R14-054 I RESOLUTION NO. R14 -054
A RESOLUTION OF THE CITY OF BOYNTON BEACH,
FLORIDA, APPROVING A CONTRACT WITH CDM
• CONSTRUCTORS, INC., FOR "PROGRESSIVE DESIGN BUILD
• FOR ION EXCHANGE RESIN PLANT AND EAST WATER
TREATMENT PLANT IMPROVEMENTS" AS A RESULT OF RFP
NO 006 - 2821- 14/DJL IN THE AMOUNT OF $1,131,770 FOR PHASE
a 1 SERVICES AND A TOTAL PROJECT VALUE OF $30,000,000;
11 AUTHORIZING THE CITY MANAGER TO EXECUTE THE
11 CONTRACT; AND PROVIDING AN EFFECTIVE DATE.
1+
1
14 WHEREAS, on May 20, 2014, the City Commission approved the list of ranked
15 proposers as determined by the Evaluation Committee in response to the Request for
I
1 Proposals for the "Progressive Design Build for Ion Exchange Resin Plant and East Water
17 Treatment Plant Improvements" RFP 006 - 2821 -14 /DJL and authorized staff to commence
1
18 negotiations with the top ranked qualifier; and
119 WHEREAS, as a result of the negotiations staff is recommending a contract with
I
V•0 CDM Constructors, Inc., to provide Phase I Services which includes value engineering of
&1 base design, design services for permitting, site investigation and surveying and limited
&2 demolition; and
'43 WHEREAS, the City Commission of the City of Boynton Beach upon
P..- recommendation of staff, deems it to be in the best interest of the citizens of the City of
5 Boynton Beach to approve a contract with CDM Constructors, Inc., for "Progressive Design
Y Pp , n g g
►.. Build for Ion Exchange Resin Plant and East Water Treatment Plant Improvements as a
,:7 result of RFP No. 006 - 2821 -14 /DJL in the amount of $1,131,770 for Phase 1 services, and a
%8 total ro'ect value of $30,000,000.
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'49 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF I
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1 PASSED AND ADOPTED this 1 day of July, 2014.
2
3 CITY OF BOYNTON BEACH, FLORIDA
4
5
7 ayor — J Ta r
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11 Vice Mayor — Joe Casello
113
h5 Commissioner — David T. -rker
116
L missioner — Mack cCray
R1 - I
2c Commissioner — ichae . Fitzpatrick
• ATTEST:
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• : J t M. Prainito, MMC
• a ity Clerk
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PROGRESSIVE DESIGNBUILD AGREEMENT
FOR
WATER AND WASTEWATER PROJECTS
This AGREEMENT is made effective as of July 2, , 2014, by and between the following parties,
for services in connection with the Project identified below:
OWNER:
(Name and address)
The City of Boynton Beach, Florida
100 E. Boynton Beach Boulevard
PO Box 310
Boynton Beach, FL 33425 -0310
DESIGN - BUILDER:
(Name and address)
CDM Constructors Inc.
1601 Belvedere Road, Suite 400E
West Palm Beach, FL 33406
PROJECT:
Progressive Design -Build Ion Exchange Resin Plant and East Water Treatment Plant Improvements
WHEREAS, the CITY solicited proposals from qualified Design -Build Firms to provide the
installation of the Ion Exchange resin plant at the West Water Treatment Plant (WWTP) site for pre-
treatment of the water supply to the East Water Treatment Plant (EWTP) from the western well field
and the upgrading of the EWTP to a capacity of 24MGD.
WHEREAS, pursuant to Section 287.055, Florida Statutes, the City of Boynton Beach solicited
proposals for non - exclusive Contracts to perform professional services, and
WHEREAS, at its meeting July 1 , 2014 by Resolution No.: R14 -054 the CITY
Commission authorized the proper CITY officials to execute this Contract hereinafter referred to as
Contract No.: 006 - 2821- 14 /DJL; and
WHEREAS, CITY and DESIGN - BUILDER, in reliance on the proposals set forth in the RFP
and as later approved and ratified by the CITY as herein above described, now desire to enter into this
Agreement respecting the Project; and
WHEREAS, CITY has determined that entering into this Agreement with DESIGN- BUILDER
for the design and construction of the Project contemplated by this Agreement is in the best interests of
the health, safety, and welfare of the citizens and residents of the CITY of Boynton Beach, Florida; and
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WHEREAS, because there will be inherent efficiencies and economies achieved by the CITY
which will be in the best interest of the health, safety and welfare of the citizens and residents of and the
CITY of Boynton Beach, Florida, the CITY has determined it is appropriate to enter into this
Agreement embracing the design and construction of the Project, all as more fully set forth below;
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 1 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, 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
I, rather than proceeding to Phase 2 under Section 1.3 ( "Phase 2 Services ") and certain design
subconsultants 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 subconsultants 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 subconsultancy
agreements that Owner shall have the right to negotiate directly with such design subconsultants
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
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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 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 Criteria, including Design Criteria, Facility
Performance Criteria, performance test, wage rate requirements,
and MBE /WBE requirements
Attachment G Owner's Permit List
Attachment H Phase One- Design Development / Guaranteed Maximum Price
Development / Scope of Work
.4 Construction Documents prepared and reviewed in accordance with GC 2.4;
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.5 The following other documents, if any, attached hereto:
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 in their entirety. No oral representations or other agreements have been made by the
parties except as specifically stated in the Contract Documents. Nothing contained in the
Contract Documents shall create any contractual relationship between the Owner, and any Sub -
Contractor or Sub -Sub Contractor.
3.4 Intent: It is the intent of the Contract Documents to describe a functionally complete project
consisting of total design performed by the design professional and construction to be completed
in accordance with the Contract Documents. Any Work, materials or equipment that may
reasonably be inferred from the Contract Documents as being required to produce the intended
result will be supplied whether or not specifically called for. When words which have a well
known technical or trade meaning are used to describe Work, materials or equipment such words
shall be interpreted in accordance with that meaning. Reference to standard specifications,
manuals or codes of any technical society, organization or association, or to the laws or
regulations of any governmental authority, whether such reference be specific or by implication,
shall mean the latest standard specification, manual, code or laws or regulations in effect at the
time of contract award, except as may be otherwise specifically stated. However, no provision of
any referenced standard specification, manual or code (whether or not specifically incorporated
by reference in the Contract Documents) shall be effective to change the duties and
responsibilities of City, Design - Builder, or any of their consultants, agents or employees from
those set forth in the Contract Documents.
3.5 Amending and Supplementing Contract Documents. The Contract Documents may be
amended to provide for additions, deletions and revisions in the Work or to modify the terms and
conditions thereof in one or more of the following ways:
3.5.1 A Change Order;
3.5.2 A Written Amendment; or
3.5.3 Work Change Directive.
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Article 4.0 Ownership of Work Product
Work Product. All reports, drawings, specifications, plans, and all other documents and data
developed by Design Builder for Owner under this Agreement and under all Task Orders shall be the
property of OWNER upon Owner's payment in full without restriction or limitation. Reuse of these
documents for other projects, later remodeling, or future additions shall be at Owner's sole risk and
without any liability to Design Builder.
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 H. Section Entitled; "TIME OF COMPLETION /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 parties mutually
agree otherwise in writing.
5.2 Substantial Completion and Final Completion
5.2.1 Substantial Completion of the entire Work shall be achieved no later than Five Hundred (500)
calendar days after the Date of Commencement or as mutually agreed to by the Owner and
Design - Builder ( "Scheduled Substantial Completion Date ").
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 Ninety
(90) 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.
5.5 5.4.1 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 _ Two Thousand Five Hundred Dollars ($2,500.00) as
liquidated damages for each day that Substantial Completion extends beyond the LD Date, up to a
maximum of:
Five Hundred Thousand Dollars ($500,000.00).
The foregoing liquidated damages (the "Liquidated Damages ") shall be in lieu of all other
monetary remedies that the Owner shall have in the event of the Design's delay in completing the
Work and the aggregate of all Liquidated Damages shall be capped at the Design Builder's fee
pursuant to the Schedule of Value for that Purchase Order and /or phase GMP.
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After Substantial Completion of the work set forth in each Notice to Proceed, should Design -
Builder neglect, refuse or fail to complete the remaining work in the Notice to Proceed for the
work within NINETY (90) calendar days from the Substantial Completion date or any approved
extension thereof, Design - Builder shall pay to Owner of sum of ONE THOUSAND DOLLARS,
($1,000.00) for each calendar day after the time above (plus approved extensions) until final
completion and readiness for final payment. These amounts are not penalties but liquidated
damages to Owner. Liquidated damages are hereby fixed and agreed upon between the parties,
recognizing the impossibility of precisely ascertaining the amount of damages that will be
sustained by Owner as a consequence of such delay, and both parties desiring to obviate any
question of dispute concerning the amount of said damages and the cost and effect of the failure
of Design Builder to complete the Contract on time. The foregoing liquidated damages (the
"Liquidated Damages ") shall be in lieu of all other monetary remedies that the Owner shall have
in the event of the Design's delay in completing the Work and the aggregate of all Liquidated
Damages shall be capped at the Design Builder's fee pursuant to the Schedule of Value for that
Purchase Order and /or phase GMP.
