HomeMy WebLinkAbout2011-182 AGREEMENT TO PROVIDE
PROFESSIONAL DESIGN AND BUILD SERVICES
TO
INDIAN RIVER COUNTY
THIS MASTER AGREEMENT entered into this 16th day of August ,
2011 , between BARTH CONSTRUCTION , INC . , (hereinafter called the
"Design/Builder") and INDIAN RIVER COUNTY, a political subdivision of the State
of Florida, (hereinafter called the "COUNTY") .
BACKGROUND RECITALS
WHEREAS , the COUNTY is interested in obtaining professional design and
building of two prototype fire stations , the renovation of two existing fire stations and the
removal and demolition of any existing fire stations , together with future repairs of fire
stations damaged by hurricanes or otherwise ; and
WHEREAS , in accordance with the Design/Builders ' Competitive Negotiations
Act, Section 287 . 055 , Florida Statutes, the COUNTY has selected Design/Builder to
provide professional architecture, site planning, civil , structural and building engineering,
related site work for the planning, design and construction or repair, renovation
retrofitting and improvement of fire stations for Indian River COUNTY together with
demolition and removal of stations ; and
WHEREAS , the Design/Builder is experienced in providing contractual
professional services in these areas ; and
WHEREAS , the COUNTY and the Design/Builder wish to enter this agreement
for the Design/Builders services for these projects ; and
WHEREAS , in response to the COUNTY ' s request for qualification,
Design/Builder offered their services and expertise to the COUNTY ; and
WHEREAS , the COUNTY envisions development of a prototype fire station
which design and plans will be used substantially the same manor in the construction of
all new fire stations , and
WHEREAS , each construction project whether it be new construction,
remodeling , repair, or demolition will arise from a separate work order or contract; and
WHEREAS , this Agreement will serve as the Master Agreement for services
provided by the Design/Builder to the COUNTY .
NOW THEREFORE, in accordance with the mutual covenants herein contained
and other good and valuable considerations , the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows :
1 . GENERAL ,
1 . 1 All professional services provided by the Design/Builder for the
COUNTY shall be identified in Contracts or Work Orders and performed
in a timely, efficient, cost effective manner, and, in accordance with the
current professional standards of applicable discipline . Contracts and
Work Orders shall include a description of services to be performed; a
statement of fees ; a schedule of deliverables ; proposed schedule for
compensation and whether compensation is lump sum, maximum amount
not to exceed, task based, or any combination of the foregoing ; a budget
establishing the amount of compensation to be paid with sufficient detail
so as to identify all of the various elements of costs ; a projected schedule
for completion of the work to be performed by the Design/Builder; and
any . other additional instructions or provisions relating to the specific
Services authorized pursuant to each Contract or Work Order that does not
conflict with the terms of this Agreement. The COUNTY anticipates
issuing work orders for repair of the damaged fire stations , and may issue
work orders for remodeling some stations . The COUNTY and
Design/Builder shall enter into a separate contract for construction of the
new buildings .
1 . 2 Whenever the term "Work Order" is used herein, it is intended to mean
that formal document that is dated ; serially numbered ; and executed by
both the COUNTY and the Design/Builder by which the COUNTY
accepts Design/Builder ' s proposal for specific services and
Design/Builder indicates a willingness to perform such specific services
for the terms and under the conditions specified in this Agreement . Each
Work Order must be fully executed by the COUNTY prior to issuance of
the related Notice-to-Proceed .
1 . 3 Services related to any individual Contract or Work Order which would
increase , decrease or which are otherwise outside the scope of services or
level of effort contemplated by a Contract of Work Order shall be Services
for which the Design/Builder must obtain the prior written approval of the
COUNTY as provided by this Agreement. All terms for the performance
of such Services must be agreed upon in a written document prior to any
deviation from the terms of a Contract or Work Order, and when properly
authorized and executed by both the Design/Builder and the COUNTY
shall become an amendment to the Contract or Work Order or a new Work
Order, at the sole option of the COUNTY . A separate Notice-to -Proceed
may, at , the sole option of the COUNTY , be given for each phase of the
services contained in any Contract or Work Order hereunder.
