HomeMy WebLinkAbout2020 AgreementDESIGN/BUILD CONSTRUCTION AGREEMENT —HANGAR D
RFO 19-04: Design Build of Multi -Purpose Hangar and Office Building at Sebastian Municipal Airport
This Agreement is entered into by the parties this 27th day of FEBRUARY , 2020.
1. Parties
City of Sebastian, a municipal corporation of the State of Florida, (City).
and APPROVED BY CITY COUNCIL
/)2 -2 6 2 02a
Johnson-Laux Construction, LLC (Design/Builder). DATEPROCUREMENT DIVISION
2. Designated Contact Person as to Cam: 3. Designated Contact Person as to Design/Builder:
Scoff Baker (PROJECT MANAGER) Kirk Wallace (PROJECT MANAGER)
Public Facilities Director Project Director
1225 Main Street 650 Garden Commerce Pkwy, Suite 100
Sebastian, Florida 32958 Orlando, FL 34789
Phone: 772-388-8113 Phone: 407-770-2180
Cell: 772-633-0897 Email: kwallace@johnson-laux.com
Email: sbaker@cityofsebastian.org
4. Scope of Work. The Design/Builder agrees to furnish or arrange for the architectural, engineering and
construction Work set forth herein and required for completion of the Project on a Guaranteed Maximum
Price (GMP) basis. Design/Builder represents that it is thoroughly familiar with and understands the
requirements of the Project scope and is experienced in the design, administration and construction of
building projects of the type and scope contemplated by the City for this Project. DesigNBuilder has all
necessary architectural, engineering and construction education, skill, knowledge and experience required
for the Project, and will maintain at all times during the term of this Agreement such personnel on its staff to
provide the Work contemplated hereby within the time periods required hereby. In addition, Design/Builder
represents that it or City -approved sub -contractors perfomling Work under this Agreement have all applicable
licenses required by the State of Florida to perform such Work.
S. Term and Completion Time. The duration of the Agreement shall be for the completion of the Work stated
in Section 5. The project shall be fully completed, by April 30, 2021.The Design/Builder shall at all times carry
out its duties and responsibilities as expeditiously as possible, subject to delays in the schedule not the fault
of Design/Builder or its consultants. Time is of the essence in the performance of this Agreement.
NOTE: The City reserves the right to allow for any approved extensions.
6. GMP Proposal. GMP proposal of $2,250,000.00 Includes all costs for the Work. The Design/Builder shall be
entitled to no increase in the GMP If the Work required by the completed Construction Documents (1) is
required by the Agreement for Design/Build Construction, (2) is reasonably Inferable from the incomplete
documents, (3) is consistent with the City's programmatic goals and objectives, (4) is consistent with the
City's and general industry standards for the completion of the Work, (5) is not a substantial enlargement of
the Scope of Work or (6) substantially conforms to the nature, type, kind or quality of Work depicted in the
incomplete documents. NOTE: The City reserves the right to request additional information or documentation
to detail items on payment request.
7. Performance Bond. Within thirty (30) days from the date of signing this Agreement, DesigntSuilder shall
furnish a performance bond for 100% of the proposed total amount of the GMP. Bonds must be executed by
a surety company authorized to do business in the State of Florida and that complies with the requirements
of Florida Statutes 287.0395.
City of Sebastian, Florida / Johnson-Laux Construction, LLC
RFO #19-05 Design Build of Hangar 8 Office Building at Sebastian Municipal Airport Page 1 of 13
8. Agreement Document. The entire agreement between the City and Design/Builder, consists of: this
Agreement and all exhibits hereto; the Design/Build General Terms and Conditions; special
conditions, if any; proposals) submitted by Design/Builder and accepted by the City, if any; the
Construction Documents; any amendments or addenda executed by the City and the Design/Builder
hereafter; and City -approved change order(s) or field orders. Documents not Included or expressly
contemplated in this Section 8 do not, and shall not, form any part of the Agreement for Design/Build
Construction. Without limiting the generality of the foregoing, shop drawings and other submittals
from the Design/Builder or its subcontractors and suppliers do not constitute a part of the Agreement
for Design/Build Construction.
Exhibit "A" — General Summary of Estimate (GMP Proposal) submitted by Design/Builder
9. Independent Contractor. Design/Builder Is an Independent contractor to City in the provision of the
Work under this Agreement and is not an employee, agent, joint -venture, or partner of City.
10. Mileage, Lodging and Meal Rates. Reference www.osa.cov/travel-resources using City's zip code.
11. Notices. All notices between City and Design/Builder, as required under the Agreement, shall be by
telephone, facsimile, e-mail, mail, or by personal delivery to the respective designated contact person
identified above. Either designated recipient may notify the other, in writing, if someone else is
designated to receive notice.
12. Modification of Agreement. The Agreement may only be modified or amended upon mutual written
agreement of City and Design/Builder. No oral agreements or representations shall be valid or
binding upon City or Design/Builder. No alteration or modification of the Agreement terms, including
substitution of product, shall be valid or binding against City. Design/Builder may not unilaterally
modify the terms of the Agreement by affixing additional terms by incorporating such terms onto
Design/Builder's documents forwarded by Design/Builder to City for payment. City's acceptance of
product or processing of documentation on fortes furnished by Design/Builder to City for approval or
payment shall not constitute acceptance of the proposed modification to terms and conditions.
