENGINEER of any reduction or increase in cost incurred by the use of such substituted material as well as provide data and samples for the

ENGINEER's consideration. No such material shall be used unless approved in writing by the

ENGINEER. Wherever the words "approved by", "satisfactory to", "as directed by", "submitted to", "inspected by", or similar phases are used in the specifications, they shall be understood to mean that the material or item referred to shall be approved by and be satisfactory to the

ENGINEER. No substitution shall be made for any materials, articles or process herein specified or shown on the drawings unless approved in writing by the ENGINEER.

ARTICLE 12. NOTIFICATION

All offers, notices, elections, and acceptances required to be made under the Contract Documents shall be in writing, signed by the party making same, and shall be delivered personally to or sent by registered or certified mail, to the party intended to be notified, and shall be deemed given when delivered in person, or when post marked, if mailed, to the DESIGN-BUILDER at the following address:

and to the CITY at the following address:

David Billingsley, CPSM, C.P.M.

Chief Procurement Officer

CITY OF ORLANDO

400 South Orange Avenue, 4th Floor

Orlando, Florida 32801 which addresses may, by appropriate notice, be changed by either DESIGN-BUILDER or CITY, such notice becoming a supplement to this Agreement.

ARTICLE 13. INDEPENDENT CONTRACTOR

DESIGN-BUILDER shall perform all Work under this Agreement as an Independent

Contractor and shall not be considered an agent of CITY, nor shall DESIGN-BUILDER’s

DESIGNER, Subcontractors or Suppliers or employees be considered agents of CITY. DESIGN-

BUILDER and not the CITY shall be solely responsible to the DESIGNER, any and all

Subcontractors and Suppliers, and all those employed by them for their costs, expenses, fees and profits, if any, in performing the Work.

IN WITNESS WHEREOF, the parties hereto have signed two copies of this Agreement.

At least one counterpart each has been delivered to CITY and DESIGN-BUILDER.

CITY OF ORLANDO, FLORIDA

By:

David Billingsley, CPSM, C.P.M.

Date:__________________________

APPROVED AS TO FORM AND LEGALITY

FOR THE USE AND RELIANCE OF THE

CITY OF ORLANDO, FLORIDA.

________________________________, 2022

Assistant City Attorney

Orlando, Florida

By:_____________________________

Name:___________________________

Title:____________________________

Date:_________________________

Design-Build Pre-Construction Agreement

DESIGN-BUILD PRE-CONSTRUCTION AGREEMENT

THIS DESIGN-BUILD PRE-CONSTRUCTION AGREEMENT (“AGREEMENT”)

is made and entered into this day of _____, 2022, by and between the City of Orlando, Florida, a Florida municipal corporation (“CITY”) and _______________________________ a

Florida for-profit corporation (“DESIGN-BUILDER”).

WHEREAS, CITY desires to obtain DESIGN-BUILDER’s professional design-build services (“Services”) for the project to be known as the ________________ Project (“Project”), according to the requirements in the CITY Request for Proposal RFPXX-XXXX, dated as of

________________ (the “Solicitation”), and as further described herein; and

WHEREAS, upon completion of the Services, it is contemplated that CITY and the

DESIGN-BUILDER will enter into an additional contract pursuant to which the DESIGN-

BUILDER will agree to perform the services of a prime contractor in connection with the construction of the Project (such contract, the “Design-Build Contract”);

WHEREAS, the DESIGN-BUILDER has submitted a proposal or response in connection with the Solicitation, which has been selected by CITY (hereinafter referred to as the

“Proposal”); and

WHEREAS, the DESIGN-BUILDER warrants to CITY that it is qualified and duly licensed to furnish the Services in Florida and meet the obligations set forth in the Solicitation, the Proposal, and the documents detailing the scope of services attached hereto as Exhibit A and incorporated herein by this reference (the “Scope of Services”), and as hereinafter stated; and

WHEREAS, the DESIGN-BUILDER warrants that the representations made by it in its

Proposal remain valid, accurate and binding upon it; and

WHEREAS, the DESIGN-BUILDER desires to render the Services and meet the obligations set forth in the Solicitation, the Proposal, and the Scope of Services and upon the terms and conditions set forth in the Contract Documents (as defined herein).

NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained and given one party to the other, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

SECTION 1

RECITALS; CONTRACT DOCUMENTS AND SCOPE OF SERVICES

1.1 RECITALS. The Recitals set forth above are incorporated herein by this reference.

1.2 CONTRACT DOCUMENTS. For the purposes of this AGREEMENT, the following documents are collectively referred to herein as the “Contract Documents”:

(a) This AGREEMENT together with all Exhibits hereto;

(b) The Solicitation; and

EXHIBIT "D"

(c) The Proposal.

The terms of the Contract Documents are incorporated herein by this reference. In the event of conflict between the terms of the Contract Documents, the order of precedence is as set forth above (thus, if there is a conflict between the terms of the Solicitation and the terms of the

Proposal, the terms of the Solicitation shall govern). In addition, to the extent any of the terms of the Proposal conflict or in the reasonable opinion of CITY are not relevant to the remaining

Contract Documents, then, in that event, the provisions contained in the Proposal will not be applicable nor a part of the Contract Documents. Contract Documents shall further include any later amendments.

1.3 FURNISHING OF SERVICES.

(a) The DESIGN-BUILDER shall furnish to CITY the Services in compliance with the Contract Documents.

(b) The DESIGN-BUILDER will prepare a design report during the pre-construction design phase and thirty percent (30%) construction documents which will outline all of the parameters of the Project and describe in detail the design features. In its final form the design report will contain a preliminary guaranteed maximum price, a narrative of the main design features and the sequence for design and construction phasing. The DESIGN-BUILDER shall submit the thirty percent (30%) construction documents and design report to CITY for its review. CITY may, in its sole discretion, elect to approve or reject the design report and/or the thirty percent (30%) construction documents. If CITY rejects the design report and/or the thirty percent (30%) construction documents, the DESIGN-BUILDER shall rework said documents to

CITY’s satisfaction. Upon receiving CITY’s approval of said documents, the DESIGN-

BUILDER shall prepare one hundred percent (100%) construction documents. When the plans and specifications are sufficiently complete to establish the Scope of Work for the Project (the services to be performed pursuant to such Scope of Work, the “Work”) or at such time thereafter designated by CITY, the DESIGN-BUILDER will establish and submit in writing to

CITY for its approval a final guaranteed maximum price (“GMP”) for the construction phase of the Project, guaranteeing the maximum price to CITY for the cost of construction or designated part thereof. The parties understand that there is no guarantee that a Design-Build Contract will be entered into between DESIGN-BUILDER and CITY and that either of the parties may elect not to enter into such an agreement in its sole discretion.

(c) The Services to be performed by the DESIGN-BUILDER shall be performed in accordance with the Project timeline attached hereto as Exhibit B and incorporated herein by this reference, and in no event shall the Phase I one hundred percent (100%) construction documents be completed by the DESIGN-BUILDER no later than _________________, unless otherwise approved in writing by the CITY (hereof the “Completion Date”). CITY may, in its sole and absolute discretion, extend the Completion Date to allow the DESIGN-

BUILDER additional time to complete the Services or to provide additional services which

CITY may request as set forth in the Scope of Services.

1.4 SOLICITATION OF BIDS. If the parties enter into a Design-Build Contract, the

DESIGN-BUILDER will, except as otherwise set forth below, prepare and issue solicitations

(i.e., invitations for bids, requests for proposals, etc.) for all procurements of (i) long lead items,

(ii) materials and services, (iii) subcontractor contracts and (iv) site utilities in connection with the construction phase of the Project. The contracts entered into between the DESIGN-

BUILDER and the providers of the items identified in (i) – (iv) of the previous sentence are referred to herein as “Subcontracts.” The procurement process for such Subcontracts shall be conducted by the DESIGN-BUILDER in accordance with the following guidelines.

(a) Subcontracts that do not exceed $50,000. Unless waived by the CITY, subcontracts not exceeding $50,000 may be entered into by the DESIGN-BUILDER with any firm that is qualified to provide the work sought and submits the lowest responsive bid. The

DESIGN-BUILDER shall request at least three (3) firms to submit sealed written bids based on written drawings and/or specifications. A tabulation of the results shall be furnished to CITY and to each bidding firm. If approved in advance by CITY, the DESIGN-BUILDER and/or any of the proposed subcontractors included in the DESIGN-BUILDER’s Proposal (“Proposed

Subcontractors”) may submit sealed written bids as well; provided, that the sealed written bids of the DESIGN-BUILDER and/or its Proposed Subcontractors shall be opened by CITY.

