CLE_-_Sample_Design_Build_Contract_05-27-25.pdf

Project Name Page 1 Project No.

EXHIBIT XX

Design-Build Contract

Standard Form of Agreement between Owner and Design-Builder

AGREEMENT made as of the ______ day of _______________ in the year of 202_.

BETWEEN the Owner:

City of Cleveland, Ohio 5300 Riverside Drive Cleveland, Ohio 44135 and the Design-Builder:

<Design Builder> <Design Builder Address> <Design Builder Address>

For the following Project:

Project Title/Project Number Cleveland Hopkins International Airport

The Owner and Design-Builder agree as follows:

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TABLE OF ARTICLES

1 THE DESIGN-BUILD DOCUMENTS

2 WORK OF THIS AGREEMENT

3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION

4 CONTRACT SUM

5 PAYMENTS

6 DISPUTE RESOLUTION

7 MISCELLANEOUS PROVISIONS

8 ENUMERATION OF THE DESIGN-BUILD DOCUMENTS

TABLE OF EXHIBITS

A TERMS AND CONDITIONS

B DETERMINATION OF THE COST OF THE WORK

C. FIXED HOURLY RATES

D. FEDERAL AVIATION ADMINISTRATION REQUIRED CONTRACT PROVISIONS

E. EQUAL OPPORTUNITY CLAUSE

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ARTICLE 1 THE DESIGN-BUILD DOCUMENT

§ 1.1 The Design-Build Documents form the Design-Build Contract. The Design-Build Documents consist of this Agreement between Owner and Design-Builder (hereinafter, the “Agreement”) and its attached Exhibits and/or Attachments; Supplementary and other Conditions; Addenda issued prior to execution of the Agreement; the Project Criteria, including changes to the Project Criteria proposed by the Design- Builder and accepted by the Owner; the Owner’s Request for Proposal/Qualifications and the Design- Builder’s Proposal and written modifications to the Proposal accepted by the Owner; authorizing legislation issued by Cleveland City Council and all amendments thereof, resolutions issued by the City of Cleveland’s Board of Control that are required by the Cleveland City Council’s authorizing legislation and any amendments thereof, contract provisions required to be included by the Federal Aviation Administration;

other documents listed in this Agreement; and Modifications issued after execution of this Agreement. The Design-Build Documents shall not be construed to create a contractual relationship of any kind (1) between the Architect and Owner, (2) between the Owner and a Contractor or Subcontractor, or (3) between any persons or entities other than the Owner and Design-Builder, including but not limited to any consultant retained by the Owner to prepare or review the Project Criteria. An enumeration of the Design-Build Documents, other than Modifications, appears in Article 8.

§ 1.2 The Design-Build Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations, or agreements, either written or oral.

§ 1.3 The Design-Build Contract may be amended or modified only by a Modification. A Modification is (1) a written amendment to the Design-Build Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) an Owner Supplemental Instruction(s) (OSI) a written order for minor change in the Work issued by the Owner.

ARTICLE 2 THE WORK OF THE DESIGN-BUILD CONTRACT

§ 2.1 The Design-Builder shall fully execute the Work described in the Design-Build Documents, except to the extent specifically indicated in the Design-Build Documents to be the responsibility of others.

ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION

§ 3.1 The date of commencement of the Work shall be identified in a Notice to Proceed issued by the Owner in accordance with the Division 1 Specifications.

§ 3.2 The Contract Time shall be measured from the date of commencement, subject to adjustments of this Contract Time as provided in the Design-Build Documents in the Division 1 Specifications.

§ 3.3 The Design-Builder shall achieve Substantial Completion of the Work within ____ calendar days of issuance of the Notice to Proceed (NTP) Final Completion shall be completed ninety (90) days after Substantial Completion unless otherwise amended by a Modification.

§ 3.4 Time is an essential element of the Contract and it is important that the Work be vigorously prosecuted until completion. For each day that any work shall remain uncompleted beyond the time(s) specified below, the Design-Builder shall pay to the Owner Liquidated Damages as specified below.

Liquidated Damages Assessed

Liquidated Damages

Complete and Turnover of White Box Concession spaces

____ Days After Final

NTP

$5,500/ Calendar Day

Substantial Completion of Project _____ Days After Final NTP

$25,000/ Calendar Day

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§ 3.4.1 If the Design-Builder fails to achieve Substantial Completion of any of the Work within the time specified in the Contract, including stated milestones, or any extension thereof, the Design-Builder shall pay the Owner, or the Owner will deduct payments due under this Contract or any other contract with the Owner, as Liquidated Damages, Associated Daily Liquidated Damages specified above for each day of delay.

§ 3.4.2 The Liquidated Damages provided in this Contract is neither a penalty nor a forfeiture and shall compensate the Owner solely for the Owner’s inability to use the Work for its intended purpose.

§ 3.4.3 The Liquidated Damages referred to in this section are intended to be cumulative and shall be in addition to every other remedy now or hereinafter enforceable at law, in equity, by statute, or under the Contract. These conditions apply provided, however, that due account shall be taken of any adjustment of specified completion times(s) for completion of work as granted by approved change orders.

ARTICLE 4 CONTRACT SUM

§ 4.1 The Owner shall pay the Design-Builder the Contract Sum in current funds for the Design-Builder’s performance of the Design-Build Contract. The Contract Sum shall be the Cost of the Work Plus Design- Builder’s Fee with a Guaranteed Maximum Price in accordance with Section 4.4 below.

