05B_Design-Build_Agreement_Sample_for_MOCAP.pdf

DESIGN/BUILD CONTRACT

BETWEEN

CITY OF CLEVELAND

AND

CONSULTANT COMPANY

Name of Project Here

This DESIGN/BUILD CONTRACT (the “Contract”) is made and entered into by and between the CITY OF CLEVELAND, a municipal corporation and political subdivision of the State of Ohio (the “Owner” and/or “City”) and CONSULTANT COMPANY, an Ohio corporation, with its principal place of business at ADDRESS (the ‘‘Design/Builder”) under the authority of Ordinance No. XXX-XXXX, passed by the Council of the City of Cleveland on DATE, and Board of Control Resolution No. XX-XX, adopted by the Board on DATE.

This Contract is for the design and construction of a project identified as the Name of Project (the “Project”).

WHEREAS, the Design/Builder and Owner agree that the Project shall proceed on a fast –track basis, as described more fully in Article 4, Section C below.

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, Owner and Design/Builder agree as follows:

ARTICLE I: THE CONTRACT AND THE CONTRACT DOCUMENTS

(A) The Contract: The Contract between Design/Builder and Owner consists of this document and the other Contract Documents described in Paragraph 1(B). This Contract shall be effective as of the date of execution of the last signature on this document.

(B) The Contract Documents: The Contract Documents consist of this document, all Design Documents hereafter prepared by Design/Builder and approved by Owner in accordance with this Contract, all of which are hereby incorporated by reference and made a part of this Contract as if fully rewritten herein. The following documents are also incorporated by reference and included in this Contract:

Sample DB – Subject to Change 2

(1) The ordinance or ordinances authorizing the making of the Project;

(2) The invitation to bid or request for proposals, any general conditions, any supplemental general conditions and detail specifications;

(3) The contract drawings and specifications;

(4) All addenda issued by the City prior to receipt of bids;

(5) The affidavit of non-collusion;

(6) The bid;

(7) The resolution of the Board of Control awarding the contract;

(8) All required bonds and policies of insurance;

(9) The Design/Builder’s proposal; and

(10) All provisions required by law, Charter or ordinance to be inserted in the contract, whether actually inserted or not.

(C) Enumerated Documents Form Entire Contract: Documents not specifically enumerated in Paragraph 1(B) of this Contract are not Contract Documents.

(D) Contract Interpreted as A Whole: This Contract is intended to be an integral whole and shall be interpreted as internally consistent. Work required by any page, part, or portion of the Contract shall be deemed to be required Contract Work as if called for in the whole Contract and no claim for extra work shall be based upon the fact that the description of the Work in question is incomplete.

(E) Provision of All Things Required: Anything that may be required, implied, or inferred by the Contract Documents which make up this Contract, or any one or more of them, shall be provided by Design/Builder for the Contract Price.

(F) Privity Only With Design/Builder: Nothing contained in this Contract shall create, nor be interpreted to create privity or any other relationship whatsoever between Owner and any person except Design/Builder.

(G) Agreed Interpretation of Contract Terms: When a word, term, or phrase is used in this Contract, it shall be interpreted or construed first as defined herein;

second, if not defined, according to its generally accepted meaning in the construction industry; and third, if there is no generally accepted meaning in the construction industry, according to its common customary usage. Headings are used herein solely for convenience.

(H) Term “Include” Intended to be Encompassing: “Include,” “includes,” or

“including,” as used in the Contract, shall be deemed in all cases to be followed by the phrase, “without limitation.”

(I) Use of Singular and Plural: Words or terms used as nouns in the Contract shall be inclusive of their singular and plural forms, unless the context or their usage clearly requires a contrary meaning.

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(J) Definition of Material Breaches Not Exhaustive: The specification herein of any act, failure, refusal, omission, event, occurrence or condition as constituting a material breach of the Contract shall not imply that any other non-specified act, failure, refusal, omission, event, occurrence or condition shall be deemed not to constitute a material breach of the Contract.

(K) Order of Precedence: In the event of any conflict, discrepancy, or inconsistency among any of the Contract Documents which make up this Contract, the following shall control:

(1) As between figures given on plans and scaled measurements, the figures shall govern;

(2) As between large scale plans and small scale plans, the large scale plans

(3) As between plans and specifications, the requirements of the specifications

(4) As between this document and the plans or specifications, this document shall govern; As between this document and the City’s request for proposal/invitation to bid, this document shall govern; As between the City’s request for proposal/invitation to bid and the Design/Builder’s proposal, the City’s request for proposal/invitation to bid;

(5) As between submittals and contract documents, contract documents shall govern.

(L) Administration: This Contract shall be administered on behalf of Owner by the

Director of Capital Projects, or his/her designee (the “Director”), and on behalf of the Design/Builder by its duly authorized representatives.

