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R23-105
1 RESOLUTION NO. R23-105 2 3 4 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA, 5 APPROVING AND AUTHORIZING THE CITY MANAGER TO SIGN THE 6 CONTRACT WITH FOSTER MARINE CONTRACTORS OF WELLINGTON, 7 FL BASED ON RFQ UTL23-007 TOWN OF HYPOLUXO SEPTIC TO SEWER 8 PROGRESSIVE DESIGN BUILD - GRANT FUNDED PROJECT - PHASE 1 9 IN THE AMOUNT OF $375,000; APPROVE A UTILITY CAPITAL 10 IMPROVEMENT FUND (404) BUDGET TRANSFER;AND PROVIDING AN 11 EFFECTIVE DATE. 12 13 WHEREAS, on May 16, 2023, the City Commission approved the selection of Foster 14 Marine Contractors in response to Request for Qualifications (RFQ) No. UTL23-007 for the 15 Town of Hypoluxo Septic to Sewer - Progressive Design Build (PDB) - Grant Funded project; 16 and 17 WHEREAS, the scope of the project includes the conversion of septic tanks to gravity 18 sanitary sewer, force main pipelines, and wastewater lift stations to serve two commercial 19 areas, Hypoluxo Mall and Miner Road Business Park, within the Town of Hypoluxo; and 20 WHEREAS, an Interlocal Agreement between the Town of Hypoluxo and City of 21 Boynton Beach has been executed for the City to assist the Town with the engineering design, 22 permitting, construction, and project management to satisfy the grant requirements per the 23 Interlocal Agreement; and 24 WHEREAS, the City Commission of the City of Boynton Beach, Florida, upon the 25 recommendation of staff, deems it to be in the best interests of the City residents to approve 26 and authorize the City Manager to sign the contract with Foster Marine Contractors of 27 Wellington, FL based on RFQ UTL23-007 Town of Hypoluxo Septic to Sewer Progressive 28 Design Build - Grant Funded Project - Phase 1 in the amount of $375,000, and approve a 29 Utility Capital Improvement Fund (404) budget transfer. 30 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF 31 BOYNTON BEACH, FLORIDA, THAT: 32 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as 33 being true and correct and are hereby made a specific part of this Resolution upon adoption 34 hereof. S:\CA\RESO\Agreements\Agreement for Hypoluxo Septic to Sewer(Foster Marine)-Reso.docx 35 Section 2. The City Commission hereby approves and authorizes the City 36 Manager to sign the contract with Foster Marine Contractors of Wellington, FL based on the 37 Request for Qualification RFQ UTL23-007 Town of Hypoluxo Septic to Sewer Progressive 38 Design Build - Grant Funded Project - Phase 1 in the amount of $375,000. A copy of the 39 Contract is attached hereto as Exhibit "A." 40 Section 3. The City Commission hereby approves and authorizes the budget 41 transfer $125,000 from 404-5000-535-65.03 SW1902 - Silverwood Estates (Force Main) to 42 404-5000-535-65.03 - Hypoluxo Septic to Sewer. 43 Section 4. This Resolution shall become effective immediately upon passage. 44 PASSED AND ADOPTED this 15th day of August, 2023. 45 CITY OF BOYNTON BEACH, FLORIDA 46 YES NO 47 / 48 Mayor-Ty Penserga ✓ 49 ✓ 50 Vice Mayor-Thomas Turkin 51 52 Commissioner-Angela Cruz 53 54 Commissioner-Woodrow L. Hay ✓ 55 56 Commissioner-Aimee Kelley 57 58 VOTE S-0 59 A T: 6061 th ./ 1111e 62 Mayle- D:Jesus, MPA, M C Ty '- s- ga 63 City Cl-r' Ma • or'RP ‘% Y 64 � ct,o) .�90 , 65 ,r p;�� -t ••.? oto AP''ROVED AS TO FORM: 66 (Corporate Seal) i 5�� p,(E p; • 67 •v• CORPpR 68 •..\\•1 1920 ' David N. Tolces 69 (111FLO `` �‘�P Interim City Attorney S:\CA\RESO\Agreements\Agreement for Hypoluxo Septic to Sewer(Foster Marine)-Reso docx PROGRESSIVE DESIGN/BUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED This AGREEMENT is made effective as of August 15. 2023 ,by and between the following parties, for services in connection with the Project identified below: OWNER: City of Boynton Beach 100 E. Ocean Avenue Boynton Beach,FL 33435 DESIGN-BUILDER: Foster Marine Contractors 3180 Fairlane Farms Suite l Wellington,FL 33414 PROJECT: RFQ#UTL23-007—TOWN OF HYPOLUXO SEPTIC TO SEWER—PROGRESSIVE DESIGN BUILD(PDB)-GRANT FUNDED WHEREAS,the CITY solicited proposals from qualified Design-Build Firms to provide services for the Town of Hypoluzo Septic to Sewer Project(PDB)—Grant Funded; WHEREAS,pursuant to Section 287.055, Florida Statutes,the City of Boynton Beach solicited proposals for non-exclusive Contracts to perform professional services, WHEREAS,at its meeting on May 16,2023,the CITY Commission authorized the proper CITY officials to conduct negotiations with the first-ranked firm Foster Marine Contractors of Wellington, Florida;and WHEREAS,at its meeting on August 15,2023 ,the CITY Commission authorized the proper CITY officials to execute this Contract hereinafter referred to as Contract No.: UTL23007. In consideration of the mutual covenants and obligations contained herein, Owner and Design-Builder now agree as follows: Article 1.0 Scope of Work 1.1 Phased Delivery.Owner and Design-Builder will implement the Project on a phased basis. 1.2 Phase 1 Services. Owner has selected Design-Builder on the basis of Design-Builder's proposal for the performance of design, pricing, and other services for the Project during Phase 1. Design- Builder shall perform such services to the level of completion required for Design-Builder to establish the Contract Price for Phase 2, as set forth in Section 1.3 below. The Contract Price for Phase 2 shall be developed during Phase 1 in conjunction with Attachment B. Design-Builder's Compensation for Phase l Services is set forth in Section 1, Phase 1, of Attachment B, Compensation. The level of completion required for Phase 1 Services is defined in Attachment A, ®Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 1 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED Scope of Work(either as a percentage of design completion or by defined deliverables). 1.3 Phase 2 Services. Design-Builder's Phase 2 services shall consist of the completion of design services for the project, the procurement of all materials and equipment for the Project, the performance of construction services for the Project,the start-up,testing,and commissioning of the Facility,and the provision of warranty services,all as further described in Attachment A,Scope of Work. Upon receipt of Design-Builder's proposed Contract Price for Phase 2, Owner may (a) accept the Contract Price and issue a Notice to Proceed with Phase 2 services, or(b) enter into a negotiation with Design-Builder on the scope and Contract Price,and,if required,on the schedule, for Phase 2 services to achieve a mutually acceptable basis on which to proceed,or(c)reject Design- Builder's proposal for Phase 2 and either(i)cancel the Project, (ii)proceed with another Design- Builder, or (iii) exercise the "off-ramp" final design provisions of Section 1.4, Off-Ramp. The Contract Price for Phase 2 Services will be set forth in Section 2, Phase 2, of Attachment B, Compensation,when mutually agreed between the parties. Once the parties have agreed upon the Contract Price and Owner has issued a Notice to Proceed with Phase 2, Design-Builder shall perform the Phase 2 services,all as further described in Attachment A,Scope of Work,as it may be revised. 1.4 Off-Ramp. 1.4.1 The parties acknowledge that Owner's ability to successfully complete the Project may be significantly impacted if Owner elects to terminate Design-Builder's services at the end of Phase 1,rather than proceeding to Phase 2 under Section 1.3("Phase 2 Services")and certain design sub- consultants are not available to continue working on the Project. Consequently, Design-Builder hereby agrees that if Owner terminates Design-Builder for any reason,Owner shall have the right to contract directly with such design sub-consultants for design-related services on this Project,and Design-Builder shall take such steps as are reasonably necessary to enable Owner to implement such relationship. Design-Builder shall provide in any design sub-consultant agreements that Owner shall have the right to negotiate directly with such design sub-consultants for the continuation of their services with respect to the Project, and that any provisions with respect to copyright or the ownership of instruments of service confirm such right of Owner. 1.4.2 If the parties are unable to reach an agreement on Design-Builder's proposed Contract Price for Phase 2 under Section 1.3 within the time limit for acceptance specified in the Proposal,as may be extended by the mutual agreement of the parties,then the proposed Contract Price shall be deemed withdrawn and of no effect. In such event, Owner and Design-Builder shall meet and confer as to how the project will proceed,with Owner having the following options: 1. Owner may declare Phase 1 Services completed and authorize Design-Builder to continue to advance the final design of the project as an extension of Phase 1 or as an Additional Service,as applicable; or 2. Owner may terminate the relationship with Design-Builder and proceed to exercise its available options to perform the final design and construction with parties other than Design-Builder. 1.4.3 If Owner fails to exercise either of its options under Section 1.4.2 in a reasonable period of time, Design-Builder may give written notice to Owner that it considers this Agreement completed. If Owner 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. 1.4.4 If Owner terminates the relationship with Design-Builder under Section 1.4.2.2, or if this Agreement is deemed completed under Section 1.4.3, then Design-Builder shall have no further liability or obligations to Owner under this Agreement. 1.5 Completion.Once Design-Builder has received a Notice to Proceed with Phase 2,Design-Builder C Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 2 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED shall perform all design and construction services,and provide all material,equipment,tools,labor, manuals, and start-up and commissioning services for the Project necessary to complete the Work described in and reasonably inferable from the Contract Documents. Following Substantial Completion of the Work, Design-Builder shall conduct performance tests to demonstrate that the Facility Performance Criteria have been met,as a condition for Final Acceptance. Article 2.0 Contract Documents 2.1 Contract Documents. The Contract Documents are comprised of the following: 1. All written modifications, amendments, and change orders to this Agreement issued in accordance with Attachment D,General Conditions; 2. Written Supplementary Conditions, if any,to the General Conditions; 3. This Agreement,including all exhibits and the following attachments: Attachment A Scope of Work Section 1 Phase 1 Scope of Work Section 2 Phase 2 Scope of Work Attachment B Compensation Section 1 Phase 1 Services Compensation Section 2 Contract Price for Phase 2 Services Attachment C Schedule Attachment D General Conditions Attachment E Indemnity, Insurance&Bonding Attachment F Owner's Project Design-Build Criteria by Reference. Attachment G Special Conditions 4. Construction Documents prepared and reviewed in accordance with GC 2.4; to be developed in Phase 2 S. The following other document attached hereto: (Foster Marine Contractors) proposal dated July 31,2023 Article 3.0 Interpretation and Intent 3.1 Contract Documents. The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents within the Contract Time(s)for the Phase 1 Compensation and the agreed Contract Price for Phase 2 Services.The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a manner consistent with construction and design industry standards. In the event of any inconsistency,conflict,or ambiguity between or among the Contract Documents, the Contract Documents shall take precedence in the order in which they are listed in Section 2.1 hereof. 3.2 Meanings. Terms,words,and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in GC 1.2. 3.3 Entire Agreement. The Contract Documents form the entire agreement between Owner and Design-Builder and by incorporation herein are as fully binding on the parties as if repeated herein ©Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 3 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED in their entirety. No oral representations or other agreements have been made by the parties except as specifically stated in the Contract Documents. Article 4.0 Ownership of Work Product 4.1 Work Product. All drawings, specifications, and other documents and electronic data furnished by Design-Builder to Owner under this Agreement("Work Product")are deemed to be instruments of service and Design-Builder shall retain the ownership and property interests therein, including the copyrights thereto. 4.2 Owner's Limited License upon Payment in Full. Upon Owner's payment in full for the Work performed in each Phase under the Contract Documents, Design-Builder shall be deemed to have granted Owner a limited license to use the Work Product solely in connection with Owner's ownership,use,and occupancy of the Project. Owner shall not use the Work Product on any other project or facility without Design-Builder's express written consent. 4.3 Owner's Limited License upon Owner's Termination for Convenience or Design-Builder's Election to Terminate. If Owner terminates the Project for its convenience as set forth in Article 8.0("Termination for Convenience"),or if Design-Builder elects to terminate this Agreement in accordance with GC 9.5("Design-Builder's Right to Terminate for Cause"),Design-Builder shall, upon Owner's payment in full of the amounts due Design-Builder under the Contract Documents, be deemed to have granted Owner a limited license to use the Work Product to complete the Project and subsequently use and occupy the Project,conditioned on the following: 1. Use of the Work Product is at Owner's sole risk without liability or legal exposure to Design-Builder or anyone working for or through Design-Builder, including Design Consultants of any tier(collectively the"Indemnified Parties"). 4.4 Owner's Limited License upon Design-Builder's Default. If this Agreement is terminated due to Design-Builder's default pursuant to GC 9.3 ("Owner's Right to Perform and Terminate for Cause")and(i)it is determined that Design-Builder was in default,and(ii)Owner has fully satisfied all of its obligations under the Contract Documents, then Design-Builder shall grant Owner a limited license to use the Work Product in connection with Owner's completion, use, and occupancy of the Project. This limited license is conditioned on Owner's express understanding that its use of the Work Product is at Owner's sole risk and without liability or legal exposure to any Indemnified Party. 4.5 Owner's Indemnification for Use of Work Product. Owner recognizes that in the event of an early termination of the Work,whether for convenience or for cause,Design-Builder will not have the opportunity to finish or to finalize its Work Product. Therefore,if Owner uses the Work Product under Sections 4.3 or 4.4 in whole or in part,Owner agrees to defend,indemnify and hold harmless the Indemnified Parties from and against any and all claims, damages, liabilities, losses, and expenses, including attorneys' fees, arising out of or resulting from Owner's use of the Work Product,to the fullest extent permitted by applicable law. Article 5.0 Contract Time 5.1 Dates of Commencement. 5.1.1 Design-Builder's Phase 1 Services shall commence within five (5) days of Design- Builder's receipt of Owner's Phase 1 Notice to Proceed unless the parties mutually agree otherwise in writing. The parties shall use their best efforts to complete the Phase 1 Services within the time durations detailed in Attachment C. Section Entitled; "SCHEDULE". 5.1.2 The Phase 2 Services shall commence on the date within five(5)days of Design-Builder's receipt of Owner's Phase 2 Notice to Proceed ("Date of Commencement") unless the ©Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 4 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED parties mutually agree otherwise in writing. 5.2 Substantial Completion and Final Completion 5.2.1 Substantial Completion of the entire Work included in Phase I shall be achieved no later than One Hundred Twenty (120) calendar days after the Date of Commencement ("Scheduled Substantial Completion Date"). The Substantial Completion date for Phase 2 shall be submitted with the Guaranteed Maximum Price(GMP)deliverable package. 5.2.2 Interim milestones and/or Substantial Completion of identified portions of the Work shall be achieved in accordance with Attachment C,Schedule. 5.2.3 Final Completion of the Work or identified portions of the Work shall be achieved within Thirty(30)days after Substantial Completion. 5.2.4 All of the dates set forth in this Article 5.0 shall be subject to adjustment in accordance with the General Conditions. 5.3 Time is of Great Importance. Owner and Design-Builder mutually agree that time is of great importance with respect to the dates and times set forth in the Contract Documents. Owner agrees to provide all site access,materials, information, data, and approvals required under the Contract Documents in a timely manner, as required for Design-Builder to achieve the interim milestones of the Schedule and the Scheduled Substantial Completion Date. 5.4 Liquidated Damages. Design-Builder understands that if Substantial Completion is not achieved by the Scheduled Substantial Completion Date(as it may be extended hereunder),Owner will suffer damages which are difficult to determine and accurately specify. Design-Builder agrees that if Substantial Completion is not achieved by the Scheduled Substantial Completion Date (the "LD Date"), Design-Builder shall pay Owner One Thousand Dollars ($1.000.00) as liquidated damages for each day that Substantial Completion extends beyond the LD Date,up to a maximum of: Fifty Thousand Dollars($50,000). The liquidated damages provided herein shall be in lieu of all liability for any and all extra costs, losses, expenses, claims, penalties and any other damages, whether special or consequential, and of whatsoever nature incurred by Owner which are occasioned by any delay in achieving Substantial Completion. No Liquidated Damages shall be assessed in the event that Owner takes early beneficial occupancy of the Facility or makes partial use thereof for operating or commercial purposes before Substantial Completion is achieved. 5.5 Early Completion Bonus. If Substantial Completion for the Phase 2 construction work is achieved on or before Twenty(20) days before the Scheduled Substantial Completion Date (the "Bonus Date"), Owner shall pay Design-Builder at the time of Final Payment under Section 7.4 hereof an early completion bonus of Five Hundred Dollars ($500.00) for each day that Substantial Completion is achieved earlier than the Bonus Date. Such Early Completion bonus shall not exceed Ten Thousand Dollars ($10,000.00)in the aggregate. Article 6.0 Compensation and Contract Price 6.1 Phase 1 Compensation. For the Phase 1 Services,Owner shall pay Design-Builder compensation in accordance with Section 1,Phase 1,of Attachment B,Compensation. ©Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 5 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 6.2 Phase 2 Contract Price. For the Phase 2 Services,Owner shall pay Design-Builder in accordance with Section 2,Phase 2,of Attachment B,Compensation,an agreed Contract Price equal to Design- Builder's Fee (as defined in Attachment B) plus the Cost of the Work(as defined in Attachment B), subject to adjustments made in accordance with the General Conditions. Article 7.0 Procedure for Payment 7.1 Payment for Phase 1 Services 7.1.1 Owner shall compensate Design-Builder monthly for Phase 1 Services performed under the Agreement per Attachment B,Section 1. 7.1.2 Owner shall pay Design-Builder for Phase 1 Services within thirty(30)days after Owner's receipt of each properly submitted and accurate Application for Payment in accordance with the provisions of GC 5.1 ("Payment for Phase 1 Services")and 5.4("Withholding of Payments"). 7.2 Progress Payments for Phase 2 Services 7.2.1 An initial payment of Zero dollars f shall be made upon execution of this Agreement and credited to Owner's account at final payment 7.2.2 Design-Builder shall submit to Owner on or before the twenty-fifth (25th) day of each month,beginning with the first month after the Date of Commencement,Design-Builder's Application for Payment in accordance with GC 5.3 ("Monthly Progress Payments for Phase 2 Services"). 7.2.3 Owner shall make payment within thirty (30)days after Owner's receipt of each properly submitted and accurate Application for Payment in accordance with GC 5.3, but in each case less the total of payments previously made, and less any amounts properly withheld under GC 5.4("Withholding of Payments")and Section 7.3 below("Retainage on Progress Payments"). 7.2.4 If Design-Builder's Fee is a fixed amount, the amount of Design-Builder's Fee to be included in Design-Builder's monthly Application for Payment and paid by Owner shall be proportional to the percentage of the Work completed, less payments previously made on account of Design-Builder's Fee. 7.3 Retainage on Progress Payments 7.3.1 Owner will retain Zero percent0(0)of each Phase 1 Application for Payment and Five percent (5%)of each Phase 2 Application for Payment until Final Completion of the construction services purchased (defined as that point at which one hundred (100) percent of the construction of the work as defined in the Contract Schedule of Values has been performed under the contract by the Design-Builder has been reached and acceptance by the CITY as defined in Florida Statutes §218.735(7)(d). 7.4 Final Payment 7.4.1 Design-Builder shall submit its Final Application for Payment to Owner in accordance with GC 5.8("Final Payment"). Owner shall make payment on Design-Builder's properly submitted and accurate Final Application for Payment within ten(10)days after Owner's receipt of the Final Application for Payment, provided that Design-Builder has satisfied the requirements for final payment set forth in GC 5.8.2. 7.5 Record Keeping and Financial Controls ©Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 6 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 7.5.1 Design-Builder acknowledges that this Agreement is to be administered on an"open book" arrangement relative to Costs of the Work,including the development and agreement upon the Contract Price for Phase 2 Services. Design-Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles, and in such accounts as may be necessary for Owner's utility accounting purposes. During the performance of the Work and for a period of three (3) years after Final Payment,Owner and Owner's accountants shall be afforded access from time to time, upon reasonable notice, to Design-Builder's records, books, correspondence, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to the Work, all of which Design-Builder shall preserve for a period of three (3) years after Final Payment,provided, however, that such access,review,and audit rights shall not extend to any compensation amounts established on the basis of fixed rates for overhead or fee, or an agreed fixed sum,or unit rates for any element of cost. Article 8.0 Representatives of the Parties 8.1 Owner's Representatives 8.1.1 Owner designates the individual listed below as its Senior Representative ("Owner's Senior Representative"),which individual has the authority and responsibility for avoiding and resolving disputes under GC 8.2.3: POONAM KALKAT,UTILTIES DIRECTOR 124 E. Woolbright Road, Boynton Beach,FL 33435;Contact#(561)742-6403;Email:KalkatP@bbfl.us 8.1.2 Owner designates the individual listed below as its Owner's Representative, which individual has the authority and responsibility set forth in GC 3.4 CHRISTOPHER ROSCHEK,UTILITIES OPERATIONS DEPUTY DIRECTOR 124 E. Woolbright Road,Boynton Beach,FL 33435;Contact#(561)742-6413;Email: roschekc@bbfl.us 8.2 Design-Builder's Representatives 8.2.1 Design-Builder designates the individual listed below as its Senior Representative ("Design- Builder's Senior Representative"), which individual has the authority and responsibility for avoiding and resolving disputes under GC 8.2.3: GARY CZAJKOWSKI,SUPERINTENDENT 3780 Fairlane Farms Road Suite 1,Wellington,FL 33414;Contact#(561)683-0034,Fax: (561)683-0335 Email: Gary@Foster-Marine.net 8.2.2 Design-Builder designates the individual listed below as its Design-Builder's Representative, which individual has the authority and responsibility set forth in GC 2.1.1: J.C.SOLOMON,PROJECT MANAGER 3180 Fairlane Farms Road,Suite 1, Wellington,FL 33414;Contact#(561)683-0034; Email:JC@Foster-Marine.net Article 9.0 Indemnity,Insurance,and Bonds 9.1 Indemnity. Indemnification obligations between the parties shall be as set forth in Article 4.0, above,and in Section 1.0,Indemnity, of Attachment E,Indemnity, Insurance&Bonding. ©Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 7 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 9.2 Insurance. The parties shall procure the insurance coverages set forth in Attachment E, Indemnity, Insurance&Bonding,in accordance with the General Conditions. 9.3 Bonds and Other Performance Security. If so required, Design-Builder shall provide a performance bond and labor and material payment bond or other performance security in accordance with Section 8.0,Bonds,of Attachment E,Indemnity, Insurance&Bonding. Article 10.0 Other Provisions 10 Other provisions, if any,are as follows: 10.1 Mutual Waiver of Consequential Damages:Notwithstanding any other provision of this Agreement to the contrary,neither party including their officers agents,servants,and employee shall be liable to the other for lost profits or any special,indirect,incidental,or consequential damages in any way arising out of this Agreement however caused under a claim of any type or nature based on any theory of liability(including but not limited to:contract,tort,or warranty)even if the possibility of such damages has been communicated. 10.2 Limitation of Liability:Notwithstanding any provision to the contrary contained in this Agreement, Design-Builder's total liability to Owner for any and all injuries,claims,losses,expenses,or damage whatsoever from any cause or causes, including but not limited to Design Builder's negligence, errors, omissions, strict liability or breach of contract, or breach of warranty, shall not exceed the total amount of$50,000 or the fee Design-Builder receives under this Agreement whichever is greater. 10.3 SCRUTINIZED COMPANIES 287.135 and 215.473: By submission, Design-Builder certifies that the Design-Builder is not participating in a boycott of Israel. Design-Builder further certifies that Design-Builder is not on the Scrutinized Companies that Boycott Israel list, not on the Scrutinized Companies with Activities in Sudan List,and not on the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List,or has Design-Builder been engaged in business operations in Syria. Subject to limited exceptions provided in state law,the City will not contract for the provision of goods or services with any scrutinized company referred to above. Submitting a false certification shall be deemed a material breach of contract.The City shall provide notice,in writing, to Design-Builder of the City's determination concerning the false certification. Design- Builder shall have five(5)days from receipt of notice to refute the false certification allegation. If such false certification is discovered during the active contract term, Design-Builder shall have ninety (90) days following receipt of the notice to respond in writing and demonstrate that the determination of false certification was made in error. If Design-Builder does not demonstrate that the City's determination of false certification was made in error then the City shall have the right to terminate the contract and seek civil remedies pursuant to Section 287.135, Florida Statutes, as amended from time to time. 10.4 TRADE SECRET: Any language contained in the Design-Builder's Proposal purporting to require confidentiality of any portion of the Proposal, except to the extent that certain information is in the City's opinion a Trade Secret pursuant to Florida law, shall be void. If Design-Builder submits any documents or other information to the City which the Design-Builder claims is Trade Secret information and exempt from Florida Statutes Chapter 119.07 (Public Records Laws), the Design-Builder shall clearly designate that it is a Trade Secret and that it is asserting that the document or information is exempt. The Design-Builder must specifically identify the exemption being claimed under Florida Statutes 119.07. The City shall be the final arbiter of whether any information contained in the Design-Builder's Proposal constitutes a Trade Secret. The City's determination of whether an exemption applies shall be final, and the Design-Builder agrees to defend, indemnify, and hold harmless the City its officers, employees, volunteers, and agents, ©Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 8 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED against any loss or damages incurred by any person or entity as a result of the City's treatment of records as public records. Proposals purporting to be subject to copyright protection in full or in part will be rejected. EXCEPT FOR CLEARLY MARKED PORTIONS THAT ARE BONA FIDE TRADE SECRETS PURSUANT TO FLORIDA LAW, DO NOT MARK YOUR PROPOSAL AS PROPRIETARY OR CONFIDENTIAL. DO NOT MARK YOUR PROPOSAL OR ANY PART THEREOF AS COPYRIGHTED. 