HomeMy WebLinkAbout1226-Design/Build Agrmt-Johnson BrosSECTION 00520
DESIGN -BUILD AGREEMENT FORM
PART 1 GENERAL
1.01 THIS DESIGN -BUILD AGREEMENT (herein referred to as the "Agreement "), made
and entered into the _ day 7--cd by and between the City of }
Sanford Florida 300 North Par c Avenue, Sanford, Florida 32771 a municipal 't
corporation of the State of Florida, holding tax exempt status, hereinafter referred to as
the "CITY" (also referred to as "OWNER ") and Johnson Bros LLC whose principal and
local address is 5476 Lithia - Pinecrest Road, Lithia, Florida 33547 (herein referred
to as "Design /Builder "). The CITY and the Design /Builder are collectively referred to
herein as the Parties.
1.02 The Owner and Contractor Agree as Follows:
A. Design- Build Contract Documents
The Contract Documents include the Design -Build Agreement, Addenda (which
pertain to the Contract Documents), Design /Builder's Proposal /Schedule of
Values, Scope of Services, Notice to Proceed, the Bonds, the General
Conditions, the Supplementary Conditions, the Minimum Required Technical
Specifications, any technical specifications and Drawings Submitted by the
Design /Builder and approved by the City, all Written Amendments, Change
Orders, Work Change Directives, Field Orders, and the City's Consultant's
written interpretations and clarifications issued on or after the Effective Date of
this Agreement. These form the Contract and all are as fully a part of the
Contract as if attached to this Agreement or repeated herein.
B. Scope of Work
The Design /Builder shall perform all work required by the Design -Build Scope of
Services for the design and construction of the SR 46 Lake Jesup Bridge
Reclaimed Water Main Relocation
C. Contract Time
This Design -Build work will be done concurrent and in accordance with the
schedule of services for the SR 46 Lake Jesup Bridge Design Build project that
the Design /Builder is providing to FDOT. The Design /Builder shall begin work
after the issuance of a written Notice to Proceed from Owner and shall
substantially complete the work within the Contract Time which is 656 calendar
days. The work shall be finally complete, ready for Final Payment in accordance
with the General Conditions, within 30 calendar days from the actual date of
substantial completion.
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NAME OF PROJECT: SR 46 Lake Jesup Bridge Reclaimed Water Main Relocation — Design -Build
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D. Liquidated Damages
Liquidated Damages are not applicable as this Design Build Agreement will be
done concurrent with the SR 46 Lake Jesup Design Build project.
E. Contract Price
Lump Sum Contract
The Owner will pay the Design /Builder in current funds for the performance of the
work, subject to additions and deductions by Change Order, the Total Contract
Lump Sum Price of Two million four hundred eighty -one thousand four hundred
fifty -four and 25/100 dollars ($2,481,454.25 Payments will be made to the
Design /Builder based on the Schedule of Values included as a part of this
Proposal, which shall be as fully a part of the Contract as if attached or repeated
herein, and subject to completion of the work, in accordance with the Contract
Documents.
Schedule of Values
The Schedule of Values shall contain total units and total prices which represent
all materials, labor, equipment, transportation, performance of all operations
relative to construction of the project, overhead, and costs of all kinds and profit
to complete the work items in accordance with the Design -Build Contract
Documents. Work for which there is not a listed item in the Schedule of Values
shall be considered incidental to the Contract and no additional compensation
will be allowed.
F. City of Sanford Tax Recovery
The Owner reserves the right to purchase directly, via its purchase orders,
various construction materials, supplies and equipment that may be part of this
contract. The Design /Builder hereby acknowledges that the Owner has the right
to exercise this option and that Design /Builder will cooperate fully to enable the
Owner to achieve the tax recovery savings applicable to the materials, supplies
and equipment so designated by the Owner.
G. Payments
The Owner will make payments as provided in the General Conditions and
Supplementary Conditions.
H. Retainage
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Aareement
In accordance with the provisions of the State of Florida Local Government
Prompt Payment Act, the value of each application for payment shall be equal to
the total value of the Work performed to date, less an amount retained, and less
payments previously made and amounts withheld in accordance with the General
Conditions and Supplementary Conditions. Retainage for this project is 10 %, to
be held by Owner as collateral security to ensure completion of Work. When the
Work is 50 percent complete, defined as being 50 percent complete based on the
construction progress schedule as updated during construction, and expenditure
of at least 50 percent of the total updated construction cost, retainage shall be
reduced in accordance with State law.
I. City's Consultant
The CITY's representative during construction is CPH Engineers, Inc., referred to
in the documents as the Owner's Consultant, whose authority during the
progress of construction is defined in the General Conditions and Supplementary
Conditions.
