2 DB General Conditions.pdf

Commonwealth of Kentucky Revised: December 1, 2018

General Conditions – Design Builder Page 1

FINANCE AND ADMINISTRATION CABINET

DEPARTMENT FOR FACILITIES MANAGEMENT

DVISION OF ENGINEERING AND CONTRACT ADMINISTRATION

GENERAL CONDITIONS – Design Builder

These General Conditions of the Contract for Construction – Design Builder have been implemented by the Kentucky Division of Engineering and Contract Administration for the purpose of delineating the provisions of the Contract for Construction when the Commonwealth has entered into a Contact with a

Design Builder to accomplish a Capital Construction Project. The Document as a whole outlines the primary obligations and basic expectations for each entity involved in the Project.

These General Conditions apply to each section of the specifications and to the Contract Documents as a whole and are binding upon the Design Builder, Design Professionals and all Subcontractors as each are subject to the provisions contained herein.

These General Conditions are intended to define and establish certain definitions, procedures, rules and provisions of the Contract governing the operation so that the Work may be continued and be completed in an orderly, expeditious and workmanlike manner.

These General Conditions, together with the specifications and Contract Documents, shall further establish the standards of material and workmanship for the Work.

Specific Project requirements may alter the provisions indicated herein where strict adherence to the provisions of this document are not warranted or applicable. The Special Conditions and Supplemental Conditions contained in the Contract Documents, if present, modify and take precedence over the provisions of these General Conditions for this specific Project.

These General Conditions are based on and are consistent with the specific Kentucky Revised Statues passed by the Kentucky Legislature and signed into effect by the Governor; specific Kentucky Administrative Regulations promulgated by State Agencies to enhance and clarify procedures that are authorized by a specific statute; specific Finance Cabinet Administrative Regulations; and the DECA Procedures Manual.

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Contents

Page Article Title

3 ‘1. Definitions of Terms

7 ‘2. Intent and Interpretation

9 ‘3. The Architect (part of the Design Builder)

13 ‘4. Construction Schedule

14 ‘5. Shop Drawings; Submittals

15 ‘6. Documents and Samples at the Site

15 ‘7. Contract Documents Property of Owner

15 ‘8. Supervision and Construction Procedures

18 ‘9. Labor, Material

20 ’10. Surveys, Permits, Fees, Notices, and Tests

21 ’11. Protection of Work, Property, Employees and Public

23 ‘12. Inspection of Work/ Defective or Incomplete Work / Special Inspections

25 ‘13. Royalties and Patents

25 ‘14. Changes in the Work/Change Orders

29 ’15 Project Records

29 ’16. Delays and Extensions of Time

32 ’17 Subcontractors

33 ’18. Payment

37 ’19. Completion

41 ’20. Correction of Work

42 ’21. Suspension of Work

43 ’22. Termination

45 ’23. Indemnification

45 ’24. Insurance

47 ’25. Performance and Payment Bonds

48 ’26. Claims by the Design Builder/Concealed Conditions/Disputes

50 ’27 Liens

50 ’28 Assignments

50 ’29 Separate Contracts

51 ’30 Cash Allowances

51 ’31. Miscellaneous Provisions Regarding Design Builder’s Work

52 ’32 Other Miscellaneous Provisions

52 ’33. Apprentices

52 ’34. Nondiscrimination in Employment

52 ‘35 Affirmative Action; Reporting Requirements

53 ’36 Access to Records

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Articles

‘1. Definitions of Terms

Wherever used in these General Conditions or in other Contract Documents, the following terms have the meaning indicated which are applicable to both the singular and plural thereof:

‘1.1 Addenda--Written or graphic instruments issued prior to the opening of Request for Proposals (RFP) Responses which clarify, correct or change the RFP Requirements or the Contract Documents.

An Addendum supersedes related provisions of the Contract Documents which are clarified, corrected or changed by the addenda.

‘1.2 Agency or Using Agency is the state government entity which utilizes the Work being contracted.

The agency is a “client” of the Owner and advises the Owner of the needs, requirements and desires of the Agency related to the project. The Owner consults with the Agency on matters related to the Project. The Agency does not possess the legal authority of the Owner.

‘1.3 Architect is the person or entity, either architect, engineer, or consultant, who is identified as such in the Contract Documents and on the drawings or any replacement architect, engineer, or consultant identified by the Design Builder and the Owner. The A/E is a part of the Design Builder and not an agent of the Owner. The term includes any associates or consultants employed by the A/E to assist in providing the A/E’s required services to the Design Builder and the Owner.

‘1.4 Beneficial Occupancy: The condition concurrent to or different from the time of Substantial Completion (but always prior to Final Completion) of the Project at which time the Project, or portion thereof, is sufficiently complete, systems operational, and necessary approvals and certificates are received such that the Owner could occupy and utilize the space for its intended use, even though certain requirements for Substantial Completion have not been completed (i.e. Operations and Maintenance Manuals, Owner systems training, etc.). Note that guarantees and warranties applicable to the work begin on the date of Substantial Completion of Project, whether or not the Owner assumes Beneficial Occupancy concurrently or at a different time, unless otherwise specified in the Supplemental General Conditions or by separate agreement.

