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03/04/1993 Part I ,,. THE AMERICAN INSTITUTE OF ARCHITECTS . AlA Document A 191 Standard Form of Agreement Between Owner and Design/Builder 1985 EDITION THIS DOCUME.\:T HAS I""PORTANT LEGAL CONSEQUENCES; CONSULTATION \\lITH AN ATTORNEr IS ENCOURAGED. This Document comprises t\\'o separate Agreements: Part 1 Agreement-Preliminary Design and Budgeting and Part 2 Agreement-Final Design and Construction. Hereinafter, the Part 1 Agreement is referred to as Part 1 and the Part 2 Agreement is referred to as Part 2. Before executing Part 1, the parties should reach substantial agreement on Part 2. PART 1 AGREEMENT-PRELIMINARY DESIGN AND BUDGETING AGREEMENT KJ-029 made as of the 4th day of Hundred and Ninety-three (1993), March in the year of Nineteen -,.. \Q -,., I..AJ -- Pl -,.. ',.::J s:; ;:;a '::J N , , ~) ,.,.....' ;S . r'1 0 ~ "--' f..:J ',..- ::0 U"l BETWEEN the Owner: Monroe County Board of County Commissioners 500 Whitehead Street Key West, FL 33040 and the Design/Builder: Allen's Environmental Equipment, Inc, (Name and address) 719 Comme rce C i rc 1 e Longwood, FL 32750-3605, Phone: (407) 834-3239, For the following Project:Waste Water Treatment Pl ant & Util ities (Include Proiect name, location and detailed descriptIon of scope.) Monroe County Detention Facility Stock Island, FL 33040 (Name and address) L.) z :;v . The architectural services described in Article 2 will be provided by the following person or entity who is lawfully licensed to practice architecture: Hartman & Associates, Inc. (Name and address) Southeast Bank Building, Suite 1000 201 East Pine Street The Owner and the Design/Builder agree as set forth beI8u~ndo, FL 32801 Phone: (407)839-3955 Copyright '~.' 1985 by The American Institute of Architects. 1735 New York Avenue, '.W., Washington, D.C. 20000. Reproduction of the material herein or substantial quotation of its provisions without written permission oj the AlA violates the copyright laws of the United States and will be subject to legal prosecution. AlA DOCUMENT A191, P~r11 . OWNER.DESIGN/BUILDER AGREEMENT . fiRST EDITION · AIAA . <t>1985 . THE AMERICAN INSTITUTE Of ARCHITECTS, 1735 NEW YORK AVENUE. N.W., WASHINGTON, D,C. 20006 A191-1985 PART l-PAGE 1 Terms and Conditions-Part 1 Agreement ARTICLE 1 GENERAL PROVISIONS 1.1 BASIC DEFINITIONS 1.1.1 The Project is the total dcsign and construction for which the Design/Builder is responsible under Part 1, in- cluding all professional design servlccs and all labor, mate- rials and equipment used or incorporated in such design and construction. 1.1.2 The Work comprises the completed construction designed under the Project and includes labor necessary to produce such construction, and materials and equipment incorporated or to be incorporated in such construction. 1.2 EXECUTION, CORRELATION AND INTENT 1.2.1 This Part 1 shall be signed in not less than duplicate by the Owner and Design/Builder. 1.2.2 Nothing contained in the Design/Builder Contract Documents shall create a professional obligation or con. tractual relationship between the Owner and any third party. 1.3 OWNERSHIP AND USE OF DOCUMENTS 1.3.1 The drawings, specifications and other documents furnished by the Design/Builder are instruments of service and shall not become the property of the Owner whether or not the Project for which they are made is commenced. Drawings, specifications and other documents furnished by the Design/Builder shall not be used by the Owner on other projects. for additions to this Project or, unless the Design/Builder is in default under Part 1, for completion of this Project by others, except by written agreement relating to use, liability and compensation. 1.3.2 Submission or distribution of documents to meet official regulatory requirements or for other purposes in connection with the Project is not to be construed as pub- lication in derogation of the Design/Builder's or the Archi- tect's common law copyrights or other reserved rights. The Owner shall own neither the documents nor the copyrights. ARTICLE 2 DESIGN/BUILDER 2.1 SERVICES AND RESPONSIBILITIES 2.1.1 Design services shall be performed by qualified ar- chitects, engineers and other professionals selected and paid by the Design/Builder. The professional obligations of such persons shall be undertaken and performed in the interest of the Design/Builder. Construction services shall be performed by qualified construction contractors and suppliers, selected and paid by the Design/Builder and acting in the interest of the Design/Builder. Nothing con- tained in Part 1 shall create any professional obligation or contractual relationship between such persons and the Owner. 