Form 700-011-02 Dispute Review Board Three Party Agreement - Florida

Form 700-011-02 is a Florida Department of Transportation form also known as the "Dispute Review Board Three Party Agreement". The latest edition of the form was released in December 1, 2017 and is available for digital filing.

Download an up-to-date Form 700-011-02 in PDF-format down below or look it up on the Florida Department of Transportation Forms website.

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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
700-011-02
CONSTRUCTION
DISPUTE REVIEW BOARD
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Page 1 of 10
THREE PARTY AGREEMENT
(EFFECTIVE JULY 2011 LETTINGS)
THIS THREE PARTY AGREEMENT, hereinafter called "AGREEMENT", made and entered into this
day of
, 20
, between the State of Florida Department of Transportation, an agency of the
State of Florida, hereinafter called "DEPARTMENT"; and
,
hereinafter called the "CONTRACTOR"; and the Dispute Review Board, hereinafter called the "BOARD", and
consisting of three members:
,
and
,
WITNESSETH, that
WHEREAS, the DEPARTMENT is now engaged in the construction of (FPID
),
and
WHEREAS, the Contract #
provides for the establishment and operation of
the BOARD to assist in resolving disputes and claims; and
WHEREAS, the BOARD is composed of three members, one selected by the DEPARTMENT, one selected by
the CONTRACTOR, and the third member selected by these two;
NOW THEREFORE, in consideration of the terms, conditions, covenants, and performance contained herein,
or attached and incorporated and made a part hereof, the parties hereto agree as follows:
I
DESCRIPTION OF WORK
In order to assist in the resolution of disputes and claims between the CONTRACTOR and the
DEPARTMENT, the DEPARTMENT has provided in the Contract #
, hereinafter called
“CONSTRUCTION CONTRACT,” for the establishment of the BOARD. The purpose of the BOARD is to fairly
and impartially consider disputes and claims placed before it and to provide written recommendations for
resolution of these disputes and claims to both the DEPARTMENT and the CONTRACTOR. The members of
the BOARD shall perform the services necessary to participate in the BOARD's actions as designated in
.
Section II, Scope of Work
II
SCOPE OF WORK
The Scope of Work of the BOARD includes, but is not limited to, the following:
A. Operations: The BOARD will formulate its own rules of operation, based on the Dispute Review
Board Operating Procedures available on the DEPARTMENT’s internet site. It is not desirable to adopt
inflexible rules for the internal operation of the BOARD. The procedures will be kept flexible to adapt to
changing situations.
The DEPARTMENT and the CONTRACTOR will keep the BOARD informed of construction activity
and progress by submitting written progress reports and other relevant data at least monthly. The BOARD will
visit the project at regular intervals and/or at times of critical construction events and meet with the Engineer
(hereinafter as defined in the Standard Specifications for Road and Bridge Construction Section 1-3) and the
CONTRACTOR. During normal project operations, meetings will be held at intervals as mutually agreed to by
the DEPARTMENT and the CONTRACTOR . The frequency of these meetings will generally be monthly for
the first three to six months. At that agreed upon milestone, the meeting frequency would then be reassessed
by the DEPARTMENT and the CONTRACTOR with continued meeting frequency set at a maximum quarterly
interval. On projects with unresolved disputes, the BOARD will meet, at least monthly, until the unresolved
disputes are resolved. The frequency of these visits will be as mutually agreed to by the DEPARTMENT and
the CONTRACTOR, depending on the progress of the work.
Regular meetings will be held at the job site. Each meeting will consist of an informal round table
discussion and a field inspection of the work. The round table discussion will be attended by selected
personnel from the DEPARTMENT and the CONTRACTOR. Agenda for regular meetings of the BOARD will
generally include the following:
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION
700-011-02
CONSTRUCTION
DISPUTE REVIEW BOARD
OGC - 12/17
Page 1 of 10
THREE PARTY AGREEMENT
(EFFECTIVE JULY 2011 LETTINGS)
THIS THREE PARTY AGREEMENT, hereinafter called "AGREEMENT", made and entered into this
day of
, 20
, between the State of Florida Department of Transportation, an agency of the
State of Florida, hereinafter called "DEPARTMENT"; and
,
hereinafter called the "CONTRACTOR"; and the Dispute Review Board, hereinafter called the "BOARD", and
consisting of three members:
,
and
,
WITNESSETH, that
WHEREAS, the DEPARTMENT is now engaged in the construction of (FPID
),
and
WHEREAS, the Contract #
provides for the establishment and operation of
the BOARD to assist in resolving disputes and claims; and
WHEREAS, the BOARD is composed of three members, one selected by the DEPARTMENT, one selected by
the CONTRACTOR, and the third member selected by these two;
NOW THEREFORE, in consideration of the terms, conditions, covenants, and performance contained herein,
or attached and incorporated and made a part hereof, the parties hereto agree as follows:
I
DESCRIPTION OF WORK
In order to assist in the resolution of disputes and claims between the CONTRACTOR and the
DEPARTMENT, the DEPARTMENT has provided in the Contract #
, hereinafter called
“CONSTRUCTION CONTRACT,” for the establishment of the BOARD. The purpose of the BOARD is to fairly
and impartially consider disputes and claims placed before it and to provide written recommendations for
resolution of these disputes and claims to both the DEPARTMENT and the CONTRACTOR. The members of
the BOARD shall perform the services necessary to participate in the BOARD's actions as designated in
.