10.5 PUBLIC RECORDS: Sealed documents received by the City in response to an invitation are exempt from public records disclosure until thirty(30)days after the opening of the RFQ unlessthe City announces intent to award sooner, in accordance with Florida Statutes 119.07. The City is a public agency subject to Chapter 119, Florida Statutes. The Design-Builder shall comply with Florida's Public Records Law. Specifically,the Design-Builder shall: A. Keep and maintain public records required by the City to perform the service; B. Upon request from the City's custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in chapter 119,Fla.Stat.or as otherwise provided by law; C. Ensure that public records that are exempt or that are confidential and exempt from public record disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and, following completion of the contract, Design-Builder shall destroy all copies of such confidential and exempt records remaining in its possession once the Design-Builder transfers the records in its possession to the City;and D. Upon completion of the contract, Design-Builder shall transfer to the City, at no cost to the City, all public records in Design-Builder's possession All records stored electronically by Design-Builder must be provided to the City, upon request from the City's custodian of public records, in a format that is compatible with the information technology systems of the City. 10.6 IF THE DESIGN-BUILDER HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE DESIGN-BUILDER'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS: CITY CLERK 100 E. OCEAN AVENUE BOYNTON BEACH, FLORIDA, 33435 561-742-6060 CityClerk@bbfl.us 10.7 E-VERIFY ©Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Flypoluxo Septic to Sewer(PDB) Page 9 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 10.7.1 Design-Builder certifies that it is aware of and complies with the requirements of Section 448.095, Florida Statues, as may be amended from time to time and briefly described herein below. 1) Definitions for this Section: "Design-Builder" means a person or entity that has entered or is attempting to enter into a contract with a public employer to provide labor, supplies, or services to such employer in exchange for salary, wages, or other remuneration. "Design-Builder" includes, but is not limited to,a vendor or consultant. "Subcontractor" means a person or entity that provides labor, supplies, or services to or for a Design-Builder or another subcontractor in exchange for salary,wages,or other remuneration. "E-Verify system"means an Internet-based system operated by the United States Department of Homeland Security that allows participating employers to electronically verify the employment eligibility of newly hired employees. 2) Registration Requirement;Termination: Pursuant to Section 448.095,Florida Statutes,effective January 1,2021,Design-Builders,shall register with and use the E-verify system in order to verify the work authorization status of all newly hired employees. Design-Builder shall register for and utilize the U.S. Department of Homeland Security's E-Verify System to verify the employment eligibility of: a) All persons employed by a Design-Builder to perform employment duties within Florida during the term of the contract;and b) All persons(including sub-vendors/sub-consultants/sub-contractors)assigned by Design-Builder to perform work pursuant to the contract with the City of Boynton Beach.The Design-Builder acknowledges and agrees that registration and use of the U.S. Department of Homeland Security's E-Verify System during the term of the contract is a condition of the contract with the City of Boynton Beach;and c) The Design-Builder shall comply with the provisions of Section 448.095,Fla. Stat., "Employment Eligibility,"as amended from time to time. This includes, but is not limited to registration and utilization of the E-Verify System to verify the work authorization status of all newly hired employees. Design-Builder shall also require all subcontractors to provide an affidavit attesting that the subcontractor does not employ, contract with, or subcontract with, an unauthorized alien.The Design-Builder shall maintain a copy of such affidavit for the duration of the contract. Failure to comply will lead to termination of this Contract, or if a subcontractor knowingly violates the statute, the subcontract must be terminated immediately. Any challenge to termination under this provision must be filed in the Circuit Court no later than twenty(20) calendar days after the date of termination.Termination of this Contract under this Section is not a breach of contract and may not be considered as such. If this contract is terminated for a violation of the statute by the Design-Builder, the Design-Builder may not be awarded a public contract for a period of one (1)year after the date of termination. Article 11. FEDERAL REQUIREMENTS. ©Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 10 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED The City has applied for grant funding through the Florida Department of Environmental Protection's Resilient Florida Grant Program for the construction phase only.If the City is awarded the grant,the construction activities will need to comply with all required grant deliverables and deadlines. Notwithstanding anything to the contrary set forth herein,vendor shall comply with the all applicable federally required standard provisions whether set forth herein below, in 2 CFR Part 200, or otherwise. Any reference made to DESIGNBUILD FIRM in this section shall also apply to any subcontractor under the terms of this Agreement. 11.1 Equal Employment Opportunity. During the performance of this contract, DESIGN- BUILDER agrees as follows: 11.1.1 DESIGN-BUILDER will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. DESIGN-BUILDER will take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training,including apprenticeship.DESIGN-BUILDER agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. 11.1.2 DESIGN-BUILDER will, in all solicitations or advertisements for employees placed by or on behalf of DESIGN-BUILDER,state that all qualified applicants will receive consideration for employment without regard to race,color,religion,sex,sexual orientation,gender identity, or national origin. 11.1.3 DESIGN-BUILDER will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information,unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation,proceeding, hearing, or action, including an investigation conducted by the employer,or is consistent with DESIGN-BUILDER's legal duty to furnish information. 11.1.4 DESIGN-BUILDER will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer,advising the labor union or workers'representative of DESIGN-BUILDER's commitments under section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 11.1.5 DESIGN-BUILDER will comply with all provisions of Executive Order 11246 of September 24, 1965,and of the rules,regulations,and relevant orders of the Secretary of Labor. 11.1.6 DESIGN-BUILDER will furnish all information and reports required by Executive Order 11246 of September 24, 1965,and by the rules,regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the C Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 11 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules,regulations,and orders. 11.1.7 In the event of DESIGN-BUILDER's non-compliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this Agreement may be canceled,terminated,or suspended in whole or in part and DESIGN-BUILDER may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor,or as otherwise provided by law. 11.1.8 DESIGN-BUILDER will include the provisions of paragraphs (11.1.1) through (11.1.8)in every subcontract or purchase order unless exempted by rules,regulations,or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. DESIGN- BUILDER will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for noncompliance: Provided, however, that in the event DESIGN-BUILDER becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction, DESIGN-BUILDER may request the United States to enter into such litigation to protect the interests of the United States. The CITY further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the CITY so participating is a state or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract. The CITY further agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of Design-Builders and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor,that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance. The CITY further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965,with a contractor debarred from,or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the CITY agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant(contract, loan, insurance, guarantee); refrain from extending any further assistance to the CITY under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such CITY,and refer the case to the Department of Justice for appropriate legal proceedings. 11.2 Davis-Bacon Act. DESIGN-BUILDER shall comply with the Davis-Bacon Act(40 U.S.C.276a to 276a-7)as supplemented by Department of Labor Regulations(29 CFR Part 5). In accordance with the statute, DESIGN-BUILDER must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, 0 Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 12 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED DESIGN-BUILDER must be required to pay wages not less than once a week. 11.3 Copeland "Anti-Kickback"Act. DESIGN-BUILDER shall comply with the Copeland "Anti- Kickback"Act,(40 U.S.C. 3145), as supplemented by Department of Labor regulations(29 CFR Part 3, "Design-Builders and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States").DESIGN-BUILDER must be prohibited from inducing,by any means,any person employed in the construction,completion,or repair of public work,to give up any part of the compensation to which he or she is otherwise entitled. CITY must report all suspected or reported violations to the Federal awarding agency. 11.4 Contract Work Hours and Safety Standards Act(40 U.S.C. 3701-3708). Where applicable, pursuant to 40 U.S.C. 3702 and 3704,as supplemented by Department of Labor regulations(29 CFR Part 5)DESIGN-BUILDER must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week.The requirements of 40 U.S.C.3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary,hazardous,or dangerous. 11.4.1 Overtime requirements.No Design-Builder or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. 11.4.2 Violation;liability for unpaid wages;liquidated damages.In the event of any violation of the clause set forth in paragraph (11.4.1) of this section, the DESIGN-BUILDER and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States(in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic,including watchmen and guards,employed in violation of the clause set forth in paragraph (11.4.1) of this section, in the sum of$10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph(11.4.1)of this section. 11.4.3 Withholding for unpaid wages and liquidated damages. CITY shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by DESIGN- BUILDER or subcontractor under any such contract or any other Federal contract with the same prime contractor,or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act,which is held by the same prime contractor,such sums as may be determined to be necessary to satisfy any liabilities of such Design-Builder or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph(11.4.2)of this section. 11.4.4 Subcontracts. DESIGN-BUILDER or subcontractor shall insert in any subcontracts the clauses set forth in paragraph(11.4.1)through(11.4.4)of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs(11.4.1)through(11.4.4)of this section. ©Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No. UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 13 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 11.5 DESIGN-BUILDER agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act(42 U.S.C. 7401-7671q)and the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251- 1387). CITY will report violations to the Federal awarding agency and the Regional Office of the Environmental Protection Agency(EPA). 11.5.1 Clean Air Act. DESIGN-BUILDER agrees to comply with all applicable standards, orders,or regulations issued pursuant to the Clean Air Act,as amended,42 U.S.C. §7401 et seq. DESIGN-BUILDER agrees to report each violation to CITY and understands and agrees that the CITY will, in turn, report each violation as required to assure notification to the State, Federal Emergency Management Agency,and the appropriate Environmental Protection Agency Regional Office. DESIGN-BUILDER agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance. 11.5.2 Federal Water Pollution Control Act. DESIGN-BUILDER agrees to comply with all applicable standards,orders,or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. DESIGN-BUILDER agrees to report each violation to the CITY and understands and agrees that the CITY will,in turn,report each violation as required to assure notification to the State, Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.DESIGN-BUILDER agrees to include these requirements in each subcontract exceeding one hundred fifty thousand dollars ($150,000) financed in whole or in part with Federal assistance. 11.6 Suspension and Debarment. This Agreement is a covered transaction for purposes of 2 C.F.R pt. 180 and 2 C.F.R.pt.3000,as such DESIGN-BUILDER is required to verify that none of the Design- Builder's agents, principals(defined at 2 C.F.R. § 180.995),or affiliates(defined at 2 C.F.R. § 180.905) are excluded(defined at 2 C.F.R. § 180.940)or disqualified(defined at 2 C.F.R. § 180.935). 11.6.1 DESIGN-BUILDER must comply with 2 C.F.R.pt. 180,subpart C and 2 C.F.R.pt.3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.This certification is a material representation of fact relied upon by CITY. If it is later determined that DESIGN-BUILDER did not comply with 2 C.F.R.pt. 180, subpart C and 2 C.F.R.pt.3000,subpart C, in addition to remedies available to State and CITY, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. 11.6.2 The bidder or proposer agrees to comply with the requirements of 2 C.F.R.pt. 180,subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer.The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. 11.7 Byrd Anti-Lobbying Amendment,as amended(31 U.S.C.§1352).DESIGN-BUILDER shall file the required certification pursuant to 31 U.S.C. 1352.Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency,a member of Congress,officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract,grant,or any other award covered by 31 U.S.C.§ 1352.Each tier shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award.Such disclosures are forwarded from tier to tier up to the recipient. 11.8 Compliance with State Energy Policy and Conservation Act. DESIGN-BUILDER shall comply with all mandatory standards and policies relating to energy efficiency contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act(Pub. L.94-163,89 Stat. 871). ®Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 14 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 11.9 Procurement of Recovered Materials. The CITY and DESIGN-BUILDER must comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable,consistent with maintaining a satisfactory level of competition,where the purchase price of the item exceeds$10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery;and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. 11.10 Reporting. Pursuant to 44 CFR 13.36(iX7), CONSULTANT shall comply with federal requirements and regulations pertaining to reporting,including but not limited to those set forth at 44 CFR 40 and 41, if applicable. Furthermore, both parties shall provide the FEMA Administrator, U.S. DOT Administrator, the Comptroller General of the United States, or any of their authorized representative access to any books,documents,papers,and records of DESIGN-BUILDER which are directly pertinent to this contract for the purpose of making audits, examinations, excerpts, and transcriptions. Also, both Parties agree to provide FEMA Administrator or his authorized representative access to construction or other work sites pertaining to the work being completed under the Agreement. 11.11 Rights to Inventions. DESIGN-BUILDER agrees that if this Agreement results in any copyrightable materials or inventions,the Federal Government reserves a royalty-free, nonexclusive and irrevocable license to reproduce,publish,or otherwise use the copyright of said materials or inventions for Federal Government purposes. 11.12 No Obligation by the Federal Government.The federal government is not a party to this contract and is not subject to any obligations or liabilities to the non-federal entity, Design-Builder, or any other party pertaining to any matter resulting from the contract. 11.13 Department of Homeland Security(DHS) Seal, Logo, and Flags. DESIGN-BUILDER shall not use DHS(s), logos, crests, or reproductions of flag,s or likenesses of DHS agency officials without specific federal pre-approval. 11.14 Compliance with Federal Law, Regulations, and Executive Orders. This is an acknowledgment that federal financial assistance will be used to fund the Agreement only. DESIGN- BUILDER will comply with all applicable federal law,regulations,executive orders,policies,procedures, and directives. 11.15 Fraudulent Statements.DESIGN-BUILDER acknowledges that 31 U.S.C.Chap.38 applies to DESIGN-BUILDER's actions pertaining to this Agreement. 11.16 Prohibition on Contracting for Covered Telecommunications Equipment or Services. As used in this clause,the terms backhaul;covered foreign country;covered telecommunications equipment or services; interconnection arrangements; roaming; substantial or essential component; and telecommunications equipment or services have the meaning as defined in FEMA Policy 405-143-1, Prohibitions on Expending FEMA Award Funds for Covered Telecommunications Equipment or Services (Interim),as used in this clause. 11.16.1 Prohibitions. 11.16.1.1 Section 889(b)of the John S.McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L.No. 115-232,and 2 C.F.R. § 200.216 prohibit the head of an executive agency on or after Aug.13, 2020, from obligating or expending grant, cooperative agreement, loan, or loan guarantee funds on certain telecommunications ©Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 15 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED products or from certain entities for national security reasons. 11.16.1.2 Unless an exception in paragraph 11.16.2 of this clause applies,the DESIGN- BUILDER and its subcontractors may not use grant,cooperative agreement,loan,or loan guarantee funds from the Federal Emergency Management Agency to: 11.16.1.2.1 Procure or obtain any equipment,system,or service that uses covered telecommunications equipment or services as a substantial or essential component of any system,or as critical technology of any system; 11.16.1.2.2 Enter into, extend, or renew a contract to procure or obtain any equipment, system,or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system; 11.16.1.2.3 Enter into,extend, or renew contracts with entities that use covered telecommunications equipment or services as a substantial or essential component of any system,or as critical technology as part of any system;or 11.16.1.2.4 Provide, as part of its performance of this contract, subcontract, or other contractual instrument,any equipment,system,or service that uses covered telecommunications equipment or services as a substantial or essential component of any system,or as critical technology as part of any system. 11.16.2 Exceptions. 11.16.2.1 This clause does not prohibit DESIGN-BUILDER from providing:(i)A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements;or(ii)Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles. 11.16.2.2 By necessary implication and regulation,the prohibitions also do not apply to: (i)Covered telecommunications equipment or services that:i.Are not used as a substantial or essential component of any system; and ii. Are not used as critical technology of any system. (ii) Other telecommunications equipment or services that are not considered covered telecommunications equipment or services. 11.16.3 Reporting Requirement. 11.16.3.1 In the event DESIGN-BUILDER identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance,or the contractor is notified of such by a subcontractor at any tier or by any other source,the contractor shall report the information in paragraph 11.16.3.2 of this clause to the recipient or subrecipient, unless elsewhere in this contract are established procedures for reporting the information. 11.16.3.2 The DESIGN-BUILDER shall report the following information pursuant to paragraph 11.16.3.1 of this clause: (i) Within one business day from the date of such identification or notification: The contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and Government Entity(CAGE)code(if known);brand;model number(original equipment manufacturer number, manufacturer part number, or wholesaler number); item description;and any readily available information about mitigation actions undertaken or ©Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 16 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED recommended. (ii) Within ten (10) business days of submitting the information in paragraph 24.16.3.1 of this clause: Any further available information about mitigation actions undertaken or recommended. In addition, the design-builder shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services,and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services.The DESIGN- BUILDER shall insert the substance of this clause,including this in all subcontracts and other contractual instruments. 11.17 Domestic Preference for Procurements. As appropriate, and to the extent consistent with law, the DESIGN-BUILDER should,to the greatest extent practicable, provide a preference for the purchase, acquisition,or use of goods, products,or materials produced in the United States. This includes,but is not limited to iron, aluminum, steel, cement, and other manufactured products. For purposes of this clause: Produced in the United States means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. Manufactured products mean items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete;glass, including optical fiber; and lumber. 11.18 Affirmative Socioeconomic Steps. If subcontracts are to be let, DESIGN-BUILDER is required to take all necessary steps identified in 2 C.F.R. § 200.321(b)(1)-(5) to ensure that small and minority businesses,women's business enterprises,and labor surplus area firms are used when possible. 11.19 License and Delivery of Works Subject to Copyright and Data Rights. If applicable, the DESIGN-BUILDER grants to CITY,a paid-up,royalty-free,nonexclusive,irrevocable,worldwide license in data first produced in the performance of this contract to reproduce, publish, or otherwise use, including prepare derivative works, distribute copies to the public, and perform publicly and display publicly such data. For data required by the contract but not first produced in the performance of this contract, DESIGN-BUILDER will identify such data and grant to the CITY or acquires on its behalf a license of the same scope as for data first produced in the performance of this contract. Data, as used herein, shall include any work subject to copyright under 17 U.S.C. § 102, for example, any written reports or literary works, software and/or source code, music, choreography, pictures or images, graphics, sculptures, videos, motion pictures or other audiovisual works, sound and/or video recordings, and architectural works.Upon or before the completion of this contract, DESIGN-BUILDER ER will deliver to the DESIGN-BUILDER data first produced in the performance of this contract and data required by the contract but not first produced in the performance of this contract in formats acceptable by DESIGN- BUILDER. The Following Legislative Changes-Effective July 1,2023: Article 12. RETAINAGE. Within 30 calendar days after reaching the earlier of substantial completion or beneficial occupancy, the City/Owner and the Design Builder will inspect the work and develop a punch list covering those items required to render complete, satisfactory, and acceptable the construction services purchased by the City/Owner. The punch list will include a schedule of values that provides the estimated cost to complete each item on the punch list. If the City/Owner and Design Builder are unable to agree on an item or value, the City/Owner has final discretion whether to include an item and the amount for valuation of the cost to complete each item on the punch list. Within 20 business days after the creation of the punch list, the remaining contract balance, including retainage, will be paid to the Design Builder less an amount equal to 150 percent of the cost to complete the items on the punch list. Upon reaching final acceptance for an item or all items, the 150 percent withheld for each item will be released with final payment. For projects valued at $10 million or more, the 30 calendar day period may be extended to 45 days. Article 13. RESPONSIBLE VENDOR DETERMINATION. Design Builder is hereby notified that Section 287.05701, Florida Statutes, requires that the City may not request documentation of or consider a vendor's social, political, or ideological interests when determining if the vendor is a responsible vendor. ©Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 17 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED In executing this Agreement,Owner and Design-Builder each individually represents that it has the necessary financial resources to fulfill its obligations under this Agreement, arid each has the necessary corporate approvals to execute this Agreement and perform the services described herein. "This Agreement will take effect once signed by both parties. This Agreement may be signed by the parties in counterparts which together shall constitute one and the same agreement among the parties. A facsimile signature shall constitute an original signature for all purposes." IN WITNESS WHEREOF,the parties have hereunto set their hands and seals on the day and year set forth below their respective signatures. IN WITNESS WHEREOF, the parties hereto have executed this Contract in multiple copies, each of which shall be considered an original on� the following dates: DATED this I > day of -b- ,20aj . I�TY OF :OYNTONTIEACj,_ FOIXARINE CONTRACTORS Daniel-Diag:ei, rty 211/10, (Authorized Official Name), (Design Builder's Firm.) 11'11 ehae Print Name of Authorized Official "Prei derrh Titles�s4re p O •_4'c; 4 4 •`a Attest/Authenticated: o C) �Im'cn AL (Corporat@Seal) '' •'.n fit ♦ I Witness _ • , et► u Print Name Approved as tQ Fotm: At • ut►- ticat . 1 David N.Tolces, MayL,e I- esus Office of the City Attorney City C e Oil NT0/y _; SEA • Ps- 1 V• INCORPowto� 192U.: %' 'i ••....•••'Q, � �` FLORA -" CO Copyright 2013 by The Water Design-Build Council(WDBC)WDBC Document No.W-1701-2013 Progressive Design/Build Agreement RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page 18 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED ATTACHMENT A SCOPE OF WORK SECTION 1 PHASE 1 1.0 Design-Builder shall exercise reasonable skill and judgment in the furnishing of design services. Architectural and engineering services shall be furnished by licensed employees of Design-Builder, or by consultants or subcontractors as permitted by the law of the state where the Project is located. Design- Builder is responsible for the following Preliminary Design-Build Services: 1.1 Preliminary Evaluation. Design-Builder shall provide a preliminary evaluation of the Project's feasibility based on the Owner's Program and other relevant information. 1.2 Preliminary Schedule. Design-Builder shall provide a preliminary schedule for Owner's written approval. The schedule shall show the activities of Owner and Design-Builder necessary to meet Owner's completion requirements. 