§4.4 COST OF THE WORK PLUS DESIGN-BUILDER’S FEE WITH A GUARANTEED MAXIMUM PRICE

§ 4.4.1 The Cost of the Work is as defined in Exhibit B, plus the Design-Builder’s Fee of <Insert Fee

Percentage>%

§ 4.4.2 The Cost of the Work plus other fee percentages are applicable as follows:

Insurance <Insert Percentage>% 100% Performance and Payment Bond <Insert Percentage>%

§ 4.4.3 GUARANTEED MAXIMUM PRICE

§ 4.4.3.1 The sum of the Cost of the Work and the Design-Builder’s Fee is guaranteed by the Design-Builder not to exceed amount of $<insert GMP amount> subject to additions and deductions by changes in the Work as provided in the Design-Build Documents. Such maximum sum is referred to in the Design-Build Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Design-Builder without reimbursement by the Owner.

§ 4.4.3.2 The Design-Builder shall be responsible for establishing the GMP within the Design to Budget amount of $____________. This amount replaces the Design to Budget amount referred to in the Division

1 Specifications.

§ 4.4.3.3 Should Owner and the Design-Builder not be able to reach an agreement on the GMP, Owner may use the work products produced to date to complete the project.

§ 4.4.3.4 Preliminary Guaranteed Maximum Price (PGMP) for development of the Guaranteed Maximum Price (GMP) § 4.4.3.4.1 Owner will require a GMP for the Project no later than the 60% Design stage. However, Owner may authorize the Design-Builder to proceed with some early packages in order to meet the Project Schedule. If early packages are issued, the PGMP process will be followed. In the event a PGMP is initially established, it is intended that the PGMP will cover the initial Work of the Project. As design for the Project is further developed, it is planned that the additional work will be added to the contract and the GMP adjusted accordingly. At any given time during the Contract, the GMP will equal the sum of the approved PGMPs. When plans are no more than sixty percent (60%) complete the PGMP will be converted to a GMP, establishing the Guaranteed Maximum price for the project.

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§ 4.4.3.4.2 Owner will issue a request to the Design-Builder to establish the GMP or PGMP Proposal for the complete Project or for the Work Package(s). Design-Builder shall deliver to Owner a proposed GMP or PGMP Proposal, with a detailed estimate prepared by the Design-Builder which shall be reviewed by Owner before being deemed to be adequately supported. Each GMP or PGMP proposal shall also include the following sections:

Section 1: Summary of Work, including a list of all construction documents.

Section 2: GMP or PGMP Price Summary with Line-Item Schedule of Values.

Section 3: Scope Clarifications and Assumptions.

Section 4: Procurement Plan.

Section 5: GMP or PGMP Construction Schedule.

Section 6: Analysis of PGMP on the Total Construction Budget and Project Schedule.

Section 7: CSB/MBE/FBE Participation, including a total to date participation status report.

Section 8: Permitting Plan.

Section 9: Risk/Risk Mitigation Plans.

Section 10: Construction Work Plan.

Section 11: Commissioning Plan and Activation Plan.

Section 12: Project Manuals.

Section 13: Safety Plans Section 14: Quality Assurance/Quality Control Plans Section 15: Sustainability Plan Note: submittal of the PGMP/GMP Proposal shall not include changes to contract Terms and

Conditions. Any Terms and Conditions included in PGMP/GMP Proposal submission will not, by inclusion, be considered as part of the Contract Documents.

§ 4.4.3.4.3 In addition to the Cost of the Work, a GMP or PGMP may include agreed to allowances needed to complete the scope of work that can’t be defined in a bid package and an agreed upon Design-Builder Contingency per the Contract Documents. Sum of all Allowances shall not exceed 1% of the PGMP/GMP.

§ 4.4.3.4.4 The Design-Builder's Fee as proposed by the Design-Builder. That fee includes home office and off-site overhead and profit.

§ 4.4.3.4.5 For the GMP or each PGMP, the Design-Builder shall develop a corresponding Schedule of Values.

§ 4.4.3.4.6 For the GMP or each PGMP will be subject to modification for changes as allowed by the Contract Documents.

§ 4.4.3.4.7 The Design-Builder shall submit its proposed GMP or PGMP to Owner. Owner will meet with the Design-Builder to review and analyze the GMP or PGMP proposal and, negotiate a GMP or PGMP.

§ 4.4.3.4.8 The following step in the development of the GMP or PGMP shall not occur unless and until the Project has been approved by Owner. If agreed upon, the GMP or PGMP will be submitted to the Owner, and if approved by the Owner, the GMP or PGMP shall be signed by Owner and issued to the Design-Builder, which shall constitute authorization for the Design-Builder to proceed with procurement and construction of the approved GMP or PGMP Work.

§ 4.4.3.4.9 If Owner rejects the GMP or PGMP proposal, the GMP or PGMP proposal shall be deemed withdrawn and of no effect. In such event, Owner and the Design-Builder shall meet and confer as to how the Project or Work Package(s) will proceed, with Owner having the following options:

.1 Owner and Design-Builder may suggest modifications to the GMP or PGMP proposal and the Design-Builder shall submit a revised GMP or PGMP proposal and the approval process will recommence; or

.2 Owner may remove the Work Package(s) from the scope and Owner may procure and construct the Work Packages(s) independently of this Contract.

.3 The actual price paid by Owner to the Design-Builder on the GMP or PGMP shall be the actual incurred cost of all Work for the GMP or PGMP, including subcontracts, supply agreements, direct labor costs, direct supervision costs, the direct job costs as allowed pursuant to the Contract

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Documents and the contractually agreed upon fee, or the GMP or PGMP amount, whichever is less.

