General Conditions for Design Build Contracts - Attachment E.pdf

KING GEORGE COUNTY, VIRGINIA

General Conditions of Contract

Between

County and Design-Builder

King George County, Virginia

Page i

General Conditions of Contract

Between

County and Design-Builder

Table of Contents

Article 1: General

Article 2: Design-Builder’s Services and Responsibilities

Article 3: County’s Services and Responsibilities

Article 4: Hazardous Environmental Conditions and Differing Site Conditions

Article 5: Insurance and Bonds

Article 6: Payment

Article 7: Indemnification

Article 8: Time

Article 9: Changes to the Contract Price and Time

Article 10: Contract Adjustments and Disputes

Article 11: Stop Work and Termination for Cause

Article 12: Miscellaneous

Article 1

General

1.1 Mutual Obligations

1.1.1 King George County, Virginia (County) and Design-Builder commit at all times to cooperate fully with each other and proceed on the basis of trust and good faith, to permit each party to realize the benefits afforded under the Contract Documents.

1.2 Definitions

1.2.1 For the purposes of the Contract Documents, the following words and terms shall have the meanings specified below (other words and abbreviations that have well-known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings), provided, however, that capitalized terms defined in other Contract Documents, including but not limited to the Agreement, shall have the meanings specified in such document.

Agreement refers to the executed Design-Build Agreement between

County and Design-Builder.

Agreement Date is the date that the Agreement is executed by both parties.

Business Day(s), whether capitalized or not, means any day(s) other than a Saturday, Sunday, or King George County, Virginia holiday.

Contract Documents refer to those documents identified in the Agreement.

Contractor shall mean Design-Builder.

Day or Days, whether capitalized or not, shall mean calendar days unless otherwise specifically noted in the Contract Documents.

County’s Project Criteria are developed by or for County to describe County’s program requirements and objectives for the Project, including use, space, price, time, site and expandability requirements, as well as submittal requirements and other requirements governing Design-

Builder’s performance of the Work. County’s Project Criteria are included in the Request for

Proposals and may include conceptual documents, design criteria, performance requirements and other project-specific technical materials and requirements.

Design Consultant is a qualified, licensed design professional, eligible to provide professional engineering and/or land surveying services in the Commonwealth of Virginia, who is not an employee of Design-Builder, but is retained by Design-Builder, or employed or retained by anyone under contract with Design-Builder or Subcontractor, to furnish design services required under the Contract Documents.

Engineer shall mean the County Engineer, who acts directly or through his duly authorized representative, the representative acts within the scope of the particular duties assigned to him or the authority given to him.

Final Acceptance is achieved when Design-Builder receives written notice from

County under Section 6.6 hereof that the Design-Builder has achieved Final Completion.

Final Completion means that all Work has been completed in accordance with the Contract

Documents, including but not limited to completion of all punch list items, and obtaining

Final Acceptance by the County.

General Conditions of Contract (or General Conditions) refer to this document.

Governmental Approval means any authorization, consent, approval, license, lease, ruling, permit, certification, exemption, or registration by or with any Governmental Unit.

Governmental Unit means any national, state or local government, any political subdivision thereof, or any governmental, quasi-governmental, judicial, public or statutory instrumentality, administrative agency, authority, body or other entity having jurisdiction over the performance of the Work, the Project or the Parties; provided, however, that the term “Governmental Unit” shall not be construed to include County.

Hazardous Environmental Condition means the presence at the Site of Hazardous Materials in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work.

Hazardous Materials are any materials, wastes, substances and chemicals deemed to be hazardous under applicable Legal Requirements, or the handling, storage, remediation, or disposal of which are regulated by applicable Legal Requirements, including Hazardous Waste.

Hazardous Waste means a waste that is: (a) listed as a hazardous waste in 40 CFR

Section 261.31 to 261.33; or (b) exhibits one of the following characteristics: ignitability, corrosivity, reactivity or toxicity, or is otherwise defined as a hazardous waste by the Legal

Requirements.

Interim Milestone(s) is completion and delivery date(s) for parts of the Work specified by the Contract Documents.

Known Pre-Existing Hazardous Materials means Hazardous Materials identified in the

RFP.

Legal Requirements are all applicable federal, state and local laws, codes, ordinances, rules, regulations, orders and decrees of any Governmental Unit.