1.3 Preliminary Estimate. Design-Builder shall prepare for Owner's written approval a preliminary estimate utilizing area, volume, or similar conceptual estimating techniques. The level of detail for the estimate shall reflect the Owner's Program and any additional available information. If the preliminary estimate exceeds Owner's budget,Design-Builder shall make written recommendations to Owner. 1.4 Preliminary Design Documents. Design-Builder shall submit for Owner's written approval Preliminary Design Documents,based on the Owner's Program and other relevant information. Preliminary Design Documents shall include drawings, outline specifications and other conceptual documents as further defined herein illustrating the Project's basic elements, scale and their relationship to the site. One set of these Documents shall be furnished to Owner. Design-Builder shall update the preliminary schedule and preliminary estimate based on the Preliminary Design Documents. 13 Division of Responsibility. Design-Builder shall prepare for Owner's review a proposed Division of Responsibility with respect to the Project, showing (a) equipment, materials, labor,and services to be provided by Design-Builder,(b)access,equipment,materials,data, information, and approvals to be provided by Owner, and (c) any items necessary for the Project to be provided by third parties. 1.6 Contract Price Proposal. Based on the Preliminary Design-Build Services, Design- Builder shall prepare for Owner's consideration a proposed Contract Price for the Phase 2 Services. 1.7 Additional Services.Design-Builder shall provide the following additional services,if any: 1.7.1 See Attachment F—Owner's Design-Build Criteria.Phase I Scope of Work WDBC Document No.W-1702-2013 Attachment A—Scope of Work RFQ No. UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page A-19 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED SECTION 2 PHASE 2 2.1 Completion of Design 2.1.1 Drawings and Specifications Design-Builder shall submit for Owner's review and written comment Drawings and Specifications based on the Contract Documents and the Preliminary Design Documents prepared under Phase 1 and any further development of Contract Documents that have been approved in writing by Owner. The Drawings and Specifications shall set forth in detail the requirements for construction of the Work,and shall be based upon codes,laws,or regulations enacted at the time of their preparation, provided, however,that if such codes,law,or regulations have changed between the date on which Design-Builder submitted its proposed Contract Price and the date of preparation, then Design- Builder shall be entitled to an equitable adjustment in the compensation and/or the Schedule. Construction shall be in accordance with these approved Drawings and Specifications. One set of these documents shall be furnished to Owner prior to commencement of construction. 2.1.2 Manuals Design-Builder shall provide a Commissioning and Startup Manual and an Operations and Maintenance Manual for the Facility,as applicable,each in such form and in such numbers as the parties may agree, and such other manuals as the parties may agree. All such manuals shall be provided no later than ninety (90) days prior to the scheduled date for the commissioning and startup of the Facility. 2.2 Construction Services 2.2.1 Notice to Proceed Following Owner's written acceptance of Drawings and Specifications under Paragraph 2.1.1 above, Design-Builder will commence the performance of Construction Services. 2.2.2 Completion In order to complete the Work, Design-Builder shall provide all necessary construction supervision, inspection, construction equipment, labor, materials, tools, and subcontracted items. 2.2.3 Compliance Design-Builder shall give all notices and comply with all laws and ordinances legally enacted at the date of execution of the Agreement which govern the proper performance of the Work. 2.2.4 Schedule Design-Builder shall prepare and submit a Schedule of Work in the form of a revised Attachment C,Schedule, for Owner's written approval. This Schedule shall indicate the dates for the start and completion of the various stages of the construction including the dates when information and approvals are required from Owner.It shall be revised as required by the conditions of the Work. The Schedule of Work shall be the basis for Design-Builder's management and control of the project and its reporting of progress to Owner. 2.2.5 Permits Design-Builder shall assist Owner in securing the building permits necessary for the construction of the Project. 2.2.6 Safety and Hazardous Conditions Design-Builder shall take necessary precautions for the safety of its employees on the Project, and shall comply with all applicable provisions of federal, state, and municipal safety laws to prevent accidents or injury to persons on, about, or adjacent to the Site.Design-Builder,directly or through its Subcontractors,shall erect and properly maintain at all times, as required by the conditions and progress of the Work, necessary safeguards for the protection of workers and the public. However, Design-Builder shall not be responsible for the elimination or abatement of any pre-existing Hazardous Materials at the site or any safety hazards WDBC Document No.W-1702-2013 Attachment A—Scope of Work RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page A-20 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED created or otherwise resulting from work at the Site carried on by Owner or its employees,agents, separate contractors or tenants.Owner agrees to cause its employees, agents, separate contractors, and tenants to abide by and fully adhere to all applicable provisions of federal,state,and municipal safety laws and regulations. The above provision shall not relieve Subcontractors of their responsibility for the safety of persons or property in the performance of their work, nor for compliance with all applicable provisions of relevant laws. 2.2.7 Reports As provided in GC 2.1.2,Design-Builder shall provide monthly written reports to Owner on the progress of the Work including a system of cost reporting for the Work,and also including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes in the Work. 2.2.8 Site Maintenance At all times Design-Builder shall maintain the Site of the Work free from debris and waste materials resulting from the Work.At the completion of the Work,Design-Builder shall remove from the premises all construction equipment,tools,surplus materials,waste materials,and debris. 2.3 Hazardous Material 2.3.1 A Hazardous Material is any substance or material identified now or in the future as hazardous under any federal,state,or local law or regulation,or any other substance or material which may be considered hazardous or otherwise subject to statutory or regulatory requirements governing handling,disposal and/or clean-up. Design-Builder shall not be obligated to commence or continue Work until any known or suspected Hazardous Material discovered at the Site has been removed, rendered,or determined to be harmless by Owner as certified by an independent testing laboratory and approved by the appropriate government agency. 2.3.2 If after the commencement of the Work, known or suspected Hazardous Material or Hazardous Conditions are discovered at the Site,Owner and Design-Builder shall proceed in accordance with the requirements of GC 4.1 ("Hazardous Conditions&Differing Site Conditions"). 2.4 Patents& Copyright 2.4.1 Design-Builder shall pay all royalties and license fees which may be due on the inclusion of any patented or copyrighted materials,methods,or systems selected by Design-Builder and incorporated in the Work. Design-Builder agrees to defend, indemnify and hold Owner harmless from all suits or claims for infringement of any patent rights or copyrights arising out of such selection. 2.4.2 Owner shall pay all royalties and license fees which may be due on the inclusion of any patented or copyrighted materials,methods, or systems selected by Owner or specified in the Performance Criteria or bridging documents to be incorporated in the Work. Owner agrees to defend,indemnify and hold Design-Builder harmless from any suits or claims of infringement of any patent rights or copyrights arising out of any such patented or copyrighted materials,methods,or systems specified by Owner. 2.5 Warranties and Completion 2.5.1 Design-Builder's warranty to Owner with respect to construction, including all materials and equipment furnished as part of the construction,shall be as specified in GC 2.9("Design-Builder's Warranty"). 2.5.2 Design-Builder's warranty to Owner with respect to the performance of the Facility upon completion shall be as specified in GC 2.11 ("Performance Warranty"). 2.5.3 Those products, equipment, systems, or materials incorporated in the Work at the direction of or upon the specific request of Owner shall be covered exclusively by the warranty of the manufacturer.There are no warranties which extend beyond the description on the face thereof. WDBC Document No.W-1702-2013 Attachment A—Scope of Work RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page A-21 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 2.5.4 All other warranties,express or implied,including any warranty of merchantability and any warranty of fitness for a particular purpose are expressly disclaimed. 2.5.5 Design-Builder shall secure required certificates of inspection,testing,or approval and deliver them to Owner. 2.5.6 Design-Builder shall collect all written warranties and equipment manuals and deliver them to Owner. 2.5.7 With the assistance of Owner's maintenance personnel,Design-Builder shall direct the checkout of utilities and operations of systems and equipment for readiness,and assist in their commissioning and initial start-up and testing, all in accordance with the Commissioning and Startup Manual to be provided by Design-Builder. 2.5.8 See Attachment G-Special Conditions 1-16 2.6 Limitations of Liability 2.6.1 Limitation of Liability. Design-Builder's liability for Owner's damages for any cause or combination of causes (including any liquidated damages), whether based upon contract, tort, breach of warranty,negligence,strict liability,or otherwise,shall be limited as set forth in General Condition GC 2.11 ("Limitations of Liability")and Article 10 of the Agreement. 2.7 Additional Services Design-Builder shall provide or procure the following Additional Services upon the request of Owner unless such services are specifically included in the Owner's Program or in an attachment to this Agreement. A written agreement between Owner and Design-Builder shall define the extent of such Additional Services and compensation therefore. 2.7.1 Documentation of the Owner's Program,establishing the Project budget(beyond the Cost of the Work), investigating sources of financing, general business planning, and other information and documentation as may be required to establish the feasibility of the Project. 2.7.2 Consultations, negotiations, and documentation supporting the procurement of Project financing. 2.7.3 Surveys,site evaluations,legal descriptions,and aerial photographs. 2.7.4 Appraisals of existing equipment, existing properties, new equipment, and developed properties. 2.7.5 Soils, subsurface and environmental studies, reports, and investigations are required for submission to governmental authorities or others having jurisdiction over the Project. 2.7.6 Consultations and representations other than normal assistance in securing building permits,before governmental authorities or others having jurisdiction over the Project. 2.7.7 Investigation or making measured drawings of existing conditions or the verification of drawings or other Owner-provided information. 2.7.8 Artistic renderings, models, and mockups of the Project or any part of the Project or the Work. 2.7.9 Inventories of existing furniture,fixtures,furnishings,and equipment which might be under consideration for incorporation into the Work. 2.7.10 Interior design and related services including procurement and placement of furniture, furnishings,artwork,and decorations. 2.7.11 Making revisions to the Preliminary Design, Design Development, or Construction WDBC Document No.W-1702-2013 Attachment A—Scope of Work RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page A-22 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED Documents after they have been reviewed by Owner,and which are due to causes beyond the control of Design-Builder. 2.7.12 Design, coordination, management, expediting, and other services supporting the procurement of materials to be obtained,or work to be performed,by Owner,including but not limited to telephone systems, computer wiring networks, sound systems, alarms, security systems,and other specialty systems which are not a part of this Agreement. 2.7.13 Estimates, proposals, appraisals, consultations, negotiations, and services in connection with the repair or replacement of an insured loss. 2.7.14 The premium portion of overtime work ordered by Owner including productivity impact costs. 2.7.15 Document reproduction exceeding the allowances provided for in this Agreement. 2.7.16 Obtaining service contractors and training maintenance personnel,assisting and consulting in the use of systems and equipment after the initial startup,and adjusting and balancing of systems and equipment. 2.7.17 Services for tenant or rental spaces or third-party facilities not a part of this Agreement. 2.7.18 Services requested by Owner or required by the Work which are not specified in the Contract Documents and which are not normally part of generally accepted design, construction,and start-up and commissioning practice. 2.7.19 Serving or preparing to serve as an expert witness in connection with any proceeding,legal or otherwise,regarding the Project. 2.7.20 Preparing reproducible record drawings from marked-up prints, drawings, or other documents that incorporate significant changes in the Work made during the Construction Phase. 2.8 Subcontractors. Work not performed by Design-Builder with its own forces shall be performed by Subcontractors. The provisions of this Agreement and the associated Contract Documents shall be incorporated into all major subcontracts as defined in "schedule of sub-consultant/minority business enterprise(MBE/WBE)participation. 2.8.1 Retaining Subcontractors Design-Builder shall not retain any Subcontractor to whom Owner has a reasonable and timely objection,provided that Owner agrees to compensate Design-Builder for any additional costs incurred by Design-Builder as provided in GC 2.7.3.Design-Builder shall not be required to retain any Subcontractor to whom Design-Builder has a reasonable objection. 2.8.2 Management of Subcontractors Design-Builder shall be responsible for the management of Subcontractors in the performance of their work. 2.8.3 Assignment of Subcontract Agreements Design-Builder shall provide for assignment of subcontract agreements in the event that Owner terminates this Agreement for cause as provided in GC 11.2 ("Owner's Right to Perform and Terminate for Cause"). Following such termination, Owner shall notify in writing those subcontractors whose assignments will be accepted, subject to the rights of sureties. 2.9 See Attachment F—Owner's Design-Build Criteria. Phase 2 Scope of Work SECTION 3 OWNER'S RESPONSIBILITIES 3.1 Information and Services Provided by Owner 3.1.1 Owner shall provide full information regarding requirements for the Project,including the Owner's Program, Performance Criteria, bridging documents, and other relevant information, within the WDBC Document No.W-1702-2013 Attachment A—Scope of Work RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page A-23 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED times specified in Attachment C,Schedule. 3.1.2 Owner shall provide: 1. All necessary information describing the physical characteristics of the site, including surveys, site evaluations, legal descriptions, existing conditions, subsurface, and environmental studies,utilities,reports,and investigations; 2. Unless otherwise provided in the Contract Documents, necessary approvals, site plan review,rezoning,easements and assessments,necessary permits,fees,and charges required for the construction,use,occupancy,or renovation of permanent structures,including legal and other require services. 3.1.3 Design-Builder shall be entitled to rely on the completeness and accuracy of the information and services required by this Section 3.1. 3.2 Owner's Responsibilities during Phase 1 3.2.1 If not developed by Owner and Design-Builder under a prior agreement, Owner shall provide the Owner's Program at the inception of the Design Phase. Owner shall review and timely approve schedules, estimates, and design documents furnished during the Design Phase as set forth in Section 3.1. 3.2.2 Owner shall arrange for access to and make all provisions for Design-Builder to enter upon public and private property as required for Design-Builder to perform Phase 1 services hereunder. 3.2.3 Design-Builder shall be entitled to rely on the completeness and accuracy of the information and documents to be provided by Owner under this Section 3.2. 3.3 Owner's Responsibilities during Phase 2 Design and Construction 3.3.1 Owner shall review and approve the Schedule as set forth in Attachment C,Schedule,as revised. 3.3.2 If Owner becomes aware of any error,omission,or failure to meet the requirements of the Contract Documents or any fault or defect in the Work, Owner shall give written notice to Design-Builder within five(5)days of so becoming aware. 3.3.3 Unless otherwise agreed by Design-Builder, Owner shall communicate with Design-Builder's Subcontractors,Suppliers,and Design Consultants only through Design-Builder. Owner shall have no contractual obligations to Subcontractors or Suppliers or Design Consultants. 3.3.4 Owner may provide insurance for the Project as provided in Attachment E, Indemnity, Insurance &Bonding. 3.3.5 Owner shall provide timely,clear,and adequate access to the site and any laydown areas. 3.3.6 Owner shall provide all equipment,materials,information,data,and approvals required for Design- Builder's performance of the Work in a timely and complete manner. 3.3.7 Design-Builder shall be entitled to rely on the completeness and accuracy of the information and documents to be provided by Owner under this Section 3.3. 3.4 Owner's Representative Owner's representative,designated in writing and agreed to by Design-Builder: 1. shall be fully acquainted with the Project; 2. agrees to furnish the information and services required of Owner when required so as not to delay the performance of the Work;and 3. have authority to bind Owner in all matters requiring Owner's approval, authorization, or WDBC Document No.W-1702-2013 Attachment A—Scope of Work RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page A-24 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED written notice. If Owner changes its representative or the representative's authority as listed above, Owner shall notify Design-Builder in advance in writing. Design-Builder shall have the right to approve any successor representative. 3.5 City's Responsibilities 3.5.1 See Attachment G- Special Conditions 15 WDBC Document No.W-1702-2013 Attachment A—Scope of Work RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page A-25 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED ATTACHMENT B COMPENSATION SECTION 1 PHASE 1 SERVICES—IN ACCORDANCE WITH ATTACHMENT A SCOPE OF WORK In accordance with the Design-Builder's proposal for Phase 1 Services dated July 31, 2023, the total fee is$375,000.00 . SECTION 2 CONTRACT PRICE FOR PHASE 2 SERVICES 1.0 Choice of Compensation Method for Phase 2 Services 1.1 The parties may elect to use the Guaranteed Maximum Price("GMP") form of compensation for the Phase 2 Services, or a fixed Contract Price, or cost-reimbursable compensation with a Fixed Fee. If the GMP form of compensation is to be used,it may be agreed upon before the execution of this Agreement or will be developed and agreed upon for Phase 2 services. If the parties do not use a GMP, then the compensation to Design-Builder shall be a fixed Contract Price developed in accordance with Section 3.0,or shall be based on those fees and costs identified in Section 4.0.) 2.0 Guaranteed Maximum Price The Guaranteed Maximum Price (GMP) will be developed as part of the Phase 1 services by the Design-Builder and submitted to the Owner for acceptance as part of the GMP deliverable package. 2.1 Use of a GMP Agreed upon Execution of this Agreement 2.1.1 Design-Builder agrees that upon Owner's request it will submit its proposal for the Contract Price on the basis of a Guaranteed Maximum Price for the Phase 2 Services. 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 an agreed revision to this Attachment. 2.1.2 The GMP will include an allowance within each work package or task order as determined by the Design-Builder and approved by the Owner when a maximum price for the work package or task order has been not been determined at time of GMP.This allowance will be used as the maximum value for the specific line item and all remaining funds within the work package or task order will revert to the Owner after the price is determined through competitive bidding or final pricing by the Design-Builder. If an allowance is not included within the work package or task order line,the agreed upon price is the maximum for that item. Any savings within the fixed price items will be included in the savings sharing formula specified in Section 2.3.1. 2.1.3 If the parties so agree, the Phase 2 Services may be divided into separate work packages or task orders,and Design-Builder shall propose and Owner shall consider for acceptance a separate GMP for each such work package or task order. WDBC Document No.W-1703-2013 Attachment B—Compensation RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page B-26 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 2.2 GMP Established at the Commencement Date of Phase 2 2.2.1 GMP Proposal. If requested by Owner, Design-Builder shall submit to Owner a GMP Proposal for the Contract Price as part of the Phase 1 Services which shall include the following, unless the parties mutually agree otherwise: 1. A proposed GMP,which shall be the sum of: i. Design-Builder's Fee as defined in Section 2, Phase 2, of Attachment B, Compensation; ii. the estimated Cost of the Work as defined in Section 2,Phase 2,of Attachment B, Compensation,inclusive of any Design-Builder's allowance as defined in Section 1.1.2 above;and iii. if applicable, any prices established under Section 2,Phase 2, of Attachment B, Compensation. 2. A list of the drawings and specifications, including all addenda, used as the basis for the GMP proposal; 3. A list of the assumptions, exceptions, and clarifications made by Design-Builder in the preparation of the GMP Proposal, which list is intended to supplement the information contained in the drawings and specifications; 4. The Scheduled Substantial Completion Date upon which the proposed GMP is based, to the extent said date has not already been established under Paragraph 5.2.1 of the Agreement, and a schedule upon which the Scheduled Substantial Completion Date is based; 5. If applicable,a list of allowances and a statement of their basis; 6. If applicable,a schedule of alternate prices; 7. If applicable,a schedule of unit prices; 8. If applicable,a statement of Additional Services;and 9. The time limit for acceptance of the GMP Proposal. 10. Schedule of owner-direct purchase equipment for sales tax relief. 2.2.2 Review and Adjustment to GMP Proposal. After submission of the GMP Proposal, Design- Builder and Owner shall meet to discuss and review the GMP Proposal.If Owner has any comments regarding the GMP Proposal, or finds any inconsistencies or inaccuracies in the information presented,it shall promptly give written notice to Design-Builder of such comments or findings. If appropriate,Design-Builder shall,upon receipt of Owner's notice,make appropriate adjustments to the GMP Proposal. 2.2.3 Acceptance of GMP Proposal. If Owner accepts the GMP Proposal, as may it be amended by Design-Builder,the GMP and its basis shall be set forth in an amendment to this Agreement. 2.2.4 Failure to Accept the GMP Proposal. If Owner rejects the GMP Proposal, or fails to notify Design-Builder in writing on or before the date specified in the GMP Proposal that it accepts the GMP Proposal, the GMP Proposal shall be deemed withdrawn and of no effect. In such event, Owner and Design-Builder shall meet and confer as to how the Project will proceed, with Owner having the following options: WDBC Document No.W-1703-2013 Attachment B—Compensation RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page B-27 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 1. Owner may suggest modifications to the GMP Proposal,whereupon,if such modifications are accepted in writing by Design-Builder, the GMP Proposal shall be deemed accepted and the parties shall proceed in accordance with Section 2.2.3 above; 2. Owner may authorize Design-Builder to continue to proceed with the Work on the basis of reimbursement as provided in Section 2,Phase 2,of Attachment B,Compensation,without a GMP,in which care all references in this Agreement to the GMP shall not be applicable; or 3. Owner may terminate this Agreement for convenience in accordance with GC 9.2 ("Termination for Convenience"). If Owner fails to exercise any of the above options, Design-Builder shall have the right to (i) continue with the Work as if Owner had elected to proceed in accordance with Item .2 above,and be paid by Owner accordingly,unless and until Owner notifies it in writing to stop the Work,or (ii) suspend performance of Work in accordance with GC 9.4 ("Design-Builder's Right to Stop Work"). 2.2.5 Conversion. The parties may agree at any time to convert the agreed GMP to a Fixed Contract Price for the completion of the Phase 2 Services. 2.3 Savings 2.3.1 Savings Sharing. If the sum of the actual Cost of the Work and Design-Builder's Fee (and, if applicable,any prices established under Paragraph 6.2 of the Agreement)is less than the GMP,as such GMP may have been adjusted over the course of the Project,the difference("Savings")shall be shared as follows: Forty Percent(40%)to Design-Builder and Sixty Percent(60%)to Owner.The Design-Builder shared savings shall not exceed Thirty Thousand Dollars($30,000.00). 2.3.2 Savings Calculation. Savings shall be calculated and paid as part of Final Payment under Section 7.4 of the Agreement, with the understanding that to the extent Design-Builder incurs costs after Final Completion which would have been payable to Design-Builder as a Cost of the Work,Design- Builder shall be entitled to payment from Owner for that portion of such costs that were distributed to Owner as Savings. 2.4 Basis. Documents used as a basis for the GMP shall be identified in a mutually agreed revision to this Attachment. 3.0 Fixed Contract Price 3.1 If the parties initially agree that the Phase 2 Services shall be performed on the basis of a Fixed Contract Price, then the Design-Builder shall develop the proposed Contract Price on an "open book"basis and present it to Owner for review and approval. 3.2 Once the Fixed Contract Price is agreed, then this Agreement shall be amended to establish the Fixed Contract Price as the basis for the performance of the Phase 2 Services. 4.0 Cost Reimbursable plus Design-Builder's Fee 4.1 If the parties agree that the Phase 2 Services shall be performed on a Cost Reimbursable basis plus a Fixed Design-Builder's Fee,then the Design-Builder shall develop an estimated Contract Price on an"open book"basis and present it to Owner for review and approval. 4.2 The cost-reimbursable elements of the Work shall be those set forth in Section 4.4 ("Cost of the Work"). 4.3 Design-Builder's Fee shall be: Six Percent(6%)of the Cost of the Work,as adjusted in accordance with Section 2.1.2 above. WDBC Document No.W-1703-2013 Attachment B—Compensation RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page B-28 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 4.3.1 Design-Builder's Fee will be adjusted as follows for any changes in the Work-Same as 4.3 above. 4.4 Cost of the Work. The term"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: 1. Wages of direct employees of Design-Builder performing the Work at the Site or, with Owner's agreement, at locations off the Site,provided, however, that the costs for those employees of Design-Builder performing design services shall be calculated on the basis of prevailing market rates for design professionals performing such services or, if applicable,those rates set forth in an exhibit to this Agreement. 