5.4.2 Owner is authorized to deduct accrued liquidated damage amounts from the monies due Design -
Builder for work under this Agreement or as much thereof as Owner may, at its own option, deems just
and reasonable.
5.6 Early Completion Bonus. If Substantial Completion 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 Nine Hundred Dollars ($900.00) for each day that Substantial Completion is achieved earlier
than the Bonus Date. Such Early Completion bonus shall not exceed Eighteen Thousand Dollars
($18,000.00) 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.
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 ").
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7.2 Progress Payments for Phase 2 Services
7.2.1 An initial payment of Zero dollars ($0) 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 tenth (10th) 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 Ten percent (10 %) of each Application for Payment provided, however, that
when fifty percent (50 %) of the Work has been completed by Design - Builder, and if the Work is
proceeding satisfactorily, then Owner will not retain any additional amounts from Design -
Builder's subsequent Applications for Payment. Owner will also reasonably consider reducing
retainage for Subcontractors completing their work early in the Project.
7.4 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work,
pursuant to GC 5.7 ( "Substantial Completion "), 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 or other withholdings pursuant to GC 5.4.Final
Payment. 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 thirty (30) 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. 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.
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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:
Michael Low
Special Projects Manager
124 E Woolbright Road,
Boynton Beach, FL 33435
561- 742 -6403
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 ( "Owner's Representative "):
Michael Low
Special Projects Manager
124 E Woolbright Road,
Boynton Beach, FL 33435
561 -742 -6403
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:
Robert Gilbert, DBIA
Vice President
2301 Maitland Center Parkway
Suite 300
Maitland, FL 32751
Cell 321 - 594 -1726
Project Team Manager
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:
Pat Costello, DBIA
Project Construction Manager
2301 Maitland Center Parkway
Suite 300
Maitland, FL 32751
Cell 407 - 468 -6837
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 l .0, Indemnity, of Attachment E, Indemnity, Insurance & Bonding.
9.2 Insurance. The parties shall procure the insurance coverages set forth in Attachment E,
Indemnity, Insurance & Bonding, in accordance with the General Conditions.
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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
10.1 Consequential Damages. The Owner waives consequential damages to the extent consequential
damages exceed the Design - Builder's Fee for the Project. Consequential damages include by way of
example, damages incurred by Owner for rental expenses, for loss of use, income, profit, financing,
business and reputation, and for loss of management or employee productivity or the services of such
persons. Consequential damages do not include any damages claimed due and owing by any
Subcontractor in connection with the Project or any third party claim for personal injury or property
damage. Design- Builder waives its right to assert a claim for consequential damages against Owner.
Nothing contained in this Section shall be deemed to preclude an award of liquidated damages, when
applicable. This provision shall survive the termination of this Agreement. This Section is not intended
to permit either Party to recover against the other damages that would not otherwise be recoverable under
applicable law.
10.2 Limitation of Liability for Consequential Damages. Notwithstanding any provision to the contrary
contained in this Agreement, Design - Builder's total liability to Owner for any and all consequential
damages as identified in Section 10.1, shall not exceed the total amount of $50,000 or the fee Design
Builder receives under this Agreement whichever is greater.
10.3 Public Records: In order to comply with Florida's public records laws, the Design - Builder shall:
a. Keep and maintain public records that ordinarily and necessarily would be required by
Ov ner in order to perform the services under the Agreement.
b. Provide the public with access to public records on the same terms and conditions that
Owner would provide the records and at a cost that does not exceed the cost provided in Chapter
119 Florida Statutes or as otherwise provided by law.
c. Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law.
d. Meet all requirements for retaining public records and transfer, at no cost, to Owner all
public records in possession of Design Builder upon termination of the Agreement and destroy
any duplicate public records that are exempt or confidential and exempt from public records
disclosure requirements. All records stored electronically must be provided to Owner in a format
that is compatible with the information technology systems of Owner.
e. The Parties agree that public records under this Contract shall not include records that are
(a) protected from disclosure under applicable law, or (b) privileged or confidential information.
10.4 Sovereign Immunity. The parties hereto acknowledge that Owner is a political subdivision of
the state of Florida and enjoys sovereign immunity. Nothing in this Agreement shall be construed to
require Owner to indemnify Design- Builder or insure Design- Builder for its negligence or to assume any
liability for Design - Builder's negligence. Further, any provision in this Agreement that requires Owner to
indemnify, hold harmless or defend Design - Builder from liability for any reason shall not alter Owner's
sovereign immunity or extend Owner's liability beyond the limits established in section 768.28, Florida
Statutes, as amended.
10.5 Design- Builder. Design - Builder warrants that it has not employed or retained any company or
person, other than a bona fide employee working solely for the Design - Builder to solicit or secure this
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Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or
Design- Builder, other than a bona fide employee working solely for Design- Builder any fee, commission,
percentage, gift or other consideration contingent upon or resulting from the award or making of this
Agreement. This prohibition is more fully set forth in § 287.055(6), Fla. Stat., as amended.
10.6 Equal Opportunity Employment. Design- Builder agrees that it will not discriminate against any
employee or applicant for employment because of race, color, religion, sex, age or national origin and will
take affirmative steps to ensure that applicants are employed and employees are treated during
employment without regard to race, color, religion, sex, age or national origin. This provision shall
include, but not be limited to the following: employment upgrading, demotion, or transfer, recruitment
advertising, layoff or termination, rates of pay or other forms of compensation and selection for training,
including apprenticeships.
10 7 Independent Contractor. It is expressly acknowledged by the parties hereto that the Design -
Builder is an independent contractor, and nothing contained in this Agreement will be deemed or
construed to create a partnership or joint venture between Owner and Design - Builder or any other
relationship between the parties. Additionally, nothing in this Agreement is intended nor shall be
construed to create an employer /employee relationship.
10.8 Force Majeure. Neither party shall be liable nor deemed to be in default for any delay or failure
in performance under this Agreement or for other interruption of service deemed resulting, directly or
indirectly, from acts of God, civil or military authorities, acts of the public enemy, war (whether or not
declared), riots, insurrections, acts of government, accidents, fires, explosions, earthquakes, floods, failure
of transportation, strikes or any similar or dissimilar cause beyond the reasonable control of either party.
10 9 Tax Exempt Status. Owner is a tax- exempt entity (State Tax Exempt Certificate No.
and is not obligated to pay sales, use or other similar taxes. If Owner is not
exempt for a particular tax, it will reimburse Design - Builder for those taxes.
10.10 Truth -In- Negotiation Certificate. Signature on this Agreement by Design- Builder shall act as the
execution of a truth -in negotiation certificate stating that factual unit costs supporting the compensation of
the Agreement (and each Task Order) are accurate, complete, and current at the time of contracting. The
original Contract price and any additions thereto shall be adjusted to exclude any significant sums by
which Owner determines the contract price was increased due to inaccurate, incomplete, or non - current
factual unit costs. All such contract adjustments shall be made within one (1) year
10.11 Public Entity Crime Statement. Design- Builder represents that the execution of this Agreement
will not violate Section 287.133(2)(a), F.S., ( "Public Entity Crimes Act ") which provides, in part, that a
person or affiliate who has been placed on the convicted vendor List following a conviction for a public
entity crime may not submit a bid on a contract to provide any goods or services to Owner, may not
submit a bid on a contract with Owner for the construction or repair of a public building or public work,
may not submit bids on leases of real property to Owner, may not be awarded or perform work as a
contractor, supplier, Subcontractor, or consultant under a contract with Owner, and may not transact
business with OWNER in excess of the threshold amount provided in Section 287.017, Florida Statutes,
for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor
list. Violation of this section by Design - Builder shall result in termination of the Agreement by Owner
without penalty.
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Progressive Design /Build Agreement 6/30/14
In addition to the foregoing, Design - Builder further represents that there has been no
determination, based on an audit, that it committed an act defined by Section 287.133 Florida Statutes, as
a "public entity crime" and that it has not been formally charged with committing an act defined as a
"public entity crime" regardless of the amount of money involved or whether Design - Builder has been
placed on the convicted vendor list.
10.12 Codes, Ordinances and Laws. The Design - Builder agrees to abide and be governed by all
applicable City, County, State and Federal codes, regulations, building codes, ordinances and laws which
may have a bearing on the Services involved on the projects of each Task Order. All plans and drawings
shall comply with all such codes in effect as of the date of submittal of such plans and drawings to
government officials and agencies for approval. This Agreement shall be governed by the law of the state
of Florida. Design - Builder is familiar with and shall comply with all laws, ordinances and regulations
applicable to the supplies, products, equipment, software or services furnished under this Agreement.
10 13 Hazardous Substances. Design - Builder shall notify the Owner of hazardous substances or
conditions not contemplated in the scope of Services of which Design - Builder actually becomes aware.
Upon such notice by Design - Builder, Design - Builder will stop affected portions of its Services. The
parties shall decide if Design- Builder is to proceed with testing and evaluation and may enter into further
agreements as to the additional scope, fee, and terms for such Services.
10.14 Cause of Action. Causes of action between the parties to this Agreement pertaining to acts or
failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence
to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to
Substantial Completion, or the date of issuance of the final Certificate for Payment for acts or failures to
act occurring after Substantial Completion.