13. Termination of Agreement. Either party may terminate this Agreement by giving the other party
thirty (30) days written notice. If either party defaults in the performance of this Agreement or
materially breaches any of Its provisions, the non -defaulting party may, at its option, terminate this
Agreement by giving written notification thereof to the defaulting parry. In the event of termination,
City will be responsible for compensating Design/Builder only for the Work satisfactorily completed or
partially completed up to the date of termination. DesignBuilder shall not be entitled to compensation
for loss of anticipated profit.
14. Change Orders. City may at any time, as the need arises, order changes within the scope of the Work
without invalidating the Agreement. If such changes result in an Increase or decrease in the GMP or in
the time required for performance of the Work, an equitable adjustment shall be authorized by way of a
Change Order.
15. Permits. The Design/Builder shall be responsible for obtaining all necessary permits and other
governmental approvals necessary for the development of the Project and shall obtain the same at
the times necessary to meet the Project schedule.
16. Non -Performance Clause. The Design/Builder recognizes that due to the nature of the Work to be
performed under this Agreement, it is essential that the Work be completed in a timely manner In
accordance with the schedules approved by the City. Non-performance/deficiencies as identified by
the City to the DesignBuilder shall be addressed 1. Verbally 2. Written Notice. If the deficiency has
not been corrected to the satisfaction of the City within the time frame provided, the City may have
the Work performed by either Its internal personnel or a third party and charge the cost against
payments due the Design/Builder. Repeated deficiencies may result In the termination of this
Agreement.
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17. Liquidated Damages. The City shall be entitled to linuidated damages every day that the
Desig%Builder is late in comgetina the Work reppuirements /y��100/day1. Said damages shall be
deducted by the City from monies due to DesiAuilder. N6TE: The Design/Builder's recovery of
damages and sole remedy for any delay caused by the City shall be an extension of time on the
Agreement.
16. City's Project Manager. City shall designate a Project Manager. All Work done by the
Design/Builder shall be subject to the review, inspection and acceptance of the Project Manager and
the City. Any and all technical questions which may arise as to the quality, completeness and
acceptability of Work performed, or Work to be performed, Interpretation of plans/specifications and
all technical questions as to the acceptable fulfillment of the Agreement on the part of the
Design/Builder shall be referred to the City Manager who will resolve such questions. All Work shall
be subject at all times to inspection and review by the Project Manager and the City.
19. Project Team. Design/Builder will provide names and roles of the Project Team assigned for
approval by the City. If any member of the Project Team discontinues service on the Project for any
reason whatsoever, Design/Builder shall promptly replace such team member with a qualified
individual approved by the City, In writing, which approval will not be unreasonably withheld.
20. Schedules, Reports and Records. Design/Builder shall submit to City cost schedules, progress
schedules, estimates, records, reports, and any other data, as related to the provision of the Work
covered under the Agreement. Furthermore, City reserves the right to inspect and audit
Design/Builder's books and records relating to the Agreement, when deemed appropriate by City. All
schedules, reports and records of Design/Builder, as they relate to the Agreement, shall be retained by
Design/Builder for a period of three (3) years from the date of final payment under the Agreement.
21. Project Site Conditions. Before commencing Work, the Design/Builder shall (1) visit and thoroughly
inspect the Project Site and any structure(s) or other man- made features to be modified and become
familiar with local conditions under which the Project will be constructed and operated; (2) familiarize
with the survey, including the location of all existing buildings, utilities, conditions, streets, equipment,
components and other attributes having or likely to have an Impact on the Project; (3) familiarize with
the City's layout and design requirements, conceptual design objectives, and budget for the Project;
(4) familiarize itself with pertinent Project dates and programming needs, including the Project
schedule, (5) review and analyze all Project geotechnical, Hazardous Substances structural,
chemical, electrical, mechanical and construction materials tests, investigations and
recommendations; and (6) gather any other Information necessary for a thorough understanding of
the Project. Claims by Design/Builder resulting from Design/Builder's failure to familiarize itself with
the Site or pertinent documents shall be deemed waived. NOTE: All notifications regarding
environmental issues or requirements shall be sent immediately to City's Project Manager. Unless
directed otherwise by City, Design/Builder is not to contact any local, state or federal governmental
agencies concerning environmental issues involving the Project Site.
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City of Sebastian, Florida / Johnson-Laux Construction, LLC
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22. Inspection, Performance, Supervision. City reserves the right to inspect the Work provided by
Design/Builder, whether partially or fully completed, at any time, as deemed appropriate by City for
the purpose of ensuring Design/Builder's performance under the Agreement. Such Inspections
performed by City, shall not be construed as a final approval of Design/Builder's Service, and shall
not relieve Design/Builder from its obligations under the Agreement. City reserves the right to
Inspect, at any reasonable time with prior notice, DesignBullder's facilities to assess conformity of the
provision of the Work with the Agreement requirements. City reserves the right to Investigate or
inspect, at any time, whether the provision of the Work complies with the Agreement requirements.
Design/Builder shall at all times during the Agreement term remain responsive and responsible.
Design/Builder must be prepared, If requested by City, to present evidence of experience, ability, and
financial standing, as well as a statement as to capacity of Design/Builder for the performance of the
provision of the Work covered under the Agreement. This paragraph shall not mean or imply that it
is obligatory upon City to make an investigation either before or after award of the Agreement, but
should City elect to do so, Design/Builder is not relieved from fulfilling all Agreement requirements.