‘1.5 Certification of Payment is the Owner’s Progress Payment Forms, DOA-24 and DOA-25. All Payments made to the Design Builder under this contract shall be on the appropriate Owner’s Progress Payment Form.

‘1.6 Owner Initiated Change Order means a written order to the Design Builder executed by the Owner and the Architect (a part of the Design Builder) after execution of the Contract, directing a change in the Work and may include a change in the Contract Price or the Contract Completion Time, or any combination thereof. For Design Build Contracts, an Owner Initiated Change Order is for modifications to the original intent and scope of the project where the Owner has need or desire to modify the requirements of the Contract Documents. There shall be no authorized changes in the Work which affect either Contract Price or Contract Completion Time without a fully executed Owner Initiated Change Order, except as provided elsewhere herein.

‘1.6.1 The Architect’s execution of the an Owner Initiated Change Order shall be deemed as evidence to the Owner that the proposed change is consistent with the current editions of all applicable building codes and with the provisions of the Contract Documents and that all relative aspects of the project Work has been accommodated in the Change.

‘1.6.2 For Design Build Contracts, a change in the drawings and specifications that do not change the Contract Requirements in accordance with the Contract Documents is not considered a change order to the Owner and is internal to the Design Builder (between the Contractor and the Design

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Professional which are both part of the Design Builder). Only Owner Initiated Change Orders affect the Contract Amount or Contract Time.

‘1.7 Contract is the legal relationship, duties and obligations between the Owner and Design Builder as evidenced by the Contract Documents for the Project.

‘1.8 Contract Completion Time is the number of calendar days between the Date of Commencement and the dates set for Substantial Completion and Final Completion of the Work, including any adjustments thereto, all as established in the Contract between Owner and Design Builder. When defined by the Request for Proposals for Design Build Services, the Contract Completion Time may be a combination of the number of calendar days between the Date of Commencement and the date set for Completion of the Final Design and the number of calendar days between the Date for Completion of the Final Design and the dates set for Substantial Completion and Final Completion of the Work.

‘1.9 Contract Documents include the Request for Proposals (RFP) for Design Build Services, Solicitation Addenda, the Response to the RFP for Design Build Services, the Payment and Performance Bonds, the General Conditions, the Special or Supplemental Conditions, the drawings, specifications, any written clarification of the response provided prior to the execution of the Contract for Design Build Services, the award document containing the Agreement between Owner and Design Builder, and modifications issued after execution of the Contract. Modifications include (1) Change Orders issued as provided in Article 14, (2) Field Orders for minor changes in the work issued by the Architect (a part of the Design Builder) as provided in Article 14, and (3) Owner’s Supplemental Instructions for minor changes in the work issued by the Owner as provided in Article 14 . Documents not included or expressly contemplated in this Paragraph, 1.9, do not, and shall not, form any part of the Contract between the Owner and the Design Builder.

‘1.10 Contract Sum means the sum stated in the Contract including any authorized adjustments thereto and is the total amount payable by the Owner to the Design Builder for the performance of the Work under the Contract Documents.

‘1.11 Design Builder means the person or entity with whom the Owner has executed the Contract for design and construction of the Project. The Design Builder may also be referred to as Contractor, General Contractor, Architect, Engineer or other Consultant of the Design Builder. The Design Builder shall hold his Design Professional Consultants, subcontractors, suppliers and others under his employ or contract to the terms and conditions of the Contract Documents.

‘1.12 Damages for untimely performance means a calculated monetary amount to be paid to the Owner, based on real costs which the Commonwealth incurs, due to the Design Builder's failure to complete the Work within the allowable time identified in the Contract Documents. This term may also be referred to as “Liquidated Damages” where the actual cost of damages for untimely performance cannot be readily calculated and a definite sum is predetermined to be paid to the Owner. The amount of Liquidated Damages shall be defined in the Special Conditions of this Project.

‘1.13 Date of Commencement is the date specified in the Contract as the date upon which the Design Builder is authorized to begin work. The Date of Commencement may, at the Request for Proposals for Design Build Services be a specific date or may be a combination of dates which define the Commencement of Design Services and the Commencement of Construction Services, both of which are services performed by the Design Builder. The Contract Completion Time as set forth in paragraph

1.8 is determined using this Date of Commencement as the starting date.

‘1.14 DECA Project Manager means the person or persons delegated authority to act on behalf of the Owner. Such person or persons is/are employed by the Owner, DECA's Project Manager(s) will be designated at the Pre-Construction Meeting. DECA reserves the right to change its designated Project Manager(s) at any stage of the Work, for the sole purpose or benefit of the Commonwealth.