1 . 4 A Work Order shall not give rise to any contractual rights until it meets
the foregoing requirements . Each written Notice-to-Proceed and specific
Work Order, as approved by the COUNTY, shall be an addendum to this
Agreement . Nothing contained in any Work Order shall conflict with the
terms of this Agreement, and the terms of this Agreement shall be deemed
to be incorporated in each individual Work Order as if fully set forth
therein.
1 . 5 A schedule of current hourly billing rates is set forth in Exhibit 2 attached
to this Agreement and made a part hereof by this reference .
1 . 6 It is the Intent of the COUNTY to reuse the design, plan and drawings of
Design/Builder in constructing future fire stations . As such, the COUNTY
will rely on Design/Builder to provide a set of plans, which, pursuant to
FS § 287 . 055 ( 10) will be capable of reuse by the COUNTY without the
need for using the bidding. process . The COUNTY understands that
Design/Builder shall charge a fee each time the plans are reused under this
Agreement .
1 . 7 The Background Recitals are true and correct and form a material part of
this Agreement .
2 . COUNTY OBLIGATIONS .
2 . 1 The COUNTY will provide the Design/Builder with a copy of any
preliminary data or reports available as required in connection with the
work to be performed under this Agreement, together with all available
drawings , surveys, right-of--way maps , and other documents in the
possession of the COUNTY pertinent to a project. The Design/Builder
shall satisfy itself as to accuracy of any data provided . The Design/Builder
is responsible for bringing to the COUNTY ' s attention, for the
COUNTY ' s resolution, material inconsistencies or errors in 'such data that
come to the Design/Builder ' s attention .
2 . 2 The COUNTY shall arrange for access to , and make provisions for the
Design/Builder to enter upon, public and private property (where required)
as necessary for the Design/Builder to perform its Services , upon the
timely written request of Design/Builder to COUNTY .
2 . 3 The Design/Builder shall be responsible for obtaining all permits
necessary for a Project and COUNTY shall promptly execute all permit
applications .
2 . 4 The COUNTY shall examine any and all studies , reports , sketches ,
drawings, specifications , proposals and other documents presented by the
Design/Builder, and render in writing, decisions pertaining thereto within
a reasonable time .
2 . 5 Approval by the COUNTY of any of the Design/Builder ' s work, including
but not limited to drawings , design specifications , written reports, or any
work products of any nature whatsoever furnished hereunder, shall not in
any way relieve the Design/Builder of responsibility for the technical
accuracy and adequacy of the work. Neither the COUNTY ' s review,
approval or acceptance of, or payment for, any of the Services furnished
under this agreement 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 . The Design/Builder shall be and remain
liable in accordance with all applicable laws for all damages to the
COUNTY caused by the negligent performance by, the Design/Builder of
any of the Services furnished under this Agreement .
2 . 6 The COUNTY reserves the right to appoint one or more Project Managers
for the specific Services in connection with any Contract or Work Order.
The Project Manager shall : (a) act as the COUNTY ' s agent with respect to
the Services rendered hereunder; (b) transmit instructions to and receive
information from the Design/Builder; (c) communicate the COUNTY ' s
policies and decisions to the . Design/Builder regarding the Services ; and
(d) determine , initially, whether the Design/Builder is fulfilling its duties ,
responsibilities , and obligations hereunder.
2 . 7 The COUNTY shall give prompt written notice to the Design/Builder
whenever the COUNTY observes or otherwise becomes aware of any
development that affects the timing or delivery of the Design/Builder ' s
Services . If the Design/Builder has been delayed in completing its
Services through no fault or negligence of the Design/Builder and, as a
result, will be unable to perform fully and satisfactorily under the
provisions of this Agreement, then the Design/Builder shall promptly
notify the Project Manager. In the COUNTY ' s sole discretion, and upon
the submission to the COUNTY of evidence of the causes of the delay, the
Contract or Work Order shall be modified in writing as set forth in this
Agreement, subject to the COUNTY ' s rights to change , terminate , or stop
any or all of the Services at any time in accordance with this Agreement .