Pre-Existing Hazardous Materials means Known Pre-Existing Hazardous Materials and

Unknown Pre-Existing Hazardous Materials.

Proposal means that document submitted by Design-Builder pursuant to the RFP and identified in the Agreement.

QA/QC Plan is a plan that details how Design-Builder will provide quality assurance

(QA) and quality control (QC) for both the design and construction elements of the project, obtain samples for Design-Builder quality control testing, perform tests for Design-Builder quality control, provide inspection, and exercise management control (e.g. quality assurance testing) to ensure the work conforms to the Contract Documents.

Remedial Actions means the management, treatment, handling, storage, monitoring, removal, transport or disposal measures carried out by Design-Builder with respect to Hazardous

Materials in accordance with the General Conditions of Contract.

Remedial Action Plan means the plan developed by Design-Builder with respect to

Hazardous Materials encountered by Design-Builder.

Request for Proposals (RFP) is the document identified in the Agreement, inclusive of all of its parts, addenda, County’s Project Criteria, and any other document that is attached thereto or incorporated therein by reference.

Request for Qualifications (RFQ) means all documents, whether attached or incorporated by reference, utilized for soliciting interested persons to apply for prequalification. The RFQ is the first phase of a two-phase selection process for the purpose of inviting interested Offerors to submit qualifications for a project.

RFP Documents refer to those documents identified in the RFP.

Separate Contractor means a contractor retained by County other than Design-Builder to perform work or to provide services or materials in connection with the Project.

Site is the land or premises on which the Project is located.

Standard Drawings are the applicable drawings in effect as of the Agreement Date.

Standard Specifications are the applicable specifications in effect as of the Agreement

Date.

State means the Commonwealth of Virginia.

Subcontract means any and all agreements between Design-Builder and its Design

Consultants, Subcontractors and other agreements between Design Consultants or Subcontractors and their respective Sub-subcontractors (and/or any other lower tier subcontractors), it being the intent that all this term encompasses all agreements deriving directly or indirectly from Design-

Builder, in connection with the performance of the Work.

Subcontractor is any person or entity retained by Design-Builder as an independent contractor to perform a portion of the Work and shall include materialmen and suppliers.

Sub-Subcontractor is any person or entity retained by a Subcontractor as an independent contractor to perform any portion of a Subcontractor’s Work and shall include materialmen and suppliers.

Unknown Pre-Existing Hazardous Materials means any Hazardous Materials present on the Site prior to the Agreement Date which are not Known Pre-Existing Hazardous Materials.

Work is comprised of all Design-Builder’s design, construction and other services required by the Contract Documents, including procuring and furnishing all materials, equipment, services and labor required by the Contract Documents.

Work Breakdown Structure (WBS) is a hierarchically structured grouping of project elements that organizes and defines the total scope of the Project. Each descending level is an increasingly detailed definition of a project component. Project components may be products (a product-oriented WBS) or tasks (a task-oriented WBS).

Work Package is a deliverable at the lowest level of the WBS and may be divided into activities and used to identify and control workflows in the organization.

Article 2

Design-Builder’s Services and Responsibilities

2.1 General

2.1.1 Design-Builder’s Representative shall be reasonably available to County and shall have the necessary expertise and experience required to supervise the Work. Design-Builder’s

Representative shall communicate regularly with County and shall be vested with the authority to act on behalf of Design-Builder.

2.1.2 Design-Builder will attend a kick-off meeting with County to discuss issues affecting the administration of the Work and to implement the necessary procedures, including those relating to submittals and payment, to facilitate the ability of the parties to perform their obligations under the Contract Documents. County will notify Design-Builder of the time and location of the kick-off meeting. Design-Builder’s Key Personnel shall participate in this kick-off meeting.

2.1.3 Design-Builder shall provide County with the Preliminary Schedule, Baseline

Schedule, Schedule Updates, Schedule Revisions, monthly reports and Final As-Built Schedule set forth in the Agreement.

2.1.4 County shall, at its sole cost and expense, perform all services associated with the acquisition of any other properties that are necessary, or that is deemed necessary, to enable Design-Builder to perform the Work. Design-Builder will not be responsible for the right- of-way o r p r o p e r t y acquisition cost. The term “right-of-way acquisition cost” means the actual purchase price to a landowner for right of way, including fees, any and all easements, and miscellaneous fees associated with closing as part of the Project.