J. Engineer of Record
The project will be designed by Wilbur Smith Associates the project Engineer of
Record (EOR) in this Design -Build Agreement.
K. Additional Terms and Conditions
The DESIGN /BUILDER hereby warrants and represents to the CITY that
it is competent and otherwise able to provide professional and high
quality goods and /or services to the CITY by means of employees who
are neat in appearance and of polite demeanor.
2. All submissions submitted by the DESIGN /BUILDER in the proposals /bid
submitted to the CITY are hereby incorporated herein to the extent not
inconsistent with the terms and conditions as set forth herein.
3. The DESIGN /BUILDER acknowledges that the CITY may retain other
goods and /or service providers to provide the same goods and /or
services for CITY projects. The DESIGN /BUILDER acknowledges that the
CITY, at the CITY's option, may request proposals from the
DESIGN /BUILDER and the other goods and /or service providers for CITY
projects. The CITY reserves the right to select which goods and /or
services provider shall provide goods and /or services for the CITY's
projects.
4. The DESIGN /BUILDER agrees to provide and ensure coordination
between goods /services providers.
5. Each party hereto represents to the other that it has undertaken all
necessary actions to execute this Design -Build Agreement, and that it
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has the legal authority to enter into this Agreement and to undertake all
obligations imposed on it. The person(s) executing this Agreement for
the DESIGN /BUILDER certify that he /she /they is /are authorized to bind
the DESIGN /BUILDER fully to the terms of this Agreement.
6. The DESIGN /BUILDER hereby guarantees the CITY that all materials,
supplies, services and equipment as listed on a Purchase Order meet the
requirements, specifications and standards as provided for under the
Federal Occupations Safety and Health Act of 1970, from time to time
amended and in force on the date hereof.
7. It is agreed that nothing herein contained is intended or should be
construed as in any manner creating or establishing a relationship of co-
partners between the parties, or as constituting the DESIGN /BUILDER
(including, but not limited to, its officers, employees, and agents) the
agent, representative, or employee of the CITY for any purpose, or in any
manner, whatsoever. The DESIGN /BUILDER is to be and shall remain
forever an independent Design /Builder with respect to all services
performed and provided under this Agreement.
8. Persons employed by the DESIGN /BUILDER in the provision and
performance of the goods and /or services and functions pursuant to this
Agreement shall have no claim to pension, workers' compensation,
unemployment compensation, civil service or other employee rights or
privileges granted to the CITY's officers and employees either by
operation of law or by the CITY.
9. No claim for goods and /or services furnished by the DESIGN /BUILDER
not specifically provided for herein shall be honored by the CITY.
10. Execution of this Agreement by the DESIGN /BUILDER is a
representation that the DESIGN /BUILDER is familiar with the goods
and /or services to be provided and /or performed and with local
conditions. The DESIGN /BUILDER shall make no claim for additional
time or money based upon its failure to comply with this Agreement. The
DESIGN /BUILDER has informed the CITY, and hereby represents to the
CITY, that it has extensive experience in performing and providing the
services and /or goods described in this Agreement and that it is well
acquainted with the components that are properly and customarily
included within such projects and the requirements of laws, ordinance,
rules, regulations or orders of any public authority or licensing entity
having jurisdiction over the CITY's Projects.
11. Quality, Professional Standards, and Security Requirements
a. The DESIGN /BUILDER shall be responsible for the professional
quality, accepted standards, technical accuracy, neatness of
appearance of employees, employee conduct, and the
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coordination of all goods and /or services furnished by the
DESIGN /BUILDER under this Agreement as well as the conduct
of its staff, personnel, employees and agents, including
subcontractors and suppliers hired by the DESIGN /BUILDER. All
DESIGN /BUILDER and subcontractor employees shall at all times
when performing work wear identification badges which, at a
minimum, provide the name of the employee and the
DESIGN /BUILDER or subcontractor.
b. The DESIGN /BUILDER shall provide to the CITY a list of
employees plus all subcontractor employees working on the
project.. The DESIGN /BUILDER shall provide to the CITY a list of
employee working days, times and assignments within forty -eight
(48) hours of the CITY's written request for such information. This
information, when requested by the CITY, shall be provided to the
CITY prior to the employees of the DESIGN /BUILDER or
subcontractor entering the CITY's premises.