10.15 Attorney's Fees and Costs. Should it be necessary to bring an action to enforce any of the
provisions of this Agreement, reasonable attorney's fees and costs, including those at the appellate level,
shall be awarded to the prevailing party.
10.16 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
10.17 Prior Agreements. Any prior agreements between the parties that are in conflict with the
provisions contained herein are, to the extent of any such conflict, hereby superseded and repealed by this
Agreement.
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Progressive Design /Build Agreement 6/30/14
n 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.
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 ce day of -le , 201
CITY OF BOYNTON BEACH
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Progressive Design /Build Agreement 6/30/14
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.
1.5 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 H — Phase 1 Scope of Work (From RFP)
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Attachment A — Scope of Work 6/30/14
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, 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 and Subcontractors 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, any other persons on the site, and the public.
In addition, Design- Builder shall establish and enforce safety procedures to be followed during
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Attachment A — Scope of Work 6/30/14
the progress of this Work. The Design - Builder shall protect Owner's property. All damage which
occurs as a result of this Contract shall be promptly restored to at least its original precontracted
condition. 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 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 Design- Builder shall give all notices and comply with all applicable laws,
ordinances, rules, regulations and lawful orders of any public authority bearing on the safety of
persons or property or their protection from damage, injury or loss. The Design - Builder shall
perform all duties of the Owner that are required under the Florida Building Code with respect to
the provision providing for supervision as to safe premises for all employees, Sub Contractors
and their employees. The Design - Builder shall erect and maintain, as required by existing
conditions and progress of the Work, all reasonable safeguards for safety and protection,
including posting danger signs and other warnings against hazards, promulgating safety
regulations and notifying owners and users of adjacent utilities. The Design - Builder shall also
provide both visible and audible warning devices for all hazardous areas of construction. Such
areas must be separated from normal pedestrian traffic by suitable barricades placed at an
appropriate distance from the hazard. 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.
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Attachment A — Scope of Work 6/30/14
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.
2.5.4 No warranty, either express or implied, may be modified, excluded or disclaimed in any
way by Design Builder. All warranties shall remain in full force and effect, notwithstanding
acceptance and payment by City.Design- Builder shall secure required certificates of inspection,
testing or approval and deliver them to Owner.
2.5.5 Design- Builder shall collect all written warranties and equipment manuals and deliver them to
Owner.
2.5.6 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.
2.5.7 See Attachment G - Special Conditions 1 — 16 (From RFP).
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
Attachment E.
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 therefor.
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.
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Attachment A — Scope of Work 6/30/14
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 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
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 start up, 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" submitted in Design -
Builder's proposal dated 10/30/13.
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Attachment A — Scope of Work 6/30/14
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.
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 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. inspection and testing services during construction as required by law or as mutually
agreed; and
3. 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.
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Attachment A — Scope of Work 6/30/14
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
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 17 — 19 (From RFP).
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Attachment A — Scope of Work 6/30/14
ATTACHMENT B
COMPENSATION
SECTION 1 PHASE 1 SERVICES — IN ACCORDANCE WITH ATTACHMENT H SCOPE OF
WORK
$1,131,770
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
$28,868,230
The GMP will be adjusted following completion of Phase 1.
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.
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:
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Attachment B — Compensation 6/30/14
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.
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:
.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 ")
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Attachment 8 — Compensation 6/30/14
If Owner fails to exercise any of the above options, Design - Builder shall have the right to (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:
(Choose one of the following .)
Forty percent (40 %) to Design- Builder and Sixty percent (60 %) to Owner. The Design Builder
shared savings shall not exceed Two Hundred Thousand ($200,000.00).
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:
Five and Ninety Five Hundredths percent (5.95 %) of the Cost of the Work, as adjusted in
accordance with Section 2.1. above.
4.3.1 Design- Builder's Fee will be adjusted as follows for any changes in the Work: Same as 4.3
above.
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Attachment B — Compensation 6/30/14
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. Such costs shall be at rates not higher than the standard paid at
the place of the Project, except with prior consent of the Owner. 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
resulted from causes other than the fault or neglect of the 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
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Attachment B — Compensahon 6/30/14
calls, postage and express delivery charges, telephone service, photocopying and
reasonable petty cash expenses.
.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 or offices other than the site office, 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 Rental costs of machinery and equipment, except as specifically provided in Paragraph
4.4.12, hereof.
.5 Costs due to the negligence of the Design- Builder, Subcontractors, or anyone else
directly or indirectly employed by any of them, or for whose acts any of them may be
liable, including, but not limited to. costs for the correction of damaged, defective or
nonconforming Work, disposal and replacement of materials and equipment incorrectly
ordered or supplied, and making good damage to property not forming part of the
Work, but only to the extent such costs cause the GMP to be exceeded.
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Attachment B — Compensation 6/30/14
.6 Costs, if any, which would cause the GMP, as may be amended from time to time in
accordance with this Agreement, to be exceeded, except to the extent such costs were due
to the sole fault of Owner.
.7 Costs for general cleanup of the jobsite will be included as part of the Cost of the Work in
the GMP
.8 Any other labor related costs not defined under Paragraph 4.4.1 that is not approved in by
the Owner at the time of the GMP.
.9 Expenses for travel, including Design - Builder- supplied vehicles for personal use,
incurred by Design - Builder's employees while traveling for purposes other than the direct
execution of work or training.
.10 Any legal fees arising out of a dispute between the Owner and Design - Builder. This
includes the negotiation of a Contract between the Owner and Design Builder.
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 20 (From
RFP).
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Attachment 8 — Compensation 6130/14
ATTACHMENT C
SCHEDULE
SECTION 1 PHASE 1
1.0 Phase 1 Schedule will be developed as part of the early workshops.
SECTION 1 PHASE 2
1.0 Phase 2 Schedule will be included with the GMP deliverable package.
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Attachment C - Schedule 6/30/14
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 time, 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.
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.
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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 Facility is the physical facility to be designed and constructed for Owner as part of the Project.
1.2.20 Facility Performance Criteria means the Owner's criteria for the performance of the Facility
once constructed, and may be divided into two parts, (i) program requirements such as the
physical, functional, and quantitative needs of the project, and (ii) performance requirements for
the Facility and its component parts, including considerations of the specified quantitative and
qualitative limits for inputs, the desired condition of Facility outputs, and the efficiency of the
Facility in producing such outputs.
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 to be
hazardous under applicable Legal Requirements, or which handling, storage, remediation, or
disposal are regulated by applicable Legal Requirements.
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 4.3.1 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 provided for in Section 2.1.2 of the Agreement, 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.
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 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.
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Attachment D — General Conditions 6/30/14
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 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 Facility 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 materialmen 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 materialmen 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.
1.2.43 Work is comprised of all Design - Builder's design, construction, start-up, 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.
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,
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Attachment D — General Conditions 6/30/14
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 turn- 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,
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.
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
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Attachment D — General Conditions 6/30/14
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 is
for the purpose of 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.
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 G, 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
competence to satisfy the requirements of the Contract Documents. Design - Builder shall at all
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Attachment D — General Conditions 6/30/14
times 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.
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 (1) 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 as applicable.
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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
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 Nothing in this warranty is intended to limit any manufacturer's warranty which 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 GC
2.9, within a period of one (1) year from the date of Substantial 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 2.10.1 applies only to Design - Builder's obligation to
correct nonconforming Work and is not intended to constitute a period of limitations for any other
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rights or remedies Owner may have regarding Design - Builder's other obligations under the
Contract Documents.
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2.11 Performance Warranty
2.11.1 Design- Builder warrants to Owner that the Facility will meet the Performance Warranty set forth
in Attachment F, Owner's Project Criteria, including Design Criteria and Facility Performance
Criteria. Such Performance Warranty shall apply when Design - Builder has achieved Substantial
Completion and the Facility has been commissioned and started up in accordance with Design -
Builder's Commissioning and Start-up Manual, and is being maintained and operated by Owner's
personnel in accordance with the Operations and Maintenance Manual for the Facility. Such
Performance Warranty shall be satisfied upon successful completion of the Performance Tests set
forth in Attachment F.
2.11.2 Design- Builder shall have no responsibility under the Extended Performance Warranty to
the extent that any failure of the Work is due to: (1) Owner action or non - action, such as (i)
provision of inadequate staffing, (ii) failure to operate or maintain the Project in accordance with
methods, standards and procedures generally recognized and accepted as good industry practices
and with the Operation and Maintenance Information Systems prepared by Design - Builder, (iii)
abuse, negligence or willful misconduct, or (iv) alteration of the Work; (2) Uncontrollable
Circumstances; (3) Change in Law; (4) noncompliant operating conditions, such as raw [water or
wastewater] influent not conforming to the parameters in Attachment F or other conditions
exceeding the Project's design criteria in Attachment F; (5) unavailability of supplies, spare parts,
chemicals, power or other consumables or items necessary for operation and maintenance; or (6)
impossibility or frustration of purpose.