2.1.5 Design-Builder shall provide management for the Work in accordance with the organization chart set forth in the Proposal. Design-Builder acknowledges the importance of its

“Key Personnel”. “Key Personnel” shall include Design-Builder’s Representative, Design-Build

Project Manager, Design Manager, QA Manager, Construction Manager, and any other positions specifically identified in the RFQ, RFP and/or the Proposal as “Key Personnel” (collectively, “Key Personnel”). Job duties and responsibilities of Key Personnel shall not be delegated to others for the duration of the Contract. Design-Builder shall not change or substitute any Key

Personnel except due to voluntary or involuntary termination of employment, retirement, death, disability, or incapacity without prior approval of County. None of the Key Personnel may be withdrawn from the Project without prior written approval of County, with it being understood and agreed that Design-Builder will provide County with at least thirty (30) days written notice of any request to withdraw any Key Personnel. County will have the right to review the qualifications of each individual to be appointed to a Key Personnel position and to approve or disapprove use of such individual in such position prior to the commencement of any Work by such individual. Design- Builder shall remove or replace, or have removed or replaced, any personnel performing the Work if County has a reasonable objection to such person.

2.1.6 If Design-Builder wishes to deviate from the right-of-way or property limits identified in the RFP, such deviations will be subject to County’s prior written approval. Design-Builder shall be responsible for assuming all risks associated with exceeding such right-of-way limits and property limits.

2.1.7 Design-Builder shall submit its QA/QC Plan to County for review and approval at the kick-off meeting referenced above. At the kick-off meeting, Design-Builder’s Design Manager and QA Manager shall provide a presentation of the QA/QC Plan for design and construction, using project-related scenarios.

2.1.8 Design-Builder shall coordinate and lead all monthly progress meetings. During such meetings, progress during the prior month shall be reviewed. Design-Builder shall collect information from Design Consultants and any key Subcontractors responsible for work completed during the specified duration and work scheduled during the upcoming reporting duration. The monthly meetings shall be attended by all Key Personnel, as well as any other individuals that County may require. Meetings will occur monthly beginning the month after

Design-Builder’s receipt of County’s Notice to Proceed. Design-Builder shall be responsible for preparing, maintaining and distributing minutes of the meetings to all attendees for review. The meeting minutes shall be provided to County within two (2) days of the monthly progress meeting.

2.1.9 Design-Builder shall perform the Work in accordance with: (a) the Contract Documents;

(b) applicable Legal Requirements and Governmental Approvals; and (c) the degree of skill and judgment prevailing on the Agreement Date that is expected to be exercised by prudent, skilled and experienced contractors and design professionals on similar projects, taking into consideration safety, operational requirements, level of service, and life cycle costs. Notwithstanding the above, if any of (a), (b) or (c) in the preceding sentence conflict, Design-Builder shall be obligated to perform the Work in accordance with the more stringent standard.

2.1.10 If the Contract Documents incorporate any Alternate Technical Concepts (ATCs) and

Design-Builder, for whatever reason: (a) does not comply with one or more County conditions of pre-approval for the ATC; (b) does not obtain required third-party approval for the ATC; or (c) fails to implement the ATC, then Design-Builder shall: (1) provide written notice thereof to

County; and (2) comply with the requirements in the Contract Documents that would have applied in the absence of such ATC. Such compliance shall be without any increase in the Contract Price or extension to the Contract Time(s). For the avoidance of doubt, Design-Builder shall not be entitled to any increase in the Contract Price or extension of the Contract Time(s) as a result of any delay, inability or cost associated with the acquisition of any property that may be required to implement any ATC.

2.2 Scope Validation and Identification of Scope Issues

2.2.1 Scope Validation Period. The term “Scope Validation Period” is the period of time that begins on Design-Builder’s receipt of County’s Notice to Proceed and extends for an agreed upon time. During the Scope Validation Period, Design-Builder shall thoroughly review and compare all of the then-existing Contract Documents, including without limitation the RFP

Documents and the Proposal, to verify and validate Design-Builder’s proposed design concept and identify any defects, errors, or inconsistencies in the RFP Documents that affect Design-Builder’s ability to complete its proposed design concept within the Contract Price and/or Contract Time(s)

(collectively referred to as “Scope Issues”). The term “Scope Issue” shall not be deemed to include items that Design-Builder should have reasonably discovered prior to the Agreement Date.