C. The DESIGN /BUILDER shall comply with Section 2 -67 of the
Sanford City Code as it relates to security screenings of private
contractors and employees of private contractors, including
subcontractors and /or consultants hired by the
DESIGN /BUILDER. The DESIGN /BUILDER shall cause each
person found by the CITY to be functioning in a position critical to
the security and /or public safety of the CITY by reason of access
to any publicly owned or operated facility to undergo the following
inquiries and procedures conducted by the City of Sanford:
1) Fingerprinting in accordance with the CITY's pre - employment
procedures;
2) Submission of the fingerprints to the Florida Department of
Law Enforcement for state criminal history evaluation; and
3) Submission of the fingerprints to the Federal Bureau of
Investigation for a national criminal history evaluation.
d. Such confidential information shall be used by the CITY to
determine a person's eligibility to function in such critical
employment position(s) as described. Additionally, the CITY may
request and the DESIGN /BUILDER shall provide the name,
address and social security number and licenses (driver's,
commercial drivers license or CDL, or other operator's license) for
employees of the DESIGN /BUILDER or subcontractor /suppliers
that may work on the CITY's premises in positions found by the
City Commission to be critical to the security and /or public safety
of the CITY by reason of access to any publicly owned or
operated facility. The DESIGN /BUILDER shall release such
information upon approval of the employees. If an employee
refuses to authorize the release of their address, social security
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number and /or licenses they shall not be allowed to work or
continue to work in such critical positions. The DESIGN /BUILDER
shall contact the City's Finance Department Purchasing Agent to
obtain criminal background check card with assigned ID. The cost
for the fingerprinting and criminal background check shall be the
DESIGN /BUILDER's responsibility.
e. The DESIGN /BUILDER shall work closely with the CITY on all
aspects of the provision of the goods and /or services. With
respect to services, the DESIGN /BUILDER shall be responsible
for the professional quality, technical accuracy, competence,
methodology, accuracy and the coordination of all of the following
which are listed for illustration purposes and not as a limitation:
documents, analysis, reports, data, plans, plats, maps, surveys,
specifications, and any and all other services of whatever type or
nature furnished by the DESIGN /BUILDER under this Agreement.
The DESIGN /BUILDER shall, without additional compensation,
correct or revise any errors or deficiencies in his /her /its plans,
analysis, data, reports, designs, drawings, specifications, and any
and all other services of whatever type or nature. The
DESIGN /BUILDER's submissions in response to the subject
proposal or procurement processes are incorporated herein by
this reference thereto.
12. Neither the CITY's review, approval or acceptance of, nor payment for,
any of the goods and /or services required shall be construed to operate
as a waiver of any rights under this Agreement or of any cause of action
arising out of the performance of this Agreement and the
DESIGN /BUILDER shall be and remain liable to the CITY in accordance
with applicable law for all damages to the CITY caused by the
DESIGN /BUILDER negligent or improper performance or failure to
perform any of the goods and /or services furnished under this Agreement.
13. The rights and remedies of the CITY, provided for under this Agreement,
are in addition to any other rights and remedies provided by law.
14. Time is of the essence in the performance of all goods and /or services
provided by the DESIGN /BUILDER under the terms of this Agreement.
15. Invoices, which are in an acceptable form to the CITY and without
disputable items, which are received by the CITY, will be processed for
payment within thirty (30) days of receipt by the CITY.
16. The DESIGN /BUILDER will be notified of any disputable items contained
in invoices submitted by the DESIGN /BUILDER within fifteen (15) days of
receipt by the CITY with an explanation of the deficiencies.
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17. The CITY and the DESIGN /BUILDER will make every effort to resolve all
disputable items contained in the DESIGN /BUILDER's invoices.
18. Each invoice shall reference this Agreement, the appropriate billing
period.
19. The Florida Prompt Payment Act shall apply when applicable. A billing
period represents the dates in which the DESIGN /BUILDER completed
goods and /or services referenced in an invoice.
20. Invoices are to be forwarded directly the City's designated representative,
as identifed at the preconstruction meeting, for review and processing.
21. CITY designates the City Manager or his /her designated representative,
to represent the CITY in all matters pertaining to and arising from the
work and the performance of this Agreement.
22. The City Manager, or his /her designated representative, shall have the
following responsibilities:
a. Examination of all work and rendering, in writing, decisions
indicating the CITY's approval or disapproval within a reasonable
time so as not to materially delay the work of the
DESIGN /BUILDER;
b. Transmission of instructions, receipt of information, and
interpretation and definition of CITY's policies and decisions with
respect to design, materials, and other matters pertinent to the
work covered by this Agreement;
C. Giving prompt written notice to the DESIGN /BUILDER whenever
the CITY official representative knows of a defect or change
necessary in the project; and
d. Coordinating and managing the DESIGN /BUILDER's preparation
of any necessary applications to governmental bodies, to arrange
for submission of such applications.
23. Until further notice from the City Manager the designated representative
for this Agreement is:
Paul Moore, P.E.