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‘1.14.1 Where the authority or role of the Architect (part of the Design Builder) is limited by the Contract Documents, the DECA Project Manager functions in the traditional role of the Architect beyond those defined limitations.

‘1.15 Delay means an event that causes an increase in the duration of the Project, or that changes the sequence of the Work or individual Work activities, thereby preventing completion of the Project within the time period specified in the Contract Documents. An event that does not cause an increase in the duration of the Project or prevents the completion of the Project within the time period specified in the Contract Documents, such as an event that is not on the critical path of the project schedule is not a delay under this definition.

‘1.16 Direct Expenses is defined as “All items of expenses directly incurred by or attributable to a specific project, assignment or task” and “Direct costs consist of direct materials, direct labor, subcontract costs, and other miscellaneous direct costs such as bonding and equipment rentals, that are directly related to and can be specifically attributed to an individual contract.”

‘1.17 Drawings are the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued, showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams.

‘1.17.1 The Drawings are produced and issued by the Architect (part of the Design Builder) and do not supersede the requirements of the Contract Documents produced and issued by the Owner, including but not necessarily limited to the Request for Proposals, addenda issued to the Request for Proposals during the bidding period, the Contract between the Owner and the Design Builder, Owner Initiated Change Orders, the response to the Request for Proposals of the Design Builder as accepted by the Owner, Owner’s Supplemental Instructions, etc.

‘1.17.2 It is the responsibility of the Design Builder to insure that the drawings as issued by the Architect (part of the Design Builder) graphically reflects the requirements of the Contract Documents and made part of the Contract Documents by this assurance.

‘1.18 Document Collaboration is the Owner’s web-based document collaboration system that shall be used by all project participants for the submission, transmittal, transfer, review, approval, processing of all documents related to this project. Where the General Conditions, the technical specifications, or the Contract for Construction indicates that a submission of documents is required, this submission shall be through the Owner’s Document Collaboration System.

‘1.19 Extra Work as used in Article 14 is defined as Work not part of the existing Contract Documents which is being added to the Contract by a fully executed Change Order.

‘1.20 A Owner’s Supplemental Instructions or Owner’s Field Order is a written order issued by the Owner which clarifies or interprets the Contract Documents, or orders minor changes in the Work which does not require a change under Article 14. Owner’s Supplemental Instructions are issued to the Design Builder through the Owner’s Document Collaboration System.

‘1.20.1 The Architect (part of the Design Builder) may also issue a Field Order, a written order issued by the Architect, which clarifies or interprets the Contract Documents (where this document does not limit the Architect’s ability to do so), or orders minor changes in the Work which does not require a change under Article 14. Field Orders are issued to the Contractor internally (since the Contactor and the Architect are both part of the Design Builder). Field Orders issued by the Architect are also called Architect’s Supplemental Instructions and are handled and processed similar to Owner’s Supplemental Instructions indicated above.

‘1.21 Final Completion is defined as the Work being acceptable under the Contract Documents and the Contract fully performed in accordance with the terms and conditions of the Contract Documents and the entire payment balance due the Design Builder is due and payable.

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‘1.21.1 Final Completion Date shall have the meaning as described to it in Article 19.

‘1.22 Notice of Intent to Award is a written letter issued to the apparent successful Design Builder after acceptance of bid price, unit prices, subcontractors and equipment and materials to inform them of such acceptance and request the required additional documentation to initiate the Contract. This is NOT an authorization to proceed.

‘1.23 Owner means the Commonwealth of Kentucky, acting through the Finance and Administration Cabinet and its Administrative Agent, the Department for Facilities and Support Services, Division of Engineering and Contract Administration. The Owner is represented solely by the Division of Engineering and Contract Administration.

‘1.24 The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the Owner or by other Contractors, working under separate Contract with the Owner.

‘1.25 Resident Observer means an individual who has a direct contract with the Owner to observe and report on activities at the work site. Generally, only in specific cases will the Owner have a Resident Observer on a Design Build Project. A Resident Observer employed by the Architect is not authorized to serve as the Owners Representative, unless so designated by the Owner in writing.

‘1.26 Retainage means money earned by a Design Builder for work accepted by the Owner, but withheld to ensure proper performance by the Design Builder. Note that Retainage is further defined in Article 18.

‘1.27 Shop Drawings means drawings, completion diagrams, schedules, and other data specially prepared for the Work by the Contractor (part of the Design Builder) or any Subcontractor, lower tier subcontractors, manufacturer, supplier, or distributor to illustrate some portion of the Work.

Shop Drawings and other submittals from the Design Builder to the Architect (a part of the Design Builder) shall be transmitted through the Owner’s Document Collaboration System.

‘1.27.1 The Owner and Using Agency will review shop drawings for compliance to the intent of the Request for Proposals for Design Builder Services. The Owner and the Using Agency has the right to reject shop drawings that are not in compliance with the intent of the Contract Documents requirements.