(M) Definitions. The following words or expressions, or pronouns used in their stead, shall, whenever they appear herein, be construed as follows, unless a different meaning is clear from the context:

(1) “Certificate for Payment” is a document signed by Design/Builder which shall mean that to the best of Design/Builder’s knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents subject to the following: an evaluation of the Work as a functioning whole upon Substantial Completion; the results of any subsequent tests required by the Contract Documents; minor deviation from the Contract Documents correctable prior to completion; and any

Sample DB – Subject to Change 4 specific qualifications stated in the Certificate for Payment; and that the Design/Builder is entitled to payment in the amount certified. By submitting a Certificate for Payment, Design/Builder shall be deemed to represent to the City, based on Design/Builder’s observations at the site and in data on the Certificate that Work has progressed to the point indicated on the Certificate.

(2) “Construction Work” means all work required under Stage III, as described in Article 7 below.

(3) “Design/Builder” is the person or entity indicated above as such. The term

“Design/Builder” refers to the entity itself, to the entity’s authorized representative, or to the entity’s subcontractor, as the context requires.

(4) “Design Documents” means all the design documents provided by

Design/Builder and approved by Owner pursuant to the Contract including, without limitation, those for use in constructing the Project, performing the Work, and the rendering of the Project fully operational, and shall include, without limitation, detailed plans, drawings, specifications, manuals, and related materials prepared by or on behalf of Design/Builder.

(5) “As-builts” means field verified, by a professional surveyor licensed in the

State of Ohio, the final constructed improvements including any changes from original design documents. All design changes to be certified by the respective professional engineer licensed in the State of Ohio and indicated therein. Format of as-builts to follow the latest DPC CAD/BIM/DATA specifications.

(6) “Design Schedule” or “Project Schedule” mean the Schedule approved by

Owner pursuant to Article 3 Section (I) of this Contract.

(7) “Design Scope Specification” means the document prepared by

Design/Builder dated DATE, which specifies the general scope of the Design Services to be performed by Design/Builder under the Contract. A copy of the Design Scope Specification is attached hereto and is incorporated into this Contract by reference.

(8) ‘‘Design Services” means any and all architectural, engineering and design services required to be performed by Design/Builder pursuant to the Contract and all labor, materials, supervision, equipment, computers documents, and all other things necessary for the performance of such services.

(9) “Final Completion” means the completion of all Design Services and all

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Construction Work required by, and in strict compliance with, the Contract, including Design/Builders provision to Owner of all documents among things required to be provided by the Contract. Final Completion must be before (DATE or defined by weeks from the date of the Notice to Proceed).

(10) “Notice to Proceed” means the notification given by the Owner to the

Design/Builder stating that the Work site(s) is available to the Design/Builder and directs the Design/Builder to commence construction of the Project.

(11) “Subcontractor” means an entity which has a direct contract with

Design/Builder to perform a portion of the Construction Work or the Design Services. For purposes of the Contract, Subcontractors shall also include those furnishing specially fabricated equipment and materials for the Project. No person or entity may work as a subcontractor on the Project unless approved in advance by Resolution of the Owner’s Board of Control.

The following entities are approved by Resolution of the Owner’s Board of Control: LISTING OF APPROVED SUBCONTRACTORS.

(12) “Substantial Completion” means that stage in the progression of the

Construction Work, as approved by Owner in writing, when the Project is sufficiently complete in accordance with the Contract that Owner can enjoy beneficial use or occupancy of the entire Project and can utilize it for all of its intended purposes.

(13) “Supplier” means an entity providing only equipment or materials for the performance of the Construction Work.

(14) “Work” shall include the furnishing of all labor, materials, tools, equipment, incidentals, testing, and any other action necessary for full performance of this Contract.

ARTICLE 2: DESIGN/BUILDER’S REPRESENTATIONS

(A) Specific Representations: In order to induce Owner to execute this Contract and recognizing that Owner is relying thereon, Design/Builder by executing this Contract, and without superseding, limiting, or restricting any other representation or warranty set forth elsewhere in the Contract Documents, or implied by operation of law, makes the following express representations to Owner with respect to itself and/or its Subcontractors, who shall be referred to collectively as “Design/Builder” for purpose of this Article 2:

(1) Design/Builder is professionally and fully qualified to act as the design professional and Design/Builder is professionally and fully qualified to act

Sample DB – Subject to Change 6 as the general contractor for the Project and is, and will remain, licensed to practice engineering and architecture and general contracting by all public entities having jurisdiction over Design/Builder or the Project;

(2) Design/Builder will maintain all necessary licenses, permits or other authorizations necessary to act as Design/Builder for the Project until Design/Builder’s duties under this Contract have been fully satisfied;

(3) Design/Builder has the expertise, experience, and knowledge as well as the necessary plant, personnel and financial capability to perform the Design Services and the Work in accordance with the terms of this Contract;

(4) Prior to the execution of this Contract, Design/Builder has visited and inspected the Project site(s) and the local conditions under which the Project is to be designed, constructed and operated, and Design/Builder has performed such tests, if any, as are necessary to determine the conditions under which the Work will be performed, and Design/Builder accepts the conditions of the Work site(s) and has taken those conditions into account in entering into this Contract;

(5) Design/Builder assumes full responsibility to Owner for the improper acts and omissions of itself, or others employed or retained by Design/Builder in connection with the Project.