2. 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. 3. Wages or salaries of Design-Builder's personnel stationed at Design-Builder's principal or branch offices and performing design and Project administration functions.However,such costs shall be excluded from fee as listed in Section 4.3 above. 4. Costs incurred by Design-Builder for employee benefits, premiums, taxes, insurance, contributions and assessments required by law,collective bargaining agreements,or which are customarily paid by Design-Builder, to the extent such costs are based on wages and salaries paid to employees of Design-Builder covered under Paragraphs 2.2.1 through 2.2.3 hereof. 5. The reasonable portion of the cost of travel, accommodations, and meals for Design- Builder's personnel necessarily and directly incurred in connection with the performance of the Work. 6. Payments properly made by Design-Builder to Subcontractors and Design Consultants for performance of portions of the Work,including any insurance and bond premiums incurred by Subcontractors and Design Consultants. 7. Costs incurred by Design-Builder in repairing or correcting defective, damaged or nonconforming Work,provided that such defective,damaged or nonconforming Work was beyond the reasonable control of Design-Builder, or caused by the ordinary mistakes or inadvertence, and not the negligence, of Design-Builder or those working by or through Design-Builder. If the costs associated with such defective, damaged or nonconforming Work are recoverable from insurance, Design-Builder shall use its best efforts to obtain recovery from the appropriate source and credit Owner if recovery is obtained. 8. Costs, including transportation, inspection, testing, storage, and handling, of materials, equipment,and supplies incorporated or reasonably used in completing the Work. 9. Costs less salvage value of materials, supplies, temporary facilities, machinery, vehicles, equipment, and hand tools not customarily owned by the workers that are not fully consumed in the performance of the Work and which remain the property of Design- Builder, including the costs of transporting, inspecting, testing, handling, installing, maintaining,dismantling and removing such items. 10. Costs of removal of debris and waste from the Site. 11. The reasonable costs and expenses incurred in establishing,operating,and demobilizing the Site office, including the cost of facsimile transmissions, long-distance telephone calls, postage, and express delivery charges, telephone service, photocopying, and reasonable petty cash expenses. WDBC Document No.W-1703-2013 Attachment B—Compensation RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page B-29 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 12. Rental charges and the costs of transportation,installation,minor repairs and replacements, dismantling and removal of temporary facilities,machinery,equipment,and hand tools not customarily owned by the workers, which are provided by Design-Builder at the Site, whether rented from Design-Builder or others and incurred in the performance of the Work. 13. Premiums for insurance and bonds required by this Agreement or the performance of the Work,however such costs shall be excluded from fee as listed in Section 4.3 above. 14. All fuel and utility costs incurred in the performance of the Work. 15. Sales,use,or similar taxes,tariffs,or duties incurred in the performance of the Work. 16. Legal costs, court costs, and costs of mediation and arbitration reasonably arising from Design-Builder's performance of the Work,provided such costs do not arise from disputes between Owner and Design-Builder. 17. Costs for permits,royalties,licenses,tests,and inspections incurred by Design-Builder as a requirement of the Contract Documents. 18. The cost of defending suits or claims for infringement of patent rights arising from the use of a particular design, process, or product required by Owner, paying legal judgments against Design-Builder resulting from such suits or claims, and paying settlements made with Owner's consent. 19. Deposits which are lost,except to the extent caused by Design-Builder's negligence. 20. Costs incurred in preventing damage, injury,or loss in case of an emergency affecting the safety of persons and property. 21. Other costs reasonably and properly incurred in the performance of the Work to the extent approved in writing by Owner. 4.5 Non-Reimbursable Costs The following shall be excluded from the Cost of the Work: 1. Compensation for Design-Builder's personnel stationed at Design-Builder's principal or branch offices,except as provided for in Paragraphs 4.4.1,4.4.2,and 4.4.3, hereof. 2. Overhead and general expenses, except as provided for in Section 4.4.2 hereof, or which may be recoverable for changes to the Work. 3. The cost of Design-Builder's capital used in the performance of the Work. 4.6 Contract Price The Contract Price shall be the sum of the Design-Builder's Fee under Section 4.3 plus the amount agreed between Owner and Design-Builder for the Cost of the Work under Section 4.4. When agreed,the Contract Price is stated to be: Dollars($ ). 4.7 Establishment of Guaranteed Maximum Price see Attachment G- Special Conditions 17. WDBC Document No.W-1703-2013 Attachment B—Compensation RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page B-30 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED ATTACHMENT C SCHEDULE SECTION 1 PHASE 1 1.0 The schedule provided as part of the proposal dated July 31,2023 by the Design-Builder for the Phase 1 Services shall be adhered to following issuance of Notice to Proceed by the Owner. SECTION 1 PHASE 2 1.0 Phase 2 Schedule will be included with the GMP deliverable package. WDBC Document No.W-1704-2013 Attachment C—Schedule RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page C-31 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED ATTACHMENT D GENERAL CONDITIONS GC 1.0 General 1.1 Mutual Obligations 1.1.1 Owner and Design-Builder agree to cooperate fully with each other at all times,to permit each party to realize the benefits afforded under the Contract Documents. 1.1.2 These General Conditions("GC")may be supplemented,varied,or revised through Supplementary Conditions("SC"),as attached. 1.2 Basic Definitions 1.2.1 Agreement refers to the executed contract between Owner and Design-Builder with respect to the Project 1.2.2 Bonus Date has the meaning given in Section 5.5 of the Agreement. 1.2.3 Change in Law has the meaning given in GC 8.1.2. 1.2.4 Changed Condition has the meaning given in GC 8.1. 1.2.5 Change Order has the meaning given in GC 7.1. 1.2.6 Construction Warranty has the meaning given in GC 2.9. 1.2.7 Construction Warranty Period is that period specified in GC 2.10.1. 1.2.8 Contract Documents has the meaning given in Section 2.1 of the Agreement. 1.2.9 Contract Price has the meaning given in Section 6.2 of the Agreement and Section 2, Phase 2, of Attachment B,Compensation. 1.2.10 Contract Time(s) shall mean the times for performance of the Work by Design-Builder and the delivery of items and approvals by Owner set forth in Article 5("Contract Time")of the Agreement and Attachment C, Schedule. 1.2.11 Day or Days shall mean calendar days unless otherwise specifically noted in the Contract Documents. 1.2.12 Design-Build Fee shall mean the percentage as set forth in Attachment B 4.3 of this contract. 1.2.13 Design Consultant, if any, is a qualified, licensed design professional who is not an employee of Design-Builder, but is retained by Design-Builder, or employed or retained by anyone under contract with Design-Builder or Subcontractor, to furnish design services required under the Contract Documents. WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-32 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 1.2.14 Design Criteria means those documents which define the Owner's criteria for the scope, quality, and function of the proposed facility, and which may be expanded to outline Owner's project cost limitations and schedule requirements. 1.2.15 Differing Site Conditions has the meaning given in GC 4.2.1. 1.2.16 Early Completion Bonus has the meaning given in Section 5.5 of the Agreement. 1.2.17 Electronic Data has the meaning given in GC 11.1.1. 1.2.18 Extended Performance Warranty is Design-Builder's warranty under GC 2.11.2 that the completed Facility shall be capable of meeting the Performance Standards in Attachment F throughout the Performance Warranty Period. 1.2.19 Project is the physical facility to be designed and constructed for Owner as defined by the scope and contract documents. 1.2.20 Project Performance Criteria means the Owner's criteria for the performance of the project as described in Attachment H Phase 1 Design Development. 1.2.21 Final Acceptance of the Project shall be deemed to have occurred upon final payment pursuant to GC 5.8. 1.2.22 General Conditions refer to this Attachment D, General Conditions. 1.2.23 Hazardous Conditions are any materials, wastes, substances, and chemicals deemed hazardous under applicable Legal Requirements, or which handling, storage, remediation, or disposal applicable Legal Requirements regulate. 1.2.24 Hazardous Materials has the meaning given in Section 2.3 of Attachment A, Scope of Work. 1.2.25 Indemnified Parties, with respect to Work Product, has the meaning given in Section 9.1 of the Agreement. 1.2.26 Legal Requirements are all federal,state,and local laws,codes,ordinances,rules,regulations,orders, and decrees of any government or quasi-government entity having jurisdiction over the Project or Site,the practices involved in the Project or Site, or any Work which are applicable as of the date of Design-Builder's proposal to Owner,and, subject to the Change in Law provisions of GC 8 1.2, which become applicable during the Contract Time. 1.2.27 Liquidated Damages means such damages as may be assessed under Section 5.4 of the Agreement. 1.2.28 Liquidated Damages Date has the meaning given in Section 5.4 of the Agreement. 1.2.29 Manuals means the Commissioning and Startup Manual and the Operations and Maintenance Manual and such other manuals as the parties may agree to be provided. 1.2.30 Open Book Pricing-The method in which the design-build firm provides the Owner,at the Owner's request,all books, records, documents, contracts, subcontracts, purchase orders,and other data in its possession pertaining to the bidding, pricing, or performance of a contract for design-build services awarded to the design-build firm with the exception of proprietary information. 1.2.31 Owner's Program means the overall definition of Owner's requirements for the Project, including Owner's Project Criteria,all materials,equipment,and other items to be provided by Owner,and all WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-33 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED items to be provided by third parties. 1.2.32 Owner's Project Criteria are developed by or for Owner to describe Owner's Program requirements and objectives for the Project,including use,space,price,time,site and expandability requirements, as well as submittal requirements and other requirements governing Design-Builder's performance of the Work.Owner's Project Criteria may include conceptual documents,Design Criteria,Facility Performance Criteria, performance test, wage rate requirements, MBE/WBE requirements, and other Project-specific technical materials and requirements. 1.2.33 Owner's Representative means the individual selected and authorized by Owner to act upon Owner's behalf with respect to Design-Builder and the performance of this Agreement, in accordance with GC 3.4, and identified by Owner in writing within ten(10)days of execution of this Agreement. 1.2.34 Performance Warranty has the meaning given in GC 2.11. 1.2.35 Project is the design and construction of the Owner's Facility, including start-up, testing, and the provision of manuals, warranties, as-built drawings and specifications, spare parts, and all other items required to be provided under this Agreement. 1.2.36 Schedule means that Schedule for the performance of the Work in accordance with the Contract Time(s)set forth in Attachment C,Schedule, as revised from time to time. 1.2.37 Site is the land or premises on which the Project is located, including any separate laydown or storage areas. 1.2.38 Subcontractor is any person or entity retained by Design-Builder as an independent contractor to perform a portion of the Work and shall include material and suppliers. 1.2.39 Sub-Subcontractor is any person or entity retained by a Subcontractor as an independent contractor to perform any portion of a Subcontractor's Work and shall include material and suppliers. 1.2.40 Substantial Completion is the date on which the Work, or an agreed upon portion of the Work, is sufficiently complete so that Owner can occupy and use the Project or a portion thereof for its intended purposes. 1.2.41 Certificate of Substantial Completion is that Certificate issued by Owner to Design-Builder pursuant to GC 5.7.1. 1.2.42 Uncontrollable Circumstances are those acts, omissions, conditions, events, or circumstances beyond the control of Design-Builder and due to no fault of its own or those for whom Design- Builder is responsible. By way of example (and not limitation), Uncontrollable Circumstances include acts or omissions of Owner or anyone under Owner's control (including separate contractors),changes in the Work, Differing Site Conditions,Hazardous Conditions,wars,floods, labor disputes,unusual delay in transportation,epidemics,earthquakes,adverse weather conditions not reasonably anticipated, and other circumstances beyond the reasonable control of the party affected. WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No. UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-34 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 1.2.43 Work is comprised of all Design-Builder's design, construction, start-up, testing, warranty, and other services required to by the Contract Documents, including procuring and furnishing all materials,equipment, services, and labor reasonably inferable from the Contract Documents, plus manuals and documentation required by the Contract Documents. 1.2.44 Direct Owner Purchases is a procedure used by the City to make direct purchases of any materials/equipment and make direct payment to the Vendor.The CITY reserves the right to issue purchase orders for materials to either the Contractor's/Design-Build Team or the CITY's suppliers for construction/public works related materials when deemed in the best interest of the City. GC 2.0 Design-Builder's Services and Responsibilities 2.1 General Services 2.1.1 Design-Builder's Representative shall be reasonably available to Owner and shall have the necessary expertise and experience required to supervise the Work. Design-Builder's Representative shall communicate regularly with Owner and shall be vested with the authority to act on behalf of Design-Builder. Design-Builder's Representative may be replaced only with the mutual agreement of Owner and Design-Builder. 2.1.2 Design-Builder shall provide Owner on a monthly basis a status report detailing the progress of the Work, including whether(i)the Work is proceeding according to schedule,(ii)discrepancies, conflicts, or ambiguities exist in the Contract Documents that require resolution, (iii) health and safety issues exist in connection with the Work, (iv) other items require resolution so as not to jeopardize Design-Builder's ability to complete the Work for the Contract Price and within the Contract Time(s),and(v)such other items as Owner may reasonably require. 2.1.3 Design-Builder shall prepare and submit,at least three(3)days prior to the meeting contemplated by GC 2.1.4,a preliminary schedule for the execution of the Work for Owner's review and response. The schedule shall indicate the dates for the start and completion of the various stages of Work, including the dates when Owner information and approvals are required to enable Design-Builder to achieve the Contract Time(s). When agreed between the parties,such schedule shall be attached hereto as Attachment C, Schedule. The Schedule shall be revised as required by conditions and progress of the Work, but such revisions shall not relieve Design-Builder of its obligations to complete the Work within the Contract Time(s),as such,dates may be adjusted in accordance with the Contract Documents.Owner's review of and response to the Schedule shall not be construed as relieving Design-Builder of its complete and exclusive control over the means,methods,sequences, and techniques for executing the Work. 2.1.4 The parties will meet, within seven (7) days after execution of the Agreement, to discuss issues affecting the administration of the Work and to implement the necessary procedures, including those relating to submittals,review,and approval tum-around times contained in the Schedule,and payment, to facilitate the ability of the parties to perform their obligations under the Contract Documents. 2.1.5 At the completion of Phase 1 Services,the parties may agree upon a revised Schedule to reflect the intended scope of Phase 2 Services and as the basis for the Contract Price to be agreed for the Phase 2 services. 2.2 Design Professional Services 2.2.1 Design-Builder shall, consistent with applicable state licensing laws, provide through qualified, licensed design professionals employed by Design-Builder, or procured from a qualified, WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-35 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED independent licensed Design Consultant, the necessary design services, including architectural, engineering, and other design professional services, for the preparation of the required drawings, specifications, and other design submittals to permit Design-Builder to complete the Work consistent with the Contract Documents.Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any independent Design Consultant.Construction engineering and inspection associated with the construction of this portion on the projects will be required. 2.3 Standard of Care for Design Professional Services 2.3.1 The standard of care for all design professional services performed to execute the Work shall be the care and skill ordinarily used by members of the design profession practicing under similar conditions at the same time and locality of the Project.Design-Builder,its Design Consultants,and its Subcontractors may reasonably rely on the accuracy and completeness of Owner's Project Criteria. 2.4 Design Development Services 2.4.1 Design-Builder and Owner shall, consistent with any applicable provision of the Contract Documents, agree upon any interim design submissions that Owner may wish to review, which interim design submissions may include design criteria, drawings, diagrams, and specifications setting forth the Project requirements. Such agreement may specify the percentage completion of the design documents to be submitted for such review and comment. On or about the time of the scheduled submissions, Design-Builder and Owner shall meet and confer about the submissions, with Design-Builder identifying during such meetings, among other things, the evolution of the design and any significant changes or deviations from the Contract Documents, or, if applicable, previously submitted design submissions. Minutes of the meetings will be maintained by Design- Builder and provided to all attendees for review.Following the design review meeting,Owner shall review and comment on the interim design submissions in a time frame that is consistent with the turnaround times set forth in the Schedule. 2.4.2 Design-Builder shall submit to Owner Construction Documents setting forth in detail drawings and specifications describing the requirements for construction of the Work. The Construction Documents shall be consistent with the latest set of interim design submissions; as such, submissions may have been modified in a design review meeting. The parties shall have a design review meeting to discuss, and Owner shall review and may comment on the Construction Documents in accordance with the procedures set forth GC 2.4.1. Design-Builder shall proceed with construction in accordance with the approved Construction Documents and shall submit one set of approved Construction Documents to Owner prior to commencement of construction. 2.4.3 Owner's review and approval of interim design submissions and the Construction Documents are for mutually establishing a conformed set of Contract Documents compatible with the requirements of the Work. Neither Owner's review nor approval of any interim design submissions and Construction Documents shall be deemed to transfer any design liability from Design-Builder to Owner. 2.4.4 To the extent not prohibited by the Contract Documents or Legal Requirements, Design-Builder may prepare interim design submissions and Construction Documents for a portion of the Work to permit construction to proceed on that portion of the Work prior to completion of the Construction Documents for the entire Work. WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-36 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 2.5 Legal Requirements 2.5.1 Design-Builder shall perform the Work in accordance with all Legal Requirements and shall provide all notices applicable to the Work as required by the Legal Requirements. 2.5.2 The Contract Price and/or Contract Time(s)shall be adjusted to compensate Design-Builder for the effects of any changes in the Legal Requirements enacted after the date of the Agreement affecting the performance of the Work. Such effects may include, without limitation, revisions Design- Builder is required to make to the Construction Documents because of changes in Legal Requirements. 2.6 Government Approvals and Permits 2.6.1 Except as identified in Attachment F,Owner's Permit List,Design-Builder shall obtain and pay for all necessary permits,approvals,licenses,government charges,and inspection fees required for the prosecution of the Work by any government or quasi-government entity having jurisdiction over the Project. 2.6.2 Design-Builder shall provide reasonable assistance to Owner in obtaining those permits,approvals, and licenses that are Owner's responsibility. 2.7 Design-Builder's Phase 2 Construction Services 2.7.1 Unless otherwise provided in the Contract Documents to be the responsibility of Owner or a separate contractor, Design-Builder shall provide through itself or Subcontractors the necessary supervision,labor,inspection,testing,start-up,material,equipment,machinery,temporary utilities, and other temporary facilities to permit Design-Builder to complete construction of the Project consistent with the Contract Documents. 2.7.2 Design-Builder shall perform all construction activities efficiently and with the requisite skill and exercise complete and exclusive control over the means, methods, sequences, and techniques of construction. 2.7.3 Design-Builder shall employ only Subcontractors who are duly licensed and qualified to perform the Work consistent with the Contract Documents. Owner may reasonably object to Design- Builder's selection of any Subcontractor,provided that the Contract Price and/or Contract Time(s) shall be adjusted to the extent that Owner's decision impacts Design-Builder's cost and/or time of performance. 2.7.4 Design-Builder assumes responsibility to Owner for the proper performance of the Work of Subcontractors and any acts,errors,or omissions in connection with such performance.Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Subcontractor or Sub-Subcontractor,including but not limited to any third- party beneficiary rights. 2.7.5 Design-Builder shall coordinate the activities of all Subcontractors. 2.7.6 If Owner performs other work on the Project or at the Site with separate contractors under Owner's control, Design-Builder agrees to reasonably cooperate and coordinate its activities with those of such separate contractors so that the Project can be completed in an orderly and coordinated manner without unreasonable disruption. Unreasonable disruption or interference by Owner's separate contractors may result in a request for a Contract Adjustment under GC 8.1.3. WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-37 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 2.7.7 Design-Builder shall keep the Site reasonably free from debris, trash, and construction wastes to permit Design-Builder to perform its construction services efficiently, safely, and without interfering with the use of adjacent land areas. 2.7.8 Upon Substantial Completion of the Work, or a portion of the Work,Design-Builder shall remove all debris,trash, construction wastes, materials, equipment, machinery, and tools arising from the Work or applicable portions thereof to permit Owner to occupy the Project or a portion of the Project for its intended use. Such partial occupancy or use may commence whether or not the portion is substantially complete,provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage, if any, security, maintenance, heat,utilities,damage to the Work and insurance,and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. 2.8 Design-Builder's Responsibility for Project Safety 2.8.1 Design-Builder recognizes the importance of performing the Work in a safe manner so as to prevent damage, injury,or loss to(i)all individuals at the Site,whether working or visiting,(ii)the Work, including materials and equipment incorporated into the Work or stored on-Site or off-Site, and (iii) all other property at the Site or adjacent thereto. Design-Builder assumes responsibility for implementing and monitoring all safety precautions and programs related to the performance of the Work. Design-Builder shall, prior to commencing construction,designate a Safety Representative with the necessary qualifications and experience to supervise the implementation and monitoring of all safety precautions and programs related to the Work, and shall develop a Project Safety Program, which shall be implemented at the Project Site during the performance of the Work. Unless otherwise required by the Contract Documents, Design-Builder's Safety Representative shall be an individual stationed at the Site who may have responsibilities on the Project other than safety. The Safety Representative shall make routine daily inspections of the Site and shall hold weekly safety meetings with Design-Builder's personnel, Subcontractors,and others asapplicable. 2.8.2 Design-Builder and Subcontractors shall comply with all Legal Requirements relating to safety,as well as any Owner-specific safety requirements set forth in the Contract Documents and incorporated into the Project Safety Program, provided that such Owner-specific requirements do not violate any applicable Legal Requirement. Design-Builder will immediately report in writing any safety-related injury,loss,damage,or accident arising from the Work to Owner's Representative and, to the extent mandated by Legal Requirements, to all government or quasi-government authorities having jurisdiction over safety-related matters involving the Project or the Work. 2.8.3 Design-Builder's responsibility for safety under this GC 2.8 is not intended in any way to relieve Subcontractors and Sub-Subcontractors of their own contractual and legal obligations and responsibility for(i)complying with all Legal Requirements, including those related to health and safety matters, and (ii) taking all necessary measures to implement and monitor all safety precautions and programs to guard against injury,losses,damages or accidents resulting from their performance of the Work. 2.8.4 Owner shall require that its officers,employees,guests,visitors,and other contractors entering the Project Site comply with the Project Safety Program then in effect. 2.9 Construction Warranty 2.9.1 Design-Builder warrants to Owner that the construction, including all materials and equipment furnished as part of the construction, shall be new unless otherwise specified in the Contract Documents, of good quality, in conformance with the Contract Documents and free of defects in materials and workmanship. Design-Builder's warranty obligation excludes defects caused by WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-38 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED abuse,alterations,or failure to maintain the Work by persons other than Design-Builder or anyone for whose acts Design-Builder may be liable. 2.9.2 Nothingin this warrantyis intended to limit anymanufacturer's warrantywhich provides Owner with greater warranty rights than set forth in this GC 2.9 or the Contract Documents.Design-Builder will provide Owner with all manufacturers'warranties upon Substantial Completion. 