2.11.3 If the Work fails to satisfy the Extended Performance Warranty, Design- Builder shall,
upon written notice from Owner delivered not later than five days after any such failure, promptly
begin and continue to take necessary actions (including training or support of Owner's operation
and maintenance staff; revision of operating or maintenance procedures; or modification or
correction of equipment or facilities) to satisfy the Extended Performance Warranty. The costs of
any such training or support of Owner's operations staff or revision of operating procedures that
are effective in achieving satisfaction of the Extended Performance Warranty shall be paid by
Owner. The costs of any such modification or correction of equipment or facilities required to
achieve satisfaction of the Extended Performance Warranty shall be paid by the Design - Builder
without reimbursement from Owner. Before any necessary correction or modification of
equipment or facilities is initiated by the Design - Builder, all reasonable efforts to satisfy the
Performance Warranty through operational training, support and revision shall be completed and
a plan indicating the scope and schedule for such work shall be prepared by the Design- Builder
and approved by Owner.
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 turn- 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.
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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:
.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 [Optional language: 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.]
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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,
Owner 's Project Criteria.
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 work performed 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 either to 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, indemnify and hold harmless Design -
Builder, Design Consultants, Subcontractors and Subsubcontractors, and the agents, officers,
directors and employees of each of them, from and against any and all claims, damages, losses,
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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.
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 notice 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.
GC 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.
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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
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 not entitled to all or part of an Application for Payment, it will
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
Contract Documents, a portion of the Work, is substantially complete. Within five (5) days of
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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 and maintenance staff to demonstrate that the Performance Criteria set
forth in Attachment F, Owner's Project Criteria, 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
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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 adjustment of the Contract Price and
equitable commutation of any Liquidated Damages under Section 5.4 of the Agreement.
GC 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
.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).
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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
8 .4 if an increase or decrease cannot be agreed to as set forth in items .1 through .3 above and
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,
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.
8.1.1 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.
8.1.2 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
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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.
8.2 Emergencies
8.2.1 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 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 sufficient information to advise 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
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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
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
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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
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 reprocurement and defense of claims arising from Design- Builder's
default, subject to the waiver of consequential damages set forth in GC 2.12.2.
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 reasons:
.1 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:
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.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 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, transfer
or sublet any portion or part of the Work or the obligations required by the Contract Documents.
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Attachment D — General Conditions 6/30/14
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.
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 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.
10.10 Special Conditions: See Attachment G - Special Conditions 26 — 34 (From RFP)
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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
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.
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ATTACHMENT E
INDEMNITY, INSURANCE & BONDING
1.0 Indemnity
1.1 The parties agree that one percent (1%) of the total compensation paid to Design - Builder for the
Work under this Agreement shall constitute specific consideration to Design - Builder for the
indemnification to be provided under this Agreement. To the fullest extent permitted by law,
Design- Builder shall defend, indemnify and hold Owner, its officers and employees harmless
from and against any and all claims, liability, damages, losses, causes of action and /or costs
including but not limited to reasonable attorney's fees to the extent they may arise from any
breach of contract or are caused by the negligence, recklessness or intentional wrongful conduct
of Design- Builder or persons employed or utilized by Design - Builder, or anyone acting under the
authority and control of Design- Builder in the performance of the Work. As provided in Section
725.06, Florida Statutes, the Design- Builder's indemnification obligation shall not exceed Thirty
Million and 00 /100 Dollars ($30,000,000.00). 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. This provision shall survive expiration and
termination of this Agreement.
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.
1.4 Legal counsel to conduct any defense in any such proceeding shall be mutually agreed to by City
and Design- Builder, and all costs and fees associated therewith including any costs or fees of an
appeal shall be the responsibility of Design - Builder under the indemnification agreement.
Nothing contained herein is intended nor shall it be construed to waive City's rights and
immunities under the common law or Florida Statute 768.28 as amended from time to time. This
obligation shall not be construed to negate, abridge, or otherwise reduce any other right or
obligation of indemnity which would otherwise exist as to any party described in this Paragraph
and its subparts.
2.0 Design- Builder's Insurance
See Attachment G — Special Conditions 21 (From RFP).
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
$20,000,000 annual aggregate limit.
2.2 For Contractor's Pollution Liability Errors and Omissions Insurance see Attachment G — Special
Conditions 22 (From RFP).
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Attachment E — Indemnity, Insurance & Bonding 6/30/14
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 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 see 21d and 23 (From
RFP).
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 24 (From RFP).
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 Subsubcontractors shall be protected under this
coverage.
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Attachment E — Indemnity, Insurance & Bonding 6/30/14
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
Subsubcontractors 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 Toss 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 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 subsubcontractors 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 subsubcontracts
and consulting agreements.
7.2 Owner waives subrogation against Design - Builder, Subcontractors and Subsubcontractors 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 25 (From RFP).
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Attachment E — Indemnity, Insurance & Bonding 6/30/14
ATTACHMENT F
OWNER'S PERMIT LIST
SECTION 1
1.0 Owners Permit List
1.1 Phase 1 - Pat & Suzanne develop list
1.2 Phase 2
2.0 Design Builders Permit List
2.1 Phase 1 — Pat & Suzanne develop list
2.2 Phase 2
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Attachment F — Owners permit Llist 6/25/14
ATTACHMENT G
SPECIAL CONDITIONS
1. The DESIGN /BUILD FIRM shall prepare invitation to bids, or request for proposals when
applicable, for all procurements of long lead items, materials and services, for subcontractor contracts and
for site utilities.
2. The DESIGN /BUILD FIRM may elect to use its own forces for portions of the Work to be
performed. However, DESIGN /BUILD FIRM will be limited to 30% of the on -site construction Work if
such the decision to self - perform is made.
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. Invitation to Bid documents prepared by the DESIGN /BUILD FIRM for such solicitations shall
include the non - technical documents consisting of the necessary bidding information; General Conditions
of the Contract, Supplementary General Conditions of the Contract and Division One of the
specifications, proposal and contract form. Said documents may be provided by the CITY at the
DESIGN /BUILD FIRM's request. Solicitations shall be prepared with the following guidelines:
a Purchases of materials, supplies, rental or leases of equipment amounting to less than $1,200 each
may be completed without bids or quotes. However, such purchases must be reasonably necessary to
expedite work on the project, and these purchases must be documented with a receipt from the vendor.
The DESIGN /BUILD FIRM shall not divide or separate procurements in order to avoid the requirements
set forth.
b. Contracts over $1,200 but not exceeding $75,000 require that the DESIGN /BUILD FIRM seek
three (3) verbal quotations in conformance with the DESIGN /BUILD FIRM's scope of work and
budgeted amount. Design/Build Firm must document these purchases showing the three (3) firms verbally
contacted with their respective prices. The DESIGN /BUILD FIRM shall not divide or separate
procurements in order to avoid the requirements set forth.
c. Contracts over $75,000 require that the DESIGN /BUILD FIRM request three (3) written quotes
in conformance with the DESIGN /BUILD FIRM's scope of work and budgeted amount.
d. Contracts exceeding $75,000 shall be conducted under a formal Bid process. The
DESIGN /BUILD FIRM may seek sealed bids from qualified firms who submit the lowest responsive,
responsible bid. The DESIGN /BUILD FIRM shall advertise these projects at least once in a newspaper or
general circulation in Palm Beach County appearing at least twenty -one (21) calendar days prior to the
established bid opening and at least five (5) days prior to any scheduled pre -bid conference. These sealed
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Attachment H — Phase 1 Design Proposal 6/25/14
bids /proposals must be delivered at the location, date and time named by the DESIGN /BUILD FIRM
stated in bid advertisement and
subsequent invitation to bid documents. A tabulation sheet shall be furnished to the CITY and to each
firm, if requested.
5. As part of such preparation, the DESIGN /BUILD 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 DESIGN /BUILD FIRM shall
be brought to the attention of the Project Manager and Permitting agency(ies) in written form and
simultaneously corrected.
6. For each separate construction contract exceeding $75,000, the DESIGN /BUILD FIRM may
conduct a pre -bid conference with bidders and the Project Manager. In the event questions are raised
which require an interpretation of the bidding documents or otherwise indicate a need for clarification or
correction of the invitation, the DESIGN /BUILD FIRM shall prepare an addendum to the bidding
document, issuing same to all the prequalified bidders.
7. Quality Control: The DESIGN /BUILD FIRM shall develop and maintain a program acceptable to
the CITY, to assure quality control of the construction. The DESIGN /BUILD 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.
8. Subcontracting Interfacing: The DESIGN /BUILD 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 DESIGN /BUILD 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 DESIGN /BUILD 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.
9. Permits: The DESIGN /BUILD FIRM shall secure all necessary permits, the cost of which will
be considered a direct cost item.
10. Job Site Requirements: The DESIGN /BUILD FIRM shall provide for each of the following
activities as a part of its Construction Phase fee:
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 name and telephone numbers of key
personnel.
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Attachment H — Phase 1 Design Proposal 6/25/14
d. Establish and enforce job rule 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 DESIGN /BUILD 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.
11. Job Site Job Site Administration: The DESIGN /BUILD 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 DESIGN /BUILD FIRM either
biweekly or monthly, whichever is designated by the Project Manager.