‘1.28 Subcontractor means the person or entity having a direct contract with the Contractor (part of the Design Builder) for the performance of a part of the Work.

‘1.29 Substantial Completion is the point at which, as certified in writing by the Architect (part of the Design Builder) that the project is completed in compliance with the Contract Documents, compliant with applicable building codes and accepted by the Owner. This written certification is to indicate that the Project is at a level of completion in strict compliance with the Contract, and necessary approval by public authorities has been given, such that the Owner or the Using Agency can enjoy beneficial use or occupancy and can use, operate and maintain (the Owner has received all required warranties and documentation) it in all respects, for its intended purpose. Partial use or occupancy of the Project shall not result in the Project being deemed substantially complete and such partial use or occupancy shall not be evidence of Substantial Completion.

‘1.29.1 Substantial Completion Date shall have the meaning as described to it in Article 19.

‘1.29.2 All material, systems, or product warranties required by the Contract Documents shall commence on the Substantial Completion Date without exception, unless accepted in writing from an Associate Director of the Division of Engineering and Contract Administration for that specific material, system or product.

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‘1.30 Warranty, General. The Design Builder shall warrant all equipment, materials, products, and workmanship provided by the Contractor (part of the Design Builder) under these Contract Documents for a period of twelve (12) months after the Date of Final Completion. This period of time is called the One-Year Warranty Period and is further defined in Article 9.2.

‘1.31 The Work includes the construction and services required by the Contract Documents, whether completed or partially completed, and includes all labor, supervision, materials, equipment, services, and things provided or to be provided by the Design Builder to fulfill the Design Builder’s obligations.

‘2. Intent and Interpretation

The Architect (a part of the Design Builder) shall be the authority of the Contract Documents as to their intent or interpretation, except as defined below and/or as provided in paragraph 3.4.

‘2.1 Anything that may be required, implied or inferred by the documents which make up the Contract, or any one or more of them, shall be provided by the Contactor (part of the Design Builder) for the Contract Sum;

‘2.2 Nothing contained in the Contract Documents shall create, nor be interpreted to create, privity or any other relationship whatsoever between the Owner and any person except the Design Builder;

‘2.3 When a word, term, or phrase is used in the Contract Documents, 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 and customary usage;

‘2.4 The words “include”, “includes”, or “including”, shall be deemed to be followed by the phrase, “without limitation”.

‘2.5 The specification herein of any act, failure, refusal, omission, event, occurrence or condition as constituting a material breach of the resulting 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 resulting Contract;

‘2.6 In the event of any conflict, discrepancy, or inconsistency, the following shall control:

‘2.6.1 As between figures given on plans and scaled measurements, the figures shall govern; When two or more figures given on the plans are in conflict, the Contractor (part of the Design Builder) shall inform the Architect (a part of the Design Builder) of such conflict immediately and the Architect shall clarify the correct figure to be used. The Contractor shall not proceed with any work related to the figures in conflict until the Architect has provided this clarification. The Owner shall be copied on the Architect’s responses.

‘2.6.2 As between large scale plans and small scale plans, the large scale plans shall govern;

‘2.6.3 As between plans and specifications, the requirements of the specifications shall govern;

‘2.7 Meaning of Execution. Execution of the Contract Documents by the Design Builder is a representation that the Design Builder has thoroughly examined the site of the Work, become familiar with the local conditions under which the Work is to be performed, and correlated

General Conditions – Design Builder Page 8 personal observations with the requirements of the Contract Documents. Execution of the Contract Documents is a further representation that Design Builder has received, reviewed and carefully examined all of the Contract Documents, and has found them in all respects to be complete, accurate, adequate, consistent, coordinated and sufficient for construction, the Design Builder is fully qualified to act as the Design Builder for the Project and has, and shall maintain, any and all licenses, permits or other authorizations necessary to act as the Design Builder for, and to construct the Project.

‘2.8 Prior Agreements. The Contract Documents supersede any and all prior discussions, communications, representations, understandings, negotiations or agreements between the Owner and the Design Builder and the Using Agency and the Design Builder.

‘2.9 Design Builder’s Performance. The Design Builder shall perform all of the Work required, implied or reasonably inferable from the Contract including, but not limited to, the following:

‘2.9.1 design and construction of the Project;

‘2.9.2 The furnishing of any required surety bonds and insurance;

‘2.9.3 The provision or furnishing, and prompt payment therefor, of labor, supervision, services, materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage, power, fuel, heat, light, cooling, or other utilities, required for construction and all necessary building permits and other permits required for the construction of the Project;

‘2.9.4 The creation (and submission to the Owner) of detailed and comprehensive record drawings, depicting all as-built construction. Said as-built drawings shall be submitted to the Owner by the Design Builder upon final completion of the Project and receipt of same by the Owner shall be a condition precedent to final payment to the Design Builder.