2 . 8 The Design/Builder shall not be considered in default for a failure to
perform if such failure arises out I of causes reasonably beyond the
Design/Builder ' s control and through no fault or negligence of the
Design/Builder. The parties acknowledge that adverse weather conditions ,
acts of God, or other unforeseen circumstances of a similar nature , may
necessitate modifications to this Agreement . If such conditions and
circumstances do in fact occur, then the COUNTY and Design/Builder
shall mutually agree, in writing, to the modifications to be made to this
Agreement.
3 . RESPONSIBILITIES OF THE DESIGN/BUILDER.
3 . 1 The Design/Builder agrees to perform all necessary professional architect
services , project design, construction phase services , and other Services in
connection with the assigned Project( s) as set forth in the Contracts, Work
Orders and in this Agreement.
3 . 2 The Design/Builder will endeavor not to duplicate any previous work done
on any Project. Before execution of a Work Order, the - Design/Builder
shall consult with the COUNTY to clarify and define the COUNTY ' s
requirements for the Project.
3 . 3 The Design/Builder agrees to complete the Project within the time frame
specified in the Contract or Work Order,
3 . 4 The Design/Builder will maintain an adequate staff of qualified personnel .
3 . 5 The Design/Builder will comply with all present and future federal , state,
and local laws , rules , regulations , policies, codes , and guidelines
applicable to Services performed under this Agreement .
3 . 6 The Design/Builder, as a part of the consideration hereof, does hereby
covenant and agree that : ( 1 ) in connection with the furnishing of Services
to the COUNTY hereunder, no person shall be excluded from
participation in, denied the benefits of, or otherwise subjected to
discrimination in regard to the services to be performed by Design/Builder
under this Agreement on the grounds of such person ' s race, color, creed,
national origin, religion, physical disability, age or sex ; and (2) the
Design/Builder shall comply with all existing requirements concerning
discrimination imposed by any and all applicable local , state, and federal
rules , regulations , or guidelines , as such rules , regulations , or guidelines
may be from time to time amended .
3 . 7 The Design/Builder shall , during the entire term of this Agreement,
procure and keep in full force, effect, and good standing any and all
necessary licenses , registrations , certificates , permits, and any and all
other authorizations as are required by local , state, or federal law, in order
for the Design/Builder to render its Services as described in this
Agreement . The Design/Builder shall also require all sub-Design/Builders
to comply by contract with the provisions of this section .
3 . 8 When applicable, the Design/Builder will prepare all necessary sketches
and completed application forms to accompany the COUNTY ' s
applications for any required federal , state , or local permits .
3 . 9 The Design/Builder will cooperate fully with the COUNTY in order that
all phases of the work may be properly scheduled and coordinated .
3 . 10 The Design/Builder will cooperate and coordinate with other COUNTY
Design/Builders, as directed by the COUNTY .
3 . 11 The Design/Builder shall report the status of the Services under this
Agreement to the County Project Manager upon request and hold all
designs , drawings , calculations and related work open to the inspection of
the County Project Manager or his authorized agent at any time, upon
reasonable request .
3 . 12 All documents , reports, designs, drawings , tracings , plans , specifications,
field books, survey notes and information, maps, contract documents , and
other data developed by the Design/Builder for the purpose of this
Agreement, are and shall remain the property of the COUNTY but may
not be reused without permission of the author. The foregoing items will
be created, maintained , updated, and provided in the format specified by
the COUNTY . When all work contemplated under this Agreement is
complete, all of the above data shall be delivered to the County Project
Manager.
3 . 13 The Design/Builder will confer with the COUNTY during the further
development of repair, renovation, retrofitting, or improvements for which
the Design/Builder has provided design Services or other Services , and the
Design/Builder will interpret plans and other documents ; correct errors
and omissions ; and prepare any necessary plan revisions not involving a
change in the scope of work required , at no additional cost to the
COUNTY, within thirty (30) calendar days of notice by the COUNTY , or
upon a determination of the Design/Builder of the existence of such errors
or omissions , whichever event shall first occur. The foregoing is not
intended to include construction management services provided by the
Design/Builder.