Utility Director
City of Sanford
P.O. Box 1788
Sanford, Florida 32772
24. CITY may terminate this Agreement for convenience at any time - for any
one (1) or more of the reasons as follows:
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a. If, in the CITY's opinion, adequate progress is not being made by
the DESIGN /BUILDER due to the DESIGN /BUILDER 's failure to
perform; or
b. If, in the CITY's opinion, the quality of the goods and /or services
provided by the DESIGN /BUILDER is /are not in conformance with
commonly accepted professional standards, standards of the
CITY, and the requirements of Federal and /or State regulatory
agencies, and the DESIGN /BUILDER has not corrected such
deficiencies in a timely manner as reasonably determined by the
CITY; or
C. The DESIGN /BUILDER, or any employee or agent of the
DESIGN /BUILDER, is indicted or has a direct charge issued
against him for any crime arising out of or in conjunction with any
work that has been performed by the DESIGN /BUILDER; or
d. The DESIGN /BUILDER becomes involved in either voluntary or
involuntary bankruptcy proceedings, or makes an assignment for
the benefit of creditors; or
e. The DESIGN /BUILDER violates the Standards of Conduct
provisions herein or any provision of Federal, State or local law or
any provision of the CITY's Code of Conduct.
25. In the event of any of the causes of termination, the CITY's designated
representative may send a certified letter to the DESIGN /BUILDER
requesting that the DESIGN /BUILDER show cause why the Agreement
should not be terminated. If assurance satisfactory to the CITY of
corrective measures to be made within a reasonable time is not given to
the CITY within ten 10 calendar days of the date of the letter, the CITY
may consider the DESIGN /BUILDER to be in default, and may then
immediately terminate this Agreement.
26. In the event that this Agreement is terminated for cause and it is later
determined that the cause does not exist, then this Agreement or the
Purchase/Work Order shall be deemed terminated for convenience by the
CITY and the CITY shall have the right to so terminate this Agreement
without any recourse by the DESIGN /BUILDER.
27. The DESIGN /BUILDER may terminate this Agreement only if the CITY
fails to pay the DESIGN /BUILDER in accordance with this Agreement.
28. Notwithstanding any other provision of this Agreement, the CITY shall
have the right at any time to terminate this Agreement in its entirely
without cause, if such termination is deemed by the CITY to be in the
public interest, in writing of deficiencies or default in the performance of
its duties under the Agreement and the DESIGN /BUILDER shall have ten
(10) days to correct same or to request, in writing, a hearing. Failure of
the DESIGN /BUILDER to remedy said specified items of deficiency or
default in the notice by either the CITY's designated representative within
ten (10) days of receipt of such notice of such decisions, shall result in the
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termination of the Agreement, and the CITY shall be relieved of any and
all responsibilities and liabilities under the terms and provisions of the
Agreement.
29. The CITY shall have the right to terminate this Agreement without cause
with a sixty (60) day written notice to the other party. The CITY reserves
the right to terminate any Agreement for cause with a ten 10 day written
notice to the DESIGN /BUILDER. Notice shall be served to the parties as
specified in the Agreement.
30. In the event that this Agreement is terminated, the CITY shall identify any
specific work to be continued to completion pursuant to the provisions of
this Agreement.
31. In the event that after the CITY termination for cause for failure of the
DESIGN /BUILDER to fulfill its obligations under this Agreement it is found
that the DESIGN /BUILDER has not so failed, the termination shall be
deemed to have been for convenience and without cause.
32. In the event this Agreement is terminated or canceled prior to final
completion without cause, payment for the unpaid portion of the services
provided by the DESIGN /BUILDER to the date of termination and any
additional services shall be paid to the DESIGN /BUILDER.
33. Upon receipt of notice of termination, given by either party, the terminated
party shall promptly discontinue the provision of all goods and /or services,
unless the notice provides otherwise.
34. The performance or provision of the DESIGN /BUILDER's goods and /or
services under this Agreement may be suspended by the CITY at any
time.
35. In the event the CITY suspends the performance or provision of the
DESIGN /BUILDER services hereunder, the CITY shall so notify the
DESIGN /BUILDER in writing, such suspension becoming effective within
seven (7) days from the date of mailing, and the CITY shall pay to the
DESIGN /BUILDER within thirty (30) days all compensation which has
become due to and payable to the DESIGN /BUILDER to the effective
date of such suspension. The CITY shall thereafter have no further
obligation for payment to the DESIGN /BUILDER for the suspended
provision of goods and /or services unless and until the CITY's designated
representative notifies the DESIGN /BUILDER in writing that the provision
of the goods and /or services of the DESIGN /BUILDER called for
hereunder are to be resumed by the DESIGN /BUILDER.