§ 4.4.3.4.10 The following Allowances/Contingencies shall be incorporated into the Guaranteed Maximum Price:

Allowance/Contingencies Amount

Owner’s Contingency $10,000,000.00 Need to adjust Allowance $1,800,000.00 Need to adjust

§ 4.4.3.5 Assumptions, if any, on which the Guaranteed Maximum Price is based, are as follows:

.1 Request for Proposal with all attachments, exhibits, and addenda, issued _____ __, 2025.

.2 Design-Builder’s response to Request for Proposal.

§ 4.5 CHANGES IN THE WORK

§4.5.1 Adjustments of the Cost of Work for changes in the Work may be determined by any of the methods listed in Article A.7 of Exhibit A, Terms and Conditions.

ARTICLE 5 PAYMENTS

§ 5.1 PROGRESS PAYMENTS

§ 5.1.1 Based upon Applications for Payment submitted to the Owner by the Design-Builder, the Owner shall make progress payments to the Design-Builder as provided in the Division 1 Specifications.

Applications for Payment shall be submitted on an AIA G702 form.

§ 5.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month. The Design-Builder must submit a pencil review copy including written narrative with each Application for Payment by the 23rd of month. See Exhibit A, Article 9 for additional information for Application for Payment.

§ 5.1.3 Provided an acceptable Application for Payment is received by the Owner not later than the first (1st) day of a month, the Owner shall make payment of the approved amount to the Design-Builder not later than the twentieth (20th) day of the current month. If an acceptable Application for Payment is received by the Owner after the application date fixed above, payment shall be made by the Owner not later than twenty

(20) days after the Owner receives an acceptable Application for Payment.

§ 5.1.4 With each Application for Payment where the Contract Sum is based upon the Cost of the Work with a Guaranteed Maximum Price, the Design-Builder shall submit General Conditions information related to payroll timesheets, petty cash accounts, receipted invoices or invoices with check vouchers attached, and any other evidence required by the Owner to demonstrate that cash disbursements already made by the Design-Builder on account of the Cost of the Work equal or exceed (1) progress payments already received by the Design-Builder, less (2) that portion of those payments attributable to the Design-Builder’s Fee; plus (3) payrolls for the period covered by the present Application for Payment.

§ 5.1.4.1 An option for a negotiated lump sum payment schedule (or portion thereof) for General Conditions may be utilized in lieu of § 5.1.4.

§ 5.1.6 The Design-Builder’s Applications for Payment shall be accurate and complete. Processing and payment by the Owner shall not be interpreted to mean that the Owner has made a detailed explanation, audit or arithmetic verification of the documentation, or other supporting data; to have made exhaustive or continuous on-site inspections; or to have made examinations to ascertain how or for what purposes the Design-Builder has used amounts previously paid on account of the Agreement.

§ 5.1.7 Except with the Owner’s prior approval, the Design-Builder shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site.

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§ 5.1.8 Design-Builder shall ensure timely submission of the invoices for costs incurred towards execution of the Work. Request for payment for any item older than 180 days (from when work was done or supplier invoice was received) are not allowed and will be rejected.

§ 5.4 PROGRESS PAYMENTS – COST OF THE WORK PLUS A FEE WITH A GUARANTEED

MAXIMUM PRICE

§ 5.4.1 Applications for Payments where the Contract Sum is based upon the Cost of the Work Plus a Fee with a Guaranteed Maximum Price shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage of completion shall be the percentage of that portion of the Work which has actually been completed.

Prior to application for first payment, the Design-Builder shall submit to the Owner a Schedule of Values (SOV) of the various parts of the Work, aggregating the total sum of the contract. This schedule of values shall be so divided as to facilitate payments to Subcontractors. The form of this submission including the level of detail shall be as the Design-Builder and the Owner have agreed upon and shall be supported by such evidence as to its correctness as the Owner may direct.

Application for Payment shall be submitted once each month. A draft copy of the Application for Payment shall be prepared for review by the Owner prior to submission of monthly Application for Payment. The Owner reserves the right to modify the submittal date for monthly Applications for Payment.

§ 5.4.2 Upon approval by the Owner, the Design-Builder shall be paid as follows:

§ 5.4.2.1 The amount of each such estimate, less three percent (3%) which the Owner shall retain until satisfactory completion of fifty percent (50%) of the work of any separate phase of the contract or of all contract work. The Owner may, at any time, increase this retainage percentage by not more than ten percent (10%) of the contract price or each separate phase’s price, as applicable, to protect the Owner’s interests for incomplete, defective, delayed, or unsatisfactory work, or for costs or damages incurred by the Owner that are the Design-Builder’s obligations under the contract; or charges the Owner may assess against the Design-Builder under the contract including, but not limited to, liquidated damages. The Owner will neither deposit retainage in an escrow account nor pay interest on such retainage.

§ 5.4.2.2 Upon the Owner’s written certification of satisfactory completion as § 5.4.2.1 provides, the amount of each such estimate, less one and a half percent (1.5%), which the Owner shall retain until final acceptance of any separate phase of the contract or of all work, or of the estimated total contract amount of a public improvement contract, as applicable, as determined by the Owner, and less all prior payments.

§ 5.4.2.3 Upon the Owner’s written certification of final acceptance as § 5.4.2.2 provides, the whole amount of money then due to the contractor, except such sums which have already been paid, and except such sums as may have been expended by the Owner or may be due the Owner or properly deductible under the contract terms, and less all prior payments.