3 . 14 The Design/Builder agrees to maintain complete and accurate books and
records ("Books") , in accordance with sound accounting principles and
standards for all Services, costs , and expenditures under this Agreement .
The Books shall identify the Services rendered during each month of the
Agreement and the date and type of each Project-related expense . The
COUNTY shall have the right, at any reasonable time and through any of
its designated agents or representatives , to inspect and audit the Books for
the purpose of verifying the accuracy of any invoice . The Design/Builder
shall retain the Books , and make them available to the COUNTY as
specified above , until the later of three (3 ) years after the date of
termination of this Agreement, or such longer time if required by any
federal , state , or other governmental law, regulation, or grant requirement .
3 . 15 The Design/Builder shall not assign or transfer any work under this
Agreement without the prior written consent of the COUNTY. When
applicable and upon receipt of such consent from the COUNTY, the
Design/Builder shall cause the names of any architect, engineering, or
surveying firms responsible for the major portions of each separate
specialty of the Services to inserted on the reports or other data.
3 . 16 All documents , including but not limited to drawings and specifications,
prepared by the Design/Builder pursuant to this Agreement are intended
and should be represented to be suitable for reuse by the COUNTY with
the Author ' s permission . The Design/Builder shall not be held liable for
any modifications made to the documents by others .
4. TERM ; TIME FOR COMPLETION.
4 . 1 This Agreement shall remain in effect for a term of five (5 ) years ("Initial
Term") , unless otherwise sooner terminated as provided herein. The Initial
Term may be extended by the COUNTY for a maximum of three (3 ) years
("Extension Term") . The decision to exercise an extension option for the
Extension Term shall be at the sole discretion of the COUNTY. The
Design/Builder shall be notified in writing of the intent to extend the
Agreement at least ninety (90) days before the expiration of this
Agreement . The Extension Term, if any, is subject to sooner termination
in accordance with the terms of this Agreement .
4 . 2 The time for completion of each Project shall be defined in the Contract or
Work order.
5 . COMPENSATION.
5 . 1 The COUNTY shall pay to the Design/Builder a mutually agreed upon
lump sum or maximum amount not-to-exceed professional fee for each
task in the Contract or Work Order, to be paid in monthly installments or
on a deliverable basis , all as set forth in a Contract or Work Order . Duly
certified invoices, in triplicate , phased as per the Work Order, shall be
submitted to the County Project Manager, in detail sufficient for proper
prepayment and post payment audit . Upon submittal of a proper invoice
the County Project Manager will determine if the tasks or portions thereof
have been satisfactorily completed . Upon a determination of satisfactory
completion, the County Project Manager will authorize payment to be
made . All payments for services shall be made to the Design/Builder by
the COUNTY in accordance with the Florida Prompt Payment Act, as may
be amended from time to time ( Section 218 . 70 , Florida Statutes , et seq . ) .
5 . 1 . 1 The Design/Builder acknowledges and agrees that it will not be
reimbursed for any travel within Indian River County . Any requests
for travel reimbursement for out of county travel shall be preapproved
by COUNTY. The Design/Builder shall include on the invoices any
identifiable per diem, meals and lodgings, taxi fares and miscellaneous
travel-connected expenses for Design/Builder ' s personnel subject to
the limitations of Florida Statutes Section 112 . 061 , as may be amended
from time to time . Travel expenses , if any, shall not be on a direct pay
basis by the COUNTY .
5 . 1 . 2 The COUNTY shall reimburse Design/Builder for all permit fees paid
to regulatory agencies for approvals directly attributable to the
Services under the Project. These permit fees do not include those
permits required for any construction contractor.