Section II, Scope of Work
II
SCOPE OF WORK
The Scope of Work of the BOARD includes, but is not limited to, the following:
A. Operations: The BOARD will formulate its own rules of operation, based on the Dispute Review
Board Operating Procedures available on the DEPARTMENT’s internet site. It is not desirable to adopt
inflexible rules for the internal operation of the BOARD. The procedures will be kept flexible to adapt to
changing situations.
The DEPARTMENT and the CONTRACTOR will keep the BOARD informed of construction activity
and progress by submitting written progress reports and other relevant data at least monthly. The BOARD will
visit the project at regular intervals and/or at times of critical construction events and meet with the Engineer
(hereinafter as defined in the Standard Specifications for Road and Bridge Construction Section 1-3) and the
CONTRACTOR. During normal project operations, meetings will be held at intervals as mutually agreed to by
the DEPARTMENT and the CONTRACTOR . The frequency of these meetings will generally be monthly for
the first three to six months. At that agreed upon milestone, the meeting frequency would then be reassessed
by the DEPARTMENT and the CONTRACTOR with continued meeting frequency set at a maximum quarterly
interval. On projects with unresolved disputes, the BOARD will meet, at least monthly, until the unresolved
disputes are resolved. The frequency of these visits will be as mutually agreed to by the DEPARTMENT and
the CONTRACTOR, depending on the progress of the work.
Regular meetings will be held at the job site. Each meeting will consist of an informal round table
discussion and a field inspection of the work. The round table discussion will be attended by selected
personnel from the DEPARTMENT and the CONTRACTOR. Agenda for regular meetings of the BOARD will
generally include the following:
700-011-02
CONSTRUCTION
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a. Meeting opened by the Chairman of the BOARD.
b. Opening remarks by the Engineer.
c. A description by the CONTRACTOR of: work accomplished since the last meeting, current
status of the work schedule, schedule for the future, potential problems, and proposed solutions to any
potential or existing problems.
d. Discussion by the Engineer of: Work schedule as he views it, potential new disputes or claims
and any proposed solutions, status of past disputes and claims, and other controversies.
e. Set a tentative date for next meeting.
The DEPARTMENT will prepare minutes of all regular meetings and circulate them for comments,
revisions, and/or approval by all concerned. Minutes, as amended, will be adopted at the next meeting.
The field inspections will cover all active segments of the work. The BOARD will be accompanied by
representatives of both the DEPARTMENT and the CONTRACTOR. No party shall unilaterally seek any
BOARD member's advice or consultation, nor shall any BOARD member(s) provide unilateral advice or
consultation to the DEPARTMENT or the CONTRACTOR.
B. Procedure and Schedules for Dispute Resolution: Disputes will be considered as quickly as possible,
taking into consideration the particular circumstances and the time required to prepare detailed documentation.
Steps may be omitted as agreed by the DEPARTMENT and the CONTRACTOR and the time periods stated
below may be shortened in order to hasten resolution. Referral to the BOARD is accomplished by providing a
position paper outlining the nature and scope of the dispute or claim and describing the basis for entitlement to
the dispute or claim. Only disputes or claims that have been duly preserved under the terms of the Contract as
determined by the BOARD will be eligible to be heard by the BOARD. Requests for equitable adjustment
must be certified as required by 4-3.2. Claims that are referred to the BOARD must be in compliance with 5-
12.
a. If the CONTRACTOR objects to any decision, action, or order of the Engineer, the
CONTRACTOR may file a written protest with the Engineer, within 15 days after the event, stating clearly and
in detail the basis for the objection.
b. The Engineer will consider the written protest and make a decision on the basis of the
pertinent construction contract provisions, together with the facts and circumstances involved in the dispute.