Job site meetings will be used for preplanning of work, enforcing schedules, and establishing procedures,
responsibilities, and identification of authority for all to clearly understand.
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 meeting until resolution is
achieved. Require all present to make any problems or delaying event known to those present for
appropriate attention and resolution.
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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. DESIGN /BUILD 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 DESIGN /BUILD 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.
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Record Drawings: The DESIGN /BUILD 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.
12. Administrative Records: The DESIGN /BUILD FIRM will maintain on the Job Site all project
files and records. The project records shall be available at all times to the CITY for reference, review or
copying.
13. CITY Occupancy: The DESIGN /BUILD 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; "on- line" in such conditions as will satisfy CITY
operational requirements.
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.
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.
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.
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
14. Warranty: Where any work is performed by the DESIGN /BUILD 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 DESIGN /BUILD 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 two (2) years from the Date of Final Completion or for such longer period
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Attachment H — Phase 1 Design Proposal 6/25/14
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 DESIGN /BUILD 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. DESIGN /BUILD 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.
15. Inspections:
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 DESIGN /BUILD FIRM is
ultimately responsible for all code compliance.
Cost for all re- inspections of work found defective and subsequently repaired shall be borne by the
DESIGN /BUILD FIRM.
16. Subcontractors:
Proposals: Subject to Section 3.9.2 "Cost of Work" and in accordance with Section 3.2D "Solicitation of
Bids," the DESIGN /BUILD 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 DESIGN /BUILD FIRM shall require each subcontractor to the
extent of the work to be performed by the subcontractor to be bound to the DESIGN /BUILD FIRM by the
terms of the Contract Documents, and to assume toward the DESIGN /BUILD FIRM all the obligations
and responsibilities which the DESIGN /BUILD FIRM by these Documents, assumes toward the City.
The DESIGN /BUILD FIRM shall not employ any subcontractor, whether initially or as a substitute
against whom the CITY has reasonable objection.
The DESIGN /BUILD 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.
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b. Subcontract Requirements: The DESIGN /BUILD FIRM shall be responsible for pre - qualifying
subcontractors. Pre - qualification shall include but not limited to evaluation of previous experience
staffing resources, financial conditions and overall ability to perform the work.
Workforce: The DESIGN /BUILD 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 DESIGN /BUILD 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
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 DESIGN /BUILD FIRM within seven (7) calendar days in the format in which the
DESIGN /BUILD 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.
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The DESIGN /BUILD 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 DESIGN /BUILD
FIRM.
Subcontracts to be Provided: Upon request, the DESIGN /BUILD FIRM shall include a copy of each
signed subcontract, including the general supplementary conditions, in the project manual.
17. 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 DESIGN /BUILD FIRM is entitled to rely on said reports in the performance of its
work for this Project unless DESIGN /BUILD 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 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 DESIGN /BUILD
FIRM's drawings and Specifications in ten (10) calendar days to avoid delaying the progress of the
Project.
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18. Tests & Inspections: DESIGN /BUILD FIRM shall give CITY notice of readiness of the Work for
all required inspections, tests and approvals. DESIGN /BUILD 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
DESIGN /BUILD 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 DESIGN /BUILD FIRM will constitute a
termination of the resultant Contract.
19. Miscellaneous - Apprentices: If the DESIGN /BUILD FIRM employs apprentices on the project;
the behavior of the DESIGN /BUILD 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 DESIGN /BUILD FIRM will include provisions similar to the
foregoing sentence in each subcontract.
20. Establishment of Guaranteed Maximum Price:
GMP Established After Execution of this Contract
GMP Proposal: Upon completion of Phase I (Design at Permitting Level), 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:
a) Lump Sum Amount for Phase I of the Project (Design at Permitting Level)
b) Cost of Work for Phase II of the Project
Construction Contingency Allowance for Phase II
DESIGN /BUILD FIRM's Lump Sum General Conditions Amount for Phase iI
DESIGN /BUILD FIRM's Lump Sum Insurance for Phase II
DESIGN /BUILD FIRM's Bonds for Phase II
DESIGN /BUILD FIRM's Fee for Phase 11
Cost of the Work
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Attachment H — Phase 1 Design Proposal 6/25/14
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 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.
21. Insurance: During the performance of the services under this Contract, DESIGN /BUILD 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 DESIGN /BUILD 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 DESIGN /BUILD 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 of this Agreement. DESIGN /BUILD FIRM shall
maintain a minimum coverage of $1,000,000 per occurrence and $1,000,000 aggregate for personal
injury/ and $1,000.000 per occurrence /aggregate 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 DESIGN /BUILD FIRM shall procure and maintain, for the
life of this Contract, Business Automobile Liability Insurance. The DESIGN /BUILD FIRM shall
maintain a minimum amount of $1,000,000 combined single limit for bodily injury and property damage
liability to protect the DESIGN /BUILD 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 DESIGN /BUILD FIRM or by anyone directly or indirectly employed by the DESIGN /BUILD
FIRM.
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Attachment H — Phase 1 Design Proposal 6/25/14
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 DESIGN /BUILD FIRM shall procure and maintain, for the life of this
contract, Umbrella Liability Insurance, over and above the previously noted liability insurance policies.
The DESIGN /BUILD FIRM shall maintain a minimum amount at $10,000,000
It shall be the responsibility of the DESIGN /BUILD 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 DESIGN /BUILD FIRM.
The CITY reserves the right to require the provision by the DESIGN /BUILD 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 DESIGN /BUILD 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 DESIGN /BUILD FIRM, said termination taking effect on the date
that the required change in policy coverage would otherwise be effective.
DESIGN /BUILD 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.
22. Contractors Pollution Liability: Contractor's Pollution Liability: The DESIGN /BUILD FIRM
shall maintain during the term of this Contract, Contractor's Pollution Liability in the amount of
$2,000,000 Per Loss /$6,000,000 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, clean up costs, and the loss of use of tangible property including the resulting
loss of use thereof, clean up 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 DESIGN /BUILD 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.
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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 clearly demonstrate
the underlying coverages /policies that are included.
23. Professional Liability (Errors and Omissions): The DESIGN /BUILD 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 DESIGN /BUILD 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 of this Contract and with a three
(3) year reporting option beyond the Annual expiration date of the policy.
24. Builder's Risk: During the course of Phase 1 of the Contract, the DESIGN /BUILD FIRM shall
be responsible to maintain Builder's Risk Insurance coverage with the limit being equal to 100% of the
completed value (Replacement Value) of 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
DESIGN /BUILD 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 DESIGN /BUILD FIRM shall be the certificate holder
and Additional Named Insured.
The DESIGN /BUILD 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 DESIGN /BUILD 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
DESIGN /BUILD FIRM shall relieve the DESIGN /BUILD FIRM from responsibility to provide insurance
as required by the Contract.
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25. Bonds: In accordance with the provisions of Florida Statutes §255.05, the DESIGN /BUILD
FIRM shall provide to the CITY, on forms furnished by the CITY, a 100% Performance and a 100%
Payment Bond, each in the amount of the Guaranteed Maximum Price, 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 as a condition
precedent to the CITY's issuance of a Notice to Proceed.
The performance bond shall be conditioned that the DESIGN /BUILD FIRM performs the Contract in the
time and manner prescribed in the Agreement. The payment bond shall be conditioned that the
DESIGN /BUILD FIRM makes payments to all persons who supply the DESIGN /BUILD FIRM with
labor, materials and supplies used directly and indirectly by the DESIGN /BUILD 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 DESIGN /BUILD 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
DESIGN /BUILD 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.
26. Harmony: DESIGN /BUILD FIRM is advised and agrees that it will exert every reasonable and
diligent effort to assure that all labor employed by DESIGN /BUILD 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.
DESIGN /BUILD FIRM further agrees that this provision will be included in all subcontracts of the
subcontractors as well as the DESIGN /BUILD 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.
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27. Apprentices: If the DESIGN /BUILD FIRM employs apprentices on the project; the behavior of
the DESIGN /BUILD 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
DESIGN /BUILD FIRM will include provisions similar to the foregoing sentence in each
subcontract.
28. Confidentiality and Public Records Law: Any information disclosed by one party ( "Disclosing
Party") to the other party ( "Recipient ") in connection with this Contract that is marked confidential or that
due to its character and nature, a reasonable person under like circumstances would treat as confidential
(the "Confidential Information ") will be protected and held in confidence by the Recipient. Confidential
Information will be used only for the purposes of this Contract and related internal administrative
purposes. Disclosure of the Confidential Information will be restricted to the Recipient's employees,
contractors, or alliance companies on a "need to know" basis in connection with the Work, who are bound
by confidentiality obligations no less stringent than these prior to any disclosure. Each party may disclose
Confidential Information relating to the Work to providers of goods and services such disclosure is
necessary and reasonably anticipated. Confidential Information does not include information which: (i) is
already known to Recipient at the time of disclosure; (ii) is or become publicly known through no
wrongful act or failure of the Recipient; (iii) is independently developed by Recipient without benefit of
Disclosing Party's Confidential Information; or (iv) is received from a third party which is not under and
does not thereby breach an obligation of confidentiality. Each party agrees to protect the other's
Confidential Information at all times and in the same manner as each protects the confidentiality of its
own proprietary and confidential materials, but in no event with less than a reasonable standard of care. A
Recipient may disclose Confidential Information to the extent required by law, but that disclosure does
not relieve Recipient of its confidentiality obligations with respect to any other party. Except as to the
confidentiality of trade secrets, these confidentiality restrictions and obligations will terminate five (5)
years after the expiration or termination of the Contract under which the Confidential Information was
disclosed, unless the law requires a longer period.