5 . 2 The COUNTY may at any time notify the Design/Builder of requested
changes to the Services under an existing Contract or Work Order, and
thereupon the COUNTY and the Design/Builder shall execute a mutually
agreeable Contract amendment or amended Work Order.
5 . 3 The COUNTY shall have the sole right to reduce or eliminate, in whole or
in part, any portion of the Services under any Contract or Work Order at
any time and for any reason, upon written notice to the Design/Builder
specifying the nature and extent of the reduction . In such event, the
Design/Builder shall be paid for the Services already performed and also
for the Services remaining to be done and not reduced or eliminated , upon
submission of invoices as set forth in this Agreement .
5 . 4 The COUNTY may, at any time and for any reason, direct the
Design/Builder to suspend Services , in whole or in part under this
Agreement . Such direction shall be in writing , and shall specify the period
during which Services shall be stopped . The Design/Builder shall resume
its Services upon the date specified or upon such other date as the
COUNTY may thereafter specify in writing . Where the COUNTY has
suspended the services under this Agreement for a period in excess of six
(6) months, the compensation of Design/Builder for such suspended
Services may be subject to modification. The period during which the
Services are stopped by the COUNTY shall be added to the time of
performance of this Agreement .
5 . 5 The COUNTY shall be responsible for payment of any impact fees
required under this agreement .
6. ADDITIONAL WORK.
6 . 1 If services in addition to the Services provided hereunder are required or
desired by the COUNTY in connection with the Project, the COUNTY
may, at the sole option of the COUNTY : separately obtain same outside of
this Agreement; or request the Design/Builder to provide , either directly
by the Design/Builder or by a subcontractor, such additional services by a
new or amended Work Order or by a written amendment to the Contract.
7. INSURANCE AND INDEMNIFICATION .
7 . 1 The Design/Builder shall not commence work on this Agreement until it
has obtained all insurance required under this Agreement and such
insurance has been approved by the County ' s Risk Manager.
7 . 2 Design/Builder shall procure and maintain, for the duration of this
Agreement, the minimum insurance coverage as set forth herein . The
COUNTY reserves the right to require additional insurance in future
Contracts or Work Orders . The cost of such insurance shall be included in
the Design/Builder ' s fee .
7 . 2 . 1 Worker ' s Compensation : Worker ' s Compensation as required by the
State of Florida. Employers ' Liability of $ 100 , 000 each accident,
$ 500 , 000 disease policy limit, and $ 100 , 000 disease each employee .
7 . 2 . 2 General Liability : Commercial general liability coverage , including
contractual liability and independent contractor, with a minimum
combined single limit of $ 100 , 000 per occurrence and personal injury
coverage of $ 50 , 000 .
7 . 2 . 3 Business Automobile Liability : Owned, hired, and non-owned vehicles at
a minimum combined single limit of $ 100 , 000 per occurrence and
personal injury coverage of $ 50 , 000 for bodily injury and property
damage and non-owned vehicles .
7 . 2 . 4 Professional Liability Insurance : Providing coverage for negligent acts,
errors , or omissions committed by Design/Builder with a limit of
$ 1 , 000 , 000 per claim/annual aggregate . This insurance shall extend
coverage to loss of interest, earning, profit, use , and business interruption,
cost of replacement power, and other special , indirect, and consequential
damages .
7 . 2 . 5 Builders Risk Insurance : This coverage shall be provided by the
Design/Builder for the construction of any new building, additions or
renovations under the Master Agreement . Coverage shall be "All Risk"
with limits equal to 100% of the completed value of the building(s) ,
renovation(s) or addition(s) . Design/Builder shall supply this coverage on
any new buildings or on renovations or additions to buildings that are
unoccupied by the COUNTY .
7 . 3 Design/Builder ' s insurance coverage shall be primary .
7A All required insurance policies shall be placed with insurers licensed to do
business in Florida and with a Best ' s rating of A VII or better.
7 . 5 The insurance policies procured shall be occurrence forms , not claims made
policies with the exception of professional liability .