2.2.2 Scope Validation Period for Non-Accessible Areas of the Site. The Parties recognize that Design-Builder may be unable to conduct the additional investigations contemplated by

Section 4.2.2 below because it will not have access to certain areas of the Site within the Scope

Validation Period set forth in Section 2.2.1 above. Design-Builder shall notify County at the meeting set forth in Section 2.1.2 of all such non-accessible areas and the dates upon which such areas are expected to become accessible. If County agrees that such areas are non- accessible, then, for the limited purpose of determining Scope Issues that directly arise from geotechnical evaluations for such areas, the term “Scope Validation Period” shall be deemed to be the thirty

(30) day period after the date the specified area becomes accessible for purposes of conducting the geotechnical evaluation. If County does not agree that such areas are non-accessible, then the

Scope Validation Period shall not be extended.

2.2.3 Submission Requirements for Scope Issues. If Design-Builder intends to seek relief for a Scope Issue, it shall promptly, but in no event later than the expiration of the Scope Validation

Period, simultaneously provide County in writing with a notice (“General Notice”) of the existence of such Scope Issue, which General Notice shall generally explain the basis for such

Scope Issue. Within twenty-one (21) days of the General Notice, Design-Builder shall provide

County with documentation that specifically explains its support for the Scope Issue (“Supporting

Documentation”). The Supporting Documentation shall include, among other things: (a) the assumptions that Design-Builder made during the preparation of its proposal that form the basis for its allegation, along with documentation verifying that it made such assumptions in developing its proposal; (b) an explanation of the defect, error or inconsistency in the RFP

Documents that Design-Builder could not have reasonably identified prior to the Agreement

Date: and (c) the specific impact that the alleged Scope Issue has had on Design-Builder’s price and time to perform the Work. For the avoidance of doubt: (1) Design-Builder shall not be entitled to raise in its Supporting Documentation any Scope Issues that were not previously addressed in a

General Notice; and (2) Design-Builder shall have no right to seek any relief for any Scope Issues that have not been specifically identified in a General Notice provided to County during the Scope

Validation Period.

2.2.4 Resolution of Scope Issues. Within a reasonable time after County’s receipt of the

Supporting Documentation described in the Section 2.2.3 above, the Parties shall meet and confer to discuss the resolution of such Scope Issues. If County agrees that Design-Builder has identified a valid Scope Issue that materially impacts Design-Builder’s price or time to perform the Work, a Work Order shall be issued in accordance with Article 9 hereof. If County disagrees that Design-Builder has identified a valid Scope Issue that materially impacts Design-Builder’s price or time to perform the Work, then Design-Builder’s recourse shall be as set forth in Article

10. Notwithstanding anything to the contrary in the Contract Documents or as a matter of law, Design-Builder shall have the burden of proving that the alleged Scope Issue could not have been reasonably identified prior to the Agreement Date and that such Scope Issue materially impacts its price or time to perform the Work.

2.2.5 Design-Builder’s Assumption of Risk of Scope Issues. The Parties acknowledge that the purpose of the Scope Validation Period is to enable Design-Builder to identify those Scope

Issues that could not reasonably be identified prior to the Agreement Date. By executing this

Agreement, Design-Builder acknowledges that the Scope Validation Period is a reasonable time to enable Design-Builder to identify Scope Issues that will materially impact Design-Builder’s price or time to perform the Work. After the expiration of the Scope Validation Period, with the sole exception of those Scope Issues made the subject of a General Notice during the Scope

Validation Period and subject to valid requests for Work Orders in accordance with Section 2.2.3 above, the Parties agree as follows:

.1 Design-Builder shall assume and accept all risks, costs, and responsibilities of any Scope

Issue arising from or relating to the Contract Documents, including but not limited to conflicts within or between the RFP Documents and Proposal;

.2 Design-Builder shall be deemed to have expressly warranted that the Contract

Documents existing as of the end of the Scope Validation Period are sufficient to enable Design-

Builder to complete the design and construction of the Project without any increase in the Contract

Price or extension to the Contract Time(s); and

.3 County expressly disclaims any responsibility for, and Design-Builder expressly waives its right to seek any increase in the Contract Price or extension to the Contract Time(s) for, any Scope Issue associated with any of the Contract Documents, including but not limited to the RFP Documents.