ARTICLE 3: REGULATORY GUIDELINES, REQUIREMENTS AND STANDARDS

(A) Generally: Design/Builder shall perform all Design Services described in, contemplated by, inferable from, or necessary or desirable to achieve the objectives stated in the Design Scope Specification and the Contract, including all Design Services necessary for the Project to be properly constructed by Design/Builder and used, operated and maintained by Owner in accordance with all applicable guidelines, requirements and standards. The Design Services shall be performed within the time provided by the Design Schedule for the performance of Design/Builder’s Design Services as provided in Paragraph 3(I) of this Contract.

(B) Specific Services:

(1) During all phases of the Work, Design/Builder shall render professional architectural and engineering consultation and during the construction portion shall render professional advisory services in administration of the Contract. Design/Builder shall stop the construction work at any time whenever such stoppage is necessary to insure the proper performance of

Sample DB – Subject to Change 7 the construction. Design/Builder shall order the removal and replacement of work failing to meet the requirements of the plans and specifications.

Design/Builder’s final instructions or decisions relating to the quality of workmanship and the strength, durability of materials, general appearance, and general progress shall all be subject to the approval of the Director.

(2) Design/Builder shall, in administration of the construction portion of the contract, observe and inspect the work periodically, as required and as directed, but at least once a week during regular working hours and at other times when work is actively being performed at each site where work is being performed. Design/Builder and Owner shall, at all times, have access to the Work whenever it is in preparation or progress.

(3) As part of the Stage III construction services (as described in Article 7), Design/Builder shall observe and inspect, adequately and satisfactorily, the Work performed under the construction portion of the contract to report on its correctness and fitness, to ascertain compliance with the contract documents and contract terms and to assure the absence of delays, defects or deficiencies. If Design/Builder observes any problem of deviation in the Work, it shall remedy such deviation and other construction problems that may occur from time to time. Particularly, Design/Builder shall:

(a) Cause its subcontractors to periodically visit the site of the improvement to inspect and report on the adequacy and correctness of the portion of the work designed and specified by said subcontractors;

(b) Inspect the materials to be used in the construction prior to their incorporation in the Work to determine whether they comply with contract requirements;

(c) Review, check, approve for conformance with the design concept of the Project and process all shop drawings submitted by subcontractors for the Project, review and evaluate proposed changes to the contract, and perform such other professional services that may be normally required during the construction phase of the Project; and

(d) Keep records of accounts with subcontractors and audit the subcontractors’ applications for payments, review monthly estimates for payment while construction work is being carried on, certify the correctness of such estimates which, Sample DB – Subject to Change 8 when properly certified, shall be transmitted to the Director not later than the 10th of the month following that in which the Work covered in the estimate was performed, prepare and certify, during and at the end of the period of guarantee, any estimates due the construction subcontractors. During the Guarantee Periods set forth below, Design/Builder shall furnish such services as may be required to see that the guarantee provisions are carried out by the construction subcontractors.

(4) Design/Builder shall provide qualified full-time architectural services in the field for continuous daily administration and inspection of the Project, as distinguished from the services to be provided under subparagraph (2) above. All such additional personnel shall be acceptable to the City and shall work under the direction of Design/Builder.

(5) During the progress of the Work, Design/Builder shall furnish the Director with written reports as necessary, but at least weekly, of the progress and quality of the Work and of any other information required by the Director.

Design/Builder shall also cooperate with the Director in preparing and checking any other information and data required by the Construction Work.

(6) When the Construction Work has been completed, Design/Builder shall generate “As-built” electronic drawings following the latest DPC CAD/BIM/DATA specifications. Corrected improvement plans shall be certified by licensed surveying and engineering professionals in the State of Ohio. Said as-builts are to be delivered to the Director as one (1) electronic copy formats (DWG and PDF) and three (3) printed paper formats to correct the approved working drawings to conform with the “record” conditions and to become the property of the Owner.

(7) Based on observations at the site and any subcontractor’s applications for payment, Design/Builder shall determine the amount owing and shall issue to the Director for approval of requests for payment.

(8) Design/Builder, together with the Director, shall conduct inspections to determine the dates of Substantial Completion and Final Completion, shall receive written guarantees, if required, and related documents assembled by the subcontractors, and shall issue a final approval of request for payment. Final Completion must be before (DATE or defined by weeks from the date of the Notice to Proceed).

