PROJECT NAME

PROGRESSIVE DESIGN-BUILD AGREEMENT (WUD PROJECT NO. XX-XXX)

THIS AGREEMENT, made and entered into this _______ day of _________, 202X (“Effective Date”) by and between Palm Beach County, Florida, a political subdivision of the state of Florida, hereinafter referred to as the “County” or “Owner”, and [Design-Builder Name], a [State Name] Corporation authorized to do business in the State of Florida, hereinafter referred to as “Design-Builder”, whose Federal I.D. is [Design-Builder Federal I.D.].

WITNESSETH

WHEREAS, the County recently solicited proposals for design-build services in relation to the Project Name Design-Build project (WUD Project No XX-XXX) (“Project”); and

WHEREAS, Design-Builder submitted a proposal to design and construct the Project and was selected to receive the award of the Project;

WHEREAS, Owner and Design-Builder commit at all times to cooperate fully with each other, and proceed on the basis of trust and good faith to permit each party to realize the benefits afforded under this Agreement; and

WHEREAS, County and Design-Builder wish to enter into this Agreement to set forth the terms, conditions, and requirements of Design-Builder’s design and construction services in completing the Project.

NOW THEREFORE, In consideration of the mutual covenants and obligations contained herein, County and Design-Builder now agree as follows:

Design-Builder may give written notice to County that it considers this Agreement completed. If County fails to exercise either of the options under Section 1.4.2 within ten (10) days of receipt of Design-Builder’s notice, then this Agreement shall be deemed completed.

2.1.1

The Design-Build Criteria set forth as Attachment H to this Agreement;

2.1.2

All written modifications, amendments and change orders to this Agreement issued in accordance with Attachment D, General Conditions;

2.1.3

2.1.4

Written Special Conditions, if any, to the General Conditions;

Written Supplementary Conditions, if any, to the General Conditions;

2.1.5

The General Conditions set forth as Attachment D to this Agreement;

2.1.6

This Agreement, excluding all exhibits and attachments;

2.1.7

Technical Specifications and Drawings

2.1.8

The following other documents attached hereto:

· Attachment A – Scope of Design-Builder’s Services

· Attachment B – Compensation

· Attachment C – Schedule

· Attachment E – Public Construction Bond

· Attachment F – Form of Guarantee

· Attachment G – OEBO Schedule 1 and Schedule 2

· Attachment I – Engineering and Construction Hourly Labor Rates

· Attachment J – Pricing Guidance

· Attachment K – Miscellaneous Documents / Forms

Article 7.0 Guaranteed Maximum Price [This Article 7 acts as a placeholder and will be completed as part of the amendment to add the GMP for Phase 2 Services].

7.1 Design-Builder guarantees that it shall not exceed the GMP of ______ Dollars ($ ). Documents used as a basis for the GMP shall be identified in the Contract Price Amendment to this Agreement. Design-Builder does not guarantee any specific line item provided as part of the GMP, and has the sole discretion to apply payment due to overruns in one line item to savings due to underruns in any other line item. Design-Builder agrees, however, 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.

7.2 Contingency.

7..2.1 Design-Builder Contingency. The GMP includes a Design-Builder Contingency in the amount of (to be established at time of GMP) Dollars ($ ) which is available for Design-Builder’s exclusive use for unanticipated costs it has incurred that are not the basis for a Change Order under the Contract Documents. By way of example, and not as a limitation, such costs may include: (a) trade buy-out differentials; (b) overtime or acceleration ordered by the Owner; (c) escalation of materials; (d) omissions, however caused; (e) Subcontractor defaults; or (f) those events under Article 11.10 and Section 82 of the General Conditions of Contract that result in an extension of the Contract Time but do not result in an increase in the Contract Price. The Design-Builder Contingency is not available to Owner for any reason, including changes in scope or any other item which would enable Design-Builder to increase the GMP under the Contract Documents. Design-Builder shall provide Owner notice of all anticipated charges against the Contingency, and shall provide Owner as part of the monthly status report required by amended to add the agreed-upon Contract Price for Phase 2 Services of the General Conditions of Contract an accounting of the Design-Builder Contingency, including all reasonably foreseen uses or potential uses of the Design Builder Contingency. Design-Builder agrees that with respect to any expenditure from the Design Builder Contingency relating to a Subcontractor default or an event for which insurance or bond may provide reimbursement, Design-Builder will in good faith exercise reasonable steps to obtain performance from the Subcontractor and/or recovery from any surety or insurance company. Design-Builder agrees that if Design-Builder is subsequently reimbursed for said costs, then said recovery will be credited back to the Contingency.