2.10 Correction of Defective Work 2.10.1 Construction Warranty Period. Design-Builder agrees to correct any Work that is found not to be in conformance with the Contract Documents, including that part of the Work subject to GC2.9, within a period of one(1)year from the date of Final Completion of the Work or any portion of the Work,or within such longer period to the extent required by the Contract Documents. 2.10.2 Correction of Non-Conforming Work. Design-Builder shall, within seven (7) days of receipt of written notice from Owner that the Work is not in conformance with the Contract Documents,take meaningful steps to commence correction of such nonconforming Work, including the correction, removal,or replacement of the nonconforming Work and any damage caused to other parts of the Work affected by the nonconforming Work. If Design-Builder fails to commence the necessary steps within such seven (7) day period, Owner may, in addition to any other remedies provided under the Contract Documents provide Design-Builder with written notice that Owner will commence correction of such nonconforming Work with its own forces. If Owner does perform such corrective Work, Design-Builder shall be responsible for all reasonable costs incurred by Owner in performing such correction. If the nonconforming Work creates an emergency requiring an immediate response,the seven(7)day periods identified herein shall be deemed inapplicable. 2.10.3 The one (1) year period referenced in GC 2.1 0.1 applies only to Design-Builder's obligation to correct nonconforming Work and is not intended to constitute a period of limitations for any other rights or remedies Owner may have regarding Design-Builder's other obligations under the Contract Documents. GC 3.0 Owner's Services and Responsibilities 3.1 Duty to Cooperate 3.1.1 Owner shall,throughout the performance of the Work,cooperate with Design-Builder and perform its responsibilities,obligations,and services in a timely manner to facilitate Design-Builder's timely and efficient performance of the Work and so as not to delay or interfere with Design-Builder's performance of its obligations under the Contract Documents. 3.1.2 Owner shall provide reviews and approvals of interim design submissions and Construction Documents consistent with the tum-around times set forth in the Schedule. Owner's review does not constitute acceptance of design errors or omissions,nor transfer design liability to Owner for the same. 3.2 Furnishing of Services and Information 3.2.1 Unless expressly stated to the contrary in the Contract Documents,Owner shall provide,at its own cost and expense, for Design-Builder's information and use the following, all of which Design- Builder is entitled to rely upon in performing the Work: WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-39 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 1. Surveys describing the property boundaries, topography,and reference points for use during construction,including existing service and utility lines. 2. Geotechnical studies describing subsurface conditions, and other surveys describing other latent or concealed physical conditions at the Site. 3. Temporary and permanent easements, zoning, and other requirements and encumbrances affecting land use, or necessary to permit the proper design and construction of the Project,access to the Site,and any off-site storage or lay-down areas,and to enable Design-Builder to perform the Work. 4. A legal description of the Site. 5. To the extent available,as-built and record drawings of any existing structures and utilities at the Site;and 6. To the extent available, environmental studies, reports, and impact statements describing the environmental conditions, including Hazardous Conditions, in existence at the Site. 3.2.2 Owner is responsible for securing and executing all necessary agreements with adjacent land or property owners that are necessary to enable Design-Builder to perform the Work.Owner is further responsible for all costs,including attorneys'fees,incurred in securing these necessary agreements. 3.3 Financial Information 3.3.1 Design-Builder shall cooperate with the reasonable requirements of Owner's lenders or other financial sources. 3.3.2 Notwithstanding the preceding sentence, after execution of the Agreement Design-Builder shall have no obligation to execute for Owner or Owner's lenders or other financial sources any documents or agreements that require Design-Builder to assume obligations or responsibilities greater than those existing obligations Design-Builder has under the Contract Documents. 3.3.3 Design-Builder shall not be required as a condition of award or contract to waive or subordinate its mechanic's lien rights,if any,to Owner's construction lender(s). 3.4 Owner's Representative 3.4.1 Owner's Representative shall be responsible for providing Owner-supplied information and approvals in a timely manner to permit Design-Builder to fulfill its obligations under the Contract Documents. Owner's Representative shall also provide Design-Builder with prompt notice if it observes any failure on the part of Design-Builder to fulfill its contractual obligations, including any errors,omissions,or defects in the performance of the Work. 3.4.2 If Owner retains a third party as Owner's Engineer or Owner's Program Manager,separately from Owner's Representative,then Owner shall designate such third party in writing to Design-Builder, together with a statement of the respective roles, responsibility, and authority of each such party with respect to the administration of the contract,the approval of drawings and specifications,the issuance of instructions and change orders, the resolution of disputes, and the relative priority of the authority of such parties. 3.5 Government Approvals and Permits 3.5.1 Owner shall obtain and pay for all necessary permits,approvals,licenses,government charges,and inspection fees set forth in the Owner's Permit List attached as part of Attachment F, WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No. UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-40 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 3.5.2 Owner shall provide reasonable assistance to Design-Builder in obtaining those permits,approvals, and licenses that are Design-Builder's responsibility. 3.6 Owner's Separate Contractors 3.6.1 Owner is responsible for all workperformed on the Project or at the Site by separate contractors under separate agreements with Owner. Owner shall contractually require its separate contractors to cooperate with,and coordinate their activities so as not to interfere with,Design-Builder in order to enable Design-Builder to timely complete the Work consistent with the Contract Documents. 3.6.2 Owner recognizes the importance that all work performed on the Project or at the Site by separate contractors under separate agreements with Owner is performed in a safe manner so as to prevent damage,injury,or loss to(i)all individuals at the Site,whether working or visiting,(ii)the Work, including materials and equipment incorporated into the Work or stored on-Site or off-Site, and (iii)all other property at the Site or adjacent thereto.Owner shall require such separate contractors to assume responsibility for implementing and monitoring all safety precautions and programs related to the performance of their work. GC 4.0 Hazardous Conditions and Differing Site Conditions 4.1 Hazardous Conditions 4.1.1 Unless otherwise expressly provided in the Contract Documents to be part of the Work, Design- Builder is not responsible for any Hazardous Conditions encountered at the Site.Upon encountering any Hazardous Conditions, Design-Builder will stop Work immediately in the affected area and duly notify Owner and, if required by Legal Requirements, all government or quasi-government entities with jurisdiction over the Project or Site. 4.1.2 Upon receiving notice of the presence of suspected Hazardous Conditions, Owner shall take the necessary measures required to ensure that the Hazardous Conditions are remediated or rendered harmless.Such necessary measures shall include Owner retaining qualified independent experts to (i)ascertain whether Hazardous Conditions have actually been encountered,and,if they have been encountered, (ii) prescribe the remedial measures that Owner must take to either remove the Hazardous Conditions or render the Hazardous Conditions harmless. 4.1.3 Design-Builder shall be obligated to resume Work at the affected area of the Project only after Owner's expert provides it with written certification that (i) the Hazardous Conditions have been removed or rendered harmless and (ii) all necessary approvals have been obtained from all government and quasi-government entities having jurisdiction over the Project or Site. 4.1.4 Design-Builder will be entitled, in accordance with these General Conditions, to an equitable adjustment in its Contract Price and/or Contract Time(s)to the extent Design-Builder's cost and/or time of performance have been adversely impacted by the presence of Hazardous Conditions. 4.1.5 To the fullest extent permitted by law,Owner shall defend, indemnity, and hold harmless Design- Builder,Design Consultants,Subcontractors and Subcontractors,and the agents,officers,directors, and employees of each of them, from and against any and all claims, damages, losses, costs, and expenses, whether direct, indirect or consequential, including but not limited to attorney's fees, costs,and expenses incurred in connection with litigation or arbitration,arising out of or relating to the performance of the Work in any area affected by Hazardous Material. To the fullest extent permitted by law, such indemnification shall apply regardless of the fault, negligence, breach of warranty or contract,or strict liability of the indemnitee. WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-41 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 4.1.6 Notwithstanding the preceding provisions of this GC 4.1,Owner is not responsible for Hazardous Conditions introduced to the Site by Design-Builder,Design Consultants,Subcontractors,or anyone for whose acts they may be liable. Design-Builder shall indemnify, defend and hold harmless Owner and Owner's officers, directors, employees,and agents from and against all claims, losses, damages,liabilities,and expenses,including attorneys'fees and expenses,arising out of or resulting from those Hazardous Conditions introduced to the Site by the parties identified in the first sentence of this GC 4.1.6. 4.1.7 The terms of this GC 4.1 shall survive the completion of the Work under this Agreement and/or any termination of this Agreement. 4.2 Differing Site Conditions 4.2.1 Concealed or latent physical conditions or subsurface conditions at the Site that(i)materially differ from the conditions indicated in the Contract Documents or(ii) are of an unusual nature, or(iii) differing materially from the conditions ordinarily encountered and generally recognized as inherent in the Work, are collectively referred to herein as "Differing Site Conditions." If Design- Builder encounters a Differing Site Condition, Design-Builder will be entitled to an equitable adjustment in the Contract Price and/or Contract Time(s)to the extent Design-Builder's cost and/or time of performance are adversely impacted by the Differing Site Condition. 4.2.2 Upon encountering a Differing Site condition, Design-Builder shall provide prompt written notice to Owner of such condition,which notices shall not be later than seven(7)days after such condition has been encountered. Design-Builder shall,to the extent reasonably possible,provide such notice before the Differing Site Condition has been substantially disturbed or altered. 5.0 Payment 5.1 Payment for Phase 1 Services 5.1.1 Design-Builder will submit an Application for Payment to Owner each month covering Phase 1 services performed to date. Each Application for Payment will be prepared in the standard form agreed to by the parties and supported by required documentation. 5.2 Schedule of Values for Phase 2 Services 5.2.1 Within ten(10)days of the Commencement Date,Design-Builder shall submit for Owner's review and approval a schedule of values for Phase 2 of the Work. The Schedule of Values will (i) subdivide the Work into its respective parts; (ii) include values for all items comprising the Work and(iii)serve as the basis for monthly progress payments made to Design-Builder throughout the Work. 5.3 Monthly Progress Payments 5.3.1 On or before the date established in the Agreement,Design-Builder shall submit for Owner's review and approval its Application for Payment requesting payment for all Work performed as of the date of the Application for Payment. The Application for Payment shall be accompanied by all supporting documentation required by the Contract Documents and/or established at the meeting required by GC 2.1.4. 5.3.2 The Application for Payment may request payment for equipment and materials not yet incorporated into the Project, provided that(i)Owner is satisfied that the equipment and materials WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-42 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED are suitably stored at either the Site or another acceptable location,(ii)the equipment and materials are protected by suitable insurance and(iii)upon payment,Owner will receive the equipment and materials free and clear of all liens and encumbrances. 5.3.3 The Application for Payment shall constitute Design-Builder's representation that the Work has been performed consistent with the Contract Documents, has progressed to the point indicated in the Application for Payment, and that title to all Work will pass to Owner free and clear of all claims, liens, encumbrances, and security interests upon the incorporation of the Work into the Project,or upon Design-Builder's receipt of payment,whichever occurs earlier. 5.4 Withholding of Payments; Payment of Undisputed Amounts 5.4.1 On or before the date established in the Agreement, Owner shall pay Design-Builder all amounts properly due, including the release of retention under Section 7.3.1 of the Agreement. If Owner determines that Design-Builder is notentitled to all orpart of an Application for Payment, it will >� PP Y notify Design-Builder in writing at least five(5)days prior to the date payment is due. The notice shall indicate the specific amounts Owner intends to withhold,the reasons and contractual basis for the withholding, and the specific measures Design-Builder must take to rectify Owner's concerns. Design-Builder and Owner will attempt to resolve Owner's concerns prior to the date payment is due. If the parties cannot resolve such concerns, Design-Builder may pursue its rights under the Contract Documents,including those under GC 8.0. 5.4.2 Notwithstanding anything to the contrary in the Contract Documents, Owner shall pay Design- Builder all undisputed amounts in an Application for Payment within the times required by the Agreement. 5.5 Right to Stop Work and Interest 5.5.1 If Owner fails to pay Design-Builder any amount that becomes due,Design-Builder,in addition to all other remedies provided in the Contract Documents, may stop Work pursuant to GC 9.4. All payments due and unpaid shall bear interest at the rate set forth in Section 7.5 of the Agreement. 5.6 Design-Builder's Payment Obligations 5.6.1 Design-Builder will pay any Subcontractors and Design Consultants,in accordance with applicable law and its contractual obligations to such parties, all the amounts Design-Builder has received from Owner on account of their work. Design-Builder will impose similar requirements on Subcontractors and Design Consultants to pay those parties with whom they have contracted. 5.6.2 Providing that Owner is not in breach of its contractual obligation to make payments to Design- Builder for the Work,Design-Builder shall indemnify, defend and hold harmless Owner from any claims or mechanic's liens brought against Owner or against the Project as a result of the failure of Design-Builder, or those for whose acts it is responsible,to pay for any services,materials, labor, equipment,taxes or other items or obligations furnished or incurred for or in connection with the Work.Within ten(10)days of receiving written notice from Owner that such a claim or mechanic's lien has been filed, Design-Builder shall commence to take the steps necessary to discharge said claim or lien, including, if necessary, the furnishing of a mechanic's lien bond. If Design-Builder fails to do so, Owner will have the right to discharge the claim or lien and charge Design-Builder with any costs and expenses incurred,including attorneys'fees. 5.7 Substantial Completion 5.7.1 Design-Builder shall notify Owner when it believes the Work. or to the extent permitted in the WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-43 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED Contract Documents, a portion of the Work, is substantially complete. Within five (5) days of Owner's receipt of Design-Builder's notice, Owner and Design-Builder will jointly inspect such Work to verify that it is substantially complete in accordance with the requirements of the Contract Documents. If such Work is substantially complete,Owner shall prepare and issue a Certificate of Substantial Completion that will set forth (i) the date of Substantial Completion of the Work or portion thereof,(ii)the remaining items of Work that have to be completed before final payment, (iii)provisions(to the extent not already provided in the Contract Documents)establishing Owner's and Design-Builder's responsibility for the Project's security, maintenance, utilities,and insurance pending final payment, and(iv)an acknowledgment that warranties commence to run on the date of Substantial Completion, except as may otherwise be noted in the Certificate of Substantial Completion. 5.7.2 Upon Substantial Completion of the entire Work or,if applicable,any portion of the Work,Owner shall release to Design-Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion. 5.7.3 Owner,at its option,may use a portion to the Work which has been determined to be substantially complete, provided that(i)a Certificate of Substantial Completion has been issued for the portion of Work addressing the items set forth in GC 5.7.1,(ii) Design-Builder and Owner have obtained the consent of their sureties and insurers, and(iii)Owner and Design-Builder, agree that Owner's use or occupancy will not interfere with Design-Builder's completion of the remaining Work. 5.7.4 Upon Substantial Completion, Design-Builder shall conduct performance testing of the Facility using Owner's operations erations and maintenance staff to demonstrate that the Performance Criteria set forth in Attachment H,Phase l Design Development,have been satisfied and that the Performance Guarantees have been met. 5.8 Final Payment 5.8.1 After receipt of a Final Application for Payment from Design-Builder, Owner shall make final payment by the time required in the Agreement,provided that Design-Builder has completed all of the Work in conformance with the Contract Documents. 5.8.2 At the time of submission of its Final Application for Payment, Design-Builder shall provide the following information: 1. An affidavit that there are no claims, obligations or liens outstanding or unsatisfied for labor,services,material,equipment,taxes or other items performed,furnished or incurred for or in connection with the Work which will in any way affect Owner's interests; 2. A general release executed by Design-Builder waiving, upon receipt of final payment by Design-Builder, all claims, except those claims previously made in writing to Owner and remaining unsettled at the time of final payment; 3. Consent of Design-Builder's surety,if any,to final payment; 4. A certificate demonstrating that performance testing is complete and that the Performance Guarantees set forth in Attachment F, Owner's Project Criteria, have been met; 5. All operating manuals, warranties, and other deliverables required by the Contract Documents;and 6. Certificates of insurance confirming that required coverages will remain in effect consistent with the requirements of the Contract Documents. 5.8.3 Upon making final payment, Owner waives all claims against Design-Builder except claims relating to (i) Design-Builder's failure to satisfy its payment obligations, if such failure affects WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-44 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED Owner's interests, (ii) Design-Builder's failure to complete the Work consistent with the Contract Documents,including defects appearing after Substantial Completion,(iii)the terms of any special warranties required by the Contract Documents,and(iv)claims which are identified as unsettled at the time of making final payment. 5.8.4 Final payment by Owner shall constitute Final Acceptance of the Project for all purposes hereunder, subject to Design-Builder's remaining warranty obligations and any remaining indemnity obligations hereunder. 5.8.5 Acceptance of final payment by the Design-Builder, a Subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment. GC 6.0 Time 6.1 Obligation to Achieve the Contract Times 6.1.1 Design-Builder agrees that it will commence performance of the Work and achieve the Contract Time(s)in accordance with Article 5.0 of the Agreement. 6.2 Delays to the Work 6.2.1 If Design-Builder is delayed in the performance of the Work due to Uncontrollable Circumstances, the Contract Time(s) for performance shall be reasonably extended by Change Order, and the Schedule adjusted accordingly. 6.2.2 In addition to Design-Builder's right to a time extension for delays in the Work under GC 6.2.1, Design-Builder shall also be entitled to an equitable of the Contract Price and equitable � q adjustmentq commutation of any Liquidated Damages under Section 5.4 of the Agreement. 6.3 Work Hours 6.3.1 Work shall be conducted during normal working hours(7:00 AM to 5:00 PM) on weekdays. No work shall be performed on Saturdays, Sundays, or City observed holidays unless otherwise authorized in writing by the Owner's Project Manager a minimum of forty-eight (48) hours in advance. Design-Builder maywork beyond 5:00 PM on occasion based on the actual dailyprogress 1� Y P �' of the work and per the approved project schedule. Design-Builder shall comply with all requirements and noise ordinances of the City and other jurisdictions where work is taking place. 6.3.2 Construction observation and/or inspection services performed by the Owner beyond the normal weekday working hours of 7:00 AM to 5:00 PM,if needed,shall be paid for by the Design-Builder at an hourly rate of$100.00 for each of the Owner's inspectors providing such service.This hourly rate shall apply to overtime required by the Owner on weekdays, weekends, and City observed holidays. 7.0 Changes to the Contract Price and Time 7.1 Change Orders 7.1.1 A Change Order is a written instrument issued after execution of the Agreement signed by Owner and Design-Builder,stating their agreement upon all of the following: 1.The scope of the change in the Work; 2.The amount of the adjustment to the Contract Price;and WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-45 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 3.The extent of the adjustment to the Contract Time(s)and Schedule. 7.1.2 All changes in the Work authorized by applicable Change Order shall be performed under the applicable conditions of the Contract Documents. Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for such changes. 7.1.3 If Owner requests a proposal for a change in the Work from Design-Builder and subsequently elects not to proceed with the change,a Change Order shall be issued to reimburse Design-Builder for reasonable costs incurred for estimating services,design services, and services involved in the preparation of proposed revisions to the Contract Documents. 7.2 Work Change Directives 7.2.1 A Work Change Directive is a written order prepared and signed by Owner, directing a change in the Work prior to agreement on an adjustment in the Contract Price and/or the Contract Time(s). 7.2.2 Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for the Work Change Directive. Upon reaching an agreement,the parties shall prepare and execute an appropriate Change Order reflecting the terms of the agreement. 7.2.3 If Owner has requested a proposal for a change in the Work from Design-Builder, Owner shall notify Design-Builder as expeditiously as possible whether such proposal is accepted. Design- Builder shall not commence changed work until a written Work Change Directive or Change Order has been delivered by Owner. The parties recognize that delay in response to such proposals may increase the impact or cost of the Change. 7.3 Minor Changes in the Work 7.3.1 Minor changes in the Work do not involve an adjustment in the Contract Price and/or Contract Time(s) and do not materially and adversely affect the Work, including the design, quality, performance, and workmanship required by the Contract Documents. Design-Builder may make minor changes in the Work consistent with the intent of the Contract Documents, provided, however, that Design-Builder shall promptly inform Owner, in writing, of any such changes and record such changes on the documents maintained by Design-Builder. 7.4 Contract Price Adjustments 7.4.1 The increase or decrease in Contract Price resulting from a change in the Work shall be determined by one or more of the following methods: 1. Unit prices set forth in the Agreement or as subsequently agreed between the parties(which may include daily or monthly overhead rates for the extension of services); 2.A mutually accepted lump sum properly itemized and supported by sufficient substantiating data to permit evaluation by Owner; 3.Costs,fees,and any other markups set forth in the Agreement;and 4.If an increase or decrease cannot be agreed to as set forth in items 1 through 3 above and 7.4.2 Owner issues a Work Change Directive,the cost of the change of the Work shall be determined by the reasonable expense and savings in the performance of the Work resulting from the change, WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-46 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED including a reasonable overhead and profit, as may be set forth in the Agreement. If the net result of both additions and deletions to the Work is an increase or a decrease in the Contract Price, overhead and profit shall be calculated on the basis of the net increase or decrease to the Contract Price. Design-Builder shall maintain a documented, itemized accounting evidencing the expenses and savings associated with such changes. 7.4.3 If unit prices are set forth in the Contract Documents or are subsequently agreed to by the parties, but application of such unit prices will cause substantial inequity to Owner or Design-Builder because of differences in the character or quantity of such unit items as originally contemplated, such unit prices shall be equitably adjusted. 7.4.4 If Owner and Design-Builder disagree upon whether Design-Builder is entitled to be paid for any services required by Owner, or if there are any other disagreements over the scope of Work or proposed changes to the Work,Owner and Design-Builder shall resolve the disagreement pursuant to GC 8.0.As part of the negotiation process,Design-Builder shall furnish Owner with a good faith estimate of the costs to perform the disputed services in accordance with Owner's interpretations. If the parties are unable to agree and Owner expects Design-Builder to perform the services in accordance with Owner's interpretations, Design-Builder shall proceed to perform the disputed services, conditioned upon Owner issuing a written order to Design-Builder(i) directing Design- Builder to proceed and(ii)specifying Owner's interpretation of the services that are to be performed. If this occurs Design-Builder shall be entitled to submit in its Applications for Payment an amount equal to fifty percent (50%) of its reasonable estimated direct cost to perform the services, and Owner agrees to pay such amounts,with the express understanding that(i)such payment by Owner does not prejudice Owner's right to argue that it has no responsibility to pay for such services and (ii) receipt of such payment by Design-Builder does not prejudice Design-Builder's right to seek full payment of the disputed services if Owner's order is deemed to be a change to the Work. 7.5 Emergencies 7.5.1 In any emergency affecting the safety of persons and/or property, Design-Builder shall act, at its discretion,to prevent threatened damage, injury, or loss. Any change in the Contract Price and/or Contract Time(s)on account of emergency work shall be determined as provided in this GC 7.0. GC 8.0 Contract Adjustments and Disputes 8.1 Requests for Contract Adjustments and Relief 8.1.1 If either Design-Builder or Owner believes that it is entitled to relief against the other for any Changed Condition arising out of or related to the Work or Project,such party shall provide written notice to the other party of the basis for its claim for relief. 