‘2.10 Time. All limitations of time set forth in the Contract Documents are material and are of the essence of the Contract. The Design Builder shall execute the work in such a manner as consistent with the limitations of time set forth. The Design Builder shall make reasonable progress on the completion of the Work on a continual and consistent basis. Any failure of the Design Builder to execute the Work in a timely manner consistent with the limitations of time set forth in the Contract Documents may be deemed at a Material Breach of Contract.

‘2.11 Intent of Contract Documents. The intent of the Contract Documents is to include all items necessary for the proper completion of the Work by the Design Builder. Labor or materials which are evidently necessary to produce the desired results, even though not specifically mentioned in the Contract Documents, shall be included in the Work. The Architect (except as limited herein) is the interpreter of the Contract Documents and where any clarification regarding interpretation of the Documents is required the Architect (or Owner, where the Architect’s authority and role is limited by the Contract Documents) shall be notified in writing pursuant to paragraph 2.13 below.

‘2.12 Contract Documents Complementary, etc. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all. In case of conflicts between the various Contract Documents, the order of precedence shall be as follows: (1) Addenda, (2) Division 1 - General Requirements of the Specifications; (3) Special Conditions, (4) General Conditions, (5) The response to the Request for Proposal for Design Build Services, (6) Technical provisions of the Request for Proposal, (7) the Technical Specifications; and (8) Drawings.

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‘2.13 Questions to Architect. In the event a question arises regarding the meaning or intent of the drawings and specifications, the Contractor (part of the Design Builder) shall report it at once to the Architect (part of the Design Builder) and the Owner by the submission of a Request for Information internally. (OR where the Architect’s authority or role is limited by the Contract Documents, to the Owner) In the event a question arises regarding the meaning or intent of the drawings and specifications, the Contractor (part of the Design Builder) shall report it at once to the Architect (part of the Design Builder) and the Owner by the submission of a Request for Information through the Owner’s Document Collaboration System in the form of a Request for Information (RFI). The Owner (when the question is directed to the Owner) will furnish, with reasonable promptness, as defined by the Contract between the Owner and the Design Builder, additional instructions, by means of drawings or otherwise, necessary for the proper execution of the work, consistent with the requirements of Article 3. Where the Architect’s interpretations have been limited herein, the Owner will receive an interpretation from the Architect and then provide final interpretation.

‘2.14 Paragraph, titles, headings, and drawing numbers are for convenience only and form no operative part of the Contract. The Design Builder, and by the “flow down” provisions of these General Conditions, every subcontractor, shall provide all Work defined, identified, enumerated, specified or otherwise indicated to be provided by the Contract Documents.

‘3. The Architect (part of the Design Builder)

Unless otherwise herein or directed by the Owner in writing, the Architect (part of the Design Builder) shall perform those duties and discharge those responsibilities allocated to the Architect in the Contract Documents. The duties, obligations and responsibilities of the Architect shall include, but are not limited to, the following:

‘3.1 Owner’s Adviser. The Architect (part of the Design Builder) will be the Owner’s adviser during construction, through issuance of final payment, and during the contractor’s one year warranty period. The Architect will advise and consult with the Owner. However, where the Architect’s representation of the Owner has been limited by the Contract Documents, the Owner will represent itself. In the event the Design Builder, either by its own reason or by reason from the Owner should find it necessary or convenient to replace the Architect, the Design Builder shall retain a replacement architect with acceptance of the Owner and the role of the replacement architect shall be the same as the role of the Architect.

‘3.2 Communication Through Architect. Except as otherwise provided in the Contract Documents, the Owner’s instructions to the Design Builder shall be forwarded through the Architect and the Design Builder’s communications with the Owner shall be through the Architect. Should the Design Builder act on communications from any other entity, other than through the Architect, he is acting at his own risk and may be required to reverse the actions taken as his own expense. In instances where the Architect’s authority or role has been limited by the Contract Documents, the Owner will have direct communication to and from the Design Builder with a copy to the Architect.

‘3.2.1 All documents related to this project shall be submitted, transmitted, transferred, reviewed, approved or rejected, and/or otherwise processed using the Owner’s Document Collaboration System which is the Owner’s web-based document collaboration system that shall be used by all project participants. No submission, transmittal, transfer, review, approval or processing shall be deemed Official without the use of this system.

‘3.2.1.1 All documents transmitted for purposes of administration of the Contract are to be in electronic (PDF) format and transmitted via the Commonwealth’s Document Collaboration System that receives, logs and store

General Conditions – Design Builder Page 10 documents, processes documents through workflows and notifies addressees via email.

3.2.1.2 The Architect/ Engineer and the Contractor (both part of the Design Builder) are required to become familiar with this system, to use this for all official transmittal of information pertaining to this project, and to respond to the requirements of this system within a reasonable time as defined elsewhere herein and/or by the terms of their Contract with the Owner.