706 A Certificate of Insurance shall be provided to the County ' s Risk Manager for
review and approval , ten ( 10) days prior to commencement of any work under
this Agreement . The COUNTY shall be named as an additional insured on all
policies except Worker' s Compensation and Professional Liability .
7 . 7 The insurance companies selected shall send written verification to the County
Risk Manager that they will provide thirty (30) days prior written notice to the
County Risk Manager of its intent to cancel or modify any required policies of
insurance .
7 . 8 Design/Builder shall include all subcontractors as insured under its policies or
shall furnish separate certificates and endorsements for each subcontractor .
All coverages for subcontractors shall be subject to all of the requirements
stated herein .
7 . 9 The COUNTY, by and through its Risk Manager, reserves the right
periodically to review any and all policies of insurance and reasonably adjust
the limits of coverage required hereunder, from time to time throughout the
term of this Agreement . In such event, the COUNTY shall provide the
Design/Builder with separate written notice of such adjusted limits and
Design/Builder shall comply within thirty (30) days of receipt thereof. The
failure by Design/Builder to provide such additional coverage shall constitute
a default by Design/Builder and shall be grounds for termination of this
Agreement by the COUNTY .
7 . 10 The Design/Builder shall indemnify and hold harmless the COUNTY, and its
officers and employees , from liabilities , damages , losses , and costs , including
but not limited to , reasonable attorneys ' fees , to the extent caused by the
negligence , recklessness, or intentionally wrongful conduct of the
Design/Builder and other persons employed or utilized by the Design/Builder
in the performance of this Agreement . To the extent allowed by law, the
COUNTY shall indemnify and hold harmless the Design/Builder, and its
officers and employees , from liabilities , damages , losses , and costs , including,
but not limited to , reasonable attorneys ' fees , to the extent caused by the
negligence , recklessness , or intentionally wrongful conduct of the COUNTY
and other persons employed or utilized by the COUNTY in the performance
of this Agreement.
8 . TERMINATION
8 . 1 This Agreement may be terminated : (a) by the COUNTY, for any reason,
upon thirty (30) days ' prior written notice to the Design/Builder; or (b) by
the Design/Builder, for any reason, upon thirty (30) days ' prior written
notice to the COUNTY; or (c) by the mutual Agreement of the parties ; or
(d) as may otherwise be provided below. In the event of the termination of
this Agreement, any liability of one party to the other arising out of any
Services rendered, or for any act or event occurring prior to the
termination, shall not be terminated or released .
8 . 2 In the event of termination by the COUNTY, the COUNTY ' s sole
obligation to the Design/Builder shall be payment for those portions of
satisfactorily completed work previously AUTHORIZED BY
APPROVED Work Order. Such payment shall be determined on the basis
of the hours of work performed by the Design/Builder, or the percentage
of work complete as estimated by the Design/Builder and agreed upon by
the COUNTY up to the time of termination. In the event of such
termination, the COUNTY may, without penalty or other obligation to the
Design/Builder, elect to employ other persons to perform the same or
similar services .
8 . 3 The obligation to provide services under this Agreement may be
terminated by either party upon seven (7) days prior written notice in the
event of substantial failure by the other party to perform in accordance
with the terms of this Agreement through no fault of the terminating party .
8 . 4 In the event that the Design/Builder merges with another company,
becomes a subsidiary of, or makes any other substantial change in
structure , the COUNTY reserves the right to terminate this Agreement in
accordance with its terms .
8 . 5 In the event of termination of this Agreement, the Design/Builder agrees
to surrender any and all documents prepared by the Design/Builder for the
COUNTY in connection with this Agreement, to the extent allowed by
law.
8 . 6 The COUNTY may terminate this Agreement for refusal by the
Design/Builder to allow public access to all documents , papers, letters, or
other material subject to the provisions of Chapter 119 Florida Statutes
and made or received by the Design/Builder in conjunction with this
Agreement .
8 . 7 The COUNTY may terminate this Agreement in whole or in part if the
Design/Builder submits a false invoice to the COUNTY .