Design/Builder shall supervise and direct the performance of its Work and shall be solely responsible for
the means, methods, techniques, sequences, and safety of construction and operations. Design/Builder
will employ and maintain at the Project Site a qualified supervisor or superintendent who shall have been
designated in writing by Design/Builder as the Design/Builder's representative at the Project Site. The
supervisor or superintendent shall have full authority to act on behalf of DesignBuilder and all
communications given to the supervisor or superintendent shall be as binding as If given directly to
Design/Builder. The supervisor or superintendent shall be present on the Project Site at all times as
required to perform adequate supervision and coordination of the Design/Builder's Work.
23. Materials, Work, and Facilities: It is understood that, except as otherwise specifically stated in the
Agreement Documents, Design/Builder shall provide and pay for all materials, labor, tools, equipment,
water, light, power, transportation, supervision, temporary construction of any nature, and all other Work
and facilities of any nature whatsoever necessary to execute, complete, and deliver the Work within the
specified time. The City will provide Design/Builder with access to the Facilities so as to permit
DesignBuilder to meet its obligations herein.
24. Disposal of Wastes. Design/Builder shall handle any waste materials generated in the performance
of the Work in full compliance with all laws, regulations, and requirements of all governmental
authorities and those of City. Design/Builder shall use only disposal facilities which have proper
permits and are in full compliance with all taws. Design/Builder agrees that City has the right to
reject, for any reason, Design/Builder's use of any particular disposal facility. Refer to Section 4.15
Clean Up in the ITB Documents.
25. Correction of Work Design/Builder shall promptly remove from the premises all Work rejected by City
for failure to comply with the Agreement Documents, whether incorporated into the Project or not, and
Design/Builder shall promptly replace and re -execute the Work in accordance with the Agreement
Documents, without additional expense to City, and shall bear the expense of making good all Work of
other Design/Builder's Work destroyed or damaged by such removal or replacement. All removal and
replacement of Work shall be done at Design/Builder's expense. If Design/Builder does not take action
to remove such rejected Work within ten (10) calendar days after receipt of written notice from City, City
may remove such Work on their own and store the materials at the expense of DesgnBuilder.
26. Stop Work Order. The City may order that all or part of the Work stop if circumstances dictate that
this action is in the City's best interest. Such circumstances may include, but are not limited to,
unexpected technical developments, direction given by the City's Council, a condition of immediate
danger to the City, the Design/Builder or the public, or the possibility of damage to equipment or
properly. This provision shall not shift responsibility for loss or damage, including but not limited to,
lost profits or consequential damages sustained as a result of such delay, from the Design/Builder to
the City. If this provision is invoked, the City shall notify the Design/Builder in writing to stop Work as
of a certain date and specific the reasons for the action, which shall not be arbitrary or capricious. The
Design/Builder shall then be obligated to suspend all Work efforts as of the effective date of the notice
and until further written direction from the City is received. If deemed appropriate by the City and in
the event Work is resumed, the City may amend this Agreement to reflect any changes to the Scope
of Work and/or project schedule.
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27. Taxes. Design/Builder shall pay all sales, consumer, use and other similar taxes required to be paid
by Design/Builder in accordance with the laws and regulations of the State of Florida which are
applicable to the provision of the Work under the Agreement. City will not pay for any personal
property taxes levied on Design/Builder or for any taxes levied on Design/Builder's employees'
wages. City is a political subdivision of the State of Florida and holds a State of Florida Sales Tax
Exemption Certificate (No. 85-8012621778C-1). All purchases made by City directly from a dealer,
distributor or manufacturer for materials, equipment or supplies ('direct purchase') instead of through
the Design/Builder are exempt from sales, consumer, use and other similar taxes.
28. City Funds. If sufficient funding is not available for Design/Builder to complete the Work, City
reserves the right to modify the terms and conditions of the Agreement to change the Scope of Work
to reduce the cost to match any available funding. If such modifications to the Scope of Work are not
feasible, or if funding has been totally exhausted prior to Design/Builders completion of its Work, the
Agreement shall be terminated on terms reasonably acceptable to both parties.
29. Protection of Persons. Design/Builder will be responsible for the safety of its employees and the
employees of its sub -contractors, during the provision of the Work. Design/Builder will be responsible
for initiating, maintaining and supervising all safely programs in connection with the provision of the
Work in accordance with applicable safety standards and regulations, as promulgated by the United
Stales Occupational Safety and Health Act. Design/Builder shall report promptly to City any accident
or unusual occurrence during performance of the Work, including personal injury or death to any
DesigNBuilder employee, sub -contractor employee or any member of the public, or any damage to
any of Cilys property, the Project Site, or adjacent property.
30. Risk of Loss. Until the Work have been accepted by City, risk of loss or damage to any materials,
equipment, supplies or Work product, whether partially or fully completed, that are associated with the
Work shall remain with DesigNBuilder.
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City of Sebastian, Florida / Johnson-Laux Construction, LLC
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31. Insurance. During the term of the Agreement. Design/Builder, at its sole expense, shall provide
Insurance of such a type and with such tens and limits as noted below. Providing and maintaining
adequate Insurance coverage is a material obligation of Design/Builder. Design/Builder shall provide
City a certificate(s) of insurance, evidencing such coverage. It is the Design/Builders responsibility to
ensure that the City has current Certificate(s) of Insurance at all times during the duration of the
agreement, including renewal terms.