§ 5.4.3 The Design-Builder is required to pay all subcontractors for satisfactory performance of their contracts no later than 10 days after the Design-Builder has received a partial payment. A subcontractor’s work is satisfactorily completed when all the tasks called for in the subcontract have been accomplished and documented as required by the Owner. When the Owner has made an incremental acceptance of a portion of a Prime contract, the work of a subcontractor covered by that acceptance is deemed to be satisfactorily completed. Retainage shall be held by the Owner from progress payments due the Prime.

And the Prime shall withhold retainage from progress payments to its subcontractors. The Design-Builder shall not withhold retainage from subcontractors greater than the Owner is holding from the Design-Builder.

Final Payment will be made when all Work has been completed including but not limited to the following:

punch list work, all project Closeout requirements have been met including but not limited to: As-builts, Training, Commissioning, O&M Manuals, all warranties, lien releases, etc. have been received and approved by the Owner.

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§ 5.4.4 Pre-Construction Services Phase § 5.4.4.1 Payments will be made based on Division 1 specifications. The Design-Builder will be paid on a monthly basis for 100% of the approved amount earned, subject to retainage pursuant to § 5.4.2.

§ 5.4.4.2 If the Design-Builder fails to submit the required deliverables within the time prescribed, or revisions thereof within the requested time, the Owner may withhold approval of progress payments for Design-Builder until such time as the Design-Builder submits the required documents.

§ 5.4.4.3 Payments for Allowances will be based on actual invoices with no mark-up.

§ 5.4.5 Construction Management Services Phase § 5.4.5.1 Payments will be made based on the progress of the Work and based upon the latest updated Detailed Construction Schedule of Values.

§ 5.4.5.2 If the Design-Builder fails to submit the required construction phase documents within the time prescribed, or revisions thereof within the requested time, the Owner may withhold approval of progress payments for Design-Builder fees until such time as the Design-Builder submits the required documents.

§ 5.4.6 Subcontracts and Suppliers § 5.4.6.1 Progress Payments will be made on the current Schedule of Values that has been accepted by the Owner.

§ 5.4.6.2 With each Application for Payment provide a partial release of liens for each subcontract. The release of liens shall indicate the amount of the original subcontract the total amount of change orders, and the current subcontract amount. The release of liens must be signed by the Subcontractor and notarized.

§ 5.4.7 General Conditions and Construction General Requirements § 5.4.7.1 Payments for General Conditions and Construction General Requirements will be made in accordance with Division 1 Specifications.

§ 5.4.7.2 Alternatively, if agreed by the Owner:

Payment for General Conditions will be made monthly based on the percentage of completion of the Subcontractors work. A negotiated percentage will be allocated to mobilization, demobilization, and close-out and paid as these activities are completed.

§ 5.5 FINAL PAYMENT

§ 5.5.1 Final payment constituting the entire unpaid balance due on the Contract, shall be made by the Owner to the Design-Builder no later than thirty (30) days after the Design-Builder has fully performed the Design-Build Contract, including the requirements in Section § 5.4.2.3 and Section A.9.10 of Exhibit A, Terms and Conditions, except for the Design-Builder’s responsibility to correct non-conforming Work discovered after Final Payment or to satisfy other requirements, if any, which extend beyond final payment.

See Division 1 Specifications for additional information.

§ 5.5.2 The Design-Builder will be paid the earned Design-Builder’s Fee up to the date of Final Acceptance.

ARTICLE 6 DISPUTE RESOLUTION

§ 6.1 The parties agree to endeavor, in good faith and in recognition of the costs and expenses associated with legal proceedings, to resolve and settle among themselves any disputes or controversies pertaining to the Contract. However, if settlement or resolution cannot be reached, the parties agree to the following dispute resolution procedures:

§ 6.2 Mediation: If during the course of this Contract the parties are unable to resolve any dispute or controversy arising out of or relating to the Contract, such claims shall first be subject to non-binding mediation as a condition precedent to the initiation of any legal action (either court action or arbitration).

The mediation, unless the parties mutually agree otherwise in writing, shall be in accordance with the

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Construction Industry Rules of the American Arbitration Association. Demand for mediation shall be made in writing. The parties agree to share in the mediator’s fee and any filing fees. Any mediation will be held in Cuyahoga County, Ohio. Agreements reached in mediation shall be as enforceable as settlement agreements. Each party agrees to bear its own attorneys’ fees associated with the mediation.

§ 6.3 ARBITRATION

§ 6.3.1 Arbitration and Litigation: If the mediation described in Section 6.2 is unsuccessful, then, in the Owner’s sole discretion, any controversy or claim arising out of or relating to this Contract, or the breach thereof, shall be resolved by either binding arbitration or litigation (filed in the state or local courts of the project location). The Owner will notify the Design-Builder in writing of its election of arbitration or litigation within twenty (20) days after the date of the unsuccessful mediation, and Design-Builder agrees not to commence any legal action against the Owner until such election is made and communicated. If the Owner elects binding arbitration, it shall be administered, unless the parties mutually agree otherwise in writing, in accordance with the most recent Construction Industry Rules of the American Arbitration Association.

Whether arbitration or litigation is elected by the Owner, any hearing shall be held in Cuyahoga County, Ohio, and the Court or Arbitrator(s) shall have the power to award to the prevailing party its reasonable attorneys’ fees, expenses and costs.

ARTICLE 7 MISCELLANEOUS PROVISIONS

§ 7.1 The Architect, other design professionals and consultants engaged by the Design-Builder shall be persons or entities duly licensed to practice their professions in the State of Ohio (location of the project).

§ 7.4.1 The Owner’s Designated Representative shall be authorized to act on the Owner’s behalf with respect to the Project. The Owner’s Designated Representative shall be the Executive Program Manager or his/her designee.