(9) Owner shall not consider the services to be furnished by Design/Builder

Sample DB – Subject to Change 9 under Stage III as completed until: a) all parts of the improvement, as constructed, have been certified as having been constructed per design and built in accordance with codes and other applicable provisions as required by the various departments, bureaus and other governmental agencies having jurisdiction or interest; b) such certificates are in the hands of the Director; c) the estimate for the last payment to Design/Builder has been certified and transmitted to the Director; and d) the corrected as built documents and manuals required by Owner have been turned over to the Director.

(C) Owner’s Review of Design Services: Subject to Paragraph 13(H) of this Contract, Design/Builder shall submit all documents produced as part of the Design Services to the Director for review and approval in accordance with the terms of the Contract. However, any review or approval by the Director shall not relieve Design/Builder of or otherwise diminish its obligations under the Contract. The Director may direct Design/Builder to make changes to any design documents in order to conform the documents to Owner’s objectives. Any changes by Design/Builder ordered by the Director shall not relieve Design/Builder of its obligations under this Contract unless, and only to the extent that, Design/Builder notifies Owner in writing, within five (5) calendar days after receipt of Owner’s directive to make changes, concerning any adverse impact on schedules, budgets, operational costs, operational performance, satisfaction of regulatory requirements, or other adverse impact that may result from the directed changes. Failure of Design/Builder to submit its notice within the five

(5) day period constitutes a waiver by Design/Builder of any claim for an adjustment to the Design Schedule or the Contract Time.

(D) Preparation of Site Information: Design/Builder shall prepare, as necessary, surveys and topographic information by licensed professionals in the State of Ohio including aerial photographs needed to establish line and grade of sewers, location of property lines and easements. Sewer easements, both construction and permanent, shall be referenced to property lines by field surveys, and plans shall include the location of any improvement as it relates to property lines.

Owner expressly does not warrant any information provided by it in connection with preparation of the above-mentioned information;

Design/Builder however, may reasonably rely on information provided by Owner to the extent the information has been prepared by Owner or an independent consultant hired by Owner to prepare the information specifically for this Project, without absolving Design/Builder from its responsibility to independently verify, or investigate information that a reasonable, prudent professional architect or engineer should or would inquire about.

(E) Retention of Geotechnical Consultants: In preparing the Design Documents, Owner may separately retain an experienced, qualified geotechnical consultant

Sample DB – Subject to Change 10 to evaluate all geotechnical considerations relating to the design and construction of the Project, and, if Owner does so, Design/Builder shall be responsible for designing the Project in accordance with the analysis and recommendations of the geotechnical consultant. Nothing in this paragraph, however, prevents Design/Builder from retaining its own geotechnical consultant to review design work, raise issues for mutual discussion, and obtain further information in connection with the geotechnical nature of the Project. Owner expressly does not warrant any geotechnical information provided by it for use in connection with preparation of the design documents;

Design/Builder, however, may reasonably rely on geotechnical information provided by Owner to the extent the information has been prepared by Owner or an independent consultant hired by Owner to prepare the information specifically for this Project, without absolving Design/Builder from its responsibility to independently verify or investigate information that a reasonable, prudent professional architect or engineer should or would inquire about.

(F) Quality of Design Services: Design/Builder shall be responsible for the professional quality, completeness, accuracy and compliance with all applicable codes, rules and regulations and for coordination of Design Documents performed by the respective licensed professionals in the State of Ohio.

Design/Builder shall provide Design Services that will result in an operationally cost-efficient and economical facility that meets all environmental and regulatory requirements as of the date hereof, and uses the most appropriate available technology. Design/Builder shall provide for all quality control reviews required by sound professional architectural and engineering practices and by governmental authorities having jurisdiction over the Project.

(G) Compliance With Laws and Regulatory Requirements: In providing Design

Services, Design/Builder shall comply with the lawful requirements of all federal, state, and local authorities having lawful jurisdiction over the Project, including the Federal Aviation Administration. Design/Builder shall design the Project to meet all applicable requirements of building control laws and regulations in relation to the design, construction, occupation, and operation of the Project, including environmental standards, fire and safety regulations, and requirements and compliance with all other applicable standards and codes.

(H) Duty to Correct Errors: Design/Builder shall, without additional compensation, immediately correct any errors, omissions or deficiencies in its Design Services and Design Documents.

(I) Project Schedule: Design/Builder shall, within ten (10) calendar days after execution of the Contract, submit for Owner’s approval the Design Schedule for the performance of Design/Builder’s Design Services, which shall include allowance for reasonable time required for the Director’s review of submissions

Sample DB – Subject to Change 11 and for approvals of authorities having jurisdiction over the Project. This Schedule shall, upon approval by the Director, be considered incorporated and made a part of this Contract. The Design Schedule, when approved by the Director, shall not, except for good cause, be exceeded by Design/Builder.