36. Upon receipt of written notice from the CITY that the DESIGN /BUILDER's
provision of goods and /or services hereunder are to be resumed, the
DESIGN /BUILDER shall continue to provide the services to the CITY.
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37. The DESIGN /BUILDER agrees that it will not discriminate against any
employee or applicant for employment for work under this Agreement
because of race, color, religion, sex, age, national origin or disability 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, national origin or disability. 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 their
forms or compensation; and selection for training, including
apprenticeship. The DESIGN /BUILDER, moreover, shall comply with all
the requirements as imposed by the Americans with Disability Act, the
regulations of the Federal government issued thereunder, and any and all
requirements of Federal or State law related thereto.
38. Indemnity and Insurance
a. To the fullest extent permitted by law, the DESIGN /BUILDER shall
indemnify, hold harmless and defend the CITY, its agents,
servants, officers, officials and employees, or any of them, from
and against any and all claims, damages, losses, and expenses
including, but not limited to, attorney's fees and other legal costs
such as those for paralegal, investigative, and legal support
services, and the actual costs incurred for expert witness
testimony, arising out of or resulting from the performance or
provision of services required under this Agreement, provided that
same is caused in whole or in part by the error, omission,
negligent act, failure to act, breach of contract obligation,
malfeasance, officers, officials, employees, or
subCONTRACTORs. Additionally, the DESIGN /BUILDER
accepts responsibility for all damages resulting in any way related
to the performance of work. In no event, shall either party be
responsible or liable to the other for any incidental, consequential,
or indirect damages, whether arising by contract or tort.
b. In accordance with Section 725.06, Florida Statutes, adequate
consideration has been provided to the DESIGN /BUILDER for this
obligation, the receipt and sufficiency of which is hereby
specifically acknowledged.
C. Nothing herein shall be deemed to affect the rights, privileges, and
immunities of the CITY as set forth in Section 768.28, Florida
Statutes.
d. In claims against any person or entity, indemnification under this
Section by an employee of the DESIGN /BUILDER or its agents or
subCONTRACTORs, anyone directly or indirectly employed by
them or anyone for whose acts they may be liable, the
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indemnification obligation under this Section shall not be limited by
a limitation on amount or type of damages, compensation, or
benefits payable by or for the DESIGN /BUILDER or its agents or
subCONTRACTORs, under Workers Compensation acts,
disability benefits acts, or other employee benefit acts.
e. The execution of this Agreement by the DESIGN /BUILDER shall
obligate the DESIGN /BUILDER to comply with the indemnification
provision of this Agreement; provided, however, that the
DESIGN /BUILDER must also comply with the provisions of this
Agreement relating to insurance coverage.
The DESIGN /BUILDER shall submit a report to the CITY within
twenty -four (24) hours of the date of any incident resulting in
damage or which is reasonably likely to result in a claim of
damage.
39. The DESIGN /BUILDER shall obtain or possess and continuously
maintain the insurance coverage as set forth and required in the proposal
documents.
40. All insurance other than Workers Compensation and Professional Liability
that must be maintained by the DESIGN /BUILDER shall specifically
include the CITY as an additional insured.
41. The DESIGN /BUILDER shall provide Certificates of Insurance to the
CITY evidencing that all such insurance is in effect prior to the issuance
of the first Purchase/Work Order under this Agreement from the CITY.
These Certificates of Insurance shall become part of this Agreement.
Neither approval by the CITY nor failure to disapprove the insurance
furnished by a DESIGN /BUILDER shall relieve the DESIGN /BUILDER of
the DESIGN /BUILDER's full responsibility for performance of any
obligation including the DESIGN /BUILDER's indemnification of the CITY
under this Agreement. If, during the period which an insurance company
is providing the insurance coverage required by this Agreement, an
insurance company shall: (1) lose its Certificate of Authority, (2) no longer
comply with Section 440.57, Florida Statutes, or (3) fail to maintain the
requisite Best's Rating and Financial Size Category, the
DESIGN /BUILDER shall, as soon as the DESIGN /BUILDER has
knowledge of any such circumstance, immediately notify the CITY and
immediately replace the insurance coverage provided by the insurance
company with a different insurance company meeting the requirements of
this Agreement. Until such time as the DESIGN /BUILDER has replaced
the unacceptable insurer with insurance acceptable to the CITY, the
DESIGN /BUILDER shall be deemed to be in default of this Agreement.
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42. The insurance coverage shall contain a provision that requires that prior
to any changes in the coverage, except increases in aggregate coverage,
thirty (30) days prior notice will be given to the CITY by submission of a
new Certificate of Insurance.
43. The DESIGN /BUILDER shall furnish Certificates of Insurance directly to
the CITY's Designated Representative. The certificates shall clearly
indicate that the DESIGN /BUILDER has obtained insurance of the type,
amount and classification required by this Agreement.