§ 7.5 The Design-Builder’s Designated Representative is:

<Design Builder> <Design Builder Address> <Design Builder Address>

§ 7.5.1 The Design-Builder’s Designated Representative shall be authorized to act on the Design-Builder’s behalf with respect to the Project.

§ 7.6 The Design-Builder’s Team shall not be changed without prior written notice to the Owner. Design- Builder may revise its Staffing Organization Chart only with the prior written notice to the Owner. Any revision must be notified within ten (10) days after Design-Builder receives a written Notice to Proceed. Any revised Staffing Organization Chart shall include the following information for each professional-level employee proposed for assignment on the Project:

1. Name of employee;

2. Description of Project tasks;

3. Applicable registration;

4. Principal office of employment;

5. Summary of relevant experience; and

6. Date and expected duration of assignment

The Owner may require removal from the Project of any employee of Design-Builder providing services under this Contract. During the term of this Contract, Design-Builder must obtain, maintain and pay for all licenses, permits, and certificates, including all professional licenses required by any statute, ordinance, rule or regulation at no cost to the Owner. Design-Builder shall immediately notify the Owner of any suspension, revocation, or other negative action involving its license or the license of any person who has acted or is acting on behalf of the Design-Builder on the Project.

§ 7.7 Where reference is made in this Agreement to a provision of another Design-Build Document, the reference refers to that provision as amended or supplemented by other provisions of the Design-Build

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Documents. If there are discrepancies between the Agreement and Design-Build Documents, the more stringent applies. The Owner is the final judge as to what controls.

§ 7.8 Approved Equals:

The terms "Or Equal", "Equal", "Approved Equal" are used as synonyms throughout the specifications.

They are implied in reference to all named manufacturers in the specifications unless otherwise stated.

Only materials fully equal in all details will be considered. The Owner is the final judge as to equality. The Owner does not represent or warrant under any circumstances, including by use of the words "or equal", that there exists an equal to any item specified.

§ 7.9 Equal Opportunity:

This Agreement is a “contract”, and Design-Builder is a “contractor” within the meaning of Chapter 187 of the Codified Ordinances of Cleveland, Ohio 1976. During the term, Design-Builder shall comply with all terms, conditions and requirements imposed on a “contractor” in the Equal Opportunity Clause, Section

187.22 C.O., attached hereto as Exhibit E and made a part of this Agreement. A copy of this Clause shall be made a part of every subcontract or agreement entered into for goods or services, and shall be binding on all persons, firms and corporations with whom Consultant may deal.

§ 7.10 Employees are not Public Employees:

Design-Builder confirms that it either:

A. operates a business comprised of five or more individuals and that all individuals employed by Design-Builder who provide personal services to the City are not public employees for purposes of Section 145.037 of the Ohio Revised Code; or

B. operates a business comprised of fewer than five individuals and that each individual employed by Design-Builder will complete and return to the City within thirty (30) days of the effective date of this Agreement a completed PEDACKN form provided by the Ohio Public Employees Retirement System.

ARTICLE 8 ENUMERATION OF THE DESIGN-BUILD DOCUMENTS

§ 8.1 The Design-Build Documents, Project Criteria, except for Modifications issued after execution of this Agreement, are enumerated as follows:

1. All applicable Federal, State, and local guidelines.

2. Request for Proposal with all Attachments, Exhibits and Addenda issued

3. Design-Builder’s response to Request for Proposal including Affidavits and Bonds.

§ 8.1.2 The Addenda, if any, are as follows: <insert addenda>

§ 8.1.3 Exhibit A, Terms and Conditions.

§ 8.1.4 Exhibit B, Determination of the Cost of the Work.

§ 8.1.5 Exhibit C, Fixed Hourly Rates

§ 8.1.6 Exhibit D, Federal Aviation Administration Required Contract Provisions

§ 8.1.7 Exhibit E, Equal Opportunity Clause

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IN WITNESS WHEREOF, the Owner and Design-Builder have executed this Contract as of the date first written above.

<Design Builder>, “Design-Builder”

By: <Design Builder Representative>

Signature:

Title:

City of Cleveland, Ohio “Owner”

APPROVED:

Bryant L. Francis, C.M.

Director of Port Control

Date:

Approved as to Legal Form and Correctness Mark Griffin, Director of Law

By: _______________ Jonathan Stone McGory, C.M.

Assistant Director of Law

Date: ________________

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EXHIBIT A

Terms and Conditions for the following PROJECT:

Project No. ____, Title:__________________ Cleveland Hopkins International Airport

THE OWNER:

The City of Cleveland, Ohio

THE DESIGN BUILDER:

<Design Builder> <Design Builder Address>

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TABLE OF ARTICLES

A.1 GENERAL PROVISIONS

A.2 OWNER

A.3 DESIGN-BUILDER

A.4 DISPUTE RESOLUTION

A.5 AWARD OF CONTRACTS

A.6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS

A.7 CHANGES IN THE WORK

A.8 TIME

A.9 PAYMENTS AND COMPLETION

A.10 PROTECTION OF PERSONS AND PROPERTY

A.11 INSURANCE AND BONDS

A.12 UNCOVERING AND CORRECTION OF WORK

A.13 MISCELLANEOUS PROVISIONS

A.14 TERMINATION OR SUSPENSION OF THE DESIGN-BUILD CONTRACT

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ARTICLE A.1 GENERAL PROVISIONS

§ A.1.1 BASIC DEFINITIONS

§ A.1.1.1 AASHTO

The American Association of State Highway and Transportation Officials, the successor association to

AASHO.