8.1.2 A Changed Condition may include a Change in Law following the date of Design-Builder's proposal to Owner, which has a material impact on the cost of the Work, the Schedule, the Performance Criteria,or other aspects of Design-Builder's performance hereunder. 8.1.3 Changed Conditions may include Uncontrollable Circumstances having an impact on Design- Builder's cost of the Work, the Schedule, the Performance Criteria, or other aspects of Design- Builder's performance hereunder. 8.1.4 Such notice shall, if possible, be made prior to incurring any cost or expense and in accordance with any specific notice requirements contained in applicable sections of these General Conditions. In the absence of any specific notice requirement,written notice shall be given within a reasonable WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-47 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED time,not to exceed twenty-one(21)days,after the occurrence-giving rise to the claim for relief or after the claiming party reasonably should have recognized the event or condition-giving rise to the request,whichever is later. 8.1.5 Such notice shall include a c ude sufficient information tovi ad se the other party of the circumstances giving rise to the claim for relief and,if then available,the specific contractual adjustment or relief requested and the basis of such request. 8.2 Dispute Avoidance and Resolution 8.2.1 The parties are fully committed to working with each other throughout the Project and agree to communicate regularly with each other at all times so as to avoid or minimize disputes or disagreements. If disputes or disagreements do arise, Design-Builder and Owner each agree to resolve such disputes or disagreements in an amicable,professional and expeditious manner so as to avoid unnecessary losses,delays,and disruptions to the Work. 8.2.2 Design-Builder and Owner will first attempt to resolve disputes or disagreements at the Project level through discussions between Design-Builder's Representative and Owner's Representative. 8.2.3 If a dispute or disagreement cannot be resolved through Design-Builder's Representative and Owner's Representative, upon the request of either party, then the matter shall be referred to the Senior Representatives of each party for resolution. Design-Builder's Senior Representative and Owner's Senior Representative shall meet as soon as conveniently possible,but in no case later than thirty (30) days after such a request is made, to attempt to resolve such dispute or disagreement. Prior to any meetings between the Senior Representatives, the parties will exchange relevant information that will assist the parties in resolving their dispute or disagreement. 8.2.4 If,after meeting,the Senior Representatives determine that the dispute or disagreement cannot be resolved on terms satisfactory to both parties, then the parties shall submit the dispute or disagreement to non-binding mediation.The mediation shall be conducted by a mutually agreeable impartial mediator, or if the parties cannot so agree, a mediator designated by the American Arbitration Association ("AAA") pursuant to its Construction Industry Mediation Rules. The mediation will be governed by and conducted pursuant to a mediation agreement negotiated by the parties or, if the parties cannot so agree, by procedures established by the mediator. Any claims, disputes, or controversies between the parties arising out of or relating to the Agreement, or the breach thereof, which have not been resolved in accordance with the procedures set forth in GC 8.2, shall be decided by court of competent jurisdiction. 8.2.5 In any final, binding dispute proceeding upon which the parties may agree, each party shall be responsible for its own legal costs,including attorneys'fees. 8.2 Duty to Continue Performance 8.3.1 Unless provided to the contrary in the Contract Documents, Design-Builder shall continue to perform the Work and Owner shall continue to satisfy its payment obligations to Design-Builder, pending the final resolution of any dispute or disagreement between Design-Builder and Owner GC 9.0 Suspension and Termination 9.1 Owner's Right to Stop Work 9.1.1 Owner may, without cause and for its convenience, order Design-Builder in writing to stop and WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-48 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED suspend the Work.Such suspension shall not exceed sixty(60)consecutive days or aggregate more than ninety(90)days during the duration of the Project. 9.1.2 Design-Builder is entitled to an equitable adjustment of the Contract Price and/or Contract Time(s) if its cost or time to perform the Work has been adversely impacted by any suspension of stoppage of work by Owner. 9.2 Termination for Convenience 9.2.1 Upon ten(10)days'written notice to Design-Builder,Owner may,for its convenience and without cause, elect to terminate this Agreement. In such event, Owner shall pay Design-Builder for the following: 1. All Work executed and for proven loss,cost,or expense in connection with such Work; 2. The reasonable costs and expenses attributable to such termination, including demobilization costs and amounts due in settlement of terminated contracts with Subcontractors and Design Consultants;and 3. The fair and reasonable sums for overhead and profit on the sum of items 1 and 2 above. 9.2.2 If Owner terminates this Agreement pursuant to GC 9.2.1 and proceeds to design and construct the Project through its employees,agents,or third parties,Owner's rights to use the Work product shall be as set forth in Section 4.3 ("Owner's Limited License upon Owner's Termination for Convenience or Design-Builder's Election to Terminate"). 9.3 Owner's Right to Perform and Terminate for Cause 9.3.1 If Design-Builder persistently falls to(i)provide a sufficient number of skilled workers,(ii)supply the materials required by the Contract Documents, (iii) comply with applicable Legal Requirements, (iv) timely pay, without cause, Subcontractors, (v) prosecute the Work with promptness and diligence to ensure that the Work is completed by the Contract Time(s), as such times may be adjusted, or (vi) perform material obligations under the Contract Documents, then Owner,in addition to any other rights and remedies provided in the Contract Documents or by Law, shall have the rights set forth in GC 9.3.2,9.3.3,and 9.3.4. 9.3.2 Upon the occurrence of an event set forth in GC 9.3 1,Owner may provide written notice to Design- Builder that it intends to terminate the Agreement unless the problem cited is cured,or commenced to be cured,within seven(7)days of Design-Builder's receipt of such notice.If Design-Builder fails to cure,or reasonably commence to cure,such problem,then Owner may give a second written notice to Design-Builder of its intent to terminate within an additional seven (7) day period. If Design- Builder, within such second seven(7) day period, fails to cure, or reasonably commence to cure, such problem,then Owner may declare the Agreement terminated for default by providing written notice to Design-Builder of such declaration. 9.3.3 Upon declaring the Agreement terminated pursuant to GC 9.3.2, Owner may enter upon the premises and take possession,for the purpose of completing the Work,of all materials,equipment, scaffolds,tools,appliances,and other items thereon,which have been purchased or provided for the performance of the Work, all of which Design-Builder hereby transfers, assigns and sets over to Owner for such purpose, and to employ any person or persons to complete the Work and provide all of the required labor, services,materials,equipment,and other items. 9.3.4 In the event of such termination, Design-Builder shall not be entitled to receive any further payments under the Contract Documents until the Work shall be finally completed in accordance WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-49 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED with the Contract Documents.At such time,if the unpaid balance of the Contract Price exceeds the cost and expense incurred by Owner in completing the Work, such excess shall be paid by Owner to Design-Builder. Notwithstanding the preceding sentence, if the Agreement establishes a Guaranteed Maximum Price, Design-Builder will only be entitled to be paid for Work performed prior to its default.If Owner's cost and expense of completing the Work exceeds the unpaid balance of the Contract Price,then Design-Builder shall be obligated to pay the difference to Owner. Such costs and expense shall include not only the cost of completing the Work but also losses,damages, costs,and expense, including attorneys'fees and expenses, incurred by Owner in connection with the re-procurement and defense of claims arising from Design-Builder's default, subject to the waiver of consequential damages set forth in Section 10.2 of the Agreement. 9.3.5 If Owner improperly terminates the Agreement for cause, the termination for cause will be converted to a termination for convenience in accordance with the provisions of GC 9.2. 9.4 Design-Builder's Right to Stop Work 9.4.1 Design-Builder may, in addition to any other rights afforded under the Contract Documents or at law,stop work for the following reason: Owner's failure to pay amounts properly due under Design-Builder's Application for Payment. 9.4.2 Should an event set forth in GC 9.4.1 occur, Design-Builder may provide Owner with written notice that Design-Builder will stop work unless such event is cured within seven (7) days from Owner's receipt of Design-Builder's notice. If Owner does not cure the problem within such seven (7)day period,Design-Builder may stop work.In such case,Design-Builder may make a claim for adjustment to the Contract Price and Contract Time(s)to the extent it has been adversely impacted by such stoppage. 9.5 Design-Builder's Right to Terminate for Cause 9.5.1 Design-Builder, in addition to any other rights and remedies provided in the Contract Documents or by law,may terminate the Agreement for cause for the following reasons: 1. The Work has been stopped for sixty(60)consecutive days,or more than ninety(90)days during the duration of the project, because of a court order, any government authority having jurisdiction over the Work,or orders by Owner under GC 9.1.1,provided that such stoppages are not due to the acts or omissions of Design-Builder or anyone for whose acts Design-Builder may be responsible;or 2. Owner's failure to provide Design-Builder with any information,permits,or approvals that are Owner's responsibility under the Contract Documents which result in the Work being stopped for sixty(60)consecutive days,or more than ninety(90)days during the duration of the project, even though Owner has not ordered Design-Builder in writing to stop and suspend the Work pursuant to GC 9.1.1;or 3. Owner's failure to cure the problems set forth in GC 9.4.1 after Design-Builder has stopped the Work. 9.5.2 Upon the occurrence of an event set forth in GC 9.5.1,Design-Builder may provide written notice to Owner that it intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured,within seven(7)days of Owner's receipt of such notice. If Owner fails to cure, or reasonably commence to cure, such problem. Then Design-Builder may give a second written notice to Owner of its intent to terminate within an additional seven (7) day period. If Owner, within such second seven (7) day period, fails to cure, or reasonably commence to cure, such problem,then Design-Builder may declare the Agreement terminated for default by providing WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-50 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED written notice to Owner of such declaration. In such case, Design-Builder shall be entitled to recover in the same manner as if Owner had terminated the Agreement for its convenience under GC 9.2. 9.6 Bankruptcy of Owner or Design-Builder 9.6.1 If either Owner or Design-Builder institutes or has instituted against it a case under the United States Bankruptcy Code (such party being referred to as the "Bankrupt Party"), such event may impair or frustrate the Bankrupt Party's ability to perform its obligations under the Contract Documents.Accordingly, should such event occur: 1. The Bankrupt Party, its trustee or other successor, shall furnish, upon request of the non- Bankrupt Party, adequate assurance of the ability of the Bankrupt Party to perform all future material obligations under the Contract Documents, which assurances shall be provided within ten(10)days after receiving notice of the request;and 2. The Bankrupt Party shall file an appropriate action within the bankruptcy court to seek assumption or rejection of the Agreement within sixty (60) days of the institution of the bankruptcy filing and shall diligently prosecute such action. If the Bankrupt Party fails to comply with its foregoing obligations,the non-Bankrupt Party shall be entitled to request the bankruptcy court to reject the Agreement,declare the Agreement terminated,and pursue any other recourse available to the non-Bankrupt Party under this GC 9.0. 9.6.2 The rights and remedies under GC 9.6.1 shall not be deemed to limit the ability of the non-Bankrupt Party to seek any other rights and remedies provided by the Contract Documents or by law, including its ability to seek relief from any automatic stays under the United States Bankruptcy Code or the right of Design-Builder to stop Work under any applicable provision of these General Conditions. GC 10.0 Miscellaneous 10.1 Assignment 10.1.1 Neither Design-Builder nor Owner shall without the written consent of the other, assign, and transfer or sublet any portion or part of the Work or the obligations required by the Contract Documents. 10.2 Successorship 10.2.1 Design-Builder and Owner intend that the provisions of the Contract Documents are binding upon the parties,their employees,agents,heirs,successors,and assigns. 10.3 Governing Law 10.3.1 The Agreement and all Contract Documents shall be governed by the laws of the place of the Project,without giving effect to its conflict of law principles.Venue for any mediation or litigation related to this Agreement shall be in Palm Beach County,Florida. 10.4 Severability 10.4.1 If any provision or any part of a provision of the Contract Documents shall be finally determined to be superseded, invalid, illegal, or otherwise unenforceable pursuant to any applicable Legal WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-51 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED Requirements, such determination shall not impair or otherwise affect the validity, legality, or enforceability of the remaining provision or parts of the provision of the Contract Documents, which shall remain in full force and effect as if the unenforceable provision or part were deleted. 10.5 No Waiver 10.5.1 The failure of either Design-Builder or Owner to insist, in any one or more instances, on the performance of any of the obligations required by the other under the Contract Documents shall not be construed as a waiver or relinquishment of such obligation or right with respect to future performance. 10.6 Headings 10.6.1 The headings used in these General Conditions or any other Contract Document, are for ease of reference only and shall not in any way be construed to limit or alter the meaning of any provision. 10.7 Notice 10.7.1 Whenever the Contract Documents require that notice be provided to the other party,notice will be deemed to have been validly given (i) if delivered in person to the individual intended to receive such notice,(ii)four(4)days after being sent by registered or certified mail,postage prepaid to the address indicated in the Agreement,(iii)if transmitted by facsimile,by the time stated in a machine- generated confirmation that notice was received at the number of the intended recipient, or(iv) if transmitted by e-mail to the individual to whom such notice is required to be given, by the time stated in a machine-generated confirmation that notice was received at the e-mail address of the intended recipient. 10.8 Amendments 10.8.1 The Contract Documents may not be changed,altered,or amended in any way except in writing signed by a duly authorized representative of both parties. 10.9 Third Parties 10.9.1 The services to be performed by Design-Builder are intended solely for the benefit of the Owner. No person or entity not a signatory to this Agreement shall be entitled to rely on the Design- Builder's performance of its services hereunder, and no right to assert a claim against the Design- Builder by assignment of indemnity rights or otherwise shall accrue to a third party as a result of this Agreement or the performance of the Design-Builder's services hereunder. GC 11.0 Electronic Data 11.1 Electronic Data 11.1.1 The parties recognize that Contract Documents, including drawings, specifications, and three- dimensional modeling (such as Building Information Models) and other Work Product may be transmitted among Owner,Design-Builder and others in electronic media as an alternative to paper hard copies(collectively "Electronic Data"). 11.2 Transmission of Electronic Data 11.2.1 Owner and Design-Builder shall agree upon the software and the format for the transmission of WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-52 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED Electronic Data. Each party shall be responsible for securing the legal rights to access the agreed- upon format, including, if necessary, obtaining appropriately licensed copies of the applicable software or electronic program to display,interpret and/or generate the Electronic Data. 11.2.2 Neither party makes any representations or warranties to the other with respect to the functionality of the software or computer program associated with the electronic transmission of Work Product. Unless specifically set forth in the Agreement, ownership of the Electronic Data does not include ownership of the software or computer program with which it is associated,transmitted,generated, or interpreted. 11.2.3 By transmitting Work Product in electronic form,the transmitting party does not transfer or assign its rights in the Work Product.The rights in the Electronic Data shall be as set forth in Article 4.0 of the Agreement ("Ownership of Work Product"). Under no circumstances shall the transfer of ownership of Electronic Data be deemed to be a sale by the transmitting party of tangible goods. 11.3 Electronic Data Protocol 11.3.1 The parties acknowledge that Electronic Data may be altered or corrupted, intentionally or otherwise, due to occurrences beyond their reasonable control or knowledge including but not limited to compatibility issues with user software, manipulation by the recipient, errors in transcription or transmission, machine error, environmental factors, and operator error. Consequently, the parties understand that there is some level of increased risk in the use of Electronic Data for the communication of design and construction information and,in consideration of this, agree, and shall require their independent contractors, Subcontractors, and Design Consultants to agree,to the following protocols,terms and conditions set forth in this GC 11.3. 11.3.2 Electronic Data will be transmitted in the format agreed upon in GC 11.2.1, including file conventions and document properties unless prior arrangements are made in advance in writing. 11.3.3 The Electronic Data represents the information at a particular point in time and is subject to change. Therefore, the parties shall agree upon protocols for notification by the author to the recipient of any changes which may thereafter be made to the Electronic Data,which protocol shall also address the duty, if any,to update such information, data, or other information contained in the electronic media if such information changes prior to Final Completion of the Project. 11.3.4 The transmitting party specifically disclaims all warranties,expressed or implied including,but not limited to, implied warranties of merchantability and fitness for a particular purpose, with respect to the media transmitting the Electronic Data. However, transmission of the Electronic Data by electronic means shall not invalidate or negate any duties pursuant to the applicable standard of care with respect to the creation of the Electronic Data, unless such data is materially changed or altered after it is transmitted to the receiving party,and the transmitting party did not participate in such change or alteration. WDBC Document No.W-1705-2013 Attachment D—General Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page D-53 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED ATTACHMENT E INDEMNITY,INSURANCE& BONDING 1.0 Indemnity 1.1 To the fullest extent permitted by law,Design-Builder shall defend,indemnify,and hold Owner,its officers, and employees from liability, damages, losses, and costs including but not limited to reasonable attorney's fees to the extent caused by the negligence, recklessness or intentional wrongful conduct of Design-Builder or persons employed or utilized by Design-Builder in the performance of the Work. Design-Builder shall not be required to defend, indemnify or hold harmless Owner for any acts, omissions, or negligence of Owner, Owner's employees, agents, or separate contractors. 1.2 Owner shall cause any other contractor who may have a contract with Owner to perform work in the areas where Work will be performed under this Agreement,to agree to indemnify and defend Design-Builder,Subcontractors or anyone employed directly or indirectly by any of them or anyone for whose acts any of them may be liable and hold them harmless from all claims for bodily injury and property damage, other than property insured under Section 5.0, that may arise from that contractor's operations. Such provisions shall be in a form satisfactory to Design-Builder. 1.3 If an employee of Design-Builder,Design Consultants, Subcontractors,anyone employed directly or indirectly by any of them,or anyone for whose acts any of them may be liable has a claim against Owner,its officers,directors,employees,or agents,then Design-Builder's indemnity obligation set forth in Section 1.1 above shall not be limited by any limitation on the amount of damages, compensation, or benefits payable by or for Design-Builder, Design Consultants, Subcontractors, or other entity under any employee benefit acts,including workers'compensation or disability acts. 2.0 Design-Builder's Insurance See Attachment G—Special Conditions 18 2.1 Excess Liability Insurance above the required Commercial General,Commercial Automobile,and Employer's Liability insurance to result in overall liability coverage in the amount of$4,000,000 annual aggregate limit. 2.2 For Contractor's Pollution Liability Errors and Omissions Insurance see Attachment G — Special Conditions 18 2.3 The policies shall contain a provision that coverage will not be canceled or not renewed until at least thirty (30) days prior written notice has been given to Owner. Certificates of insurance showing required coverage to be in force shall be filed with Owner prior to commencement of the Work. 2.4 Products and Completed Operations insurance shall be maintained for a minimum period of at least two-year(s) after either ninety (90) days following the date of Substantial Completion or final payment,whichever is earlier. 2.5 The insurance limits stated in this Attachment E may be satisfied through a combination of underlying and excess or umbrella coverage. 2.6 Subcontractors.Design-Builder shall require that all Subcontractors working on the Project secure and maintain the same insurance coverages required for Design-Builder for workers' compensation insurance, employer's liability insurance, commercial automotive liability insurance and commercial general liability insurance and other financial sureties required by applicable law in connection with their presence and the performance of their duties pursuant to this Agreement; provided that Owner may approve lower limits for specific subcontractors pursuant to a request WDBC Document No.W-1708-2013 Attachment E RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page E-54 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED submitted by Design-Builder to Owner prior to any work being performed by the subcontractor. Design-Builder shall require that all subcontractors performing engineering services and all subcontractors performing work with potential pollution liability risk secure and maintain Professional Liability or Pollution Liability insurance coverage, respectively, with such coverage limits commensurate with the scope of the subcontract work performed. Owner, Design-Builder, and all other parties required of Design-Builder shall be named as additional insured on subcontractor's required commercial general liability insurance policy. Alternatively, Design- Builder may obtain and maintain said policies and sureties on the subcontractor's behalf. 3.0 Professional Liability Insurance-See Attachment G-Special Conditions 19 4.0 Owner's Liability Insurance 4.1 Owner shall be responsible for obtaining and maintaining its own liability insurance. Insurance for claims arising out of the performance of this Agreement may be purchased and maintained at Owner's discretion. 4.2 If Owner hires separate contractors for with respect to the Project or for any portion of the Work, then Owner shall require that such separate contractors waive any insurers' rights of subrogation against the Design-Builder and its Subcontractors,Design Consultants,and their officers,directors, and employees. 5.0 Insurance to Protect Project-See Attachment G-Special Conditions 20 5.1 If Owner occupies or uses a portion of the Project prior to its Substantial Completion, such occupancy or use shall not commence prior to a time mutually agreed to by Owner and Design- Builder and to which the insurance company or companies providing the property insurance have consented by endorsing the policy or policies. This insurance shall not be canceled or lapsed on account of partial occupancy. Consent of Design-Builder to such early occupancy or use shall not be unreasonably withheld. 5.2 Owner shall obtain and maintain boiler and machinery insurance as necessary. The interests of Owner, Design-Builder, Subcontractors, and Sub-subcontractors shall be protected under this coverage. 5.3 Upon Substantial Completion and during any period of startup, testing, commissioning, or initial operation of the Project,Owner shall obtain and maintain insurance with respect thereto consistent with that insurance which Owner obtains and maintains with respect to any damage or loss to its permanent plant during commercial operation. Design-Builder, Subcontractors, and Sub- subcontractors shall be named as additional insured on such insurance, and Owner hereby waives any rights of subrogation with respect thereto. 6.0 Property Insurance Loss Adjustment 6.1 Any insured loss shall be adjusted with Owner and Design-Builder and made payable to Owner and Design-Builder as trustees for the insureds, as their interests may appear, subject to any applicable mortgagee clause. 6.2 Upon the occurrence of an insured loss, monies received will be deposited in a separate account and the trustees shall make distribution in accordance with the agreement of the parties in interest, or in the absence of such agreement,in accordance with a mediation agreement,or,if not resolved through mediation,then by an arbitration award pursuant to arbitration. If the trustees are unable WDBC Document No.W-1708-2013 Attachment E RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page E-55 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED to agree between themselves on the settlement of the loss, such dispute shall also be submitted for resolution by mediation or arbitration. 7.0 Waiver of Subrogation 7.1 Owner and Design-Builder waive all rights against each other, and any of their respective employees,agents,consultants,subcontractors,and sub-subcontractors for damages caused by risks covered by insurance provided in Section 5.0 to the extent they are covered by that insurance, except such rights as they may have to the proceeds of such insurance held by Owner and Design- Builder as trustees. Design-Builder shall require similar waivers from all Subcontractors,and shall require each of them to include similar waivers in their sub-subcontracts and consulting agreements. 