The parties acknowledge that the CITY is a municipal corporation that is subject to Florida Statutes §
119, and related statutes known as the "Public Records Laws." If a request is made to view such
Confidential Information, CITY will notify DESIGN /BUILD FIRM of such request and the date that such
records will be released to the requester unless DESIGN /BUILD FIRM obtains a court order enjoining
such disclosure. If the DESIGN /BUILD FIRM fails to obtain that court order enjoining disclosure, CITY
will release the requested information on the date specified. Such release shall be deemed to be made with
the DESIGN/BUILD FIRM's consent and will not be deemed to be a violation of law, including but not
limited to laws concerning trade secrets, copyright or other intellectual property. In the event the
DESIGN /BUILD FIRM breaches this Contract, then the DESIGN /BUILD FIRM hereby grants CITY a
limited license to use the Confidential Information in any reasonable way in order to mitigate CITY's
damages.
29. 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.
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Attachment H — Phase 1 Design Proposal 6/25/14
30. 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 DESIGN /BUILD FIRM of authorized immigrants, a violation of Section 274A(e) of
the INA. The DESIGN /BUILD FIRM agrees that such violation shall be grounds for the unilateral
cancellation of the Contract by the CITY.
31. Payment of Overtime: Any Overtime required for the DESIGN /BUILD FIRM to complete the
Work within the Contract Time shall be at the sole cost and expense of the DESIGN /BUILD FIRM. If
CITY requires the DESIGN /BUILD FIRM to perform Overtime Work in order to complete the Work
prior to the Guaranteed Completion Date, the DESIGN /BUILD 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 DESIGN /BUILD FIRM incurs no direct costs as a
result of the Overtime.
The DESIGN /BUILD 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 DESIGN /BUILD FIRM was directed in writing by the
CITY to incur the Overtime. Such authorization for Overtime shall be accompanied by a Change Order
1. Scheduling of Overtime: The CITY and the DESIGN /BUILD FIRM shall establish and agree
upon an overall project baseline schedule that shows all work scheduled in excess of forty (40) hours per
week, and work scheduled on Saturdays, Sundays and Holidays ( "Scheduled Overtime "). Whenever the
DESIGN /BUILD FIRM has Work scheduled beyond the hours per day, days per week, or the Saturdays,
Sundays or Holidays shown on the baseline schedule ( "Unscheduled Overtime "), then the
DESIGN /BUILD FIRM shall arrange in advance for CITY or the CITY's representative to inspect the
Work performed during Unscheduled Overtime. The DESIGN /BUILD FIRM shall not perform Overtime
Work, scheduled or unscheduled without the CITY or the CITY's representative at the Work Location or
available to perform the inspection, as directed by the CITY. The DESIGN /BUILD FIRM shall reimburse
for any additional costs associated with the CITY or the CITY'S representative's Overtime pay related to
Unscheduled Overtime.
2. 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 DESIGN /BUILD
FIRM to obtain any required permits, licenses or zoning, blockades; embargoes; sabotage; epidemics;
fires; hurricanes; tornados; floods, or strikes.
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Attachment H - Phase 1 Design Proposal 6/25/14
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.
3. Interruptions: In situations whereby DESIGN /BUILD FIRM deems it necessary to interrupt
operations, only a twenty -four (24) hour downtime is permissible.
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Attachment H — Phase 1 Design Proposal 6/25/14
PRICE PROPOSAL
- -- - -- -- - -
Tasks
Engineering Task Descriptions Task Cost
1 -5
1 Review of Alternative Design/ Value Engineering and Design Definition Meeting $ 87,768
1.1 Review of Alternative Design and Value Engineering $ 77,818
1.2 Design Definition Meeting $ 9,950
2 Permitting Coordination and Field Work $ 72,879
2.1 Regulatory Agency/ Permit Review, Coordination and Applications $ 25,900
2.2 Topographic Field Survey and Locates $ 28,089
2.3 Geotechnical Investigations $ 18,890
3 Design Development $ 204,900
4 GMP Pricing $ 102,400
5 Meetings and Project Management $ 60,000
5.1 Progress Meetings $ 44,385
5.2 Project Status Reports $ 15,615
Engineering Subtotal $ 527,947
Task
Early Construction Task Descriptions Task Cost
6
6.1 Schedule Development $ 24,165
6.2 Risk Register Development $ 23,500
6.3 Trailer Mobilization $ 186,539
6.4 East Water Treatment Plant SCADA Systems Integration and Installation $ 336,054
6.5 Project Quality Control (QC) and Technical Review $ 33,565
- Early Construction Subtotal $ 603,823
Price Proposal Total $ 1,131,770
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Attachment H — Phase 1 Design Proposal 6/25/14
ATTACHMENT H
PHASE 1— DESIGN DEVELOPMENT
GUARANTEED MAXIMUM PRICE DEVELOPMENT
SCOPE OF WORK
WEST WATER TREATMENT PLANT ANIONIC EXCHANGE RESIN FACILITY AND
EAST WATER TREATMENT PLANT IMPROVEMENTS
This Authorization, when executed, shall be incorporated in and become part of the Agreement for
Design -Build Services between the City of Boynton Beach (OWNER), and CDM Constructors Inc.
(DESIGN BUILDER), dated "[Insert Date]" hereafter referred to as the Agreement.
PROJECT BACKGROUND
The DESIGN BUILDER will ultimately perform engineering design, surveying, geotechnical work,
permitting, construction, installation and start-up support in the form of a two -phase Guaranteed
Maximum Price (GMP) approach.
This Phase 1 Scope of Services involves design development and GMP development services for a new
anionic exchange resin facility at the West Water Treatment Plant (WWTP) site for pre- treatment of
Western Wellfield raw water supply to the East Water Treatment Plant (EWTP) and the
upgrading /capacity expansion of the existing lime softening, filtration, and residuals handling systems at
the EWTP to a capacity of 24 million gallons per day (mgd).
The scope will include the following treatment facilities improvements:
• Anionic Exchange Resin Treatment Facility (AERTF) at the WWTP
1. One (I) new AERTF designed for an ultimate treatment rate of 20 mgd with an interim
capacity of 16 mgd. System will include four (4) anionic exchange resin contactor cells in a
single basin of which three (3) will be fully completed, and a resin regeneration system to be
sited outside of the Well Protection Zone 1 area. The proprietary anionic resin process system
(MIEX ®) components including contactor internal mechanisms, regeneration systems, and
other supporting equipment will be supplied on a sole- source basis by ORICA Watercare.
2. A MIEX ® - Pretreated Water Clearwell and Pumping Station (Clearwell and Pumping Station)
as well as up to four (4) horizontal split case transfer pumps that will transmit treated water
through a 6 mile -long, 36 -inch diameter transmission main to the EWTP.
3. Architectural treatments for the MIEX® contactor vessel as well as a Clearwell and Pumping
Station.
4. Modification of the electrical systems to accommodate the power requirements of the
MIEX® system as well as the Clearwell and Pumping Station.
5. Modification to instrumentation and control systems to integrate the new MIEX® system as
well as Clearwell and Pumping Station into the existing site redundant Master Programmable
Logic Controller (PLC) and SCADA Systems.
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Attachment H — Phase 1 Design Proposal 6/25/14
6. Miscellaneous connections to the incoming Western Wellfield raw water supply lines and the
newly -built MIEX® Pretreated Water transmission main feeding the EWTP.
7. Miscellaneous site restoration, stormwater control, and landscaping modifications/
improvements.
• EWTP Upgrade
1. Removal of the existing East EIMCO Softener internal mechanical components and
installation of Infilco Accelator internal mechanisms in conjunction with modifications to
internal basin geometry to match the other two (2) existing 11 -mgd capacity Infilco Accelator
softening units.
2. Conversion of existing Recarbonation Basins into Free Chlorine Contact Chamber for
primary disinfection purposes.
3. Construction of a new 3.0 Million Gallon (MG) or 4.0 MG Finished Water Ground Storage
Tank (GST).
4. Replacement of various filter valves and actuators as well as replacement of clearwell
isolation valves.
5. Construction of a new energy- efficient High Service Pumping Station and a new Transfer
Pump Station.
6. Replacement of existing damaged gravity sludge thickener (not in use) with one (1) new
approximate 45 -feet (ft) diameter gravity sludge thickener.
7. Demolition of the existing second floor of the vacuum filter building and construction of a
new second floor and installation of a new vacuum filter, vacuum filter accessory skid, and
lime sludge pumps.
8. Expand /improve the lime storage /slaking /feed system including lime silos and slakers, as
required for an upgrade water treatment capacity of 24 mgd.
9. Miscellaneous chemical system upgrades/ improvements to support the new and /or modified
treatment capacity.