Should Design/Builder at any time during the course of performing the Contract, have reason to believe that it will be unable to meet any completion date in accordance with the Design Schedule, it shall immediately notify the Director in writing. Design/Builder shall state the reason for the delay in the notice, including the party responsible, if any, and the steps being taken to remedy or minimize the impact of the delay. Failure of Design/Builder to submit such notice shall constitute a waiver by Design/Builder of any claim for an adjustment to the Design Schedule, the Contract Time or any Contract Document. All extensions of time shall be governed by Articles 16 and 17 of this Contract. Subject to the provisions of Paragraph 13(H) of this Contract, Owner shall review and approve, where appropriate, the Design Schedule, or any portion thereof.

ARTICLE 4: PRELIMINARY CONSULTATION AND PROJECT ANALYSIS

(A) Determining the Project Objectives: Prior to the preparation of the Preliminary

Design as required by Article 5 below, Design/Builder shall first consult in detail with Owner, and shall carefully analyze any information furnished by Owner concerning requirements of the Project, including but not limited to, any design, construction, scheduling, budgetary or operational requirements, limitations, and objectives, as well as the Design Scope Specification.

(B) Report on Project Requirements and Objectives: Based on its study and analysis, and no later than ten (10) calendar days after the effective date of the Contract, Design/Builder shall prepare and submit to Owner a written report detailing Design/Builder’s understanding and analysis of the Project requirements and identifying any design, construction, scheduling, budgetary, operational, or other problems which may result from said requirements. The written report of Design/Builder shall also include proposed solutions, including design alternatives if appropriate, addressing each of the identified problems.

Design/Builder shall review such report with Owner and shall implement such changes as Owner may require as provided in Paragraph 3(B) of this Contract.

(C) Scheduling: It is expressly understood and agreed that, in the interest of the timely Completion and economic construction of the Project, Owner has the right to require Design/Builder to design various portions of the Project out of sequence in order (i) to facilitate early pre-purchasing of materials, equipment and other long lead items to be installed into the Project, as well as (ii) to accommodate the early performance of certain items of Work (such as demolition/excavation, foundation laying, steel framing and vertical

Sample DB – Subject to Change 12 transportation) as may be reasonably designated by Owner (which approach for the design and construction of the Project is hereinafter referred to as “fast-tracking”) and, as a result, various portions of the design documents may be furnished to Owner on a “fast-track” basis. Accordingly, Owner reserves the right to direct Design/Builder to schedule and reschedule, from time to time, the order of performance of the Work hereunder, including, without limitation, the temporary suspension of all or part of the Work, in order to facilitate (i) the orderly completion of the work on a “fast-track” basis and (ii) Owner’s realization of the economic benefits to be derived from the application of the “fast-track” technique of construction. Design/Builder hereby represents that it has all requisite expertise in the “fast-track” method of construction and related “fast-tracking” practices, understands that said representation has served as a material inducement in Owner’s selection and retention of the services of Design/Builder for the Project and hereby agrees to expressly waive any and all rights and remedies it may otherwise have at law or in equity for claiming, or otherwise asserting, that it is entitled to extra compensation or damages of any kind, or an extension to the Schedule by reason, or as a result, of schedule changes ordered by Owner or otherwise necessitated to accommodate performance of the Work on a “fast-track” basis, and the Design/Builder shall so provide in all subcontracts; it being expressly understood that under such circumstances, Design/Builder shall not be entitled to any extra compensation in the form of an increase in the fee, an increase in the Guaranteed Maximum Cost, or reimbursements on account of the cost of the Work, or otherwise in excess of those that would have been payable but for such schedule changes, nor shall Design/Builder be entitled to make a claim that the same constitutes a delay.

Design/Builder expressly recognizes that the fast-track method may require Design/Builder to prepare, issue and analyze bid packages for trade labor in excess of the number ordinarily required under standard construction practices and hereby agrees to prepare, issue and analyze the same, if and as needed in a prompt fashion.

Notwithstanding the division of Design/Builder’s Work into three phases, Design/Builder understands and agrees that the Project shall proceed on a “fast-track” basis and that portions of the Work to be performed by Design/Builder in the Pre- Construction or Design Phase may overlap and be combined with portions of the Work to be performed in other phases.

ARTICLE 5: STAGE I: PRELIMINARY DESIGN

(A) Time for Preliminary Design: Not later than the date called for in the Design

Schedule, Design/Builder shall prepare and submit to the Director a Preliminary Design for the Project.

(B) Contents of Preliminary Design: The Preliminary Design shall address all

Sample DB – Subject to Change 13 requirements of the Project and shall include, without limitation the following:

(1) preliminary drawings which illustrate each of the basic components of the Project including the size, scale, location, dimensions and character of each structure;

(2) preliminary drawings which illustrate each exterior view of the Project;

(3) preliminary drawings which illustrate a floor plan for each room, office and functional area of the Project and the dimensions thereof;

(4) preliminary drawings and specifications illustrating and describing the architectural, electrical, mechanical structural, and manufacturing systems of the Project;

(5) a written description of the materials amid equipment to be incorporated into the Project and the location of same; and

(6) any other documents or things required to illustrate, describe or depict the Preliminary Design and the conformity of same with the requirements of the Design Scope Specification and this Contract.