2.1.2 The Design/Builder shall be responsible to the Owner for acts and omissions of the Design/Builder's em- ployees and parties in privity of contract with the Design/ Builder to perform a portion of the Work, including their agents and emplO\ees. 2.2 BASIC SERVICES 2.2.1 The Design, Builder's Basic Services are as described below and in Article 10. 2.2.2 The Design Builder shall review the Owner's pro- gram to ascertain requirements of the Project and shall review such requirements with the Owner. 2.2.3 The Design/Builder shall provide, after consultation with the Owner, a preliminary evaluation of the program and Project budget. each in terms of the other. 2.2.4 The DesignlBuilder shall review with the Owner al- ternative approaches to design and construction of the Project. 2.2.5 The Design Builder shall submit to the Owner a Pro- posal including the completed Preliminary Design Docu- ments, a statement of the proposed contract sum, a pro- posed schedule for completion of the Work under Part 2 and all other information necessary to complete Part 2. Preliminary Design Documents shall consist of preliminary design drawings, outline specifications and other docu- ments to fix and describe the size, quality and character of the entire Project. its architectural, structural, mechanical and electrical systems, and the ma.terials and such other elements of the Project as may be appropriate. If the Pro- posal is accepted by the Owner, they shall then execute Part 2. Modifications to the Proposal before execution of Part 2 shall be recorded in writing as an addendum and be identi- fied in the Contract Documents of Part 2. 2.3 ADDITIONAL SERVICES All other services requested by the Owner and mutuallv agreed to in writing by the Owner and Design/Builder in Part 1. including, among others, changes in Project scope and program, shall constitute Additional Services and shall be paid for by the Owner as provided in Part 1. ARTICLE 3 OWNER 3.1 The Owner shall provide information regarding re- quirements for the Project, including but not limited to the Owner's design objectives, constraints and criteria. 3.2 If the Owner provides a budget for the Project, it shall explicitly include as separate line items contingencies for changes in the design and construction, and other costs which are the responsibility of the Owner. No budget shall constitute a fixed limit of construction cost unless such limit has been agreed to in writing by the Design/Builder. 3.3 The Owner shalt designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such authorized representative shall examine the documents subm!'ted bv the DeSign Builder and shall promptly render deCisions pertainillg thereto to avoid de- lay in the orderlv progress of design and construction. 3.4 The Owner shall cooperate with the Design/Builder in identifying required permits, licenses and inspections, and A191-1985 PART 1-PAGE 2 AI" DOCUMENT "'9', Put 1 . OWNER-DESIGN/BUILDER AGREEMENT . FIRST EDITION . AIA~ . ~198S . THE AMERICAN INSTITUTE Of ARCHITECTS. 1735 NEW VORKAVENUE. N,W.. WASHINGTON. D.C. 2000(, shall take appropriate action with reasonable promptness. 3.5 Prior to commencement of Basic Services, the Owner shall furnish a legal description and a certified land survey of the site, giving, as applicable, grades and lines oi streets, alleys, pavements ana adjoining property; rights-oi-way, restrictions, easements, encroachments, zoning, deed re- strictions, elevations and contours of the site;' locatIOns, dimensions and complete data pertaining to existing build- ings, other improvements and trees; and full iniormation concerning available services and utility lines, both public and private, above and below grade, including inverts and depths. 3.6 The Owner shall furnish services of geotechnical engi- neers and other consultants when such services are deemed necessary by the Design/Builder. Geotechnical engineers or other consultants shall be selected by mutual agreement. Such services shall include, as required, applicable test borings, test pits, soil bearing values, per- colation tests, air and '....ater pollution tests, and other nec- essary operations for determining subsoil, air and water conditions, with reports and appropriate proiessional recommendations. 3.7 The services, information, surveys and reports re- quired by Paragraphs 3.5 and 3.6 shall be furnished at the Owner's expense, and the Design/Builder shall be entitled to rely upon their accuracy and completeness. 3.8 If the Owner observes or otherwise becomes aware of any fault or defect in the Work, the Owner shall give prompt written notice thereof to the Design/Builder. 3.9 The Owner shall furnish required iniormation and services and shall render decisions with reasonable promptness to avoid delay in the orderly progress oi the Design/Builder's services. 