31.1 Minimum Insurance Requirements. Design/Builder shall obtain and maintain for the duration of the
Agreement insurance against claims for injuries to persons or damages to property which may arise
from or in connection with the performance of the Work hereunder by the Design/Builder, his agents,
representatives, employees or sub -contractors. The coverages, limits a endorsements required
herein protect the primary interests of City, and these coverage's, limits or endorsements shall in no
way be required to be relied upon when assessing the extent or determining appropriate types and
limits of coverage to protect Design/Builder against any loss exposures, whether as a result of the
Project or otherwise. The requirements contained herein, as well as Civs review or
acknowledgement, is not Intended to and shall not in any manner limit or qualify the liabilities and
obligations assumed by DesignBuilder under this Agreement
an amount not less than:
• $2.000,000 General Aggregate Limit; Each Aggregate Limit;
Commercial General Liability Products & Completed Operations; and Personal & Advertising
Injury
$50,000 Fire Damage Limit
• $5,000 Medical Expense Limit
an amount not less than:
Automobile Liability • $1,000,000 Each Occurrence & Combined Single Limit
• $5,000 Medical Expense Limit
The Proposer shall submit and maintain Workers compensation
Worker's Compensation insurance to the extent required by law for all their employees to be
engaged In Work under this Agreement, in accordance with Florida
Statutes 440.
31.2 Other Insurance Provisions:
31_2.1 City of Sebastian, its council members, officers, employees and agents are to be covered
as an Additional Named Insured on all policies except Worker's Compensation. The
coverage shall contain no special limitation on the scope of protection afforded to the City,
its council members, officers, employees and agents. Design/Builder shall provide a
Certificate of Insurance to City with a thirty (30) day notice of cancellation and/or changes in
policy language, and ten (10) day notice if cancellation is for nonpayment of premium. The
certificate shall Indicate if coverage is provided under a "claims made" or "occurrence"
form.
31_2.2 All required insurance policies must be written with an insurance carrier having a
minimum A.M. Best rating of A+.
312.3 Design/Builder has sole responsibility for all insurance premiums and shall be fully and
solely responsible for any costs or expenses as a result of a coverage deductible, co-
insurance penally, or self -insured retention; including any loss not covered because of the
operation of such deductible, co -Insurance penalty, self -insured retention, or coverage
exclusion or limitation. For deductible or self -insured amounts that exceed $10.000.
Design/Builder shall maintain a Commercial Surety Bond or Letter of Credit in an amount
equal to said deductible or self -insured retention.
City of Sebastian, Florida / Johnson-Laux Construction, LLC
RFQ #19-05 Design Build of Hangar & Office Building at Sebastian Municipal Airport Page 6 of 13
212A Design/Builder's insurance coverage shall be primary insurance as respects the City, its
officials, employees and volunteers. Any insurance or self-insurance maintained by the
City, Its officials, employees or volunteers shall be excess of Design/Builder's insurance and
shall be non-contributory.
31_2.5 For all policies of Insurance: Design/Builder and Its insurance carrier waive all
subrogation rights against City for all losses or damages that occur during the Agreement
and for any events occurring during the Agreement period, whether the suit is brought
during the Agreement period or not. The City requires General Liability policies to be
endorsed with CG 24 04 Waiver of Transfer of Rights of Recovery Against Others to Us or
similar endorsement, and a WC 00 0313 Waiver of Our Right to Recover from Others for
Workers Compensation coverage.
312A It is Design/Buitdees responsibility to insure that all sub -contractors comply with these
Insurance requirements. Design/Bullder shall include all subcontractors as insured under its
policies or shall furnish separate certificates and endorsements for each sub-Design/Builder.
All coverages for sub -contractors shall be subject to all of the requirements staled herein.
32. Warranties:
32.1 Warranty of Ability to Perform. Design/Builder warrants that, to the best of its knowledge,
there are no pending or threatened actions, proceedings, investigations, or any other legal or
financial conditions, that would in any way prohibit, restrain, or diminish Design/Builder's ability to
satisfy its obligations under the Agreement.
32.2 Warranty Against Defects In Workmanship. DesigNBuilder shall warrant its Work against
defects in materials and Workmanship for a minimum period of one (1) year from acceptance of
the Work by City. Should any defects in materials or Workmanship appear during the warranty
period, Design/Builder shall replace the materials or equipment, or repair or redo the service,
immediately upon receipt of written notice from City, at no additional expense to City.
Design/Builder shall warrant such replaced materials or equipment, or repaired or redone Work,
for a period of one (1) year after acceptance of such by City.
32.3 Warranty of Standard Care. In the performance of professional Work, DesigNBuilder will use
that degree of care and skill ordinarily exercised by other similar professionals in the field under
similar conditions in similar localities. Design/Builder will use due care in performing Its Work
and will have due regard for acceptable professional standards and principles. DesigntBuildees
standard of care shall not be altered by the application, interpretation, or construction of any
other provision of this Agreement. If any of the Work performed by Design/Builder does not
comply with the foregoing warranties and City notifies Design/Builder of such, then
Design/Builder shall (at its sole expense) promptly re -execute the nonconforming Work. All such
re -performed Work shall be performed on a mutually agreed schedule. Design/Builder shall and
does hereby assign to City the benefits of any of Design/Builder's sub -consultant's or sub-
contractor's warranties. Such assignment shall not relieve Design/Bullder of its warranty
obligations for performance or standard of care to City under this Agreement.