10. Upgrades to the electrical systems, including a second generator with auto synchronization
with new switchgear and upgrades/ replacement of the Motor Control Centers, to
accommodate the plant improvements and expansion.
11. Upgrade of the instrumentation and control systems to accommodate the plant improvements
and expansion.
12. Miscellaneous site, stormwater control, and yard piping improvements including
accommodation of an up to 4.0MG Finished Water GST.
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Attachment H — Phase 1 Design Proposal 6/25/14
DESIGN BUILDER will execute this work in a two -phase process. The first phase will involve
preliminary engineering design, surveying, and geotechnical work for the development of Design
Documents to be completed to an environmental permit report level of completion. The primary
submittals or deliverables of Phase 1 will consist of a report and permit application, as well as a GMP
development document which will further elaborate on the scope, budget and schedule of the Project. As
part of Phase 1 activities the OWNER shall have the opportunity to review and comment on the GMP
program, schedule and budget. Phase 2 will include final design, other permitting, procurement,
construction, installation, commissioning, and start -up services. Basic Services to be provided by
DESIGN BUILDER include the following:
SCOPE OF WORK
Phase 1 — Design Development/GMP Development
The following scope items have been identified for Phase 1:
Task 1 —Review of Alternative Design/ Value Engineering and Design Definition Meeting
Subtask 1.1 — Review of Alternative Design/ Value Engineering
Subtask 1.2 — Design Definition Meeting
Task 2 — Permitting Coordination and Field Work
Subtask 2.1 — Regulatory Agency / Permit Review, Coordination and Applications
Subtask 2.2 — Topographic Field Survey and Locates
Subtask 2.3 — Geotechnical Investigations
Task 3 — Design Development
Task 4 — GMP Pricing
Task 5 — Meetings and Project Management
Subtask 5.1 — Progress Meetings
Subtask 5.2 — Project Status Reports
The following scope items have been identified as Early Construction Activities for Phase 2:
Task 6 — Early Construction Activities
Subtask 6.1 — Schedule Development
Subtask 6.2 — Risk Register Development
Subtask 6.3 — Trailer Mobilization
Subtask 6.4 — EWTP SCADA Systems Integration and Installation
Subtask 6.5 — Project Quality Control (QC) Technical Review
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Attachment H — Phase 1 Design Proposal 6/25/14
Phase 2 — GMP Execution/Final Design /Construction and Start-up
Task 7 — Final Design
Task 8 — Procurement
Task 9 — Construction
Task 10 — Start-up Support
The detailed scope of services for Phase 1 is included as follows:
PHASE 1— DESIGN DEVELOPMENT/ GMP DEVELOPMENT
TASK 1 - REVIEW OF ALTERNATIVE DESIGN/ VALUE ENGINEERING AND DESIGN
DEFINITION MEETING
This task provides for the initiation of the Project, a Design Stage Review Step that involves the review
and evaluation of previous work relating to the Project, a Review of Alternative Design/ Value
Engineering Workshop between the OWNER and DESIGN BUILDER personnel to evaluate alternative
process and design concepts and consider life cycle and capital cost saving opportunities. Once the viable
alternatives are identified and evaluated, a Design Definition Meeting between the OWNER and DESIGN
BUILDER personnel will be conducted to select design concepts for both the WWTP and the EWTP.
Subtasks are as follows:
Subtask 1.1 - Review of Alternative Design/ Value Engineering
The DESIGN BUILDER will review previous documents prepared by Others and that have served as
guidance for development of the Request for Proposals (RFP) for procurement of the DESIGN
BUILDER. This review will be for the purpose of identifying critical water quality /quantity goals,
understanding the nature and scope of the preferred process and design concepts, and understanding the
rationale of the selected process and design alternative. The DESIGN BUILDER will confer with
OWNER on documents and /or data to be reviewed, including applicable raw wand finished water quality
data, operational unit costs, and recent Monthly Operations Report (MOR) data.
As part of the preparation for the Workshop, the DESIGN BUILDER will review the following reports,
that previously provided preliminary design criteria and recommendations for which the Scope of Work
as defined in RFP were based on:
• West Water Treatment Plant Anion Exchange Treatment System, AECOM, 2012
• Water Treatment Plant Lime Sludge Treatment Facilities, ARCADIS, 2012
• East Water Treatment Plant Capacity Evaluation and Preliminary Design Report, Globaltech,
2010
• Pre - Filtration Pilot Study —Sand Issues Technical Memorandum, AECOM, 2010
• Anionic Resin Pilot Study Technical Memorandum, AECOM, 2010
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Attachment H — Phase 1 Design Proposal 6/25/14
Subsequent to this expedited review, the OWNER desires to hold a Full -Day Review of Alternative
Design/ Value Engineering Workshop to identify and evaluate the existing process /design concepts and
criteria against other potential options. Water treatment process and technology experts from the DESIGN
BUILDER will prepare for and participate in this Workshop, which will use the Design Manager as a
Facilitator, with the goal of either validating the existing process /design concepts or determining if there
are viable alternatives that (1) may decrease overall Project costs and /or (2) may offer process /design
enhancements that improve the overall value of the Project. If viable alternatives are identified and agreed
to, the DESIGN BUILDER will provide comparative planning -level cost estimate to determine if the
identified alternatives result in an overall lower Project cost and /or offer significant additional value to the
OWNER.
The OWNER and DESIGN BUILDER will consider the following options, at a minimum, for inclusion
as design alternatives:
• MiCo® Process versus MIEX® Process
• 4 -Cell vs. 2 -Cell AERTF
• Location of AERTF Salt Saturators
• Cascade Aerators prior to Lime Softening for Carbon Dioxide Removal
• Relocation of the Regeneration Unit Process of the AERTF and height reduction of the MIEX®
Units
• Impact of MIEX and MiCo® process on EWTP Lime Softening / Sludge Handling Facilities
• New EWTP GST Capacity (Dimensions) and Location
• New /Relocated Electrical Generators and Bus Gear Location
• 4 -Log Virus Removal /Inactivation Primary Disinfection Process Criteria
• Energy Recovery Process at WWTP
• Energy Footprint of the EWTP
Subsequent to this workshop, DESIGN BUILDER will prepare a draft set of minutes to include
comparative planning level cost estimates for the identified viable alternatives.
Subtask 1.2 - Design Definition Meeting
The goal of the Design Definition Meeting is to review preliminary design criteria and recommendations,
discuss incorporation of the viable alternatives developed in Subtask 1.1, set the extent of new equipment
and structures, discuss desired architectural concepts, establish lines of communication, and discuss
schedule. Subsequent to this meeting, DESIGN BUILDER will prepare a draft set of minutes to include a
finalized list of design elements. DESIGN BUILDER will receive comments on the draft minutes, revise
said documents, and submit ten (10) copies of the Final Minutes. The design concepts present in the Final
Minutes will serve as the basis of design for the Design Development (Phase 1) and the Final Design/
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Attachment H — Phase 1 Design Proposal 6/25/14
Construction Phase (Phase 2). It would be further agreed that significant deviations from the final
concepts identified in Subtask 1.1 and 1.2 would entail additional design services.
PERMITTING COORDIINATION AND FIELD WORK
This task provides for preliminary geotechnical investigations, topographic surveys and utility locates,
and coordination with regulatory agencies. It is assumed that no environmental hazards, such as
underground storage tanks, asbestos, and contaminated soil, will need to be identified, located, remediated
or disposed of as part of the work. Subtasks related to the work include:
Subtask 1.3 - Regulatory Agency/ Permit Review, Coordination and Applications
The DESIGN BUILDER will be responsible for reviewing and becoming familiar with all permitting
efforts that have been previously conducted by the City and maintain contact with, at a minimum, the
regulatory agencies identified below as having review and approval authority over the design of the
PROJECT.
• Florida Department of Environmental Protection (FDEP) / Palm Beach County Health
Department (PBCHD) Potable Water System (PWS) Components Construction Permit
• South Florida Water Management District/FDEP Environmental Resource Permit (ERP)
• FDEP Generic Permit for Groundwater Discharge
• EPA NPDES General Permit for Construction Activities
• Palm Beach County Building Permit (WWTP)
• City of Boynton Beach Building Permit (EWTP)
Where necessary, DESIGN BUILDER will discuss the proposed project with the applicable regulatory
agencies to fully define the permit requirements and to identify the major permitting issues that must be
resolved. A permitting strategy shall be developed to address the major issues identified and to facilitate
the permit acquisition process. This scope assumes that public hearings will be required as part of the
permitting process.
Submit report and other design information as may be required specifically for environmental permitting.
Building permitting is included in Phase Two. Applications for the required permits and approvals shall
be prepared for submittal to the respective agencies. Where acceptable, DESIGN BUILDER will make
applications directly.