§ A.1.1.2 ACCESS ROAD

The right-of-way, the roadway and all improvements constructed thereon connecting the airport to a public highway.

§ A.1.1.3 ADVERTISEMENT

A public announcement, as required by local law, inviting bids for work to be performed and materials to be furnished.

§ A.1.1.4 AIP

The Airport Improvement Program, a grant-in-aid program, administered by the Federal Aviation Administration.

§ A.1.1.5 AIR OPERATIONS AREA

For the purpose of the contract and these specifications, the term air operations area shall mean any area of the airport used or intended to be used for the landing, takeoff, or surface maneuvering of aircraft. An air operation area shall include such paved or unpaved areas that are used or intended to be used for the unobstructed movement of aircraft in addition to its associated runway, taxiway, or apron.

§ A.1.1.6 AIRPORT

Airport means an area of land or water which is used or intended to be used for the landing and takeoff of aircraft, and includes its buildings and facilities, if any, and any and all property and improvements owned, leased or controlled by Owner which shall mean the City of Cleveland, Ohio (Owner).

§ A.1.1.7 ARCHITECT

The Architect is the person lawfully licensed to practice architecture, or an entity lawfully practicing architecture identified as such in the Agreement and having a direct contract with the Design-Builder to perform design services for all or a portion of the Work and is referred to throughout the Design-Build Documents as if singular in number. The term “Architect” means the Architect or the Architect’s authorized representative.

§ A.1.1.8 ASTM

The American Society for Testing and Materials.

§ A.1.1.9 AWARD

The acceptance, by Owner, of the successful Respondent’s Proposal.

§ A.1.1.10 BANK LETTER OF CREDIT

The irrevocable letter of credit issued by a commercial bank acceptable to Owner, in a form acceptable to Owner in its sole discretion and drawable at a financial institution located in Cuyahoga County, Ohio and having an expiration date not prior to ninety (90) days following the bid opening date. Proposer is encouraged to use a Disadvantaged Financial Institution with respect to its Letter of Credit.

§ A.1.1.11 BID/PROPOSAL GUARANTY

The security furnished with a bid or proposal to guarantee that the Proposer will enter into a contract if his/her Proposal is accepted by Owner.

§ A.1.1.12 BIDDER

Any individual, partnership, firm, or corporation, acting directly or through a duly authorized representative, Project Name Page 16 who submits a bid for the work contemplated. The term “Bidder” is interchangeable with “Proposer” and “Respondent” throughout.

§ A.1.1.13 BUILDING AREA

An area on the airport to be used, considered, or intended to be used for airport buildings or other airport facilities or rights-of-way together with all airport buildings and facilities located thereon.

§ A.1.1.14 CALENDAR DAY

Every day shown on the calendar.

§ A.1.1.15 CHANGE ORDER

A written order to the Design-Builder covering changes in the plans, specifications, or bid quantities and establishing the basis of payment and contract time adjustment, if any, for the work affected by such changes.

§ A.1.1.16 CONTRACT

The written agreement covering the work to be performed. The awarded contract shall include, but is not limited to the items enumerated in Article 8, Enumeration of Design-Build Documents.

§ A.1.1.17 CONTRACT ITEM (PAY ITEM)

A specific unit of work for which a price is provided in the contract.

§ A.1.1.18 CONTRACT TIME

The number of calendar days allowed for completion of the contract, including authorized time extensions.

If a calendar date of completion is stated, in lieu of a number of calendar days, the contract shall be completed by that date. Time limits as stated in the contract are critical and of the essence in the contract.

§ A.1.1.19 CONTRACTOR

A Contractor is a person or entity, other than the Architect, that has a direct contract with the Owner to perform all or a portion of the construction required in connection with the Work. The term “Contractor” is interchangeable with “Design-Builder” throughout.

§ A.1.1.20 THE DESIGN-BUILD DOCUMENTS

The Design-Build Documents are identified in Section 1.1 of the Agreement.

§ A.1.1.21 DRAINAGE SYSTEM

The system of pipes, ditches, and structures by which surface or subsurface waters are collected and conducted from the airport area.

§ A.1.1.22 ENGINEER

The individual, partnership, firm, or corporation duly authorized by the Owner to be responsible for engineering inspection of the contract work and acting directly or through an authorized representative.

Independent of the Design-Builder the Engineer is under direct contract to the Owner and acts on behalf of the Owner.

§ A.1.1.23 EQUIPMENT

All machinery, together with the necessary supplies for upkeep and maintenance, and also all tools and apparatus necessary for the proper construction and acceptable completion of the work.

§ A.1.1.24 EXTRA WORK

An item of work not provided for in the awarded contract as previously modified by change order, but which is found by the Owner to be necessary to complete the work within the intended scope of the contract as previously modified.

§ A.1.1.25 FAA

The Federal Aviation Administration of the U.S. Department of Transportation. When used to designate a person, FAA shall mean the Administrator or his/her duly authorized representative.

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§ A.1.1.26 FEDERAL SPECIFICATIONS

The Federal Specifications and Standards, Commercial Item Descriptions, and supplements, amendments, and indices thereto are prepared and issued by the General Services Administration of the Federal Government.

§ A.1.1.27 FINAL ACCEPTANCE

Final Acceptance shall occur in accordance with the Contract and shall occur only when all the work has been fully and finally performed as required by the Contract and has been inspected and so certified by the Owner.

§ A.1.1.28 FORCE ACCOUNT

Force account construction work is construction that is accomplished through the daily reporting of all use of material, equipment, labor, and supervision and acknowledged by the Owner or by another public agency pursuant to an agreement with the Owner.