32.4 Warranty of Title. Title to any Work product furnished by Design/Builder under the Agreement
shall pass to City to the extent of the payments made for such by City, or on the date that City
accepts the completed Work of Design/Bullder. When flits passes to City in accordance with the
Agreement, Design/Builder warrants that the Work product furnished will be free and clear of all
security interests, liens and encumbrances or claims of any party.
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33. Payment of Payment Requests
33.1 Payment Requestsllnvoices. Requests for payment for the provision of the Work provided
under the Agreement shall be submitted no more frequently than once per month, unless
stipulated differently in the Agreement or solicitation documents. All requests for
payment/invoices shall be submitted In sufficient detail to demonstrate compliance with the terms
of the Agreement and to allow for the proper pre -audit and post -audit thereof. Upon receipt of
DesignBuilder's payment requesVinvoice, the City will review to ensure completeness and that
the Work covered under the payment request has been completed in accordance with this
Agreement. If it is found that the payment requesVinvoice is not complete, or the Work covered
under the payment request does not satisfy this Agreement, the payment request may be
rejected.
33.2 Prompt Payment. City shall make payment of a payment request in accordance with Chapter
218, Part VII of the Florida Statutes "Local Government Prompt Payment Act" from the date
which a properly received payment request/Invoice is recorded as received by City, for Work
completed to the satisfaction of City.
33.3 Form of Request. If the payment request is not received in proper order, City may reject the
payment request within ten (10) business days after the dale on which the payment request is
recorded as received by City. City shall provide DesignBullder with a written notification of the
rejection specifying the deficiency and corrective measures necessary to make the payment
request proper. Upon receipt of a payment request that corrects the deficiency, City shall make
payment in accordance with Chapter 218, Part VII of the Flodda Statutes "Local Government
Prompt Payment Act", or reject the payment request, within ten (10) business days after the date
on which the corrected and proper payment request is recorded as received by City.
33.4 Payments to Sub -Contractors. When Design/Builder receives from City any payment for Work
covered under the Agreement, Design/Builder must pay such moneys received to each sub-
contractor supplier In proportion to the percentage of the Work completed by each sub-
contractor or supplier within ten (10) business days after Design/Builder's receipt of the payment.
If Design/Builder receives less than full payment, then Design/Builder shall be required to
disburse only the funds received an a pro rate basis to its sub -contractors and suppliers, each
receiving a prorated portion based on the amount due on the payment. If a sub -contractor
receives payment from Design/Builder for labor, Work or materials furnished by sub -contractors
or suppliers hired by the sub -contractor, the sub -contractor must remit payment due to those
subcontractors or suppliers within seven (7) business days after the sub -contractors receipt of
payment from Design/Builder.
33.5 Resolution of Payment Request Disputes. In the event of a dispute between Design/Builder
and City concerning the full or partial payment of a payment request, such disagreement shall be
finally determined by City. If the dispute between Design/Builder and City Involves a portion of a
payment request, the undisputed portion shall be paid by City in a timely manner, as long as the
payment request for the undisputed portion is in proper order. Proceedings to resolve the
dispute will be commenced within forty-five (45) business days after the date the payment
request in dispute was recorded as being received by City. The proceedings may Include
meetings between the parties, telephone conferences or such other measures to clarify the
dispute and attempt to resolve the problem; they will be concluded by a final written decision by
City within sixty (60) business days after the date on which the payment request was recorded
as being received by City. Such procedures do not constitute an administrative proceeding that
prohibits a court from deciding de novo any action arising out of the dispute.
33.6 Lawful Claims and Demands. Should any outstanding claims by sub -contractors or suppliers
incurred in the performance of the Work materialize after City has made Payment to
DesignBuilder, DesignBuilder will indemnify and save City harmless from such claims.
Acceptance by Design/Builder of payment shall operate as a release to City of all claims and all
liabilities, other than claims in stated amounts as may be specifically accepted by DesignBuilder
for things done or furnished in connection with the provision of the Work. Any payment, whether
final or otherwise, shall not release Design/Builder or his sureties from any obligations under the
Agreement.
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RFQ 019-05 Design Build of Hangar 8 Office Building at Sebastian Municipal Airport Page 8 of 13
34. Legal Compliance (alphabetically listed)
34.1 Assignment. Neither City nor Design/Builder shall sell, assign or transfer any of its rights, duties
or obligations under the Agreement without the prior written consent of the other Party. In the
event of any assignment, Design/Builder remains secondarily liable for performance of the
Agreement, unless City expressly waives such secondary liability.
34.2 Bankruptcy or Insolvency. Design/Builder shall promptly notify City in writing of the fling of any
voluntary or involuntary petition for bankruptcy and/or of any insolvency of Design/Builder or any
of its sub -contractors who are involved in the provision of the Work under this Agreement.
34.3 Conflict of Interest. Design/Builder covenants that it presently has no interest and shall not
acquire any interest which would conflict in any manner of degree with the performance of the
Work covered under this Agreement. Furthermore, Design/Builder warrants that it has not
employed or retained any company or person, other than a bona fide employee Working solely
for Design/Builder to solicit or secure this Agreement and that it has not paid or agreed to pay
any person, company, corporation, individual, or firm, 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. Design/Builder, and its sub-
contractors at any tier, certify that they have not entered into any Agreement, sub -Agreement, or
arrangement in connection with the Project covered under this Agreement, or of any property
included or planned to be included in the Project, in which any member, officer, of employee of
Design/Builder or Its sub -contractors, during Its tenure, or for two years thereafter, has any
interest, direct or indirect.