44. Nothing in this Agreement or any action relating to this Agreement shall
be construed as the CITY's waiver of sovereign immunity beyond the
limits set forth in Section 768.28, Florida Statutes.
45. The CITY shall not be obligated or liable under the terms of this
Agreement to any party other than the DESIGN /BUILDER. There are no
third party beneficiaries to this Agreement.
46. The DESIGN /BUILDER is an independent contractor and not an agent,
representative, or employee of the CITY. The CITY shall have no liability
except as specifically provided in this Agreement.
47. All insurance shall be primary to, and not contribute with, any insurance
or self- insurance maintained by the CITY.
48. The 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 Agreement and that the
DESIGN /BUILDER has not paid or agreed to pay any person, company,
corporation, individual or firm other than a bona fide employee working
solely for the DESIGN /BUILDER, any fee, commission, percentage, gift,
or any other consideration, contingent upon or resulting from the award of
making this Agreement.
49. The DESIGN /BUILDER shall not discriminate on the grounds of race,
color, religion, sex, or national origin in the performance of work under
this Agreement or violate any laws pertaining to civil rights, equal
protection or discrimination.
50. The DESIGN /BUILDER hereby certifies that no undisclosed conflict of
interest exists with respect to the Agreement, including, but not limited to,
any conflicts that may be due to representation of other clients, customers
or vendees, other contractual relationships of the DESIGN /BUILDER, or
any interest in property that the DESIGN /BUILDER may have. The
DESIGN /BUILDER further certifies that any conflict of interest that arises
during the term of this Agreement shall be immediately disclosed in
writing to the CITY. Violation of this Section shall be considered as
justification for immediate termination of this Agreement.
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51. The DESIGN /BUILDER shall ensure that all taxes due from the
DESIGN /BUILDER are paid in a timely and complete manner including,
but not limited to, occupational license tax.
52. If the CITY determines that any employee or representative of the
DESIGN /BUILDER is not satisfactorily performing his /her assigned duties
or is demonstrating improper conduct pursuant to any assignment or work
performed under this Agreement, the CITY shall so notify the
DESIGN /BUILDER, in writing. The DESIGN /BUILDER shall immediately
remove such employee or representative of the DESIGN /BUILDER from
such assignment.
53. The DESIGN /BUILDER shall not publish any documents or release
information regarding this Agreement to the media without prior approval
of the CITY.
54. The DESIGN /BUILDER shall certify, upon request by the CITY, that the
DESIGN /BUILDER maintains a drug free workplace policy in accordance
with Section 287.0878, Florida Statutes. Failure to submit this
certification may result in termination.
55. If the DESIGN /BUILDER or an affiliate is placed on the convicted vendor
list following a conviction for a public entity crime, such action may result
in termination by the CITY. The DESIGN /BUILDER shall provide a
certification of compliance regarding the public crime requirements set
forth in State law upon request by the CITY.
56. The CITY reserves the right to unilaterally terminate this Agreement if the
DESIGN /BUILDER refuses to allow public access to all documents,
papers, letters, or other materials subject to provisions of Chapter 119,
Florida Statutes, and other applicable law, and made or received by the
DESIGN /BUILDER in conjunction, in any way, with this Agreement.
57. The DESIGN /BUILDER shall comply with the requirements of the
Americans with Disabilities Act (ADA), and any and all related Federal or
State laws which prohibits discrimination by public and private entities on
the basis of disability.
58. The CITY will not intentionally award publicly- funded contracts to any
contractor who knowingly employs unauthorized alien workers,
constituting a violation of the employment provisions contained in 8
U.S.C. Section 1324a(e) Section 274A(e) of the Immigration and
Nationally Act (INA). The CITY shall consider the employment by the
DESIGN /BUILDER of unauthorized aliens, a violation of Section 274A(e)
of the INA. Such violation by the DESIGN /BUILDER of the employment
provisions contained in Section 274A(e) of the INA shall be grounds for
immediate termination of this Agreement by the CITY.
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Agreement
59. The DESIGN /BUILDER agrees to comply with Federal, State, and local
environmental, health, and safety laws and regulations applicable to the
goods and /or services provided to the CITY. The DESIGN /BUILDER
agrees that any program or initiative involving the work that could
adversely affect any personnel involved, citizens, residents, users,
neighbors or the surrounding environment will ensure compliance with
any and all employment safety, environmental and health laws.
60. The DESIGN /BUILDER shall ensure that all goods and /or services are
provided to the CITY after the DESIGN /BUILDER has obtained, at its sole
and exclusive expense, any and all permits, licenses, permissions,
approvals or similar consents.