The Engineer’s decision will be furnished in writing to the CONTRACTOR within 15 days after receipt of the
CONTRACTOR's written protest.
c. The Engineer’s decision will be final and conclusive on the subject, unless a written appeal to
the Engineer is filed by the CONTRACTOR within 15 days of receiving the decision. Should the
CONTRACTOR preserve its appeal of the Engineer's decision, the matter can be referred to the BOARD by
either the DEPARTMENT or the CONTRACTOR.
d. Upon receipt by the BOARD of a written duly preserved protest of a dispute from either the
DEPARTMENT or the CONTRACTOR, it will first be decided when to conduct the hearing. If the matter is not
urgent, it may be heard at the time of the next regular BOARD meeting. For an urgent matter, the BOARD will
meet at its earliest convenience.
e. Either party furnishing any written evidence or documentation to the BOARD shall do so a
minimum of 15 days prior to the date the BOARD sets to convene the hearing for the dispute, and will at the
same time furnish copies of such information to the other party. If the BOARD requests any additional
documentation or evidence prior to, during, or after the hearing, the DEPARTMENT and/or CONTRACTOR will
provide the requested information to the BOARD and to the other party.
f. The CONTRACTOR and the DEPARTMENT will each be afforded an opportunity to be heard
by the BOARD and to offer evidence.
g. The BOARD's recommendations for resolution of the dispute will be given in writing to both
the DEPARTMENT and the CONTRACTOR, within 15 days of completion of the hearing. In cases of extreme
complexity, both parties may agree to allow additional time for the BOARD to formulate its recommendations.
The BOARD will focus its attention in the written report to matters of entitlement and allow the parties to
determine the monetary damages. Once Entitlement is determined, the parties should timely, within 60
calendar days, proceed to negotiate monetary changes. Upon both parties having made reasonable efforts to
negotiate such monetary damages provided sufficient documentation is available, and such negotiations are at
an impasse, the BOARD shall be notified of the impasse, and upon the request of both parties shall then
proceed to schedule a hearing to make a recommendation as to monetary damages.
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CONSTRUCTION
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h. Within 15 days of receiving the BOARD's recommendations, both the DEPARTMENT and
the CONTRACTOR will respond to the other and to the BOARD in writing, signifying either acceptance or
rejection of the BOARD's recommendations. The failure of either party to respond within the 15 day period will
be deemed an acceptance of the BOARD's recommendations by that party and shall preclude any further
pursuit of this issue before this BOARD or any successive BOARD. If the DEPARTMENT and the
CONTRACTOR are able to resolve the dispute with or without the aid of the BOARD's recommendations, the
DEPARTMENT will promptly process any required changes to the Construction Contract.
i. Should the dispute remain unresolved, either party may seek reconsideration of the decision
by the BOARD only when there is new evidence to present. No provisions in this AGREEMENT will abrogate
the CONTRACTOR's responsibility for preserving a claim in accordance with Standard Specification 5-12.
Although both the DEPARTMENT and the CONTRACTOR should place great weight on the BOARD’s
recommendation, it is not binding on the parties. If the BOARD's recommendations do not resolve the dispute,
all written recommendations of the BOARD will be admissible as evidence in any subsequent arbitration, or
circuit proceedings, as provided by law.
C. BOARD Consideration of Disputes or Claims: The BOARD may request that written documentation
and arguments from both parties be sent to each member and to the other party for study before the hearing
begins.
Upon receipt by the BOARD of a written referral of a dispute, from either the CONTRACTOR or the
DEPARTMENT, the BOARD shall convene to review and consider the dispute or claim. The time and location
of BOARD hearing shall be determined by the DEPARTMENT, the CONTRACTOR, and the BOARD. Both
the DEPARTMENT and the CONTRACTOR shall be given the opportunity to present their evidence and
documentation at the hearing.
It is expressly understood that the BOARD members are to act impartially and independently in
the consideration of the Contract provisions, and the facts and conditions surrounding any written referral of a
dispute or claim presented to the BOARD by the DEPARTMENT or the CONTRACTOR, and that the
BOARD’s recommendations concerning any such dispute or claim are advisory. BOARD members shall not
discuss or communicate any matters relating to any aspect of the construction project except at duly scheduled
meetings of the BOARD except for communications between the Chairman and other parties on administrative
matters relating to the operation of the BOARD.