34.4 Debarment. Design/Builder certifies to the best of their knowledge and belief, that they and their
principals 1) are not presently debarred, suspended, proposed for debarment, declared
Ineligible, or voluntarily excluded from covered transactions by any Municipal, City, State or
Federal department or agency, 2) have not, within a three-year period preceding execution of
this Agreement, been convicted of or had a civil judgment rendered against them for commission
of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a
public (Federal, State or local) transaction or Agreement under a public transaction; violation of
Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records; making false statements; or receiving stolen property, 3)
are not presently indicted for or otherwise criminally or civilly charged by a governmental entity
(Federal, State or local) with commission of any of the offenses enumerated above, 4) have not
within a three-year period preceding execution of this Agreement had one or more public
transactions (Federal, State or local) terminated for cause or default, and 5) will advise City
immediately If their status changes and will provide an explanation for the change In status.
34.5 Discriminatory Vendor. Design/Builder certifies that they are not subject to Section 287.134
(2)(a) which species that an entity or affiliate who has been placed on the discriminatory vendor
list may not submit a bid/bid on an Agreement to provide any goods or Work to a public entity,
may not submit a Bld/Bld on an Agreement with a public entity for the construction or repair of a
public building or public Work, may not be awarded or perform Work as a Design/Builder,
supplier, sub-Design/Builder, or consultant under an Agreement with any public entity, and may
not transact business with public entity.
34.6 Dispute Resolution. For any dispute concerning performance of the Agreement, which Includes
without limitation controversies based upon breach of Agreement, mistake, misrepresentation, or
other cause for Agreement modification or rescission, City shall attempt to reach a mutual
agreement as to the settlement and resolution of the dispute with Design/Builder. Should a
mutual agreement not be reached, City shall render a decision and reduce such to writing and
serve a copy on Design/Builder. The decision shall be final and conclusive.
City of Sebastian, Florida / Johnson-Laux Construction, LLC
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34.7 Documentation. All tracings, plans, specifications, maps, computer files and/or reports prepared
or obtained under this Agreement, as well as all data collected, together with summaries and
charts derived there from, will be considered Works made for hire and will become the property
of City upon expiration or termination of the Agreement without restriction or limitation on their
use. Upon delivery to City of said document(s), City will become the custodian thereof in
accordance with Chapter 119, Florida Statutes. DesignBuilder will not copyright any material
and products or patent any Invention developed under this Agreement. Copies of these
documents are not to be sold or distributed to third parties without the written consent of City.
34.8 Drug Free Workplace: Design/Builder certifies that it has In place a Drug -Free Workplace
Program in accordance with the Drug -Free Workplace Act of 1988 (41 U.S.C. 702-706). Refer to
Form F submitted with Bid.
34.9 E-Verification System. Design/Builder shall comply with the Executive order No. 12989 as
amended, and Executive Order No. 11-116, and agrees to utilize the U.S. Department of
Homeland Security's E-Verify system, httos://e-venfv.uscis.cov/emo, to verify the employment
eligibility of: (1) all persons employed by Design/Builder during the Agreement lens to perform
any duties within Florida, and; (2) all persons, including sub -contractors, assigned by
Design/Builder to perform Work pursuant to this Agreement. Design/Builders meeting the terms
and conditions of the E-Verify System are deemed to be in compliance with this provision.
34.10 Electronic Signature(s). Design/Builder, if and by offering an electronic signature in any form
whatsoever, will accept and agree to be bound by said electronic signature to all terms and
conditions of this Agreement. Fuller, a duplicate or copy of the Agreement that contains a
duplicated or non -original signature will be treated the same as an original, signed copy of this
original Agreement for all purposes.
34.11 Equal Employment Opportunity. Design/Builder shall not discriminate on the basis of race,
color, sex, age, national origin, religion, and disability or handicap in accordance with the
Provisions of: Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000 at sec.), Title VII of the
Civil Rights Act of 1968 (42 U.S.C. § 3601 at sea.), Florida Civil Rights Act of 1992 (§ 760.10 at
sea.), Title 41 CFR Part 60 for compliance with Executive Orders 11246 and 11375. Title 49
CFR 23 and Title 49 CFR 26 for Disadvantaged Business Enterprises, Age Discrimination Act of
1975 (42 U.S.C. § 6101, at seg.). Title 49 CFR 21 and Title 49 CFR 23, Nondiscrimination on the
basis of handicap, Title 49 CFR 27, Americans with Disabilities Act of 1990 (42 U.S.C. 12102, at.
seq.), Federal Fair Labor Standards Act (29 U.S.C. § 201, at seg. , and any other Federal and
State discrimination statutes. Design/Builder shall furnish pertinent information regarding its
employment policies and practices as well as those of their proposed sub -contractors as the
State of Florida Department of Transportation, the Secretary of Labor, or City may require. The
above shall be required of any sub-DesigNBuilder hired by Design/Builder. All Equal
Employment Opportunity requirements shall be included In all non-exempt sub -Agreements
entered Into by Design/Builder. Sub -Agreements entered into by Design/Builder shall also
include all other applicable labor provisions. No sub -Agreement shall be awarded to any non-
complying sub-Design/Builder. Additionally, Design/Builder shall Insert in Its sub -Agreements a
clause requiring subcontractors to include these provisions in any lower tier sub -Agreements
that may in turn be made. Design/Builder shall comply with all state laws and local ordinances.