61. If applicable, in accordance with Section 216.347, Florida Statutes, the
DESIGN /BUILDER shall not use funds provided by this Agreement for the
purpose of lobbying the Legislature, the judicial branch or State agency.
62. The DESIGN /BUILDER shall advise the CITY in writing of it who has
been placed on a discriminatory vendor list, may not submit a proposal on
a contract to provide goods or services to a public entity, or may not
transact business with any public entity.
63. The DESIGN /BUILDER shall not engage in any action that would create a
conflict of interest in the performance of that actions of any CITY
employee or other person during the course of performance of, or
otherwise related to, this Agreement or which would violate or cause
others to violate the provisions of Part III, Chapter 112, Florida Statutes,
relating to ethics in government.
64. The DESIGN /BUILDER shall maintain books, records, documents, time
and costs accounts and other evidence directly related to its provision or
performance of services under this Agreement. All time records and cost
data shall be maintained in accordance with generally accepted
accounting principles.
65. The DESIGN /BUILDER shall maintain and allow access to the records
required under this Section for a minimum period of five (5) years after
the completion of the provision or performance goods and /or services
under this Agreement and date of final payment for said goods and /or
services, or date of termination of this Agreement.
66. The CITY may perform, or cause to have performed, an audit of the
records of the DESIGN /BUILDER before or after final payment to support
final payment under any Purchase/Work Order issued hereunder. This
audit shall be performed at a time mutually agreeable to the
DESIGN /BUILDER and the CITY subsequent to the close of the final
fiscal period in which goods and /or services are provided or performed.
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Total compensation to the DESIGN /BUILDER may be determined
subsequent to an audit as provided for in this Section, and the total
compensation so determined shall be used to calculate final payment to
the DESIGN /BUILDER. Conduct of this audit shall not delay final
payment as required by this Section.
67. In addition to the above, if Federal, State, County, or other entity funds
are used for any goods and /or services under this Agreement, the
Comptroller General of the United States or the Chief Financial Officer of
the State of Florida, the City of Sanford or the County of Seminole, or
any representatives, shall have access to any books, documents, papers,
and records of the DESIGN /BUILDER which are directly pertinent to
goods and /or services provided or performed under this Agreement for
purposes of making audit, examination, excerpts, and transcriptions.
68. In the event of any audit or inspection conducted reveals any
overpayment by the CITY under the terms of the Agreement, the
DESIGN /BUILDER shall refund such overpayment to the CITY within
thirty (30) days of notice by the CITY of the request for the refund.
69. The DESIGN /BUILDER agrees to fully comply with all State laws relating
to public records.
70. The DESIGN /BUILDER agrees that if any litigation, claim, or audit is
started before the expiration of the record retention period established
above, the records shall be retained until all litigation, claims or audit
findings involving the records have been resolved and final action taken.
71. The DESIGN /BUILDER shall not sublet, assign or transfer any interest in
this Agreement, or claims for the money due or to become due out of this
Agreement to a bank, trust company, or other financial institution without
written CITY approval. When approved by the CITY, written notice of
such assignment or transfer shall be furnished promptly to the CITY.
72. Any DESIGN /BUILDER proposed subCONTRACTORs shall be submitted
to the CITY for written approval prior to the DESIGN /BUILDER entering
into a subcontract. Subcontractor information shall include, but not be
limited to, State registrations, business address, occupational license tax
proof of payment, and insurance certifications.
73. The DESIGN /BUILDER shall coordinate the provision of goods and /or
services and work product of any CITY approved subcontractors, and
remain fully responsible for such goods and /or services and work under
the terms of this Agreement.
74. Any subcontract shall be in writing and shall incorporate this Agreement
and require the subcontractor to assume performance of the
DESIGN /BUILDER's duties commensurately with the
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NAME OF PROJECT: SR 46 Lake Jesup Bridae Reclaimed Water Main Relocation — Desion -Build
Agreement
DESIGN /BUILDER's duties to the CITY under this Agreement, it being
understood that nothing herein shall in any way relieve the
DESIGN /BUILDER from any of its duties under this Agreement. The
DESIGN /BUILDER shall provide the CITY with executed copies of all
subcontracts.
75. The DESIGN /BUILDER shall reasonably cooperate at all times with the
CITY and other CITY contractors and professionals.
76. This Agreement is to be governed by the laws of the State of Florida.
77. Venue for any legal proceeding related to this Agreement shall be in the
Eighteenth Judicial Circuit Court in and for Seminole County, Florida.
78. This Agreement is the result of bona fide arms length negotiations
between the CITY and the DESIGN /BUILDER and all parties have
contributed substantially and materially to the preparation of the Contract.