9 . TRUTH-IN-NEGOTIATION CERTIFICATE ; CONTINGENCY FEES.
9 . 1 Execution of this Agreement by the Design/Builder shall act as the
execution of a truth-in-negotiation certificate certifying that the wage rates
and costs used to determine the compensation provided for in this
Agreement are accurate , complete and current as of the date of the
Agreement and no higher than those charged the Design/Builder ' s most
favored customer for the same or substantially similar service . The wage
rates and costs shall be adjusted to exclude any significant sums should the
COUNTY determine that the wage rates and costs were increased due to
inaccurate, incomplete or noncurrent wage rates or due to inaccurate
representations of fees paid to outside Design/Builders , The COUNTY
shall exercise its rights under this " Certificate " within one ( 1 ) year
following final payment. The COUNTY has the authority and right to
audit Design/Builder ' s records under this provision. The COUNTY does
not hereby waive any other right it may have pursuant to Florida Statutes ,
Section 287 . 055 , as it may be from time-to-time amended .
9 . 2 Pursuant to the Consultants ' Competitive Negotiations Act, Florida
Statutes Section 287 . 055 , 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 it has not paid or agreed to pay any company or
person other than a bona fide employee working solely for the
Design/Builder any fee , commission, percentage fee , gifts or any other
considerations, contingent upon or resulting from the award or making of
this Agreement . For breach of violation of this provision, the COUNTY
shall have the right to terminate this Agreement without liability and, at its
discretion, to deduct from the contract price, or otherwise recover, the full
amount of such fee , commission, percentage , gift, or considerations .
10. MISCELLANEOUS PROVISIONS .
10 . 1 Independent Contractor. It is specifically understood and acknowledged
by the parties hereto that the Design/Builder or employees or
subcontractors of the Design/Builder are in no way to be considered
employees of the COUNTY, but are independent contractors performing
solely under the terms of the Agreement and not otherwise .
10 . 2 Merger; Modification. This agreement incorporates and includes all prior
and contemporaneous negotiations , correspondence, conversations ,
agreements , or understandings applicable to the matters contained herein
and the parties agree that there are no commitments, agreements, or
understandings of any nature whatsoever concerning the subject matter of
the Agreement that are not contained in this document . Accordingly, it is
agreed that no deviation from the terms hereof shall be predicated upon
any prior or contemporaneous representations or agreements , whether oral
or written . No alteration, change , or modification of the terms of this
Agreement shall be valid unless made in writing and signed by the
Design/Builder and the COUNTY .
10 . 3 Governing Law; Venue . This Agreement, including all attachments hereto ,
shall be construed according to the laws of the State of Florida. Venue for
any lawsuit brought by either party against the other party or otherwise
arising out of this Agreement shall be in Indian River County, Florida, or,
in the event of federal jurisdiction, in the United States District Court for
the Southern District of Florida.
10 . 4 Remedies ; No Waiver. All remedies provided in this Agreement shall be
deemed cumulative and additional , and not in lieu or exclusive of each
other or of any other remedy available to either party, at law or in equity
each right, power and remedy of the parties provided for in this
Agreement shall be cumulative and concurrent and shall be in addition to
every other right, power or remedy provided for in this Agreement or now
or hereafter existing at law or in equity or by statute or otherwise . The
failure of either party to insist upon compliance by the other party with
any obligation , or exercise any remedy, does not waive the right to so in
the event of a continuing or subsequent delinquency or default . A party ' s
waiver of one or more defaults does not constitute a waiver of any other
delinquency or default . If any legal action or other proceeding is brought
for the enforcement of this Agreement or because of an alleged dispute,
breach, default or misrepresentation in connection with any provisions of
this Agreement, each party shall bear its own costs .
10 . 5 Severability . If any term or provision of this Agreement or the application
thereof to any person or circumstance shall , to any extent, be held invalid
or unenforceable for the remainder of this Agreement, then the application
of such term or provision to persons or circumstances other than those as
to which it held invalid or unenforceable shall not be affected, and every
other term and provision of this Agreement shall be deemed valid and
enforceable to the extent permitted by law .