7.2.2 Owner Contingency. The GMP includes an Owner Contingency in the amount of (to be established at time of GMP ) Dollars ($ ) which is available for Owner’s exclusive use for unanticipated costs that are not the basis for a Change Order under the Contract Documents. By way of example, and not as a limitation, such costs may include: (a) specific Owner allowances, (b) Owner request(s) to accelerate, and (c) reasonable scope gaps as adjudicated reasonable by the Owner. The Owner Contingency is not available to Design-Builder for any reason without prior approval by the Owner. The Design-Builder will be required to furnish documentation justifying the use of the Owner Contingency and provide documentation evidencing proposed expenditures to be charged to the Owner Contingency prior to approval and the release of funds by the Owner. Proper Documentation for use of the Owner Contingency shall be determined by the Owner. Owner shall provide Design-Builder notice of all anticipated charges against the Owner Contingency.

7.3 Savings.

7.3.1 If the sum of the actual Cost of the Work and Design-Builder’s Fee is less than the GMP, as such GMP may have been adjusted over the course of the Project, the difference (“Savings”) shall remain with the County.

B. Invoices received from the Design-Builder for Phase 1 Services pursuant to Attachment B, Compensation to this Agreement will be reviewed and approved by the County's representative, to verify that services have been rendered in conformity with the Agreement. Approved invoices will then be sent to the Finance Department for payment. Invoices will normally be paid within thirty (30) days following the County representative's approval, but no later than required under Florida’s Local Government Prompt Payment Act, Section 218.70 et seq., Florida Statutes.

C. "Out-of-pocket" expenses will be reimbursed up to an amount not to exceed __________dollars ($ ), and in accordance with the list of the types and amounts of expenditures eligible for reimbursement as set forth in Attachment B, Compensation. All requests for payment of "out-of-pocket" expenses eligible for reimbursement under the terms of this Agreement shall include copies of paid receipts, invoices, or other documentation acceptable to the Palm Beach County Finance Department. Such documentation shall be sufficient to establish that the expense was actually incurred and necessary in the performance of the Phase 1 Services described in this Agreement. Any travel, per diem, mileage, meals, or lodging expenses which may be reimbursable under the terms of this Agreement will be paid in accordance with the rates and conditions set forth in Section 112.06l, Florida Statutes.

D. Payments made for construction services performed in the execution of Phase 1 Services shall be made in accordance with the applicable provisions of Florida Statute 218.70 et seq, the Local Government Prompt Payment Act and GC 54.

E. Final Invoice: In order for both parties herein to close their books and records, the Design-Builder will clearly state "final invoice" on the Design-Builder’s final/last billing to the County for Phase 1 Services. This shall constitute Design-Builder’s certification that all Phase 1 services have been properly performed and all charges and costs have been invoiced to County. Any other charges for Phase 1 Services not properly included on this final invoice are waived by the Design-Builder.

F. In order to do business with Palm Beach County, Design-Builder is required to create a Vendor Registration Account OR activate an existing Vendor Registration Account through the Purchasing Department’s Vendor Self Service (VSS) system, which can be accessed at https://pbcvssp.co.palm-beach.fl.us/webapp/vssp/AltSelfService. If Design-Builder intends to use sub-consultants, Design-Builder must also ensure that all sub-consultants are registered as consultants in VSS. All sub-consultant agreements must include a contractual provision requiring that the sub-consultant register in VSS. County will not finalize a contract award until the County has verified that the Design-Builder and all of its sub-consultants are registered in VSS.

Article 10.0 Subcontracting The County reserves the right to accept the use of a subcontractor or to reject the selection of a particular subcontractor and to inspect all facilities of any subcontractors in order to make a determination as to the capability of the subcontractor to perform properly under this Agreement. The Design-Builder is encouraged to seek additional small business enterprises for participation in subcontracting opportunities. If the Design-Builder uses any subcontractors on this project the following provisions of this Article shall apply:

If a subcontractor fails to perform or make progress, as required by this Agreement, and it is necessary to replace the subcontractor to complete the work in a timely fashion, the Design-Builder shall promptly do so, subject to acceptance of the new subcontractor by the County.

It is the policy of the Board of County Commissioners of Palm Beach County, Florida (the Board) that all segments of its business population including, but not limited to, small and local owned businesses, have an equitable opportunity to participate in the County’s procurement process, prime contract and subcontract opportunities. In pursuance of that policy, the Board adopted an Equal Business Opportunity (EBO) Ordinance which is codified in Sections 2-80.20 through 2 80.30 (as may be amended) of the Palm Beach County Code. The EBO Ordinance sets forth the County’s requirements for the EBO program, and is incorporated herein and made part of this Contract. Non-compliance with the EBO Ordinance must be corrected within fifteen (15) days of notice of non-compliance. Failure to comply with the EBO Ordinance may result in any of the following penalties:

• Suspension of Agreement;

· Withholding of funds;

For Phase 1 Services, the Design-Builder must adhere to the Affirmative Procurement Initiatives (APIs) set forth in the Notice of Advertisement, and the specifications set forth in Design-Builder’s response, which are both incorporated herein by reference. Failure to comply with this Article 10.0 is a material breach of this Agreement. Design-Builder agrees to meet the following SBE percentages: xx.xx% SBE. (NOTE: If Design-Builder has agreed to provide an API percentage that is higher than what was required by the Goal Setting Committee, then you must state what the Design-Builder has agreed to on the API page.)