3.10 The Owner shall communicate with contractors only through the Design/Builder. ARTICLE 4 TIME 4.1 The Design/Builder shall provide the Basic and Addi- tional Services as expeditiously as is consistent with reason- able skill and care and shall complete the services in the time provided in Article 10. ARTICLE 5 PAYMENTS 5.1 The initial payment provided in Article 9 shall be made upon execution of this Part 1 and credited to the Owner's account as provided in Subparagraph 9.1.2. 5.2 Subsequent payments for Part 1 Basic Services, Addi- tional Services and Reimbursable Expenses shall be made monthly on the basis set forth in Article 9. 5.3 Within ten days of the Owner's receipt of a properly submitted Application for Payment, the Owner shall make payment to the Design/Builder. 5.4 Payments due the Design/Builder under Part 1 which are not paid when due shall bear interest from the date due at the rate speciiied in Paragraph 9.5, or in the absence of a specified rate, at the legal rate prevailing where the prin- cipal office of the Design/Builder is located. ARTICLE 6 ARBITRATION 6.1 Claims, disputes and other matters in question be- tween the parties to Part 1 arising out of or relating to Part 1 shall be decided by arbitration in accordance with the Con- struction Industry Arbitration Rules of the American Ar- bitration Association then in eHect unless the parties agree otherwise. No arbitration arising out ot or relating to Part 1 shall inClude, by consolidation or Joinder or in any other manner, an additional person not a party to Part 1 except by written consent containing specific reference to Part 1 and signed by the Owner, Design Builder and any other person sought to be joined. Consent to arbitration involving an additional person or persons shall not constitute consent to arbitration of a dispute not described therein or with a person not named therein. This provision shall be specifi- cally enforceable in any court of competent jurisdiction. 6.2 Notice of demand for arbitration shall be filed in writ- ing with the other party to Part 1 and with the American Arbitration Association. The demand shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for ar- bitration be made after the date when the applicable statute of limitations would bar institution of a legal or equitable proceeding based on such claim, dispute or other matter in question. 6.3 The award rendered by arbitrators shall be final, and judgment may be entered upon it in accordance with ap- plicable law in any court having jurisdiction. 6.4 Unless otherwise agreed in writing, the Design/Build- er shall carr}' on the services and maintain progress during any arbitration proceedings, and the Owner shall continue to make payments to the Design/Builder in accordance with Part 1. 6.5 This Article 6 shall survive completion or termination of Part 1. ARTICLE 7 MISCELLANEOUS PROVISIONS 7.1 This Part 1 shall be governed by the law of the place where the principal office of the Design/Builder is located. 7.2 The table of contents and the headings of articles and paragraphs are for convenience only and shall not modify rights and obligations created by Part 1. 7.3 In case a provision of Part 1 is held to be invalid, illegal or unenforceable, the validity. legality and enforceability of the remaining provisions shall not be affected. 7.4 SUCCESSORS AND ASSIGNS 7.4.1 This Part 1 shall be binding on successors, assigns and legal representatives of and persons in privity of con- tract with the Owner or Design/Builder. Neither party shall assign, sublet or transfer an interest in Part 1 without writ- ten consent of the other. 7.4.2 This Paragraph 7.4 shall survive completion or termi- nation of Part 1. 7.5 EXTENT OF AGREEMENT 7.5.1 Part 1 represents the entire agreement ior Prelimi- nary Design and Budgeting and supersedes all prior nego- tiations, representations or agreements. Part 1 may be AlA DOCUMENT At,t, P~rt t . OWNER-DESIGNI8UllDER AGREEMENT . FIRST EDITION · AlA' . @t985 . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 A191-1985 PART 1-PAGE 3 amended only by written instrument signed by both Owner and Design/Builder. 7.6 In case of termination of the Architect. the Design/ Builder shall provide the services of another lawfully li- censed person or entity against whom the Owner makes no reasonable objection. ARTICLE 8 TERMINATION OF THE AGREEMENT 8.1 Part 1 may be terminated by either party upon seven days' written notice should the other party fail substantially to perform in accordance with its terms through no fault of the party initiating the termination. 8.2 Part 1 may be terminated by the Owner upon at least seven days' written notice to the Design/Builder in the event that the Project is permanently abandoned. 