(b) Subcontracts exceeding $50,000. Unless waived by the CITY, subcontracts exceeding $50,000 may be entered into by the DESIGN-BUILDER with the firm that is qualified to provide the work sought and submits the lowest bid. The DESIGN-BUILDER shall advertise these Subcontracts at least once in the Orlando Sentinel with the last advertisement appearing at least fourteen (14) calendar days prior to the established bid opening time and date.

If approved in advance by CITY, the DESIGN-BUILDER and/or any of its Proposed

Subcontractors may submit sealed written bids as well; provided, that the sealed written bids of the DESIGN-BUILDER and/or its Proposed Subcontractors shall be opened by CITY.

(c) Work performed by DESIGN-BUILDER. If approved in advance by CITY, the DESIGN-BUILDER and/or the Proposed Subcontractors may perform a portion of the

Work for any item listed on the estimate or GMP breakdown where it is economically advantageous to CITY or advantageous to the Project schedule. CITY may require that the

DESIGN-BUILDER and/or the Proposed Subcontractors submit sealed bids for such Work and that the bids be opened by CITY.

SECTION 2

PRE-CONSTRUCTION DESIGN PHASE FEES AND COSTS AND DESIGN-BUILD

CONSTRUCTION FEES AND COSTS

2.1 PAYMENT OF FEES AND COSTS. CITY shall be required to pay the DESIGN-

BUILDER the amounts set forth in Section 2.1(a) for Services performed in connection with the pre-construction design phase of the Project. In the event the Project proceeds to the construction phase, the Design-Build Contract shall provide that CITY will be required to pay the DESIGN-BUILDER the amounts set forth in Section 2.1(b) for Services performed in connection with the construction phase of the Project. For the avoidance of doubt, if the Project does not proceed to the construction phase, CITY shall not be obligated to make any payments to the DESIGN-BUILDER pursuant to Section 2.1(b). Any amounts required to be paid pursuant to this Section 2.1(a) shall be paid in accordance with the procedure set forth in Section 5.

(a) Pre-Construction Design Phase Fee and Costs. In full consideration of the

Services performed by the DESIGN-BUILDER in connection with the pre-construction design phase of the Project, CITY hereby agrees to pay the DESIGN-BUILDER a fee as set forth on

Exhibit C hereto (the “Schedule of Fees”) set as $______________. The DESIGN-

BUILDER shall not be entitled to any other payments or reimbursements in connection with the pre-construction design phase of the Project.

(b) Construction Phase Fee. If the parties enter into a Design-Build Contract, the

Design-Build Contract will provide that in full consideration of the Services performed by the

DESIGN-BUILDER in connection with the construction phase of the Project, CITY will (i) pay the DESIGN-BUILDER a fee to be negotiated by the Parties equal to a percent of the Cost of

Work (as defined in Section 3.1) (the “Construction Phase Fee”) and (ii) reimburse the

DESIGN-BUILDER for the DESIGN-BUILDER’s out of pocket costs which are included within the definition of the Cost of Work. If construction is authorized by CITY for only for a part of the Project, the Design-Build Contract will provide that the Construction Phase Fee paid shall be proportionate to the amount of construction authorized by CITY.

(i) Fee (Overhead and Profit for Construction Phase). For profit, overhead, including, but not limited to, home and branch office expenses, and general expenses of any kind, except as may be expressly included in Section 3.1 below, for services provided during and related to the Construction Phase, the fee shall be ____% of the Cost of the Work as defined in

Section 3.1 below. The balance of the Fee shall be paid upon Final Completion of the Project. If construction is authorized only for a part of the Project, the Fee paid shall be proportionate to the amount of work authorized by the City.

(c) Unauthorized Services. The DESIGN-BUILDER acknowledges and agrees that if at any time it performs Services for the Project outside of the Scope of Services and such

Services have not been approved in writing in advance by CITY, then the DESIGN-BUILDER shall perform such Service without liability to CITY, and at the DESIGN-BUILDER’s own risk.