3.2.1.2.1 Training: The Owner has an agreement with the service provider of the Document Collaboration System to provide training, support and assistance to users of the system via a web-based training session which can be arranged upon request. Further training as may be required by a specific user of the system is the responsibility of the user of the system.

‘3.3 Review of Work. The Architect (part of the Design Builder) shall approve, or respond otherwise, in a timely manner, as defined by the Contract between the Owner and the Design Builder, as necessary concerning shop drawings or other submittals received from the Contractor (part of the Design Builder). Should the Architect have reasonable cause to be unable to approve, or respond otherwise to submissions from the Contractor, the Architect shall provide written explanation of the reasonable cause within the timely manner.

‘3.3.1 The Architect shall be authorized to refuse to accept work which is defective or otherwise fails to comply with the requirements of the Contract. The Architect shall refuse the work in writing when he deems it necessary to refuse the work. If the Architect deems it appropriate, the Architect shall be authorized to call for extra inspection or testing of the work for compliance with requirements of the Contract. In instances where the Architect’s authority or role has been limited by the Contract Documents, the Owner will have the authority to refuse to accept work.

‘3.3.1.1 The costs of the extra inspection or testing shall be paid by the Design Builder, unless the results of the extra inspection or testing find that the work was originally in conformance with the Contract requirements and that the extra inspection or testing was not necessary. A reduction in the Contract Amount shall be provided by Change Order to reimburse the Owner for the costs of the extra inspection or testing.

‘3.3.1.2 In cases where the Contractor covers up work that is required by the Contract Documents to be inspected or tested prior to the inspection or testing, the cost of uncovering the work and performing the inspection or testing shall be at the Design Builder’s expense even if the work is found to have been originally in conformance with the Contract Documents. A reduction in the Contract Amount shall be provided by Change Order to reimburse the Owner for the costs of the extra inspection or testing.

‘3.3.2 The Architect shall perform those inspections required by the Owner. The Owner, may at its discretion, elect to participate in the performance of inspections.

‘3.4 Interpretation of Contract Documents. The Architect (part of the Design Builder) shall be the interpreter of the requirements of the Contract Documents (except as limited herein) and the judge of the performance thereunder by the Contractor, subject to the provisions of Article 26.

‘3.4.1 Claims, disputes, and other matters in question that arise relating to the execution or progress of the Work shall be referred initially to the Architect (part of the Design Builder) for decision, which he will render in writing within a reasonable time, as defined by the Contract between the Owner and the Design Builder. Where the

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Architect’s authority or role has been limited by the Contract Documents, the Owner will render the required decision.

‘3.4.2 Should the Contractor (part of the Design Builder) find disagreement with the Architect (part of the Design Builder) or with the Owner (the DECA Project Manager) as to the proper interpretation of the Contract Documents or other decision of the Architect or the Owner (DECA Project Manager), he may protest the decision to the Director of the Division of Engineering in writing. The Director of the Division of Engineering will then discuss and negotiate the decision with the appropriate parties to seek reasonable resolution of the matter. Following these discussions and negotiations, the initial decision or revised decision shall be binding, except as provided below.

‘3.4.3 Appeals of decisions of the Architect or Owner. Either the Contractor or the Director of the Division of Engineering may appeal the initial or revised decision to the first to the Commissioner of the Department of Facilities Management and Support Services and then, if necessary, to the Secretary of the Finance and Administration Cabinet in accordance with the provision of Article 26.

‘3.4.4 The Owner shall have authority to reject Work which does not conform to the Contract Documents. In the event of rejection, the Owner may withhold payment to the Contractor for the rejected Work.

‘3.5 Review of Shop Drawings, etc. The Architect (part of the Design Builder) shall review and approve, or take other appropriate action upon Contractor’s (part of the Design Builder) submittals (such as Shop Drawings, product data, and samples) for conformance with the design concept and the information given in the Contract Documents. Following the review and approval by the Architect, Owner (DECA Project Manager) and Using Agency will also review the submittals and will take action to accept or reject the submittal based on conformance with the intent of the requirements of the Contract Documents. The Owner will take such action with reasonable promptness so as to cause no delay.

‘3.5.1 The Owner’s acceptance of a specific item shall not indicate acceptance of an assembly of which the item is a component. The Owner’s acceptance of Shop Drawings or samples shall not relieve the Design Builder from his responsibility for any deviations from the requirements of the Contract Documents unless the Design Builder has in writing called the Owner’s attention to such deviation at the time of submission and the Owner has given written acceptance to the specific deviation, nor shall any acceptance by the Owner relieve the Contractor from responsibility for errors or omissions in the Shop Drawings.