8.3 In the event of termination not the fault of the Design: Builder, the Design/Builder shall be compensated for ser- vices performed to termination date, together with Reim- bursable Expenses then due and Termination Expenses. Termination Expenses are expenses directlv attributable to termination, including a reasonable amount for overhead and prolit, tor which the Design, Builder is not otherwise compensated under Part 1. A191.1985 PART 1-PAGE 4 AlA DOCUMENT A191, Put t . OWNER-DESIGN/BUILDER AGREEMENT · fiRST EDITION . AlA" . <Ql98S . THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE. N.W., WASHINGTON, D.C. 20006 ARTICLE 9 BASIS OF COMPENSATION The Owner shall compensate the Design/Builder in accordance with Article 5, Payments, and the other provisions o{ Part 1 as described below. 9.1 COMPENSATION FOR BASIC SERVICES 9.1.1 FOR BASIC SERVICES, compensation shall be as (allows: 9.1.2 AN INITIAL PAYMENT o{ dollars ($ Part 1 and credited to the Owner's account as (allows: 9.1.3 9.2 9.2.1 9.3 9.3.1 9.3.2 9.4 9.5 9.5.1 9.6 9.7 ) shall be made upon execution ot SUBSEQUENT PAYMENTS shall be as {ollows: COMPENSATION FOR ADDITIONAL SERVICES FOR ADDITIONAL SERVICES, compensation shall be as {allows: REIMBURSABLE EXPENSES Reimbursable Expenses are in addition to Compensation {or Basic and Additional Services and include actual expenditures made by the Design/Builder and the Design/Builder's employees and contradors in the interest o{ the Project {or the expenses listed as (allows: FOR REIMBURSABLE EXPENSES, compensation shall be a multiple of ) times the amounts expended. 01 RECT PERSONNEL EXPENSE is defined as the direct salaries of personnel engaged on the Project, and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits. insurance. sick leave, holidays, vacations, pensions and similar contributions and benefits. INTEREST PAYMENTS The rate of interest tor past due payments shall be as follows: (Usury laws and requIrements under the Federal Trufh in Lendmg Act. similar state and local consumer credIt laws and other regulations at the Owners and Design/Builders prmcipal places of business, at the location of the Protect and elsewhere may affect the validi!>. of this provision. Specific legal adVIce should be obtained with lespect to deletion, modificatIon or other reqUIrements, such as .....rltten disclosures or .....alvers.) IF THE SCOPE o{ the Project is changed materially, the amount o{ compensation shall be equitably adjusted. The compensation set forth herein shall be equitably adjusted i{ through no (ault o{ the Design, Builder the services have not been completed within () months o{ the date o( Part 1. AlA DOCUMENT A191, P~rt 1 . OWNER.DESIGNiBUllDER AGREEMENT . fiRST EDITION · AIA& . <t'198S . THE AMERICAN INSTITUTE Of ARCHITECTS. 173S NEW YORK AVENUE. N.W.. WASHINGTON, D.C. 20006 A191-1985 PART 1-PAGE 5 ARTICLE 10 OTHER PROVISIONS 10.1 The Basic Services to be performed shall be commenced on adjustments and to delays not caused by the Design/Builder, shall be completed in days. 10.2 The Basic Services beyond those described in Article 2 are: and, subject to authorized ( ) calendar This Part 1 entered into as of the day and year first written above. DESIGN/BUILDER c..- ALU::'v' j eN" (,)rJ fYl t"./"ift.... 1:-61" p'.'v' !-; ayor T 5T: DANNY L. KOLHAGE, CLERK By~aW-C. A.W~ Deputy c~r BY Jif,r tff!g . - ----- /1/1 '~". , ~ f'l to' I 0 (: N ( t1~ L ___ .1__,,,; A191-1985 PART l-PACE 6 AlA DOCUMENT Al9l, P.rt 1 . OWNER-DESIGN/BUilDER AGREEMENT · fiRST EDITION . AlA' . t1985 . THE AMERICAN INSTITUTE Of ARCHITECTs. 1735 NEW YORK AVENUE. N.W.. WASHI'ICTON D,C. 20006 AMENDMENTS TO PART 1 AGREEMENT BETWEEN OWNER AND DESIGN/BUILDER I. Part 1 Agreement Paragraph 1.1.1 - Revise to read: "The Project is the total design pursuant to construction for which the Design/Builder is responsible under Part 1, including all professional design services." Paragraph 1.2.1 - Delete the word "duplicate" and insert the word "quadruplicate" in its place. Paragraph 1.3.1 - Delete in its entirety and insert the following in its place: "The Owner shall have the right to utilize all designs, reports and any other documents produced under the Phase I services for furtherance of the construction of the project. This right to use of product shall be retained by the Owner regardless of subsequent decision to award Phase II services to another entity. The Owner's right to use of product of Phase I services shall not include use for any other project. Paragraph 1.3.2 - Delete in its entirety. Paragraph 2.1.3 - Add: "Should any claims be asserted against the Owner by virtue of any design deficiency or increase in construction cost result due to any defect or deficiency in the plans or specifications provided by the Architect, the Architect agrees and warrants that he shall hold the Owner harmless