Accordingly, this Agreement shall not be construed or interpreted more
strictly against any one party than against any other party.
79. Neither party shall be considered in default in performance of its
obligations hereunder to the extent that performance of such obligations,
or any of them, is delayed or prevented by Force Majeure. Force Majeure
shall include, but not be limited to, hostility, terrorism, revolution, civil
commotion, strike, epidemic, fire, flood, wind, earthquake, explosion, any
law, proclamation, regulation, or ordinance or other act of government, or
any act of God or any cause whether of the same or different nature,
existing or future; provided that the cause whether or not enumerated in
this Section is beyond the control and without the fault or negligence of
the party seeking relief under this Section.
80. This Agreement, together with the exhibit(s) and those items identified as
Contract Documents herein, constitutes the entire integrated Agreement
between the CITY and the DESIGN /BUILDER and supersedes all prior
written or oral understandings in connection therewith. This Agreement,
and all the terms and provisions contained herein, including without
limitation the exhibits hereto, constitute the full and complete agreement
between the parties hereto to the date hereof, and supersedes and
controls over any and all prior agreements, understandings,
representations, correspondence and statements whether written or oral.
81. This Agreement may only be amended, supplemented or modified by a
formal written amendment.
82. Any alterations, amendments, deletions, or waivers of the provisions of
this Agreement shall be valid only when expressed in writing and duly
signed by the parties.
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Agreement
83. Written notice requirements of this Agreement shall be strictly construed
and such requirements are a condition precedent to pursuing any rights
or remedies hereunder. The DESIGN /BUILDER agrees not to claim any
waiver by CITY of such notice requirements based upon CITY having
actual knowledge, implied, verbal or constructive notice, lack of prejudice
or any other grounds as a substitute for the failure of the
DESIGN /BUILDER to comply with the express written notice
requirements herein. Computer notification (e -mails and message
boards) shall not constitute proper written notice under the terms of the
Agreement.
84. The failure of the CITY to insist in any instance upon the strict
performance of any provision of this Agreement, or to exercise any right
or privilege granted to the CITY hereunder shall not constitute or be
construed as a waiver of any such provision or right and the same shall
continue in force.
85. In no event shall any obligation of the CITY under this Agreement be or
constitute a general obligation or indebtedness of the CITY, a pledge of
the ad valorem taxing power of the CITY or a general obligation or
indebtedness of the CITY within the meaning of the Constitution of the
State of Florida or any other applicable laws, but shall be payable solely
from legally available revenues and funds.
86. The DESIGN /BUILDER shall not have the right to compel the exercise of
the ad valorem taxing power of the CITY.
87. Each document and exhibit referred to and attached to this Agreement is
an essential part of this Agreement. The exhibits and any amendments or
revisions thereto, even if not physically attached hereto, shall be treated
as if they are part of this Agreement.
88. The Section headings and captions of this Agreement are for
convenience and reference only and in no way define, limit, describe the
scope or intent of this Agreement or any part thereof, or in any way affect
this Agreement or construe any provision of this Agreement.
89. If any term, provision or condition contained in this Agreement shall, to
any extent, be held invalid or unenforceable, the remainder of this
Agreement, or the application of such term, provision or condition to
persons or circumstances other than those in respect of which it is invalid
or unenforceable, shall not be affected thereby, and each term, provision
and condition of this Agreement shall be valid and enforceable to the
fullest extent permitted by law when consistent with equity and the public
interest.
90. All provisions of this Agreement shall be read and applied in para materia
with all other provisions hereof.
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Agreement
91. In the event of a dispute related to any performance or payment
obligation arising under this Agreement, the parties agree to exhaust any
alternative dispute resolution procedures reasonably imposed by the
CITY prior to filing suit or otherwise pursuing legal remedies.
92. The DESIGN /BUILDER agrees that it will file no suit or otherwise pursue
legal remedies based on facts or evidentiary materials that were not
presented for consideration to the CITY in alternative dispute resolution
procedures or which the DESIGN /BUILDER had knowledge and failed to
present during the CITY procedures.
93. In the event that CITY procedures are exhausted and a suit is filed or
legal remedies are otherwise pursued, the parties shall exercise best
efforts to resolve disputes through voluntary mediation. Mediator
selection and the procedures to be employed in voluntary mediation shall
be mutually acceptable to the parties. Costs of voluntary mediation shall
be shared equally among the parties participating in the mediation.
94. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which, taken together, shall
constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year
first above written.
DESIGN /BUILDER:
Johnson Bros LLC
Name of
By (Signa (SEAL)
Ron Queen – Executive Vice President
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OWNER:
Citv of Sanford
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By (Signature)
Kristi Aday. Actina C
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Agreement