SECTION 3

COST OF THE WORK

(Construction Phase)

3.1 COSTS OF WORK. The term “Cost of Work” shall mean the cost for all building materials plus the necessary labor and equipment to position those materials in their final place within the building. Such costs shall include the items set forth below in this Section 3. The

CITY agrees to pay the DESIGN-BUILDER for the Cost of Work plus a construction phase fee as defined in Section 2.1(b). Such payment shall be in addition to the cost of the DESIGN-

BUILDER’S General Conditions in connection with the Construction Phase (i.e. Site related expenses).

3.2 INCLUDED COSTS. Only the following costs, which are reasonably incurred by

DESIGN-BUILDER in the proper performance of the Work, shall be included in the Cost of

Work:

(a) Wages of direct employees of DESIGN-BUILDER performing the Work at the

Work site (the “Site”), at locations off the Site with CITY’s prior written consent.

(b) Payments properly made by DESIGN-BUILDER to its subcontractors, including the architect or engineer of record, for performance of the Work.

(c) Costs, including transportation, inspection, testing, storage and handling of materials, equipment and supplies incorporated in the Work.

3.3 EXCLUDED COSTS. The following costs shall be excluded from the Cost of Work:

(a) Compensation for DESIGN-BUILDER’s personnel stationed at DESIGN-

BUILDER’s principal or branch offices.

(b) Overhead and general expenses (i.e., expenses associated with DESIGN-

BUILDER’s principal office).

(c) The cost of DESIGN-BUILDER’s capital used in the performance of the Work.

(d) If the parties have agreed on a GMP, costs that would cause the GMP, as adjusted in accordance with the Contract Documents, to be exceeded.

(e) The cost of correcting damaged or defective or non-conforming Work (or any resultant schedule delay) made necessary because of defective or non-conforming workmanship or materials, design errors or omissions or other causes attributable to the DESIGN-BUILDER, Designer, subcontractors at all tiers or anyone else for whom they are responsible.

(f) Costs of the DESIGN-BUILDER’s General Conditions in connection with the construction phase (i.e., Site-related expenses).

SECTION 4

CITY’S RESPONSIBILITIES

4.1 REQUIREMENTS FOR THE PROJECT. CITY agrees that it will provide criteria and information as to CITY’s requirements for the pre-construction design phase of the Project in a timely manner, including design objectives and constraints; space; capacity and performance requirements; flexibility and expandability matters; and any budgetary limitations; and copies of all design and construction standards which CITY will require to be included in the construction documents.

4.2 INFORMATION PERTINENT TO THE PROJECT. CITY shall, upon request, provide the DESIGN-BUILDER will reasonably available information reasonably pertinent to the Project (including previous reports and any other data relative to design or construction of the

Project), and CITY shall advise the DESIGN-BUILDER as to what information, if any, CITY believes to be accurate. The DESIGN-BUILDER is ultimately responsible for satisfying itself as to accuracy of any data provided, and, furthermore, the DESIGN-BUILDER is responsible for bringing to CITY’s attention, for CITY’s resolution, any material inconsistencies or errors in such data which come to the DESIGN-BUILDER’s attention. If CITY requires the DESIGN-

BUILDER’s assistance in resolving any error or inconsistency, such Services may be provided by mutual agreement of the parties.

4.3 ACCESS TO PROPERTY. CITY shall arrange for access to and make provisions for the DESIGN-BUILDER to enter upon public property as reasonably required for the DESIGN-

BUILDER to perform the Services. DESIGN-BUILDER shall make its own arrangements for access to private property which DESIGN-BUILDER believes is necessary to perform its

Services. If required by the owner of the property, the DESIGN-BUILDER shall agree in writing to:

(a) Release and hold the owner of such property harmless against any claims, damages and injuries that occur as a result of the DESIGN-BUILDER’s use of such property;

and

(b) Leave such property in as good condition and order as existed on the commencement of DESIGN-BUILDER’s use.

4.4 CITY PROJECT MANAGER. The CITY shall appoint a Project Manager (“Project

Manager”) for this Project. The Project Manager shall issue any and all written authorizations to the DESIGN-BUILDER that the Project may require, or that may otherwise be defined or referred to in this AGREEMENT. The Project Manager shall also, 1) act as the CITY’s agent with respect to the Services rendered hereunder; 2) transmit instructions to and receive information from the DESIGN-BUILDER; and 3) communicate the CITY’s decisions to the

DESIGN-BUILDER regarding the Services. The Project Manager shall have the authority to extend the Completion Date as provided in Section 1.3(c).