‘3.6 Preparation of Change Orders. The Architect, in consultation with the Owner, shall prepare Owner Initiated Change Orders. The Architect shall also have authority to order minor changes in the Work as provided in Article 14.2. Note: For Design Build Contracts, an Owner Initiated Change Order is for modifications to the original intent and scope of the project where the Owner has need or desire to modify the requirements of the Contract Documents. There shall be no authorized changes in the Work which affect either Contract Price or Contract Completion Time without a fully executed Owner Initiated Change Order, except as provided elsewhere herein.

‘3.7 Final Inspections, Certification. The Architect, in consultation with the Owner, shall conduct inspections to determine the dates of Substantial Completion and Final Completion.

The Architect shall also receive and forward to the Owner, for the Owner’s review, written warranties and related documents required by the Contract and assembled by the Contractor.

‘3.8 The Architect (part of the Design Builder) shall review the Contractor’s Payment Requests and shall approve in writing those amounts which, in the opinion of the Architect, are properly owing to the Contractor as provided in the Contract. Since the Architect is part of

General Conditions – Design Builder Page 12 the Design Builder, the time provided by this document for Owner payment shall not commence until receipt of the Payment Application from the Architect.

3.8.1 When there is reasonable justification that causes the Owner to be unable to perform this review, approval and payment by the Owner within the time prescribed in these General Conditions, the Owner will notify the Contractor in writing as to the justification and as to the time that will be required for this review, approval and oayment by the Owner.

‘3.8.2 The Contractor (part of the Design Builder) may submit no more than one (1) payment request each thirty (30) calendar day period, except where specifically agreed by the Owner that additional payment requests may be submitted within the thirty (30) calendar day period for reasons consistent with the Design Builder’s performance of the Contract.

‘3.9 The Architect, in consultation with the Owner, shall be authorized to require the Contractor to make changes or deviations in the work which do not involve a change in the Contract Sum or in the Contract Completion Time for the Contractor’s performance consistent with the intent of the Contract. The Architect shall make such changes or deviations in the work by written Field Order.

‘3.9.1 The Owner has the ability to require the Contractor to make changes or deviations in the work which do not involve a change in Contract Sum or in the Contract Completion Time consistent with the intent of the Contract. The Owner will make such changes or deviations in the work by written Owner’s Supplemental Instructions.

‘3.10 The duties, obligations and responsibilities of the Contractor (part of the Design Builder) under the Contract shall in no manner whatsoever be changed, altered, discharged, released, or satisfied by any duty, obligation or responsibility of the Architect (part of the Design Builder). The Contractor and Architect (both part of the Design Builder) are not a third-party beneficiary of any Contract by and between the Owner and any other entity related to this project. It is expressly acknowledged and agreed that the duties of Design Builder to the Owner are independent of, and are not diminished by, any duties of any other entity to the Owner.

‘3.11 The duties, obligations and responsibilities of the Design Builder (both the Architect and the Contractor), under the Contract with the Design Builder, shall in no manner whatsoever be changed, altered, discharged, released, or satisfied by any duty, obligation or responsibility of the Resident Observer (if utilized on this project). It is expressly acknowledged and agreed that the duties of Contractor and/or Architect to the Owner are independent of, and are not diminished by, any duties of the Resident Observer to the Architect/Owner. A copy of the Resident Observers Duties, Responsibilities and Limitations are enumerated in the DECA Procedures Manual, are to be discussed at the Pre-Construction Meeting and are by reference made a part of these General Conditions.

‘4. Construction Schedule

The Contractor (part of the Design Builder), at least fifteen (15) days prior to the Commencement of Construction shall prepare and submit for the Owner’s acceptance a construction schedule for completing the Work. The Architect (part of the Design Builder) shall review the proposed schedule prior to submission to the Owner and shall provide a professional recommendation. This submission shall be transmitted through the Owner’s Document Collaboration System. The schedule shall indicate the starting and completion dates of the various stages of the Work, shall not exceed time limits established by the Contract Documents for the various stages of Work, shall be updated monthly and furnished to the Owner and Architect (part of the Design Builder), shall be related to the Work of any other contractors on the Project to the extent required by the circumstances, and shall provide for expeditious and practicable execution of the Work. Progress

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Payments to the Design Builder are contingent upon receipt of the updated monthly project schedule and schedule of submittals.

‘4.1 The original schedule shall be accompanied by a proposed schedule of values as described in Article 18.1. The original Project Schedule, Schedule of Submittals and the Schedule of Values are to be submitted to the Architect (part of the Design Builder), reviewed and commented upon by the Architect and reviewed and accepted by the Owner, prior to submittal of the first Progress Payment. No payment will be made to the Design Builder without an accepted Schedule of Values and a Project Schedule.

‘4.1.1 The original schedule shall show the project being completed on the established Date of Substantial Completion. To do this, the Contractor (part of the Design Builder) shall include in the flow of work any existing “float” which may be identified during the layout of the project schedule.

‘4.1.2 The Design Builder acknowledges that all float (including Total Float, Free Float, and Sequestered Float) is a shared commodity available to the Project and is not for the exclusive benefit of any party; float is an expiring resource available to accommodate changes in the Work, however originated, or to mitigate the effect of events that may delay performance or completion of all or part of the Work.