THIS SPACE INTENTIONALLY LEFT BLANK
City of Sebastian, Florida / Johnson-Laux Construction, LLC
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34.12 Force Majeure Event. Neither party shall be considered to be in default in the performance of its
obligations under this Agreement, except obligations to make payments with respect to amounts
already accrued, to the extent that performance of any such obligations is prevented or delayed
by any cause, existing or future, which is beyond the reasonable control, and not a result of the
fault or negligence of, the affected party (a "Force Majeure Event"), If a party is prevented or
delayed in the performance of any such obligations by a Force Majeure Event, such parry shall
immediately provide notice to the other party of the circumstances preventing or delaying
performance and the expected duration thereof. Such notice shall be confirmed in writing as
soon as reasonably possible. The party so affected by a Force Majeure Event shall endeavor, to
the extent reasonable, to remove the obstacles which prevent performance and shall resume
performance of its obligations as soon as reasonably practicable. A Force Majeure Event shall
include, but not be limited to acts of civil or military authority (including courts or regulatory
agencies), act of God (excluding normal or seasonal weather conditions), war, riot, or
insuff action, inability to obtain required permits or licenses, hurricanes and severe floods.
34.13 General Compliance with Laws. Design/Builder shall comply with all laws, rules, codes,
ordinances, and licensing requirements that are applicable to the conduct of its business,
including those of Local, State and Federal agencies having jurisdiction and authority. These
laws, shall Include, but not be limited to, Chapter 287 of the Florida Statutes, the Uniform
Commercial Code, the Immigration and Nationalization Act, the Americans with Disabilities Act,
the United States Occupational Safety and Health Act, the United States Environmental
Protection Agency, the State of Florida Department of Environmental Protection, and all
prohibitions against discrimination on the basis of race, religion, sex, creed, national origin,
handicap, marital status, sexual orientation, gender identity or expression or veteran's status.
Violation of such laws shall be grounds for termination of the Agreement.
34.14 Governing Law and Venue. The Agreement shall be governed in accordance with the laws of
the State of Florida. In the event of litigation with respect to the obligation of the parties to the
Agreement, the jurisdiction and venue of such action shall be an appropriate State Court in
Indian River County, Florida.
34.15 Governmental Restrictions. If Design/Builder believes that any governmental restrictions have
been imposed that require alteration of the materials used, the quality, Workmanship or
performance of the Work offered under the Agreement, Design/Builder shall immediately notify
City In writing, indicating the specific restriction. City reserves the right and the complete
discretion to accept any such alteration or to cancel the Agreement at no further expense to City.
34.16 Gratuities. Design/Builder shall not, in connection with the Agreement, directly or indirectly (1)
offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for any City
officer or employee's decision, opinion, recommendation, vote, other exercise of discretion, or
violation of a known legal duty, or (2) offer, give, or agree to give to anyone any gratuity for the
benefit of, or at the direction or request of, any City officer or employee. For purposes of clause
(2), "gratuity" means any payment of more than nominal monetary value in the forth of cash,
travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money,
Work, employment, or Agreements of any kind.
34.17 Immigration and Nationality Act: Design/Builder shall comply with all immigration laws as
outlined in 8 USC 6�1324a - Unlawful employment of aliens. City will not intentionally award City
Agreements to any Design/Builder who knowingly employs unauthorized Alien Workers. Any
violation of the employment provisions outlined in the Immigration and Nationality Act throughout
the term of any Agreement with City may result in immediate termination of the Agreement. City
will consider the employment of unauthorized aliens a violation of Section 274A (e) of the
Immigration and Nationality Act. Such violation will be cause for unilateral cancellation of the
Agreement, by City, if Design/Builder knowingly employs unauthorized aliens.
City of Sebastian, Florida / Johnson-Laux Construction, LLC
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34.18 Indemnification. The Design/Builder shall indemnify and hold the City harmless from any and
all personal injury or property damage claims, liabilities, losses or causes of action which may
arise out of the use and occupancy of the properly by the Design/Builder, Its family, associates,
Design/Buildem, agents, employees, customers and attendees. This paragraph shall survive the
expiration or termination of this agreement. Nothing In this agreement shall be construed as the
City waiving its immunity pursuant to §768.28, at seq., Florida Statutes, or any other sovereign
or governmental Immunity.
34.19 Lobbying. In accordance with Section 216.347, Florida Statutes, and as provided herein,
Design/Builder may not expend any City funds for the purpose of lobbying the legislature, or
local, state or federal agencies.
34.20 Non -Collusion. Design/Builder agrees that neither it, nor any of its officers, partners, agents or
employees have entered into any agreement, participated in any collusion, or othenvise taken
any action which is In restraint of a free competitive solicitation in connection with this
Agreement, and that Design/Builder Intends to do the Work with Its own bona fide employees or
sub -contractors and has not provided a response for the benefit of another Design/Builder.
Furthermore, Design/Builder certifies that its affiliates, subsidiaries, directors, officers, and
employees are not currently under Investigation by any governmental authority and have not in
the last ten (10) years been convicted or found liable for any act prohibited by law In any
jurisdiction, involving conspiracy or collusion with respect to submitting a response on any public
Agreement.