SECTION 5

PAYMENTS TO DESIGN-BUILDER

5.1 INVOICING AND PAYMENT

(a) Submission of Invoices. In order to receive payment for its Services performed in connection with the pre-construction design phase of the Project pursuant to Section 2.1, the

DESIGN-BUILDER must submit an invoice in accordance with the Schedule of Fees detailing the Services provided and the amount charged (each, an “Invoice”). Each Invoice must be accompanied with an updated CD-ROM of the design files and an updated Project schedule in form and substance acceptable to CITY.

(b) Payment Period. Subject to the terms and conditions provided herein, CITY will pay each undisputed Invoice received pursuant to Section 5.1(a) within thirty (30) days after receipt and approval by CITY of said Invoice. CITY may request additional documentation from the DESIGN-BUILDER prior to payment of any Invoice. CITY may disallow and deduct any cost for which proper documentation is not provided.

(c) Reimbursable Expenses. “Reimbursable Expenses” means the actual, necessary and reasonable expenses incurred directly or indirectly in connection with the Project for: transportation and subsistence incidental thereto for Project visitation as approved in advance by the Project Manager and drawings and specifications and similar Project-related items, all in accordance with the CITY’s Policy and Procedures Manual.

5.2 SCOPE, COST AND FEE ADJUSTMENT

(a) General. CITY may at any time request changes to the Scope of Services. CITY shall make such request by delivering to the DESIGN-BUILDER a notification stating the proposed Scope of Services modification and an adjustment of the Schedule of Fees in Exhibit

C to reflect such modification. The fee adjustment due to modification in the Scope of Services may be calculated utilizing the same method of compensation applicable to the AGREEMENT prior to the Scope of Services modification.

(b) Scope Reduction. CITY shall have the right to reduce (or eliminate, in whole or in part) the Scope of the Services at any time and for any reason, upon providing written notice to the DESIGN-BUILDER specifying the nature and extent of the reduction. In such event the

DESIGN-BUILDER shall be fully compensated for the Services performed prior to such reduction or elimination.

(c) Scope Suspension. CITY may, at any time and for any reason, direct the

DESIGN-BUILDER to suspend Services (in whole or in part) under this AGREEMENT. Such direction shall be in writing, and shall specify the period during which Services shall be stopped. The DESIGN-BUILDER shall resume its Services upon the date specified, or upon such other date as CITY may thereafter specify in writing. The period during which the

Services are stopped by CITY shall be added to the term; provided however, that any work stoppage not approved or caused by the actions or inactions of CITY shall not give rise to any claim against CITY by the DESIGN-BUILDER. CITY agrees to compensate the DESIGN-

BUILDER for its reasonable and provable costs, profits (as agreed to by CITY), and losses

(including overhead costs, reimbursable, demobilization, remobilization, and subcontractor expenses incurred) attributable to any delay approved or caused by the actions or inaction of

CITY.

5.3 TERMINATION. Upon the termination of this AGREEMENT, the DESIGN-

BUILDER shall prepare a final and complete Invoice for all Services and Reimbursable

Expenses incurred since the posting of the last Invoice, and through the date of termination. The final Invoice shall be subject to all of the provisions described in this Section 5.

5.4 FINAL PAYMENT. The acceptance by the DESIGN-BUILDER, its successors, or assigns, of any final payment due on account of the pre-construction design phase of the Project shall constitute a full and complete release of CITY from any and all claims or demands regarding further compensation for authorized Services rendered prior to such final payment that the DESIGN-BUILDER, its successors, or assigns have or may have against CITY under the provisions of this AGREEMENT, unless otherwise previously and properly filed pursuant to the provisions of this AGREEMENT, or in a court of competent jurisdiction. This Section 5.4 does not affect any other portion of this AGREEMENT that extends obligations of the parties beyond final payment.

5.5 LIVING WAGE. The DESIGN-BUILDER, as well as its subcontractors at all tiers, shall pay to all of their employees providing Services pursuant to a contract with the CITY, a living wage for the time spent providing Services to the CITY.