and shall indemnify him from all losses occurring thereby and further shall defend any claim or action on Owner's behalf." Paragraph 2.2.5 - Delete the last two sentences and add: "Phase I services will be deemed completed upon acceptance by the Owner of the Phase I proposal. Acceptance of the Phase I proposal by the Owner does not obligate the Owner in any way to award the Phase II contract to the Design/Builder. Paragraph 2.2.6 - Add: "In the event the Owner does not execute a Phase II contract with the Design/Builder, the DesignlBuilder's obligations, to the extent defined herein, shall cease with the completion of Phase I services." Paragraph 3.6 - Delete in its entirety and insert the following in its place: "Geotechnical services necessary for this project shall be provided by the DesignlBuilder. The Owner shall make available geotechnical surveys and other information for the site in general, however, the DesignlBuilder shall rely on its own investigation in determining requirements for this project." Paragraph 3.7 - Delete the reference to paragraph 3.6. Paragraph 3.11 - Add: "The Engineer of Record for the Project, including DER permitting, is R. H. Wilson & Associates. " Paragraph 5.1 - Delete in its entirety. Paragraph 5.2 - Delete in its entirety and add the following: "Payments for Part 1 Basic Services and Additional Services shall be made monthly based upon the status of the work. Final payment will be withheld until Owner approval of Phase 1 documents." Paragraph 5.3 - Delete the word "ten' and insert the word "thirty" in its place. After the word "shall" insert the words "endeavor to'. Paragraph 5.4 - Delete in its entirety. Paragraph 6.1 - Delete in its entirety and insert the following: "Claims, disputes, and other matters in question between the parties to Part 1 arising out of or relating to Part 1 shall be decided by litigation in the Circuit Court of the 16th Judicial Circuit of the State of Florida." Paragraph 6.2 - Delete in its entirety. Paragraph 6.3 - Delete in its entirety. Paragraph 6.4 - Delete the word "arbitration" and insert "dispute resolution" in its place. Paragraph 7.1 - Delete in its entirety and insert the following: "The contract shall be governed by the laws of the State of Florida. Venue for any claims or disputes arising under this contract shall be in the Circuit Court of the 16th Judicial Circuit of the State of Florida." Paragraph 8.3 - Delete the last sentence and add the following: "Termination expenses shall be limited to bonafide costs directly attributable to termination. A mark-up of 18% shall be added to documented termination costs to cover all overhead and profit. The Owner shall have sole discretion in determination of allowable termination costs." Article 9 - Delete in its entirety and replace with: Basis of Compensation The Owner shall compensate the Design/Builder in accordance with Article 5, Payments, and the other provisions of Part 1 as described below: 9.1 Compensation for Basic Services Based on the hourly rates as follows: Principal Senior Engineer Junior Engineer Senior Technician Secretarial Guaranteed Maximum Price $100.00 $ 85.00 $ 65.00 $ 55.00 $ 40.00 ................................ . $17,500.00 9.2 Compensation for Geotechnical Services Guaranteed Maximum Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. $ 7.500.00 9.3 Total Contract Guaranteed Maximum Price ............... $25,000.00 Article 10 - Revise to read: 10.1 "'The Basic Services to be performed shall be commenced upon Notice to Proceed and shall be completed in fifteen (15) days." 10.2 "The Design Builder will use its knowledge, experience and expertise to provide a design approach that will meet the performance requirements set forth in the Design Criteria Documents in a value effective manner. The performance requirements shall be as mandated by the Florida Department of Environmental Regulation which can be inferred from The Permit and the Engineers Report. The Design Builder shall participate in value engineering review efforts with the Owner, the Construction Manager and the NE. It is intended that the Phase I effort will result in the selection by the Owner of a Plant Design that will meet budget constraints. Phase I is also expected to involve participation by the Design Builder in preparation and submission of required permit documentation and development of related protocols. At no time will the Owner be obligated to award a Part 2 Services contract to the Part 1 Services Design Builder, regardless of the outcome of the Part 1 effort. Owner - Monroe County Board of County Commissioners DesignIBuilder Allen's Environmental Equipment, Inc. Danny L. Kohlage, Clerk By ~ L..A... C. Alu~ Deputy Clerk I By Li(LP f ~'O~-Nr I1PPROil"ED i.: tJ rOf'!M AND LEGAL SUPF. C'~NCY.