The third member of the BOARD will act as Chairman of all the hearings and meetings, or he/she may
designate one of the other members. While the BOARD will keep a record of its sessions during the
consideration of a dispute, it may not be necessary for the BOARD to keep a formal record. This will depend
on the nature and magnitude of the dispute and on the attitude of the parties. If possible, hearings should be
kept informal. Although discouraged, formal records of the BOARD hearings may be transcribed by a court
reporter if requested by one party and agreed upon by all parties. Audio and/or video recording of the meeting
is discouraged. Such recordings may only be made at the AGREEMENT of all parties.
The DEPARTMENT and the CONTRACTOR must each have a representative at all hearings. The
CONTRACTOR will first present its analysis of the dispute or claim, followed by the DEPARTMENT’s position.
Each party will then be allowed successive rebuttals until all aspects are fully covered. The BOARD members
may ask questions, request clarification, or ask for additional data. In large or complex cases, additional
hearings may be necessary in order to consider and fully understand all of the evidence presented by the
parties.
During the hearings, no BOARD member will express any opinion concerning the merit of any facet of
the case.
At the conclusion of a hearing, the BOARD will meet in private to formulate recommendations, which
must be supported by two or more members. All BOARD deliberations will be conducted in private, with all
individual views kept strictly confidential. The BOARD's recommendations and discussions of its reasoning
will be submitted as a written report to both parties. The recommendations will be based on the pertinent
Construction Contract provisions and the facts and circumstances involved in the dispute or claim.
Either the DEPARTMENT or the CONTRACTOR, or both, may seek reconsideration of a
recommendation to the BOARD. However, reconsideration will be allowed only when there is new evidence to
present.
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CONSTRUCTION
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D. Construction Site Visits: The BOARD members shall visit the project site to keep abreast of
construction activities and to develop a familiarity with the work in progress. The frequency, exact time, and
duration of these visits shall be as mutually agreed between the DEPARTMENT and the CONTRACTOR.
In the case of an alleged differing site condition or specific construction problem (e.g. work that
is to be removed or replaced) it will be advantageous, but not absolutely necessary, for the BOARD to
personally view any relevant conditions. If viewing by the BOARD would cause delay to the project,
photographs and descriptions of such conditions collected by either or both parties will suffice.
E. BOARD Member Replacement: Should the need arise to appoint a replacement BOARD member,
the replacement BOARD member shall be appointed in the same manner as the original BOARD members
were appointed. The selection of a replacement BOARD member shall begin promptly upon notification of the
necessity for a replacement and shall be completed within 30 calendar days. This AGREEMENT will be
supplemented to indicate change in BOARD membership.
F. In the event disputes or claims reviewed by the BOARD are related to the Warranted Asphalt
Pavement Specification (Section 338), the determinations of the BOARD as to that provision only shall be
binding on both the CONTRACTOR and the DEPARTMENT and with no right of appeal by either party.
III
CONTRACTOR RESPONSIBILITY
The CONTRACTOR shall furnish to the BOARD three sets of all pertinent documents which are or may
become necessary for the BOARD to consider, except documents furnished by the DEPARTMENT, to perform
their function. Pertinent documents are any drawings or sketches, calculations, procedures, schedules,
estimates, or other documents which are used in the performance of the work or in justifying or substantiating
the CONTRACTOR's position. A copy of such pertinent documents must also be furnished to the
DEPARTMENT.
Except for its participation in the BOARD's activities as provided in the Construction Contract and in
this AGREEMENT, the CONTRACTOR will not solicit advice or consultation from the BOARD or any of its
members on matters dealing in any way with the project, the conduct of the work, or resolution of problems.
IV
DEPARTMENT RESPONSIBILITIES
Except for its participation in the BOARD's activities as provided in the construction Contract and in this
AGREEMENT, the DEPARTMENT will not solicit advice or consultation from the BOARD or any of its
members on matters dealing in any way with the project, the conduct of the work, or resolution of problems.
The DEPARTMENT shall furnish the following services and items:
A. Contract Related Documents: The DEPARTMENT shall furnish the BOARD three copies of
all Construction Contract documents, supplemental agreements, written instructions issued by the
DEPARTMENT to the CONTRACTOR, or other documents pertinent to the performance of the Construction
Contract and necessary for the BOARD to perform its function. A copy of such pertinent documents must also
be furnished to the CONTRACTOR.
B. Coordination and Services: The DEPARTMENT, in cooperation with the CONTRACTOR, will
coordinate the operations of the BOARD. The DEPARTMENT, through the Engineer, will arrange or provide
conference facilities at or near the Contract site and provide secretarial and copying services.