§ A.1.1.29 INSPECTOR/ COORDINATOR

An authorized representative of Owner assigned to make all necessary inspections and/or tests of the work performed or being performed, or of the materials furnished or being furnished by the Design-Builder. An inspector/coordinator is not authorized to make changes in the Contract.

§ A.1.1.30 INTENTION OF TERMS

Whenever, in these specifications or on the plans, the words “directed,” “required,” “permitted,” “ordered,” “designated”, “prescribed,” or words of like import are used, it shall be understood that the direction, requirement, permission, order, designation, or prescription of the Design-Builder is intended; and similarly, the words “approved,” “acceptable,” “satisfactory,” or words of like import, shall mean approved by, or acceptable to, or satisfactory to the Architect, Engineer and/or Owner.

Any reference to a specific requirement of a numbered paragraph of the contract specifications or a cited standard shall be interpreted to include all general requirements of the entire section, specification item, or cited standard that may be pertinent to such specific reference.

Words in the singular or plural, masculine or feminine, present, past, or future tense shall be read as to conform or to give effective meaning to the spirit or intent of the contract.

§ A.1.1.31 LABORATORY

The official testing laboratories of Owner or such other laboratories as may be designated by the Owner.

§ A.1.1.32 LIQUIDATED DAMAGES

Fixed amount payable by the Design-Builder to the Owner for delays in Substantial Completion or identified milestones.

§ A.1.1.33 MATERIALS

Any substance or supplies specified for use in the construction of the contract work.

§ A.1.1.34 NOTICE TO PROCEED

A written notice to the Design-Builder to begin the actual Contract work. The Notice to Proceed shall state the date on which the contract time begins.

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§ A.1.1.35 NOTICE OF AWARD

Written notice to the successful Proposer that his/her Proposal has been accepted by Owner, subject to all of the terms and conditions and limitations of the Contract.

§ A.1.1.36 OWNER

The Owner is the City of Cleveland, Ohio which is also referred to as “Owner”. For AIP contracts, the term “sponsor” shall have the same meaning as the term “Owner.” Where the term “Owner” is capitalized in this document, it shall mean airport Owner or sponsor only.

§ A.1.1.37 OR EQUAL

Whenever the words “or equal” appear in the contract, they shall be interpreted to mean an item of material or equipment equal in quality to that named in the contract and which is suited to the same use, and capable of performing the same function with at least equivalent efficiency, as that named. Inclusion of “or equal” material or equipment in the contractor’s bid shall not obligate Owner to accept such material or equipment if it does not meet or exceed the requirements of the contract and purposes of the specifications. Burden of the proof of equal quality or service shall be the responsibility of the Design-Builder. Any dispute as to equality shall be determined solely by the Owner whose decision in such matters shall be final.

§ A.1.1.38 PAVEMENT

The combined surface course, base course, and subbase course, if any, considered as a single unit.

§ A.1.1.39 PAYMENT BOND

The approved form of security furnished by the Design-Builder and his/her surety as a guaranty that he will pay in full, subject to the terms of the contract, all bills and accounts for materials, supplies, rentals furnished and labor used in the construction of the work, including Ohio Unemployment Insurance contributions.

§ A.1.1.40 PERFORMANCE BOND

The approved form of security furnished by the Design-Builder and his/her surety as a guaranty that the Design-Builder will complete the work in accordance with the terms of the Contract.

§ A.1.1.41 PLANS

The official drawings, stamped Issued for Construction, which show the location, character, dimensions and details of the airport and the work to be done and which are to be considered as a part of the contract, supplementary to the specifications.

§ A.1.1.42 PROCORE

The official Project Management Information System for the Terminal Modernization Development Program which will serve as the primary information system and communication tool for sharing and transmitting information between the Owner, Executive Program Manager and the Design-Builder.

§ A.1.1.43 PROGRESS SCHEDULE

The document that describes the starting, interfacing, and completion of the various stages of design and construction and the starting and completion dates of each trade or Subcontractor performing work on the contract. The progress schedule will be in the form required by the contract.

§ A.1.1.44 THE PROJECT

The Project is the total design and construction of which the Work performed under the Design-Build Documents may be the whole or a part, and which may include design and construction by the Owner or by separate contractors.

§ A.1.1.45 PROJECT CRITERIA

The Project Criteria describe the character scope, relationships, forms, size and appearance of the Project, materials and systems and, in general, their quality levels, performance standards, requirements or criteria, and major equipment layouts.

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§ A.1.1.46 RUNWAY

The area on the airport prepared for the landing and takeoff of aircraft.

§ A.1.1.47 SAMPLES

The physical examples or specimens which illustrate materials, equipment or workmanship or provide specimens or establish standards by which the work will be judged.

§ A.1.1.48 SECURED AREAS

The Design-Builder may be assigned certain secured areas or given access to security or restricted areas, and which areas would otherwise not be accessible to the Design-Builder or the Subcontractor or their employees.

§ A.1.1.49 SHOP DRAWINGS

The drawings, diagrams, schedules or other data specially prepared for the work by the Design-Builder or any Subcontractor, manufacturer, supplier or distributor to illustrate some portion of the work.

§ A.1.1.50 SPECIFICATIONS

A part of the contract containing the written directions and requirements for completing the contract work.

Standards for specifying materials or testing which are cited and incorporated in the contract specifications by reference shall have the same force and effect as if included in the contract physically.