(C) To Be Reviewed with Owner: Design/Builder shall review the Preliminary Design with the Director and shall incorporate any changes ordered by the Director in regard to the Preliminary Design or the requirements of the Project.

(D) Authorization to Proceed with Detailed Design: After review of the Preliminary

Design and incorporation of any changes ordered by the Director, the Director shall authorize Design/Builder in writing to commence preparing the Detailed Design, or such part thereof as directed by the Director.

ARTICLE 6: STAGE II: DETAILED DESIGN

(A) Time for Preparation: Not later than the date called for in the Schedule, after the

Director has authorized Design/Builder to commence with the Detailed Design as provided in Paragraph 5(D) above, Design/Builder shall prepare and submit to the Director the complete Detailed Design.

(B) The Detailed Design: The Detailed Design shall include all Design Documents which shall describe with specificity all elements, details, components materials, and other information necessary for the complete construction of the Project and the rendering of the Project fully operational for its intended purposes, including satisfaction of all testing, permitting, qualifications, certifications, validations and obtaining regulatory approvals by all applicable regulatory authorities required to

Sample DB – Subject to Change 14 render the Project and all its components operational and functionally and legally usable for their intended purpose. Subject to the provisions of Paragraph 13(G) of this Contract, Owner shall review and approve, where appropriate, the Design Documents, or any portion thereof.

ARTICLE 7: STAGE III: CONSTRUCTION SERVICES

(A) General Intent: Design/Builder shall perform all Work necessary to construct the

Project in accordance with this Contract, and to render the Project and all its components operational and functionally and legally usable for their intended purpose.

(B) Construction Work Defined: The term “Construction Work” shall mean whatever is done by or required of Design/Builder to perform and complete its duties relating to the construction of the Project under the Contract, including, without limitation, the following:

(1) construction of the whole and all parts of the Project in full and strict conformity with this Contract;

(2) the provision and furnishing, and prompt payment therefor, of all labor, supervision, services, materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage, power, filet, heat, light, cooling, and all other utilities and things required for the construction of the Project;

(3) the procurement and furnishing of all necessary building permits and other permits required for the construction of the Project;

(4) the creation and submission to Owner of detailed as-built drawings depicting all as-built construction per the latest DPC CAD/BIM/DATA specifications and performed by licensed surveyors and engineers in the State of Ohio;

(5) the furnishing of any required surety bonds and insurance as required by the Contract;

(6) the furnishing of all equipment and product warranties, manuals, test results and user guides required by the Contract or otherwise reasonably available to Design/Builder; and

(7) the furnishing of all other services and things required or reasonably inferable from the Contract Documents, including the provisions of Article 9 below.

Sample DB – Subject to Change 15

ARTICLE 8: TIME FOR CONSTRUCTION: THE CONTRACT TIME

(A) Notice of Commencement: After Owner has approved the Design Documents for the Detailed Design, Owner shall issue a notice to commence the Work directing Design/Builder to proceed with the Work on the date indicated in the notice (the “Commencement Date”). The notice to commence Work shall be issued at least ten (10) calendar days prior to the Commencement Date.

(B) Time for Completion: Design/Builder shall commence the Work on the

Commencement Date, and the Work shall be carried out regularly and without interruption. Design/Builder shall complete the Work not later than (DATE or defined in weeks), or such other date as may by Change Order or Field Clarification be designated (the “Scheduled Completion Date’’). The number of calendar days between the effective date of the Contract and the Scheduled Completion Date is the “Contract Time.” Design/Builder shall achieve Final Completion of the Work no later than thirty (30) calendar days after achieving Substantial Completion.

(C) Liquidated Damages for Delay in Substantial Completion: Design/Builder shall pay Owner the sum of One Thousand Dollars ($1,000) per day for each and every calendar day of unexcused delay in achieving Substantial Completion beyond the Scheduled Completion Date as established in the Project Schedule accepted by Owner. Any sums due and payable hereunder by Design/Builder shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by Owner, estimated at the time of executing this Contract. Such liquidated damages shall apply regardless of whether Design/Builder has been terminated by Owner prior to Substantial Completion so long as Design/Builder’s actions or inactions contributed to the delay. Such liquidated damages shall be in addition to and not in preclusion of the recovery of actual damages resulting from other defects in Design/Builder’s performance hereunder for matters other than delays in Substantial Completion.

When Owner reasonably believes that Substantial Completion will be inexcusably delayed, Owner shall be entitled, but not required, to withhold from any amounts otherwise due to Design/Builder an amount then believed by Owner to be adequate to recover liquidated damages applicable to such delays. If and when Design/Builder overcomes the delay in achieving Substantial Completion, or any part thereof, for which Owner has withheld payment, Owner shall promptly release to Design/Builder those funds withheld, but no longer applicable as liquidated damages.