7.2 Owner waives subrogation against Design-Builder, Subcontractors, and Sub-subcontractors on all property and consequential loss policies carried by Owner on adjacent properties and under property and consequential loss policies purchased for the project after its completion. 7.3 If the policies of insurance referred to in this Section require an endorsement to provide for continued coverage where there is a waiver of subrogation,the owners of such policies will cause them to be so endorsed. 8.0 Bonding-See Attachment G-Special Conditions 21 WDBC Document No.W-1708-2013 Attachment E RFQ No. UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page E-56 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED ATTACHMENT F Scope of Work SECTION 1 1.1 Owners Design-Build Criteria 1.2 The proposal dated July 31, 2023 by the Design-Builder is hereby incorporated by reference for purposes of establishing project scope and minimum prescriptive and performance requirements contained therein for the Phase 1 Services. 2.0 Scope of Work 2.1 Phase 1 —Scope of work shall be, as a minimum,deliverables enumerated in para.5(bXi), Design Phase and includes associated project planning and management tasks inclusive of Phase 1 and 2 prescriptive and performance criteria 2.2 Phase 2 Scope of work shall be, as a minimum, deliverables enumerated in para. 5(bXii), Design Phase and includes associated project planning and management tasks inclusive of Phase 1 and 2 prescriptive and performance criteria WDBC Document No.W-1708-2013 Attachment F—Owner's Permit List RFQ No. UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page F-57 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED ATTACHMENT G SPECIAL CONDITIONS 1. The DESIGNBUILD FIRM shall follow the City procurement policies for all construction items in excess of$200,000 and non-construction items in excess of$50,000.00. 2. The DESIGNBUILD FIRM may elect to use its own forces for portions of the Work to be performed. The DESIGNBUILD FIRM may elect to self-perform up to 100% of the on-site construction. 3. The CITY encourages the utilization of local businesses within the CITY of Boynton Beach city limits therefore DESIGNBUILD FIRM shall make every effort to engage local contractors to enhance the local economy. 4. As part of such preparation, the DESIGNBUILD FIRM shall review the specifications and drawings. Ambiguities, conflicts or lack of clarity in language, use of illegally restrictive requirements, and any other defects in the specifications or in the drawings noted by the DESIGNBUILD FIRM shall be brought to the attention of the Project Manager and Permitting agency(ies)in written form and simultaneously corrected. 5. Quality Control: The DESIGNBUILD FIRM shall develop and maintain a program acceptable to the CITY,to assure quality control of the construction. The DESIGNBUILD FIRM shall supervise the work of all subcontractors providing insurance to each when their work does not conform to the requirements of the plans and specifications and it shall continue to exert its influence and control over each subcontractor to ensure that corrections are made in a timely manner so as to not affect the efficient progress of the work.Should disagreement occur between the DESIGN/BUILD FIRM over acceptability of work and conformance with the requirements of the specifications and plans, the CITY shall be the final judge of performance and acceptability. 6. Subcontracting Interfacing:The DESIGNBUILD FIRM shall be the sole point of interface with all subcontractors for the CITY and all of its agents and representatives. It shall negotiate all change orders, field orders, and request for proposals,with all affected subcontractors and shall review the costs of those proposals and advise the CITY of their validity and reasonableness, acting in the CITY's best interest prior to requesting approval of each change order from the CITY. Before any work is begun on any change order, a written authorization and approval from the CITY must be issued. However, when health and safety are threatened, the DESIGNBUILD FIRM shall act immediately to remove the threat. It shall also carefully review all shop drawings and then issue the shop drawings to the affected subcontractor for fabrication or revision.The DESIGNBUILD FIRM shall maintain a suspense control system to promote expeditious handling. It shall make interpretations of the drawings or specifications requested by the subcontractors and shall maintain said suspense control system to promote timely response. The Project Manager must be informed when the timely response is not occurring on any of the above. 7. Permits: The DESIGNBUILD FIRM shall secure all necessary permits, the cost of which will be considered a direct cost item. 8. Job Site Requirements:The DESIGNBUILD FIRM shall provide for each of the following activities as a part of its Construction Phase fee: WDBC Document No.W-1708-2013 Attachment G—Special Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page G-58 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED a. Provide a safety program for the project to meet CITY and OSHA requirements. Monitor for subcontractor compliance without relieving them of the responsibilities to perform work in accordance with the best acceptable practice. b. Maintain a log of daily activities, including manpower records, weather, delays, major decisions,etc. C. Maintain a roster of companies on the project with names and telephone numbers of key personnel. d. Establish and enforce job rules governing parking, clean-up, use of facilities, and worker discipline. e. Provide labor relations management for a harmonious,productive project. f. Provide a quality control program as per Section 3.2(F)herein. g. Miscellaneous office supplies that support the construction efforts which are consumed by its own forces. h. Travel to and from its home office to the project site as the project requires shall be reimbursed thru the GMP. The DESIGNBUILD FIRM shall provide personnel and equipment or shall arrange for separate subcontracts to provide each of the following as a direct cost item: a. Schedule the services of independent testing laboratories and provide the necessary testing of materials to ensure conformance to contract requirements. b. The printing and distribution of all required bidding documents and shop drawings,including the sets required by the Permitting Agency(ies)inspectors. 9. Job Site Job Site Administration: The DESIGNBUILD FIRM shall provide as part of its job site fee,job site administration functions during construction to assure proper documentation, including but not limited to such things as follows: Job Meetings—Hold weekly progress meetings and coordination meetings to provide for an easy flowing project. Implement procedures and assure timely submittals, expedite processing approvals, and return of shop drawings, samples,etc. Coordinate and expedite critical ordering and delivery of materials,work sequences, inspection and testing, labor allocation, etc. Review and coordinate each subcontractor's work. Review and implement revisions to the Schedule. Monitor and promote safety requirements. In addition, regular project status meetings will be held between the CITY and the DESIGNBUILD FIRM either biweekly or monthly,whichever is designated by the Project Manager. The Job site meetings should be utilized as a tool for pre-planning of work,enforcing schedules, and for establishing procedures,responsibilities,and identification of authority for all to clearly understand. Identify party or parties responsible to follow up on any problems, delay items, or questions and record course of action/solution. Revisit each pending item at each subsequent WDBC Document No.W-1708-2013 Attachment G—Special Conditions RFQ No. UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page G-59 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED meeting until resolution is achieved.Require all present to make any problems or delaying events known to those present for appropriate attention and resolution. Shop Drawing Submittals/Approvals: Provide staff to check shop drawings and closely monitor their submittal and approval process. Material and Equipment Expediting: Provide staff to closely monitor material and equipment deliveries; critically important checking and follow-up procedures on supplier commitments of all subcontractors. Payments to Subcontractors: Develop and implement a procedure for review, processing, and payment of applications by subcontractors for progress and final payments. All financial documents and records shall be maintained pursuant to reasonable accounting practices designed to afford the CITY the ability to have the documents audited with the minimum of cost and disruption. Document Interpretation:Refer all questions for interpretation of the technical documents to the CITY for direction. Reports and Project Site Documents:Record the progress of the project.Submit written progress reports to the CITY including information on the subcontractor's work, and the percentage of completion. Keep a daily log available to the CITY and the Permitting Agency(ies) inspectors for reviewing and copying. Subcontractor's Progress: Prepare periodic punch lists for subcontractor's work including unsatisfactory or incomplete items and schedules for their completion. Substantial Completion: Substantial completion shall be established by way of the following steps: a. DESIGNBUILD FIRM shall notify the CITY that the project is ready for Substantial Completion inspections. b. The CITY shall conduct such inspections. c. Inspections shall be completed by the CITY's Representative. d. The CITY shall consolidate a punch list(CITY's punch list) e. The DESIGNBUILD FIRM shall issue a Certificate of Substantial Completion for acceptance by the CITY's with punch list attached. Start-up: With the CITY's personnel, direct the checkout of utilities, operations, training, systems, and equipment for readiness and assist in their initial start-up and testing by the trade contractors. Final Completion: Monitor the Subcontractor's performance on the completion of the project and provide notice to the CITY that the Work is ready for Final Inspection. Secure and transmit to the CITY all required guarantees,affidavits,warranties,releases,bonds and waivers,manuals, record drawings,and maintenance manuals including the Final Completion Form. Record Drawings: The DESIGNBUILD FIRM shall monitor the progress of their own forces or their subcontractors on marked up field prints and at project completion will prepare the final record drawings. 10. Administrative Records: The DESIGNBUILD FIRM will maintain on the Job Site all project WDBC Document No.W-1708-2013 Attachment G—Special Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page G-60 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED files and records. The project records shall be available at all times to the CITY for reference, review,or copying. 11. CITY Occupancy: The DESIGNBUILD FIRM shall provide services during the design and construction phases and will provide a coordinated CITY occupancy of the project. It shall provide consultation and project management to facilitate CITY occupancy and provide transitional services to get the work, as completed by the subcontractors; "online" in such conditions as will satisfy CITY operational requirements. a. It shall conduct the preliminary punch list inspection and coordinate the completion of the punch list work to be done with the CITY occupancy in mind. b. It shall catalog operational and maintenance requirements of equipment to be operated by maintenance personnel and convey these to the CITY in such a manner as to promote their usability. It shall provide operational training in equipment use for building operators. c. It shall secure required guarantees and warranties,assemble and deliver same to the CITY in a manner that will facilitate their maximum enforcement and assure their meaningful implementation. d. It shall continuously review "Record" Drawings" and mark up progress prints to provide as much accuracy as possible. The CITY may not occupy or take control of the Project until the above items discussed in this paragraph have been completed and the"Substantial Completion",and"Warranty"requirements specified in paragraphs 3.2J. (8) "Substantial Completion", 3.2J (10) "Final Completion", and 3.2J(M)"Warranty"have been completed to the City's satisfaction excluding the requirements for a warranty inspection.Nothing in this provision shall preclude the CITY from taking partial occupancy if necessary. 12. WARRANTY: Where any work is performed by the DESIGNBUILD FIRM's own personnel or by subcontractors under Contract with the Design/Build Firm, the DESIGN/BUILD FIRM shall warrant that all materials and equipment included in such work will be new except where indicated otherwise in the Contract documents and that such work will be new and of good quality, free from improper workmanship and defective materials and in conformance with the Drawings and Specifications.With respect to the same work,the DESIGNBUILD FIRM further agrees to correct all work found by the CITY to be defective in material and workmanship or not in conformance with the Drawings and Specifications for a period of one(1)year from the Date of Final Completion or for such longer period of time as may be set forth with respect to specific warranties contained in the trade sections of the Specifications. The DESIGNBUILD FIRM shall collect and deliver to the CITY any specific written warranties given by others as required by the Contract Documents. The DESIGNBUILD FIRM shall warrant to the CITY that it possesses good, clear, and marketable title to all equipment and materials provided and that there are no pending liens, claims or encumbrances against the equipment and materials. DESIGNBUILD FIRM is required to submit form provided by the CITY,herein attached as part of"Appendix C"herein, named"Warranty of Title"to certify this claim. 13. Code Inspections:All projects require detailed code compliance inspections during construction in certain disciplines. These disciplines normally include, but are not necessarily limited to structural,mechanical,electrical,plumbing,and general building.All inspections shall be made for conformance with the applicable building codes, compliance with drawings and specifications.The DESIGNBUILD FIRM is ultimately responsible for all code compliance. WDBC Document No.W-1708-2013 Attachment G—Special Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page G-61 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED Cost for all re-inspections of work found defective and subsequently repaired shall be borne by the DESIGNBUILD FIRM. 14. Subcontractors: Proposals: Subject to Section 3.9.2 "Cost of Work" and in accordance with Section 3.2D "Solicitation of Bids," the DESIGNBUILD FIRM shall request and receive proposals from subcontractors and suppliers and will award those contracts to the responsive qualified low bidder after it has reviewed each proposal and is satisfied that the subcontractor is qualified to perform the work. Required Subcontractor's Qualifications and Subcontractors Conditions: a. Subcontractor Relations: The DESIGNBUILD FIRM shall require each subcontractor to the extent of the work to be performed by the subcontractor to be bound to the DESIGNBUILD FIRM by the terms of the Contract Documents,and to assume toward the DESIGNBUILD FIRM all the obligations and responsibilities which the DESIGNBUILD FIRM by these Documents,assumes toward the City. The DESIGNBUILD FIRM shall not employ any subcontractor, whether initially or as a substitute against whom the CITY has reasonable objection. The DESIGNBUILD FIRM shall make available to each proposed subcontractor, prior to the execution of the subcontract, copies of the Contract Documents to which the subcontractor will be bound by this Section 3.5,and identify to the subcontractor any terms and conditions of the proposed subcontract which may be at variance with the Contract Documents.Each subcontractor shall similarly make copies of such Documents available to its subcontractors. b. Subcontract Requirements: The DESIGNBUILD FIRM shall be responsible for pre- qualifying re- uali in subcontractors. Pre-qualification shall include but not limited to evaluation of q fY g q previous experience staffing resources, financial conditions, and overall ability to perform the work. Workforce: The DESIGNBUILD FIRM shall evaluate subcontractor's percentage of the project construction work to be performed utilizing its own employees. Subcontractor Experience: The subcontractor must demonstrate related experience of similar size and complexity as determined by the DESIGNBUILD FIRM. Supervision: The subcontractor must agree to provide field(on-site) supervision through a named superintendent for each trade (general concrete forming and placement, masonry, mechanical,plumbing,electrical, and roofing)included in the subcontract. In addition,the subcontractor shall assign and name a qualified employee for scheduling direction for its work. The supervisory employees of the subcontractor (including field superintendent, foreman,and schedulers at all levels)must have been employed in a supervisory(leadership) capacity of substantially equivalent level on a similar project for at least two(2)years within the last five years.The subcontractor shall include a resume of experience for each employee identified by him to supervise and schedule the work. C. All Subcontractors shall provide: LIMITATION OF REMEDY—NO DAMAGES FOR DELAY OR DISRUPTION WDBC Document No.W-1708-2013 Attachment G—Special Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page G-62 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED The subcontractor's exclusive remedy for delays or disruptions,except for active interference by the CITY in the performance of the contract caused by events beyond its control,including CITY delays claimed to be caused by the CITY or attributable to the CITY and including claims based on breach of contract or negligence, shall be an extension of its contract time. In the event of a change in the Work, the subcontractor's claim for adjustments in the contract sum are limited exclusively to its actual costs for such changes. Each subcontract shall require the subcontractor to expressly agree that the foregoing constitute its sole and exclusive remedies for delays or disruptions and changes in the Work, and thus eliminate any other remedies for claim for increase in the contract price,damages, losses,or additional compensation. Each subcontract shall require that any claims by subcontractor for delay or additional cost must be submitted to the DESIGNBUILD FIRM within seven (7) calendar days in the format in which the DESIGNBUILD FIRM must submit such claims to the CITY. Failure to comply with the conditions for giving notice and submitting claims shall result in the waiver of such claims.Any such claim must include a time impact analysis as a justification for any equitable time or price adjustment, and a subcontractor's refusal to provide such a timely analysis shall be considered a failure of a condition precedent to advance the claim in any future litigation. The DESIGNBUILD FIRM shall also: 1. Observe work of each subcontractor to monitor compliance with schedule. 2. Verify that labor and equipment are adequate for the work and the schedule. 3. Verify that the product procurement schedules are adequate. 4. Verify that product deliveries are adequate to maintain schedule. 5. Report non-compliance with recommendation for changes to the CITY. Responsibilities for Acts and Omission:The DESIGN/BUILD FIRM shall be responsible to the CITY for the acts and omission of its employees and agents and its subcontractors,their agents,and employees,and other persons performing any of the work of supplying materials under a contract to the DESIGNBUILD FIRM. Subcontracts to be Provided:Upon request,the DESIGNBUILD FIRM shall include a copy of each signed subcontract, including the general supplementary conditions, in the project manual. 15. City's Responsibilities: CITY's Information: The CITY shall provide information that it possesses regarding the requirements for the project. Site Survey and Reports: The CITY shall provide any available surveys describing the physical characteristics,soil reports,and subsurface investigations,legal limitations,utility locations,and a legal description relating to this Project. The CITY does not warrant the completeness or the current accuracy of any reports and DESIGNBUILD FIRM is entitled to rely on said reports in the performance of its work for this Project unless DESIGNBUILD FIRM knows or reasonably should have known such surveys or reports are inaccurate. Approvals and Easements:The CITY shall pay for necessary approvals,easements,assessments, WDBC Document No.W-1708-2013 Attachment G—Special Conditions RFQ No. UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page G-63 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED and charges required for the construction, use, or occupancy of permanent structures or for permanent changes in existing facilities. Legal Services: The CITY shall furnish such legal services as may be necessary for obtaining any approvals or easements and such auditing services as the CITY deem necessary. Drawings and Specifications: The CITY will attempt to review and act upon the DESIGNBUILD FIRM's drawings and Specifications in ten (10) calendar days to avoid delaying the progress of the Project. 16. Tests & Inspections: DESIGNBUILD FIRM shall give CITY notice of readiness of the Work for all required inspections, tests, and approvals. DESIGNBUILD FIRM shall assume full responsibility,pay all costs,and furnish CITY the required certificates of inspection,testing,and approval for all materials,equipment,or the Work or any part unless other specified. Neither CITY, nor other inspectors shall have authority to permit deviations from nor to relax any of the provisions of the Contract Documents,nor to delay the Agreement by failure to inspect the materials and work with reasonable promptness. The payment of any compensation,the giving of any gratuity or the granting of any favor by the DESIGNBUILD FIRM to any inspectors, directly or indirectly is strictly prohibited and punishable to the full extent of the law,and any such action on the part of the DESIGNBUILD FIRM will constitute a termination of the resultant Contract. Miscellaneous-Apprentices:If the DESIGNBUILD FIRM employs apprentices on the project; the behavior of the DESIGNBUILD FIRM and CITY shall be governed by the provisions of Florida Statutes, Chapter 446, and by applicable standards and policies governing apprentice programs and agreements established by the Division of Labor of the Florida Department of Labor and Employment Security.The DESIGNBUILD FIRM will include provisions similar to the foregoing sentence in each subcontract. 17. Establishment of Guaranteed Maximum Price: GMP Established After Execution of this Contract. GMP Proposal: Upon completion of Phase I(Preliminary Design Documents), DESIGN/BUILD FIRM shall submit a GMP Proposal to the CITY which shall include the following unless mutually agreed to otherwise by the parties: A proposed GMP,which shall be the sum of: 1. Lump Sum Amount for Phase I of the Project(Preliminary Design Documents) 2. Cost of Work for Phase II of the Project 3. Construction Allowance for Phase II 4. DESIGNBUILD FIRM's Lump Sum General Conditions Amount for Phase II 5. DESIGNBUILD FIRM's Lump Sum Insurance for Phase II 6. DESIGNBUILD FIRM's Bonds for Phase II 7. DESIGNBUILD FIRM's Fee for Phase II A list of the drawings and specifications, including all addenda used as the basis for the GMP Proposal; A list of all the assumptions and clarifications made by the DESIGN/BUILD FIRM in the WDBC Document No.W-1708-2013 Attachment G—Special Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page G-64 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED preparation of the GMP Proposal,which list is intended to supplement the information contained in the drawings and specifications; The Guaranteed Completion Date— Substantial and Final Completion - (GCD) upon which the proposed GMP is based, to the extent said date has not already been established and a schedule upon which the GCD is based; A list of allowances and statement of their basis;A statement of additional services;and The time limit for acceptance for the GMP Proposal. All Lump Sum amounts set forth above shall be paid in accordance with a schedule of values on a percent completed basis and shall NOT be subject to audit rights. 18. Insurance:During the performance of the services under this Contract,DESIGNBUILD FIRM shall maintain the following insurance policies, and provide Certificates of Insurance written by an insurance company authorized to do business in the state of Florida in accordance with Section 3.13.2.1 of the Special Conditions to include: a. Worker's Compensation Insurance: The DESIGNBUILD FIRM shall procure and maintain for the life of this Contract, Worker's Compensation Insurance covering all employees with limits meeting all applicable state and federal laws. This coverage shall include Employer's Liability with limits meeting all applicable state and federal laws.This coverage must extend to any sub-Contractor that does not have their own Worker's Compensation and Employer's Liability Insurance. The policy must contain a waiver of subrogation in favor of the CITY of Boynton Beach,executed by the insurance company. b. Comprehensive General Liability:The DESIGNBUILD FIRM shall procure and maintain for the life of this Contract,Comprehensive General Liability Insurance. This coverage shall be on an "Occurrence" basis. Coverage shall include Premises and Operations; Independent Contractors,Products Completed Operations and Contractual Liability with specific reference of Article 7,"Indemnification"of this Agreement.This policy shall provide coverage for death, personal injury,or property damage that could arise directly or indirectly from the performance ofthis Agreement.DESIGNBUILD FIRM shall maintain a minimum coverage of$1,000,000 per occurrence and$2,000,000 general aggregate for personal injury and for property damage. The general liability insurance shall include the CITY as an additional insured and shall include a provision prohibiting cancellation of the policy upon thirty(30)days prior written notice to the CITY. c. Business Automobile Liability: The DESIGNBUILD FIRM shall procure and maintain, for the life of this Contract, Business Automobile Liability Insurance. The DESIGNBUILD FIRM shall maintain a minimum amount of$1,000,000 combined single limit for bodily injury and property damage liability to protect the DESIGNBUILD FIRM from claims of damage for bodily and personal injury, including death, as well as from claims for property damage, which may arise from the ownership, use of maintenance of owned and non-owned automobile including rented automobiles, whether such operations be by the DESIGNBUILD FIRM or by anyone directly or indirectly employed by the DESIGN/BUILD FIRM. WDBC Document No.W-1708-2013 Attachment G—Special Conditions RFQ No. UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page G-65 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED d. Professional Liability(Errors and Omissions) Insurance: The CONSULTANT shall procure and maintain for the life of this Contract in the minimum amount of $1,000,000 per occurrence. e. Umbrella Liability: The DESIGNBUILD FIRM shall procure and maintain, for the life of this contract, Umbrella Liability Insurance, over and above the previously noted liability insurance policies. The DESIGNBUILD FIRM shall maintain a minimum amount at $4,000,000 It shall be the responsibility of the DESIGNBUILD FIRM to ensure that all sub-contractors comply with the same insurance requirements referenced above. In the judgment of the CITY, prevailing conditions may warrant additional liability insurance coverage or coverage which is different in kind from the original insurance submitted by the DESIGNBUILD FIRM. The CITY reserves the right to require the provision by the DESIGNBUILD FIRM of an amount of coverage different from the amounts or kind previously required and shall afford written notice of such change in requirements thirty(30)days prior to the date on which the requirements shall take effect.Should the DESIGNBUILD FIRM fail or refuse to satisfy the requirement of changed coverage within the thirty(30)days following the CITY's written notice,the CITY,at its sole option, may terminate the Contract upon written notice to the DESIGNBUILD FIRM, said termination taking effect on the date that the required change in policy coverage would otherwise be effective. DESIGNBUILD FIRM shall, for a period of two (2) years following the termination of the Agreement, maintain a "tail coverage" in an amount equal to that described above for Comprehensive Liability Insurance on a claims-made policy only.The CONTRACTOR agrees to purchase the extended reporting period on cancellation or termination unless a new policy is affected with a retroactive date,including at least the last policy year. Any exceptions to the insurance requirements in this section must be approved in writing by the CITY's Risk Management. Contractors Pollution Liability: Contractor's Pollution Liability:The DESIGNBUILD FIRM shall maintain during the term of this Contract, Contractor's Pollution Liability in the amount of $1,000,000 Per Loss/$2,000,000 Annual Aggregate. Coverage will be required for any Environmental/Pollution related services including but not limited to testing, design, consulting, analysis, or other consulting work, whether self-performed or subcontracted. Additionally, such coverage will include bodily injury, sickness, disease, mental anguish or shock sustained by any person, including death; property damage including physical injury to or destruction of tangible property including the resulting loss of use thereof,cleanup costs, and the loss of use of tangible property including the resulting loss of use thereof, cleanup costs, and the loss of use of tangible property that has not been physically injured or destroyed; defense including costs, charges, and expenses incurred in the investigation, adjustment or defense of claims for such compensatory damages;coverage for losses caused by pollution conditions that arise from the operations of the DESIGNBUILD FIRM including transportation. CITY shall be named as additional insured. Coverage will be provided on an Occurrence Form or a Claims Made Form with a retroactive date equal to at least the first date of this Contract and with a three (3)year reporting option beyond the Annual expiration date of the policy. Note: Umbrella or Excess Liability policies may be used to obtain the total limits of liability required to meet the required limits of coverage stated above. Evidence of such coverage should WDBC Document No.W-1708-2013 Attachment G—Special Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page G-66 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED clearly demonstrate the underlying coverages/policies that are included. 