V
TIME FOR BEGINNING AND COMPLETION
The BOARD is to remain in operation throughout the life of the active CONSTRUCTION CONTRACT
and, if needed, for a reasonable post-construction period following final acceptance of the project, but not to
exceed the date the DEPARTMENT administratively closes the CONSTRUCTION CONTRACT for
construction of the project. Any disputes or claims that were not resolved prior to Financial Acceptance of the
project pursuant to 5-11 must be referred to the BOARD within 90 calendar days after Final Acceptance on
projects with an original Contract amount of $3,000,000 or less, and within 180 calendar days after Final
Acceptance on projects with an original Contract amount greater than $3,000,000. Only duly preserved
disputes or claims will be eligible to be heard by the BOARD. Failure to submit all disputes or claims to the
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BOARD within aforementioned timeframe after Final Acceptance constitutes an irrevocable waiver of the
CONTRACTOR’s dispute or claim.
VI
PAYMENT
The BOARD members shall be paid by the CONTRACTOR pursuant to Section 8-3.7 of the
CONSTRUCTION CONTRACT, for services rendered under this AGREEMENT as provided hereinafter. Such
payments shall be full compensation for work performed or services rendered, and for all labor, materials,
supplies, equipment, and incidentals necessary to the operation of the BOARD. The BOARD members shall
comply with all applicable portions of 48 CFR 31 (Federal Acquisition Regulations: Contract Cost Principals
and Procedures). The chairman shall transmit an invoice to the CONTRACTOR, with a copy to the
DEPARTMENT.
BOARD members shall be paid for a meeting that is canceled with less than 5 working days advance notice
unless the BOARD initiates such cancellation.
A. All Inclusive Rate Payment:
Each BOARD Member will be paid $1100 per day for each day the BOARD meets for regularly scheduled
project meetings. This daily rate includes salary and all expenses related to membership on the BOARD.
Subsequent changes in the billing rate must be authorized by a Supplemental Agreement to this
AGREEMENT. The DEPARTMENT may authorize in advance additional day(s) for payment to each BOARD
member or to the Chairman of the BOARD when it is determined by the DEPARTMENT that such
compensation is necessary for the BOARD or the Chairman to perform their obligation effectively.
A per hearing cost of $8,000 has been established by the DEPARTMENT for providing
compensation for all members of the Dispute Review Board for participation in an actual hearing. The BOARD
chairman will receive $3,000 for participation in the hearing while the remaining two members will receive
$2,500 each. The DEPARTMENT and the CONTRACTOR will equally provide compensation to the BOARD
for participation in an actual hearing. The DEPARTMENT will compensate the CONTRACTOR $4,000 as its
contribution to the hearing cost. Such payment will be full and complete compensation to the BOARD
members for all expenses related to the hearing. This includes travel, accommodations, meals, pre- and post-
hearing work, review of position papers and any rebuttals, conducting the hearing, drafting and issuance of
recommendations, readdressing any requests for clarification. It is not intended for hearings to last longer than
a single day, however, in some cases they may. Any additional time and/or compensation for a hearing would
only be allowed upon prior written approval of the DEPARTMENT and the CONTRACTOR. If an additional
day(s) is granted for the hearing, it will be at $3,300 per day, regular meeting rate, payment of which is equally
split between the DEPARTMENT and the CONTRACTOR.
B. Inspection of Costs Records: The BOARD members shall keep available the cost records
and accounts pertaining to this AGREEMENT, for inspection by representatives of the DEPARTMENT and the
Federal Highway Administration, for a period of three years after final payment, at which time all such cost
records and accounts shall be delivered to the DEPARTMENT for further retention as may otherwise be
required. If any litigation, claim, or audit arising out of, in connection with, or related to the CONSTRUCTION
CONTRACT is initiated before the expiration of the three year period, the cost records and accounts shall be
retained until such litigation, claim, or audit involving the records in completed.
VII
ASSIGNMENT OF TASKS OF WORK
The BOARD members shall not assign any of the work of this AGREEMENT.
VIII
TERMINATION OF AGREEMENT
This AGREEMENT may be terminated by mutual agreement of the DEPARTMENT and the
CONTRACTOR at any time, upon not less than four weeks’ written notice to all other parties. BOARD
members may withdraw from the BOARD by providing four weeks’ written notice to all other parties. This
AGREEMENT will remain in force until another Dispute Review Board Three Party Agreement to replace it has
been fully executed. BOARD members may be terminated for cause or without cause only by his/her original

Download Form 700-011-02 Dispute Review Board Three Party Agreement - Florida

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