(D) Liquidated Damages for Delay in Final Completion: It is of the utmost importance to the Owner that the Design/Builder achieve Final Completion on or before (DATE or defined in weeks). If Design/Builder fails to achieve Final

Sample DB – Subject to Change 16

Completion within thirty (30) calendar days after the date of Substantial Completion, Design/Builder shall pay Owner the sum of One Thousand Dollars ($1,000) per day for each and every calendar day of unexcused delay in achieving Final Completion beyond the date set forth herein for Final Completion of the Work. Any sums due and payable hereunder by Design/Builder shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by Owner, estimated at the time of executing this Contract. Liquidated damages shall apply regardless of whether Design/Builder has been terminated by Owner prior to Final Completion so long as Design/Builder’s actions or inactions contributed to the delay. Such liquidated damages shall be in addition to and not in preclusion of the recovery of actual damages resulting from other defects in Design/Builder’s performance hereunder for matters other than delays in Final Completion. When Owner reasonably believes that Final Completion will be inexcusably delayed, Owner shall be entitled, but not required, to withhold from any amounts otherwise due to Design/Builder an amount then believed by Owner to be adequate to recover liquidated damages applicable to such delays. If and when Design/Builder overcomes the delay in achieving Final Completion, or any part thereof for which Owner has withheld payment, Owner shall promptly release to Design/Builder those funds withheld, but no longer applicable as liquidated damages.

(E) Excused Delay: If the Design/Builder is delayed in the completion of the Work by any act or neglect of Owner, or by any other contractor employed directly by the Owner, or by strikes, lockouts, fire, unusual delay by common carriers, unavoidable casualties or any cause beyond the Design/Builder's control, including orders, limitations or restrictions of any governmental agency having jurisdiction over the subject matter of the Contract, or by delay authorized by the Director, or by any cause which the Director shall decide in his sole discretion to justify the delay, then, for all such delays and suspensions, Design/Builder shall be allowed one calendar day extension beyond the time fixed for completion of the work for each and every calendar day of such delay so caused in the completion of the work, the same to be ascertained by the Director in his sole discretion. No such extension shall be made for any one or more of such delays unless within ten calendar days after the beginning of such delay a written request for additional time shall be filed with the Director. In case of a continuing cause of delay, only one request will be necessary. No claims for damages or any claim other than for an extension of time as herein provided shall be made or asserted against the Owner by reason of delays hereinbefore mentioned.

When by reason of any of the causes stated herein an extension of time has been allowed the Design/Builder for the completion of his Work, Design/Builder shall not be entitled to a bonus for completion prior to the date so extended.

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(F) Time is of The Essence: All limitations of time set forth in this Contract are material and time is of the essence of the Contract.

ARTICLE 9: ADDITIONAL DUTIES AND RESPONSIBILITIES OF

DESIGN/BUILDER

(A) Design/Builder to Perform All Work Required by the Contract: The intent of this

Contract is to require complete, correct and timely execution of the design and the construction Work. Any and all Construction Work that may be required, reasonably implied, or reasonably inferred by the Contract, or any part of it, as necessary to produce the intended result shall be provided by Design/Builder for the Guaranteed Maximum Price as provided in Article 10 of this Contract.

(B) Strict Compliance with the Contract Documents: All Construction Work performed by Design/Builder shall be in strict compliance with this Contract and the Contract Documents, including the Detailed Design. “Substantial Compliance” is not strict compliance. Any Construction Work not in strict compliance with the Contract and Contract Documents is defective.

(C) Supervision of the Construction Work: The Construction Work shall be strictly supervised and directed using Design/Builder’s best and highest skill and effort.

Design/Builder shall bear full responsibility for any and all acts or omissions of those engaged in the construction Work on behalf of Design/Builder

(D) Warranty of Construction Workmanship and Materials: Design/Builder warrants and guarantees to Owner that all labor furnished to perform the Construction Work under the Contract will be competent to perform the tasks undertaken and is the best quality obtainable, that the product of such labor will yield only first-class results in strict compliance with the Contract, that materials and equipment furnished will be of high quality and new unless otherwise permitted by the Contract, and that the Construction Work will be of high quality, free from faults and defects and in strict conformance with the Contract. Any and all Construction Work not strictly conforming to these requirements shall be considered defective and shall constitute a breach of Design/Builder’s warranty.

(E) Commencement of Guarantee and Warranty: Special or specific guarantees and warranties which are required by the Contract to run for a fixed period of time shall commence running on the date of Substantial Completion of all construction Work.