Subtask 1.4 - Topographic Field Survey and Locates
The DESIGN BUILDER will subcontract with a surveyor to perform a topographic survey of areas
identified below In addition, within the construction areas noted below, surveyor will locate both
horizontally and vertically (where appropriate) all exposed structures; land features; property corners (as
required); utilities; driveways (w /type identified); stormwater culverts with inverts and any headwalls or
inlet /junction boxes (w /size and invert elevations identified); stormwater ditches (w /top and bottom of
banks identified); power poles and guy wires (w /connection of overhead power lines to adjacent poles);
electric boxes; water valves, meters, and fire hydrants; exposed pipes (w /type, diameter, and material
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Attachment H — Phase 1 Design Proposal 6/25/14
identified); cable boxes; telephone pedestals; fences; tree and brush lines; all trees of sufficient size that
require protection according to the OWNER's and Palm Beach County's current tree ordinances (with
identification of size and type); and any other miscellaneous aboveground structure or feature. The final
topographic field survey will be provided to the OWNER. The construction areas for the survey and
locates are identified as follows:
• WWTP — Proposed Anionic Resin System, Chemical Treatment Facilities, and the Clearwell and
Pumping Station.
• EWTP — Proposed Ground Storage Tank and High Service Pump Station, Sludge Gravity
Thickener, and Lime Feed Silos.
Subtask 1.5 - Geotechnical Investigations
DESIGN /BUILD FIRM will provide the following services related to geotechnical (soil) investigations
through a subcontractor:
• Review any previous geotechnical investigations, provided by the OWNER, at the EWTP and
WWTP site. Perform additional subsurface explorations necessary for the development of design
criteria for the anticipated new structures. For the WWTP, maximum of two (2) borings at depths
approximately 25 ft have been assumed. For the EWTP, maximum of four (4) borings at depths
approximately 40 ft have been assumed.
• Perform standard penetration tests and split -spoon sampling within the borings at regular
intervals.
• Perform classification tests on selected samplings obtained from the borings.
• Visually classify soil samples in general accordance with the United Soil Classification System
and prepare Test Boring Records.
• Summarize the results of the geotechnical investigations and provide recommendations for
surface preparation and design of the proposed structures.
• Review site and foundation preparation specifications and revise as appropriate for site - specific
requirements.
• Prepare and submit four (4) copies of the Geotechnical (Soils) Report to the OWNER.
DESIGN DEVELOPMENT
The Design Development phase will be structured to develop the Design Package to obtain environmental
permits and articulate the engineering and technical concepts culminating in a GMP pricing (Task 4).
DESIGN BUILDER will conduct various site visits and meetings with the OWNER in addition to
reviewing all applicable existing facility operational and engineering data and drawings to fully
understand the existing conditions and the OWNER's expectations. DESIGN BUILDER will coordinate
this effort with the OWNER. The design development effort will be summarized in a preliminary design
report.
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Attachment H — Phase 1 Design Proposal 6/25/14
This task provides for the preparation of design documents advanced to the level to support application
for the Specific Permit to Construct PWS Components (62 -555 -.520 FAC) and Environmental Resource
Permitting (ERP) stormwater permits. DESIGN BUILDER will provide the following services related to
the preparation of the Design Development documents:
• Develop process design criteria based on actual raw water quality, existing facility data, and
dialogue with appropriate manufacturers. Performance testing or confirmation through bench -
and pilot -scale studies has not been assumed or included in this scope of services.
• Develop general /civil design drawings including a preliminary site plan and layout showing
approximate structure locations, concepts for landscaping, grading, drainage (stormwater control,
handling, and mitigation), roadways, and demolition areas.
• Perform preliminary structural engineering analyses and develop preliminary structural design as
needed to support development of the GMP.
• Develop preliminary mechanical /process design as needed to determine material and equipment
requirements and support development of the GMP.
• Develop preliminary electrical design as needed to determine material and equipment
requirements and support development of the GMP.
• Develop preliminary process and instrumentation design as required to define monitoring and
control requirements for new or modified plant components.
• Develop specifications as needed to solicit budgetary level equipment pricing proposals from
selected equipment vendors.
This DESIGN BUILDER will provide and distribute hard copies and an electronic copy in PDF format on
CD of the Design Development documents for review and comment by the OWNER. The OWNER will
review the design documents and other deliverables and will provide comments at a project review
workshop meeting to be held within fifteen (15) business days of delivery of documents from the
DESIGN BUILDER. The DESIGN BUILDER will incorporate OWNER's comments from the project
meeting(s) and resubmit the deliverables in electronic, PDF format, within ten (10) business days from
the review meeting(s) for the OWNER's review and approval.
GMP PRICING
DESIGN BUILDER will develop a comprehensive GMP package that will clearly define the scope,
schedule and anticipated budget to complete the design and construct the ion exchange resin plant at the
WWTP site for pre- treatment of the water supply to the EWTP from the western wellfield and the
upgrading of the EWTP to a capacity of 24 mgd. The GMP will include a Guaranteed Price for the work
as defined by the Task 3 drawings and specifications tied to a critical path schedule and the mutually -
agreed terms and conditions based on the OWNER's contractual language. DESIGN BUILD ENTITY
will prepare equipment cut sheets for mechanical and electrical components to support bid packages and
GMP development.
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Attachment H — Phase 1 Design Proposal 6/25/14
MEETINGS AND PROJECT MANAGEMENT
Activities performed under this task consist of those general functions required to maintain the project on
schedule, within budget, and that the quality of the work products defined within this scope is consistent
with DESIGN BUILDER's standards and OWNER's expectations. Specific activities included are
identified below:
Subtask 1.6 - Progress Meetings
The DESIGN BUILDER will attend monthly progress meetings during the estimated 16 -week project
duration. Additionally, the DESIGN BUILDER will attend special meetings at the request of the
OWNER from time to time. An average of one (1) additional meeting per month with the OWNER staff
is assumed. The DESIGN BUILDER will prepare and distribute meeting minutes of each meeting as
appropriate.
Subtask 1.7 - Project Status Reports
DESIGN BUILDER's project manager will prepare and submit monthly written status reports for an
anticipated project life of 20 weeks.
EARLY CONSTRUCTION ACTIVITIES
Subtask 1.1 - Schedule Development
DESIGN BUILD ENTITY will analyze /create Phase 1 Schedule from the activity lists and work scope
descriptions listed in the Contract/Proposal & RFP & Workshop. DESIGN BUILD ENTITY will
analyze /create preliminary Phase II Schedule; this schedule will be developed concurrently with the GMP
Development.
Subtask 1.2 - Risk Register Development
A workshop will be held to involve all major stakeholders coming together to complete a list if critical
risks, to be properly understand and managed throughout the Project. Costs values are assigned to each
risk activity which allows the correct amount of Allowance monies to be allocated.
Subtask 1.3 - Trailer Mobilization
DESIGN BUILD ENTITY will mobilize a trailer to the site and assess early Phase I Construction
activities.
Subtask 1.4 - EWTP SCADA Systems Integration and Installation
The filters, clearwell, and high service pumps at the EWTP remain on the legacy SCADA system. The
OWNER has been experiencing major hardware issues with the legacy system and parts are no longer
readily available. DESIGN BUILDER will install necessary hardware to transfer operation of the
remaining systems on the legacy control over to the new Siemens PLC and VTS SCADA. DESIGN
BUILDER will consider equipment suitable for use when the filter valves and actuators are replaced and
other systems upgraded during Phase 2 as part of the design and systems integration.
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Attachment H — Phase 1 Design Proposal 6/25//14
Subtask 1.5 - Project Quality Control (QC) Technical Review
An internal project quality management planning session will be conducted at the start of the project.
This action is required by DESIGN BUILDER's quality management system (QMS) guidelines.
OWNER'S RESPONSIBILITIES
The OWNER will provide the following to DESIGN BUILDER in a timely manner:
• Review of DESIGN BUILDER work products
• Data related to the EWTP and WWTP sites
• Access to the EWTP and WWTP sites
PRICE PROPOSAL ASSUMPTIONS
Phase 1 design includes the requirements of the RFP, addenda, and the following assumptions:
1. Conduct project kickoff meeting with the City of Boynton Beach staff
2. Request and analyze additional East Water Treatment plant /West Water Treatment Plant
technical information from the City
3. Perform survey services
4. Perform geotechnical services
5. Conduct design preferences workshop with the City of Boynton Beach staff
6. Advance design to the level to support application for the specific permit to construct PWS
Components (62- 555.520 FAC)
7. Complete the permit application for the PWS Components Permit
8. Advance design including any drawings, calculation, etc. necessary to obtain an ERP and any
locally required local stormwater permits
9. Complete permit applications for the ERP (and other local) stormwater permits
10. Conduct preliminary technical review committee (TRC) review meeting with the City of Boynton
Beach staff
11. Submit package (preliminary design report and permit applications to the City of review)
12. Conduct one review meeting with the City of Boynton Beach staff
13. Finalize documents based upon City review comments
14. Prepare equipment cut sheets for mechanical and electrical components to support bid packages
and GMP development
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Attachment H — Phase 1 Design Proposal 6/25/14
TIME OF COMPLETION /SCHEDULE
CONSULTANT will provide the services for Phase 1 based on the durations as outlined in the above
scope within 20 weeks of Notice to Proceed.
Notice To Proceed TBD
Review of Alternative Design/ Value Engineering 4 weeks from TBD*
Design Definition Meeting 6 weeks from TBD*
Design Development Documents 18 weeks
Submit Permitting Applications and Documents 18 weeks
Negotiate / Finalize GMP 20 weeks
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Attachment H — Phase 1 Design Proposal 6/25/14