The APIs for Phase 2 Services shall be set by the Goal Setting Committee prior to the advertisement and bidding of such services by the Design-Builder, and the provisions of this Article 10.0 shall apply to the Phase 2 Services. If the Design-Builder is unable to achieve the goals during the advertisement and bidding for Phase 2, a waiver shall be submitted as part of the GMP. The amended APIs, as determined by the County, for Phase 2 shall be included in the Phase 2 amendment.

i. Design-Builder shall report all subcontractor payment information on EBO forms 3a and 4, or as otherwise required by EBO, and, when the EBO portal is available, input subcontractor payment information directly into the County’s contract management system.

Design-Builder shall pay subcontractors undisputed amounts within ten (10) days after County pays the Design-Builder. In the event of a disputed invoice, the Design-Builder shall send the subcontractor(s) and County a written notice of the dispute within five (5) days after receipt of the subject invoice.

ii. Design-Builder must notify the Office of EBO of changes in S/M/WBE utilization and obtain prior approval for any substitutions.

The Design-Builder agrees to pay its subconsultants in compliance with the Florida Prompt Payment Act. In the event Design-Builder fails to comply with payments(s) to its subconsultants in accordance with the Florida Prompt Payment Act, Design-Builder shall be subject to any and all penalties and sanctions available under the terms of the EBO Program, its contract with the County, or any other applicable law.

The Office of EBO has the right to review Design-Builder’s records and interview Subcontractors.

Signature of this Agreement by the Design-Builder shall also act as the execution of a truth-in-negotiation certificate certifying that the wage rates, over-head charges, and other costs used to determine the compensation provided for in this Agreement are accurate, complete and current as of the date of the Agreement and no higher than those charged the Design-Builder's most favored customer for the same or substantially similar service.

The said rates and costs shall be adjusted to exclude any significant sums should the County determine that the rates and costs were increased due to inaccurate, incomplete or noncurrent wage rates or due to inaccurate representations of fees paid to outside consultants. The County shall exercise its rights under this Article 11.1 within three (3) years following final payment.

11.2 Personnel

The Design-Builder represents that it has, or will secure at its own expense, all necessary personnel required to perform the services under this Agreement. Such personnel shall not be employees of or have any contractual relationship with the County.

All of the services required herein under shall be performed by the Design-Builder or under its supervision, and all personnel engaged in performing the services shall be fully qualified and, if required, authorized or permitted under state and local law to perform such services.

Any changes or substitutions in the Design-Builder's key personnel, as may be listed in Exhibit "A", must be made known to the County's representative and written approval must be granted by the County's representative before said change or substitution can become effective.

The Design-Builder warrants that all services shall be performed by skilled and competent personnel to the highest professional standards in the field.

All of the Design-Builder’s personnel (and all Subcontractors), while on County premises, will comply with all County requirements governing conduct, safety and security.

11.3 Federal and State Tax

The County is exempt from payment of Florida State Sales and Use Taxes. The County will sign an exemption certificate submitted by the Design-Builder. The Design-Builder shall not be exempted from paying sales tax to its suppliers for materials used to fulfill contractual obligations with the County, nor is the Design-Builder authorized to use the County's Tax Exemption Number in securing such materials.

The Design-Builder shall be responsible for payment of its own and its share of its employees' payroll, payroll taxes, and benefits with respect to the performance of the Work.

11.4 Availability of Funds

The County's performance and obligation to pay under this Agreement for subsequent fiscal years are contingent upon annual appropriations for its purpose by the Board of County Commissioners.

No provision of this Agreement is intended to, or shall be construed to, create any third party beneficiary or to provide any rights to any person or entity not a party to this Agreement, including but not limited to any citizen or employees of the County and/or Design-Builder.

THE PARTIES HEREBY WAIVE ANY RIGHTS EITHER OF THEM MAY HAVE TO A JURY TRIAL IN ANY LITIGATION ARISING OUT OF OR RELATED TO THIS AGREEMENT AND AGREE THAT THEY SHALL NOT ELECT A TRIAL BY JURY. THE PARTIES HERETO HAVE SEPARATELY, KNOWINGLY AND VOLUNTARILY GIVEN THIS WAIVER OF RIGHT TO TRIAL BY JURY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.

If sent to the County, notices shall be addressed to:

Palm Beach County Water Utilities Department c/o Ali Bayat, P.E., PMP 8100 Forest Hill Blvd West Palm Beach, FL 33413 With copy to:

Palm Beach County Attorney’s Office 301 North Olive Ave.

West Palm Beach, Florida 33401

If sent to the Design-Builder, notices shall be addressed to:

[Design Builder Address]

With a copy to:

[Design Builder Address]

Notice shall be effective upon receipt by the individuals designated above.

11.22 Entirety of Contractual Agreement