10 . 6 Availability of Funds . The obligations of the COUNTY under this
Agreement are subject to the availability of funds lawfully appropriated
for its purpose by the Board of County Commissioners of Indian River
County .
10 . 7 No Pledge of Credit. The Design/Builder shall not pledge the COUNTY ' S
credit or make it a guarantor of payment or surety for any contract, debt,
obligations, judgment, lien or any form of indebtedness .
10 . 8 Public Records . The Design/Builder shall comply with the provisions of
Chapter 119 , Florida Statutes (Public Records Law) in connection with
this Agreement.
10 . 9 Notices : Any notice, request, demand , consent, approval , or other
communication required or permitted by the Agreement shall be given or
made in writing and shall be served, as elected by the party giving such
notice , by any of the following methods : (a) Hand delivery to the other
party ; (b) Delivery by commercial overnight courier service ; or (c) Mailed
by registered or certified mail (postage prepaid) , return receipt requested
at the addresses of the parties shown below :
COUNTY : Indian River County
Attn : John King, Director of Emergency Services
422543 d Avenue
Vero Beach, FL 32967 - 1671
Phone : (772) 226- 3859
Facsimile : (772) 978 = 1833
Design/Builder : Phil Barth
Barth Construction, Inc .
1717 Indian River Boulevard , Suite 202A
Vero Beach, FL 32960
Phone : (772) 778 -3072
Facsimile : (772) 770 -3017
Notices shall be effective when received at the address as specified above .
Facsimile transmission is acceptable notice effective when received,
provided , however, that facsimile transmissions received (i . e . , printed)
after 5 : 00 p . m . or on weekends or holidays , will be deemed received on
the next day that is not a weekend day or a holiday . The original of the
notice must additionally be mailed . Either party may change its address,
for the purposes of this section, by written notice to the other party given
in accordance with the provisions of this section .
10 . 10 Survival . Except as otherwise expressly provided herein, each obligation
in this Agreement to be performed by Design/Builder shall survive the
expiration of this Agreement.
10 . 11 Construction . The headings of the sections of this Agreement are for the
purpose of convenience only, and shall not be deemed to expand, limit, or
modify the provisions contained in such Sections . All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine or
neuter, singular or plural , as the identity of the party or parties may
require . The parties hereby acknowledge and agree that each was properly
represented by counsel and this Agreement was negotiated and drafted at
arm ' s- length so that the judicial rule of construction to the effect that a
legal document shall be construed against the draftsperson shall be
inapplicable to this Agreement .
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
the date first written above .
Design/Builder : INDIAN RIVER COUNTY
Board of County Commissioners
B By : 7za �-
Bye
Bob Solari , Chairman 040 eeeee�01 .•
••� . •. � •
Date : �� Date : August 16 20 •'�•
Approved by BCC AUS : • Q= ,
Approved : Attest : J . K . Barton, Clerk •••''eq;VRNERC�••��
?seph A Baird Deputy Clerk
UNTY Administrator
Approved as to form and legal
sufficiency :
William K DeBraal
Assistant COUNTY Attorney
BARTH
Construction, Inc.
General Contractor CGCO07847
Rate Schedule - August 2011
Project Executive $ 150 . 00 per hour
Project Manager $ 100 . 00 per hour
Assistant Project Manager $85 . 00 per hour
Project Superintendent $ 75 . 00 per hour
Assistant Superintendent $55 . 00 per hour
Accounting $60 . 00 per hour
Clerical/Administration $45 . 00 per hour
Black and White Copies $0 . 20 per sheet
Subcontractors & Materials @1 . 15 times direct cost
Special Consultants @1 . 15 times direct cost
Architect $ 125 . 00 per hour
CADD Designer $65 . 00 per hour
2436 Prints $ 1 . 50 per page
1717 Indian River Boulevard * Suite 202A * Vero Beach, Florida 32960
(772) 778-3072 * Fax (772) 770-3017 * E-Mail info(abarthconstruction.com