19. Professional Liability(Errors and Omissions):The DESIGNBUILD FIRM shall maintain during the term of this Contract, Professional Liability Insurance in the minimum amount of$1,000,000 per occurrence. Coverage will be broad to include Errors and Omissions specific to DESIGNBUILD FIRM's Professional Liability for direct and contingent design errors and Architect's/Engineer's Professional Liability with no exclusions for Design-Build work. Coverage will be provided on an Occurrence Form or a Claims Made Form with a retroactive date equal to at least the first date ofthis Contract and with a three(3)year reporting option beyond the Annual expiration date of the policy. 20. Builder's Risk:During the course of the Contract,the DESIGNBUILD FIRM shall be responsible to maintain Builder's Risk Insurance coverage with the limit being equal to 100%of the Guaranteed Maximum Price(GMP)value(Replacement Value)of Phase 2 the Project;including contractor's labor,materials,and equipment used for completion of the Work.The Builder's Risk policy shall include the SPECIAL FORM/ALL RISK COVERAGES.The deductible for flood,wind,and hail cannot exceed 5%of the insured value.No deductible greater than$50,000 shall be permitted for all other perils. The DESIGNBUILD FIRM is responsible for payment of deductibles for all losses except for those losses as a direct result of Force Majeure. The CITY and the DESIGNBUILD FIRM shall be the certificate holder and Additional Named Insured. The DESIGNBUILD FIRM entity(i.e.Joint Venture,Partnership,etc.)must be a named insured on all required insurance coverages. The CITY shall be named as additional insured under the Commercial General Liability Policy, the Umbrella Policy,and the Contractor's Pollution Coverage. Depending upon the nature of any aspect of this Project and its accompanying exposures and liabilities, the CITY may, at its sole option, require additional insurance coverages in amounts responsive to those liabilities which may or may not require that the CITY also be named as additional insured. Said insurance shall be written by an insurer holding a current certificate of authority pursuant to Chapter 624, Florida Statutes. Such insurance shall be endorsed to provide for a waiver of underwriter's rights and subrogation in favor of the CITY of Boynton Beach.Such insurance shall be written by an insurer with an A.M.Best Rating of A-VII X or better.Prior to commencing any work on the Project, Certificates of Insurance approved by the CITY's Risk Management Department evidencing the maintenance of said insurance shall be furnished to the CITY. The insurance policies shall be endorsed to provide that no material alteration or cancellation, including expiration and non-renewal shall be effective until thirty(30)days after receipt of written notice to the CITY. Anything to the contrary, notwithstanding liabilities of the DESIGNBUILD FIRM under this Contract shall survive and not be terminated, reduced, or otherwise limited by any expiration or termination of insurance coverages. Neither approval nor failure to disapprove insurance furnished by the DESIGNBUILD FIRM shall relieve the DESIGNBUILD FIRM from responsibility to provide insurance as required by the Contract. 21. Bonds:In accordance with the provisions of Florida Statutes§255.05,the DESIGNBUILD FIRM shall provide to the CITY, on forms furnished by the CITY, a 100% Performance and a 100% Payment Bond,each in the amount less than the Guaranteed Maximum Price,being less the Design and Engineering Fees.No qualifications,modifications,or riders to the bond forms are permitted. The Payment and Performance Bonds must be duly recorded in Palm Beach County Public Records WDBC Document No.W-1708-2013 Attachment G—Special Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page G-67 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED as a condition precedent to the CITY's issuance of a Notice to Proceed. The performance bond shall be conditioned that the DESIGNBUILD FIRM performs the Contract in the time and manner prescribed in the Agreement. The payment bond shall be conditioned that the DESIGNBUILD FIRM makes payments to all persons who supply the DESIGNBUILD FIRM with labor, materials, and supplies used directly and indirectly by the DESIGNBUILD FIRM in the performance of the Work provided for in resultant Contract,and any change orders shall provide that the surety shall pay the amount not exceeding the sum provided in the bonds, together with interest at the maximum rate allowed by law and that the DESIGNBUILD FIRM and surety shall indemnify and hold harmless the CITY to the extent of any and all payments in connection with the performance of this Contract which the CITY may be required to make by law. To be acceptable to the CITY as Surety for Performance Bonds and Payment bonds, a Surety company shall comply with the following provisions outlined in the General Conditions herein. The Surety Company shall not expose itself to any loss on any one risk in an amount exceeding ten (10)percent of its surplus to policyholders,provided: a. Any risk or portion of any risk being reinsured shall be deducted in determining the limitation of the risk as prescribed in this section. These minimum requirements shall apply to the reinsuring carrier providing authorization, or approval by the State of Florida, Department of Insurance to conduct business in the state has been met. b. In the case of the surety insurance company, in addition to the deduction for reinsurance,the amount assumed by any co-surety,the value of any security deposited,pledged,or held subject to the consent of the surety and for the protection of the surety shall be deducted. The performance and payment bonds shall continue in effect for one(1)year after the final payment becomes due except as otherwise provided by law or regulation or by the Contract Documents with the final sum of those bonds reduced after final payment to an amount equal to twenty-five percent (25%) of the agreed GMP, less design and engineering fees, or an additional bond shall be conditioned that DESIGNBUILD FIRM shall correct any deficiencies or faulty Work or material which appears within one (1)year after Final Completion of the Agreement, upon notification of the CITY. 22. Harmony: DESIGNBUILD FIRM is advised and agrees that it will exert every reasonable and diligent effort to assure that all labor employed by DESIGNBUILD FIRM and its Subcontractors for work on the Project shall work in harmony with and be compatible with all other labor being used by building and construction contractors now or hereafter on the Site of the Project. DESIGNBUILD FIRM further agrees that this provision will be included in all subcontracts of the subcontractors as well as the DESIGNBUILD FIRM's own contract;provided, however,that this provision shall not be interpreted or enforced so as to deny a bridge on account of membership or non-membership in any labor union or labor organization, the right of any person to work as guaranteed by Article 1,Section 6 of the Florida Constitution. 23. Apprentices:If the DESIGNBUILD FIRM employs apprentices on the project;the behavior of the DESIGNBUILD FIRM and CITY shall be governed by the provisions of Florida Statutes,Chapter 446, and by applicable standards and policies governing apprentice programs and agreements established by the Division of Labor of the Florida Department of Labor and Employment Security. The DESIGNBUILD FIRM will include provisions similar to the foregoing sentence in each subcontract. WDBC Document No.W-1708-2013 Attachment G—Special Conditions RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page G-68 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED 24. Severability: Should any provision of this Contract be deemed or determined to be unenforceable by a court of competent jurisdiction,the remaining contract provisions shall remain in full force and effect. Verification of Employment Status: The CITY shall not intentionally award contracts to any contractor who knowingly employs unauthorized immigrant workers, constituting a violation of the employment provisions of the Immigration and Naturalization Act("INA"). The CITY shall consider the employment by the DESIGNBUILD FIRM of authorized immigrants, a violation of Section 274A(e) of the INA. The DESIGNBUILD FIRM agrees that such violation shall be grounds for the unilateral cancellation of the Contract by the CITY. 25. Payment of Overtime: Unless already included in Phase 2 Construction Costs,any Overtime required for the DESIGNBUILD FIRM to complete the Work within the Contract Time shall be at the sole cost and expense of the DESIGNBUILD FIRM. If CITY requires the DESIGNBUILD FIRM to perform Overtime Work in order to complete the Work prior to the Guaranteed Completion Date,the DESIGNBUILD FIRM shall invoice the CITY for the Overtime such that only the actual costs incurred by the DESIGN/BUILD FIRM relating to the payment of Overtime premiums, in accordance with the labor policies and applicable laws. Such actual costs include Overtime wage premium,and additional taxes and insurance directly associated with the Overtime wage premium. The DESIGN/BUILD FIRM agrees that it will not charge for personnel paid a salary,or other form of compensation such that the DESIGNBUILD FIRM incurs no direct costs as a result of the Overtime. The DESIGNBUILD FIRM shall total the direct Overtime charges, and add the agreed upon overhead rate,but in no case shall such overhead rate exceed ten percent(10%)of the total Overtime costs. Overtime may only be charged to CITY if the DESIGNBUILD FIRM was directed in writing by the CITY to incur the Overtime. Such authorization for Overtime shall be accompanied by a Change Order 26. Scheduling of Overtime:The CITY and the DESIGNBUILD FIRM shall establish and agree upon an overall project baseline schedule that includes all scheduled work. Normal working hours shall be 7:00 AM to 5:00 PM on weekdays. No work shall be performed on Saturdays,Sundays,or City observed holidays unless otherwise authorized in writing by the Owner's Project Manager a minimum of forty-eight (48) hours in advance. Design-Builder may work beyond 5:00 PM on occasion based on the actual daily progress of the work and per the approved project schedule. Construction observation and/or inspection services performed by the Owner beyond the normal weekday working hours of 7:00 AM to 5:00 PM,if needed,shall be paid for by the Design-Builder at an hourly rate of$100.00 for each of the Owner's inspectors providing such service. This hourly rate shall apply to overtime required by the Owner on weekdays, weekends, and City observed holidays. 27. Force Majeure:No party shall be liable for any default or delay in the performance of its obligations under this Contract due to an act of God or other event to the extent that:(a)the non-performing party is without fault in causing such default or delay; (b) such default or delay could not have been prevented by reasonable precautions; and (c) such default of delay could not have been reasonably circumvented by the non-performing party through the use of alternative sources,work-around plans or other means.Such causes include but are not limited to:act of civil or military authority(including but not limited to courts and administrative agencies); acts of God; war, terrorist attacks; riot; insurrection; inability of CITY to secure approval,validation,or sale of bonds; inability of CITY or DESIGNBUILD FIRM to obtain any required permits, licenses or zoning, blockades; embargoes; sabotage;epidemics;fires;hurricanes;tornados;floods,or strikes. WDBC Document No.W-1708-2013 Attachment G—Special Conditions RFQ No. UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page G-69 PROGRESSIVE DESIGNBUILD AGREEMENT RFQ UTL23-007 -TOWN OF HYPOLUXO SEPTIC TO SEWER—GRANT FUNDED In the event of any delay resulting from such causes,the time for performance of each of the parties hereunder(including the payment of monies if such event actually prevents payment)shall be extended for a period of time reasonably necessary to overcome the effect of such delay,except as provided for elsewhere in the Contract Documents. In the event of any delay or non-performance resulting from such causes, the party affected shall promptly notify the other in writing of the nature,cause, date of commencement, and the anticipated impact of such delay or non-performance.Such written notice,including Change Orders,shall indicate the extent, if any, to which it is anticipated that any delivery or completion dates will be thereby affected. 28. Interruptions: In situations whereby, DESIGN/BUILD FIRM deems it necessary to interrupt operations,only a twenty-four(24)hour downtime is permissible. THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY WDBC Document No.W-1708-2013 Attachment G—Special Conditions RFQ No. UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) Page G-70 (co„.... SY—c . r 4` N:. PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: that (Insert name of Contractor) as Principal, (Address or legal title of Contractor) hereinafter called Contractor, and (Name and address of Surety) as Surety, hereinafter called Surety, are held and firmly bound unto CITY OF BOYNTON BEACH, P.O. BOX 310, BOYNTON BEACH, FLORIDA 33425-0310 as Obligee, hereinafter called Owner, in the amount of Dollars ($ ), for payment whereof Contractor and Surety bind themselves, their heirs, executors, administrators, successors and assigns,jointly and severally, firmly by these presents. WHEREAS, Contractor has by written agreement dated , 20 entered into a contract with Owner for in accordance with drawings and specifications prepared by which contract is by reference made a part of hereof, and is hereinafter referred to as the Contract. THIS FORM SHALL BE EXECUTED BY CONTRACTOR AND SUBMITTED AT AWARD RFQ No. UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) PFB-1 NOW THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Contractor shall promptly and faithfully perform such Contract, then this obligation shall be null and void; otherwise it shall remain in full force and effect. The Surety hereby waives notice of any alteration or extension of time made by the Owner. Whenever Contractor shall be, and declared by Owner to be in default under the Contract, the Owner having performed Owner's obligations thereunder, the Surety may promptly remedy the default, or shall promptly: 1. Complete the Contract in accordance with its terms and conditions, or 2. Obtain a bid or bids for completing the Contract in accordance with its terms and conditions, and upon determination by Surety of the most responsible bidder, or, if the Owner elects, upon determination by the Owner and the Surety jointly of the most responsible bidder, arrange for a contract between such bidder and Owner, and make available as work progresses (even though there should be a default or a succession of defaults under the contract or contracts of completion arranged under this paragraph) sufficient funds to pay the cost of completion less the balance of the contract price; but not exceeding, including other costs and damages for which the Surety may be liable hereunder, the amount set forth in the first paragraph hereof. The term "balance of the contract price", as used in this paragraph, shall mean the total amount payable by Owner to Contractor under the contract and any amendments thereto, less the amount properly paid by Owner to Contractor. Any suit under this bond must be instituted before the expiration of one (1) year from the date on which final payment under the Contract falls due. No right of action shall accrue on this bond to or for the use of any person or corporation other than the Owner named herein or the heirs, executors, administrators or successors of the Owner. This bond is issued in compliance with Section 255.05, Florida Statutes as may be amended. A claimant, except a laborer, who is not in privity with the Contractor and who has not received payment for its labor, materials, or supplies shall, within 45 days after beginning to furnish labor, materials, or supplies for the prosecution of the work, furnish the Contractor with a notice that he intends to look to the bond for protection. A claimant who is not in privity with the Contractor and who has not received payment for its labor, materials, or supplies shall, within 90 days after performance of the labor or after complete delivery of the materials or supplies, deliver to the Contractor and to the Surety written notice of the performance of the labor or delivery of the materials or supplies and the nonpayment. No action for the labor, materials, or supplies may be instituted against the Contractor or the Surety unless both notices have been given. No action shall be instituted against the Contractor or the Surety on the bond after one (1) year from the performance of the labor or completion of delivery of the materials or supplies. THIS FORM SHALL BE EXECUTED BY CONTRACTOR AND SUBMITTED AT AWARD RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) PFB-2 Signed and sealed this day of , 202_. Principal (Seal) Witness Title Surety Witness Attorney-in-Fact END OF PERFORMANCE BOND THIS FORM SHALL BE EXECUTED BY CONTRACTOR AND SUBMITTED AT AWARD RFQ No. UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) PFB-3 G l ' 4p UI 70, PAYMENT BOND THIS BOND IS ISSUED SIMULTANEOUSLY WITH PERFORMANCE BOND IN FAVOR OF THE OWNER CONDITIONED ON THE FULL AND FAITHFUL PERFORMANCE OF THE CONTRACT KNOW ALL MEN BY THESE PRESENTS: that (Insert name of Contractor) as Principal, (Address or legal title of contractor) hereinafter called Principal, and (Name and address of Surety) as Surety, hereinafter called Surety, are held and firmly bound unto CITY OF BOYNTON BEACH, P.O. BOX 310, BOYNTON BEACH, FLORIDA 33425-0310 as Obligee, hereinafter called Owner, for the use and benefit of claimants as here below defined, in the amount of Dollars ($ ), for payment whereof Principal and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, Principal has by written agreement dated 202_, entered into a contract with Owner for in accordance with drawings and specifications prepared by which contract is by reference made a part of hereof, and is hereinafter referred to as the Contract. NOW THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Principal shall promptly make payment to all claimants as hereinafter defined, for all labor and material used or reasonably required for use in the performance of the Contract, then this obligation shall be null and void; otherwise it shall remain in full force and effect, subject, however, to the following conditions: 1. A claimant is defined as one having a direct contract with the Principal or with a subcontractor of the Principal for labor, material or both, used or reasonably required for use in the THIS FORM SHALL BE EXECUTED BY CONTRACTOR AND SUBMITTED AT AWARD RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) PYB-1 performance of the Contract, labor and material being construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental of equipment directly applicable to the Contract. 2. The above named Principal and Surety hereby jointly and severally agree with the Owner that every claimant as herein defined, who has not been paid in full before the expiration of a period of ninety(90)days after the date on which the last of such claimant's work or labor was done or performed, or materials were furnished by such claimant, may sue on this bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums as may be justly due claimant, and have execution thereon. The Owner shall not be liable for the payment of any costs or expenses of any such suit. 3. No suit or action shall be commenced hereunder by any claimant: a. Unless claimant, other than one having a direct contract with the Principal, shall have given written notice to any two of the following: the Principal, the Owner, or the Surety above named, within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which such claimant is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, or for when the work or labor was done or performed. Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal, Owner or Surety, at any place where an office is regularly maintained for the transaction of business, or served in any manner in which legal process may be served in the State in which the aforesaid project is located, save that such service need not be made by a public officer. b. After the expiration of one (1) year following the date on which Principal ceased work on such Contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law. c. Other than in a State Court of competent jurisdiction in and for the County or other political subdivision of the State in which the Project, or any part thereof, is situated, or in the United States District Court for the district in which the Project, or any part thereof, is situated, and not elsewhere. 4. The amount of this bond shall be reduced by and to the extent of a payment or payments made in good faith hereunder, inclusive of the payment by Surety of mechanics liens which may be filed of record against such improvements, whether or not claim for the amount of such lien be presented under and against this bond. 5. This bond is issued in compliance with Section 255.05, Florida Statutes, as may be amended. A claimant, except o laborer, who is not in privity with the Contractor and who has not received payment for its labor, materials, or supplies shall, within 45 days after beginning to furnish labor, materials, or supplies for the prosecution of the work, furnish the Contractor with a notice that he intends to look to the bond for protection. A claimant who is not in privity with the Contractor and who has not received payment for its labor, materials, or supplies shall, within 90 days after performance of the labor or after complete delivery of the materials or supplies, deliver to the Contractor and to the Surety written notice of the performance of the labor or delivery of the materials or supplies and the nonpayment. No action for the labor, materials, or supplies may be instituted against the Contractor or the Surety unless both notices have been given. No action shall be instituted against the Contractor or the Surety on THIS FORM SHALL BE EXECUTED BY CONTRACTOR AND SUBMITTED AT AWARD RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) PYB-2 the bond after one (1) year from the performance of the labor or completion of delivery of the materials or supplies. Signed and sealed this day of , 202_. Principal (Seal) Witness Surety Witness Attorney-in-Fact END OF PAYMENT BOND THIS FORM SHALL BE EXECUTED BY CONTRACTOR AND SUBMITTED AT AWARD RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) PYB-3 sOA1) O . , CITY OF BOYNTON BEACH WARRANTY OF TITLE STATE OF FLORIDA COUNTY OF , being first duly sworn, deposes and says as follows: He is of (Title) (Name of Corporation or Firm) a Florida Corporation ( ) Check One a Florida General Partnership ( ) a Florida Limited Partnership ( ) a Sole Proprietor ( ) which is named in Construction Contract dated the day of , 20 , between such corporation as the CONTRACTOR and the City of Boynton Beach, Florida as the OWNER, for the construction of and Affiant is authorized to make this Affidavit as, or on behalf of, the Contractor as named above. Title to all work, materials and equipment covered by the attached Final Application for Payment dated , passes to the Owner at the time of payment free and clear of all liens, and all laborers, material men and subcontractors have been paid for performing or furnishing the work, labor or materials upon such Contract work covered by the aforesaid Final Application for Payment. This statement under oath is given in compliance with Section 713.06 Florida Statutes. Affiant Sworn to and subscribed before me this day of , 202_. Notary Public, State of Florida at Large My Commission expires: (SEAL) END OF WARRANTY OF TITLE THIS FORM SHALL BE EXECUTED BY CONTRACTOR AND SUBMITTED AT AWARD RFQ No.UTL23-007 Town of Hypoluxo Septic to Sewer(PDB) WT-1 ATTACHMENT "A" City of Boynton Beach Risk Management INSURANCE ADVISORY FORM Under the terms and conditions of all contracts, leases, and agreements, the City requires appropriate coverages listing the City of Boynton Beach as Additional Insured. This is done by providing a Certificate of Insurance listing the City as"Certificate Holder"and The City of Boynton Beach is Additional Insured as respect to coverages noted." Insurance companies providing insurance coverages must have a current rating by A.M. Best Co. of"B+"or higher. (NOTE: An insurance contract or binder may be accepted as proof of insurance if Certificate is provided upon selection of vendor.)Thefollowing is a list of types of insurance required of contractors, lessees, etc., and the limits required by the City:(NOTE:This list is not all inclusive, and the City reserves the right to require additional types of insurance, or to raise orlower the stated limits, based upon identified risk.) TYPE(Occurrence Based Only) MINIMUM LIMITS REQUIRED General Liability General Aggregate $ 1,000,000.00 Commercial General Liability Products-Comp/Op Agg. $ 1,000,000.00 Owners&Contractor's Protective(OCP) Personal&Adv. Injury $ 1,000,000.00 Asbestos Abatement Each Occurrence $ 1,000,000.00 Lead Abatement Fire Damage(any one fire) $ 50,000.00 Broad Form Vendors Med. Expense(any one person) $ 5,000.00 Premises Operations Underground Explosion&Collapse Products Completed Operations Contractual Independent Contractors Fire Legal Liability Professional Liability Aggregate-$1,000,000.00 Automobile Liability Combined Single Limit $ 1,000,000.00 Any Auto All Owned Autos Hired Autos Non-Owned Autos Excess Liability Each Occurrence to be determined Umbrella Form Aggregate to be determined Worker's Compensation Statutory Limits Employer's Liability Each Accident $ 1,000,000.00 Disease, Policy Limit $ 1,000,000.00 Disease Each Employee $ 1,000,000.00 Property: Homeowners Revocable Permit $ 300,000.00 Builder's Risk Limits based on Project Cost Installation Floater Limits based on Project Cost Other-As Risk Identified to be determined INSURANCE ADVISORY Revised 04/2021 A