‘4.2 The Design Builder shall promptly notify the Owner if the Contractor (part of the Design Builder) is materially ahead of, or behind the updated construction schedule. Failure to so notify the Owner shall relieve the Owner from liability for damages caused by delay or impact. Strict compliance with the requirements of this article shall be a condition precedent to payment to the Design Builder, and failure by the Design Builder to strictly comply with said requirements shall constitute a material breach of the Contract.

‘4.2.1 The Design Builer shall report on the status of any “float”, including the addition of “float”, the use of “float”, and the anticipation of the use of “float” at each project Progress Meeting.

‘4.3 For projects with a contract amount of $1,000,000 or greater the schedule shall be in critical path method (CPM) format. The schedules shall include all activities necessary for performance of the work showing logic (sequences, dependencies, etc.) duration of each activity with the critical path highlighted. The schedules shall include, but not be limited to, submittal processing, fabrication and delivery of materials, construction, testing clean-up, work and/or materials to be provided by the Owner, dates and durations for major utility outages requiring coordination with the Owner and the Owner’s operations, and significant milestones related to the completion of the Project.

‘4.3.1 For projects where the CPM format is required for schedules, any subsequent adjustment, modification or change in the schedule shall include an indication of the original Critical Path and the adjustment, modification, or change shall clearly delineate the adjustment, modification or change in the schedule and shall be accompanied by a written statement of the cause and reason for the adjustment, modification or change.

‘4.3.2 For projects where the CPM format is required for schedules and subsequent adjustment, modification or change in the schedule does not include the information required by paragraph 4.3.1 above, the revised schedule shall be rejected and payment of the Contractor’s General Conditions costs suspended until this provision is complied with satisfactorily.

‘5. Shop Drawings; Submittals

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‘5.1 Schedule for Submittals. Prior to submission of the first application for payment and in sufficient time to allow the Architect (a part of the Design Builder) and the Owner reasonable time for review, the Contractor (a part of the Design Builder) shall submit to a schedule of submittals which shall be coordinated with the construction schedule. This submission shall be transmitted through the Owner’s Document Collaboration System. The Contractor shall keep the schedule of submittals current and present an updated schedule of submittals at each project progress meeting. This schedule of submittals shall contain anticipated and actual dates of the submittal of shop drawings and shall be consistent with the requirements for scheduling submittals defined in Article 1.27 of these General Conditions.

‘5.2 Submittals of Shop Drawings, Samples, etc. The Contractor (a part of the Design Builder) shall review, approve, and submit Shop Drawings, samples, and product data in accordance with the approved schedule as herein detailed.

‘5.2.1 The Contractor’s stamp of approval on any Shop Drawing or sample shall constitute a representation to Owner and Architect (a part of the Design Builder) that the Contractor has either determined and verified all quantities, dimensions, field construction criteria, materials, catalog numbers, and similar data, or he assumes full responsibility for doing so, and that he has reviewed or coordinated each Shop Drawing or sample with the requirements of the Work and the Contract Documents.

‘5.2.2 After review and approval by the Architect (a part of the Design Builder), the Owner will review and accept, with reasonable promptness as defined by the Contract between the Owner and Design Builder, the Shop Drawings, or return for corrections as required. The review and acceptance shall be for conformance with the intent of the Contract Documents for the Project only. The acceptance of a separate item will not indicate approval of the assembly in which the item functions.

‘5.2.3 The Design Builder shall make any corrections required by the Owner for compliance to the Contract and shall return a corrected Shop Drawing and resubmit new samples until approved. The Design Builder shall direct specific attention, in writing, or on resubmitted Shop Drawings, to revisions other than the corrections called for by the Owner or Architect on previous submissions.

‘5.2.4 Where a Shop Drawing or sample submission is required by the specifications, no related work shall be commenced until the submission has been approved by the Architect (part of the Design Builder) and accepted by the Owner. A copy of each approved Shop Drawing and each approved sample shall be kept in good order by the Contractor at the site and shall be available to the Architect, Owner and Resident Observer.

‘5.2.5 The Owner’s acceptance of Shop Drawings or samples shall not relieve the Design Builder from his responsibility for any deviations from the requirements of the Contract Documents unless the Design Builder has in writing called the Owner’s attention to such deviation at the time of submission and the Owner has given written acceptance to the specific deviation, nor shall any acceptance by the Owner relieve the Design Builder from responsibility for errors or omissions in the Shop Drawings.

‘5.2.6 The 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. The Design Builder shall post a copy of this submittal log with the current status of submittals clearly indicated therein in the Owner’s Document Collaboration System prior to each monthly progress meeting until such time as all submittals are complete and accepted.

‘6. Documents and Samples at the Site

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Unless otherwise provided in the Contract…