34.21 Public Entity Crime. A person or affillate who has been placed on the convicted vendor list
following a conviction for a public entity crime may not submit a bid, bid, or reply on an
Agreement to provide any goods or Work to a public entity; may not submit a bid, bid, or reply on
an Agreement with a public entity for the construction or repair of a public building or public
Work; may not submit bids, bids, or replies on leases of real property to a public entity; may not
be awarded or perform Work as a Design/Builder, supplier, subcontractor, or consultant under
an Agreement with any public entity; and may not transact business with any public entity in
excess of the threshold amount provided in s. 287.017, Florida Statutes for CATEGORY TWO
for a period of 36 months following the date of being placed on the convicted vendor list.
34.22 Public Records: Design/Builder will keep and maintain public records required by the City to
perform the service. Upon request from the City's custodian of public records. Design/Builder will
provide the City with a copy of the requested records or allow the records to be inspected or
copied within a reasonable time and at a cost that does not exceed the cost provided in Chapter
119, Florida Statues, or as otherwise provided by law. Design/Builder will ensure that the public
records that are exempt or confidential and exempt from public records disclosure requirements
are not disclosed except as authorized by law for the duration of the term of the Agreement and
following completion of the Agreement if Design/Builder does not transfer the records to the City.
Upon completion of the Agreement, DesignBuilder will transfer, at no cost, to the City all public
records in possession of the Design/Builder or keep and maintain public records required by City
to perform the service. If Design/Builder transfers all public records to City upon completion of
the Agreement, DesigNBuilder shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. If DesignBuilder keeps
and maintains public records upon completion of the Agreement, DesignBuilder shall meet all
applicable requirements for retaining public records. All records stored electronically must be
provided to the City, upon request from the City's custodian of public records, in a format that is
compatible with the Information technology system of the City. If DesignBuilder does not
comply with the City's request for public records, the City shall enforce the provisions of the
Agreement in accordance with the terms of the Agreement and may cancel the Agreement.
IF DESIGNIBUILDER HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER
119, FLORIDA STATUTES, TO DESIGNIBUILDER'S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THIS AGREEMENT, CONTACT JEANETTE WILLIAMS,
CUSTODIAN OF PUBLIC RECORDS, AT 1225 MAIN STREET, SEBASTIAN, FL 32958;
EMAIL: jwilliams@cityofsebastian.org; PHONE: 772-388-8215.
City of Sebastian, Florida /Johnson-Laux Construction, LLC
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34.23 Remedies. If any event of default occurs, City shall have the right, at the option of City, to
pursue all remedies available at law or equity, including the termination of this Agreement and all
rights of Design/Builder hereunder. Notwithstanding City's termination of the Agreement,
Design/Builder shall remain liable to City for all claims for damages, costs or attorney's fees
arising prior to such termination.
34.24 Security and Confidentiality. Design/Builder shall comply fully with all security procedures of
City in the performance of the Agreement. Design/Builder shall not divulge to third parties any
information obtained by Design/Builder or its agents, distributors, resellers, sub -contactors,
officers or employees in the course of the provision of the Work without the written consent of
City. However, Design/Builder shall be permitted to release Information to third parties If such
information is publicly available through no fault of Design/Builder, information that
Design/Builder developed independently without relying on City's information, or information that
is otherwise obtainable under State and Federal law as a public record. To Insure confidentiality,
Design/Builder shall take appropriate measures as to Its personnel, agents, and sub -contractors.
The warranties of this paragraph shall survive the Agreement.
34.25 Disadvantage Business Enterprise (DBE). The DBE requirements of applicable federal and
state laws and regulations apply under this agreement, as defined in 49 C.F.R. Part 26. DBEs
should have a fair and equal opportunity to compete for dollars spent by the City of Sebastian to
procure construction -related services. Design/Builder shall use good faith efforts to ensure
opportunities to compete for and perform contracts are available on the Project.
34.26 Waiver. The delay or failure by City to exercise or enforce any of its rights under this Agreement
shall not constitute or be deemed a waiver of City's right thereafter to enforce those rights, nor
shall any single or partial exercise of any such right preclude the City of any other or further
exercise thereof or the exercise of any other right.
35. Severability. If a court deems any provision of the Agreement void or unenforceable, that provision
shall be enforced only to the extent that it is not in violation of law or is not otherwise unenforceable
and all other provisions shall remain in full force and effect.
36. Survival. All express representations, waivers, indemnifications, and limitations of liability included in
this Agreement will survive completion or termination of the Agreement for any reason.
37. Authority. Each person signing the Agreement warrants that he or she is duly authorized to do so
and to bind the respective party to the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed, the day and
year noted above.
`/—A/TTTES(TT((SlOEAL):
Mnetle W' i s, MMM
Q1TY CLERK
Approved as to forth and legality for
reliance by the City of S an onl
M y sq.
ATT RNEY
THE CITY OF SEBASTIAN:
BY: �/1
P I E. CadisnXC
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ITY
JOHNSON-Y.NSTRUCTION.LLC--�i
BY:
PRESIDENT
APPROVED BY CITY COUNCIL
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DATE -
PROCUREMENT DIVISION
City of Sebastian, Florida / Johnson-Leux Construction, LLC
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