§ A.1.1.51 STRUCTURES

Airport facilities such as apron/ramp areas; bridges; culverts; catch basins, inlets, retaining walls, cribbing;

storm and sanitary sewer lines; water lines; underdrains; electrical ducts, manholes, handholes, lighting fixtures and bases; transformers; flexible and rigid pavements; navigational aids; buildings; vaults; and, other manmade features of the airport that may be encountered in the work and not otherwise classified herein.

§ A.1.1.52 SUBCONTRACTOR

A Subcontractor is a person or entity who has a direct contract with a Design-Builder to perform a portion of the construction required in connection with the Work at the site. The term “Subcontractor” is referred to throughout the Design-Build Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor.

§ A.1.1.53 SUBGRADE

The soil that forms the pavement foundation.

§ A.1.1.54 SUBSTANTIAL COMPLETION

Substantial completion shall be certified by the Owner as having occurred when the work is sufficiently complete, so that Owner may occupy and beneficially use the Work or a designated portion thereof.

§ A.1.1.55 SUPERINTENDENT

The Design-Builder's executive representative who is present on the work during progress, authorized to receive and fulfill instructions from the Engineer, and who shall supervise and direct the construction.

§ A.1.1.56 SURETY

The corporation, partnership, or individual, other than the Design-Builder, executing payment or performance bonds that are furnished to Owner by the Design-Builder. Surety must be authorized to do business in Ohio.

§ A.1.1.57 TAXIWAY

For the purpose of this document, the term taxiway means the portion of the air operations area of an airport that has been designated by competent airport authority for movement of aircraft to and from the airport's runways or aircraft parking areas.

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§ A.1.1.58 WORK

The term “Work” means the design, construction and services required by the Design-Build Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Design-Builder to fulfill the Design-Builder’s obligations. The Work may constitute the whole or a part of the Project.

§A.1.1.60.1 COST OF WORK

Cost of Work is the direct cost necessarily incurred by Design-Builder in the proper performance of the Work. Cost of the Work may include direct labor costs, subcontract costs, costs of materials and equipment incorporated in the completed Work, costs of other materials and equipment, temporary facilities, building permit fees, materials testing, insurance needed to meet the minimum limits, temporary housing limited to twelve months, and related items. Cost of the Work shall not include Pre-Construction Costs, Design- Builder’s Fee, Bonds, and Insurance costs. The following is a non-exhaustive list of costs that are specifically excluded from the Cost of Work: Unallowable costs for Architect-Engineer & Construction under FAR Part 31.1 & 31.2; relocation costs; entertainment, employee morale, health, welfare, and recognition costs; lobbying and political activity costs; pre-contract costs.

§ A.1.1.59 WRITTEN NOTICE

All notices required by the Contract shall be in writing and shall be sufficient and shall be deemed delivered, if hand delivered, e-mailed, or communicated via PROCORE to the Owner’s or Design-Builder’s Designated Representative.

§ A.1.2 COMPLIANCE WITH APPLICABLE LAWS

§ A.1.2.1 If the Design-Builder believes that implementation of any instruction received from the Owner would cause a violation of any applicable law, statute, ordinance, building code, rule or regulation, the Design-Builder shall notify the Owner in writing. Neither the Design-Builder nor any Architect shall be obligated to perform any act which they believe will violate any applicable law, ordinance, rule, or regulation.

§ A.1.3 CAPITALIZATION

§ A.1.3.1 Terms capitalized in these Terms and Conditions include those which are (1) specifically defined or (2) the titles of numbered articles and identified references to sections in the document.

§ A.1.4 INTERPRETATION

§ A.1.4.1 In the interest of brevity, the Design-Build Documents frequently omit modifying words such as “all” and “any” and articles such as “the” and “an,” but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement.

§ A.1.4.2 Unless otherwise stated in the Design-Build Documents, words which have well-known technical, or construction industry meanings are used in the Design-Build Documents in accordance with such recognized meanings.

§ A.1.5 EXECUTION OF THE DESIGN-BUILD DOCUMENTS

§ A.1.5.1 The Design-Build Documents shall be signed by the Design-Builder.

§ A.1.5.2 Execution of the Design-Build Contract by the Design-Builder is a representation that the Design- Builder has visited the site, thoroughly reviewed the Design Build Documents, become generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Design-Build Documents.

§ A.1.6 OWNERSHIP AND USE OF DOCUMENTS AND ELECTRONIC DATA

§ A.1.6.1 Design-Builder acknowledges and agrees that all ideas and concepts first conceived, created and developed by Design-Builder for the Owner shall, upon payment to the Design-Builder of all amounts due hereunder, be the sole and exclusive property of the Owner and shall be in the name of the Owner, including but not limited to all intellectual property, e.g., copyrights, trademarks, service marks. Design-Builder further acknowledges and agrees that the expression of said ideas and concepts shall be “works made for hire” as

Project Name Page 21 that term is used in the copyright laws of the United States, as set forth in 17 U.S. Code § 101, et. seq.

Notwithstanding the foregoing, Design-Builder agrees that to the extent, if any, that Design-Builder may be deemed an “author” of any material expressing said concepts and ideas, Design-Builder hereby grants, assigns and transfers to the Owner exclusively, perpetually and throughout the world all right, title and interest in and to said material and intellectual property, including but not limited to Ownership of the Construction Documents. Design-Builder shall take any actions the Owner may request to confirm the Owner’s Ownership of such intellectual property. It is understood that any reuse of documents or other data, in whole or in part, for work not covered by this Agreement without the written consent of the Design- Builder, will relieve the Design-Builder and their Subcontractors of all liability pertaining to such reuse.

The Design-Builder shall…