(F) Design/Builder’s Schedule of Construction: Design/Builder, within ten (10) calendar days after the Commencement Date, shall submit to the Director for his information and shall comply with, Design/Builder’s Schedule of Construction for completing the Construction Work by the Scheduled Completion Date. The

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Schedule of Construction shall reflect the performance of all construction Work on weekdays and non-holidays. The Schedule of Construction shall be a detailed critical path management schedule in a form acceptable to Owner. The Schedule of Construction shall be revised at least monthly and shall be revised to reflect conditions encountered from time to time and shall be related to the entire Project. Each such revision shall be furnished to Owner. Strict compliance with the requirements of this Paragraph shall be a condition precedent for payment to Design/Builder, and failure to strictly comply with said requirements shall constitute a material breach of the Contract. No claim for an increase in the Guaranteed Maximum Price (“GMP”) shall be allowed as a result of Design/Builder basing the GMP upon an early completion schedule or as a result of delays and costs attributable to completion later than the planned early completion date.

(G) Record Copy of Contract Documents: Design/Builder shall continuously maintain at the site, for the benefit of Owner, an updated copy of this Contract, including one record copy of the Contract Documents marked to record on a current basis changes to sections and modifications made during construction. Additionally, Design/Builder shall maintain at the site, for the benefit of Owner, a copy of all shop drawings, product data, samples, and other submittals. Upon Final Completion of the Construction Work, or upon the Director’s request, all of the documents described in this Paragraph shall be finally updated and delivered to Owner and shall become the property of Owner.

(H) Review and Approval of Submittals: Design/Builder shall review, study, and approve, or take other necessary action upon all shop drawings, product data, samples, and other submittals to ensure that the Project will be constructed in a timely fashion in strict compliance with the Contract. No deviation from, substitution for or other modification from the Contract Documents shall be allowed by Design/Builder in a shop drawing or submittal without written approval, in the form of a Change Or Substitution Request from Design/Builder and approved in writing by Owner. Design/Builder shall engage in prompt and adequate review of shop drawings and other submittals to maintain the Construction Schedule; Design/Builder also warrants it will use its best independent professional judgment in its review to determine compliance with the Contract Documents.

(I) Owner’s Option to Review Submittals: Owner shall also, in its discretion, have the right to review and approve submittals, and if Owner so elects.

Design/Builder shall not perform any portion of the Construction Work as to which Owner has required submittal and review until such submittal has been approved by the Director. Approval by the Director, however, shall not be evidence that Construction Work installed pursuant to the Director’s approval conforms to the requirements of the Contract nor shall such approvals relieve

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Design/Builder of any of its responsibilities or warranties under the Contract. If Owner elects to review submittals, Design/Builder shall maintain a submittal log which shall include, at a minimum, the date of each submittal, the date of any resubmittal, the date of any approval or rejection, and the reason for any approval or rejection. Design/Builder shall have the duty to carefully review, inspect and examine any and all submittals before submission of same to Owner.

Shop drawings and other submittals from Design/Builder do not constitute a part of this Contract.

(J) Procurement and Review of Warranties: Design/Builder shall procure from all subcontractors and suppliers and shall transmit to the Director, all warranties required by the Contract. Design/Builder shall review all such warranties and shall certify to Owner that the warranties are in strict compliance with the requirements of the Contract.

(K) Procurement of Operations and Maintenance Documentation: Design/Builder shall prepare or procure and shall transmit to the Director all documentation required by this Contract regarding the operation and recommended maintenance programs relating to the various elements of the Construction Work.

(L) Compliance with Labor Laws: Design/Builder shall assume all labor responsibility for all personnel assigned to or contracted for the performance of the construction Work and agrees to strictly comply with all its obligations as employer with respect to said personnel under all applicable labor laws.

(M) Testing, Inspections and Approvals: Design/Builder shall be responsible for procuring all tests and inspections required by sound professional practices and by governmental authorities having jurisdiction over the Project, including, but not limited to special inspections required by the Ohio Building Code.

Design/Builder shall submit certified results of such tests to Owner. If the laws, ordinances, rules, regulations or orders of any public authority having jurisdiction require any Construction Work to be specifically inspected, tested, or approved, Design/Builder shall assume full responsibly therefore, pay all costs in connection therewith and shall promptly furnish to Owner the required certificates of inspection, testing or approval.

(N) Owner’s Regulations and Applicable Laws: Design/Builder shall, during the course of the construction Work, comply with any regulations or guidelines prescribed by Owner. Design/Builder warrants that it will comply with all public laws, ordinances, rules and regulations applicable to the services to be performed under the Contract, including but not limited to:

1. Participation of Local Small Business Enterprises, Minority Business

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Enterprises and Female Business Enterprises.

During the performance of this Contract, the Design/Builder shall comply with all applicable provisions of Chapter 187 of the Codified Ordinances pertaining to participation of local small business enterprises, minority business enterprises and female business enterprises. In particular, Design/Builder is subject to a 10% Cleveland Small Business subcontractor participation goal on this Project.

2. Verification of Compliance of the City

Design/Builder shall permit access by the Director of OEO or his designated representative to…