2.2.6 Waiver of Rights. The failure of Design-Builder to meet the submission requirements required under Section 2.2.3 above for a Scope Issue, including but not limited to the times for providing notice and documentation of the Scope Issue, shall conclusively constitute a waiver of

Design-Builder’s rights to seek relief for such Scope Issue.

2.2.7 Failure of Technical Proposal to Meet Requirements of the Contract Documents.

Notwithstanding anything to the contrary in this Section 2.2 or elsewhere in the Contract

Documents, County shall have no responsibility in the event Design-Builder’s Proposal fails to meet the requirements of the Contract Documents, regardless of whether: (a) County modified the

RFP Documents to permit Design-Builder to implement a technical approach; (b)

County accepted Design-Builder’s Proposal; or (c) any other action or inaction of

County is alleged by Design-Builder.

2.3 Design Professional Services

2.3.1 Design-Builder shall, consistent with applicable state licensing laws, provide through qualified, licensed design professionals employed by Design-Builder, or procured from qualified, independent licensed Design Consultants, the necessary design services, including architectural, engineering, surveying, and other design professional services, for the preparation of the required drawings, specifications and other design submittals to permit Design-Builder to complete the

Work consistent with the Contract Documents. All design professional services shall be performed by professionals properly licensed in the Commonwealth of Virginia and who are well-versed in County’s design standards and practices.

2.3.2 No Design Consultant is intended to be, nor shall any Design Consultant be deemed to be, a third-party beneficiary of this Agreement. County is intended to be and shall be deemed a third-party beneficiary of all contracts between Design-Builder and any Design Consultant. In the event that this Agreement is terminated, Design-Builder shall, upon the written demand of County, assign such contracts to County.

2.3.3 Design-Builder shall incorporate all obligations and understandings of the Contract

Documents applicable to design services in its respective contracts with any Design Consultant and require that such obligations be flowed down to lower-tiered Design Consultants, including the obligations relative to ownership of the Work Product set forth in the Agreement.

2.4 Design Development Services

2.4.1 Design-Builder shall be responsible for the professional quality, technical accuracy, timely completion and coordination of all drawings, specifications and other design submissions required to be developed by Design-Builder under the Contract Documents and shall, without additional compensation, correct or revise any errors, omissions or other deficiencies in such design submissions.

2.4.2 Design-Builder shall, consistent with any applicable provision of the Contract

Documents, provide County with an agreed upon number of plan sets of the following interim design submissions. The submissions should generally correspond to County’s concurrent engineering process, including but not limited to preliminary and final field inspections and additional interim design submissions that County may require. On or about the time of the scheduled submissions, Design-Builder and County shall meet and confer about the submissions, with Design-Builder identifying during such meetings, among other things, the evolution of the design and any significant changes or deviations from the Contract Documents, or, if applicable, previous design submissions. Minutes of the meetings will be maintained by Design-Builder and provided to all attendees for review. Following the design review meeting, County shall review and provide comments on the interim design submissions.

Design-Builder shall promptly revise and modify all such submittals so as to fully reflect all comments and shall deliver to County revised submittals for review and comment (and approval as the case may be).

2.4.3 Design-Builder shall submit to County Released for Construction Plans setting forth in detail drawings and specifications describing the requirements for construction and QA/QC activities associated with such Work, in full compliance with the Contract Documents and all Legal

Requirements and Governmental Approvals. The Released for Construction Plans shall be consistent with the latest set of interim design submissions; as such submissions may have been modified in a design review meeting, as agreed upon in writing, and shall be submitted after

Design-Builder has obtained all requisite Governmental Approvals associated with the Work contained in such documents, including obtaining all permits required to perform the Work. The parties shall have a design review meeting to discuss, and County shall review and approve, the Released for Construction Plans in accordance with the procedures set forth Section 2.4.1 above. Design-Builder shall proceed with construction in accordance with the approved Released for Construction Plans and shall submit the approved Released for Construction Plans to County prior to commencement of the work.

2.4.4 County’s review, comment and/or approval of interim design submissions and the Released for Construction Plans are for the purpose of establishing Design-Builder’s compliance with the requirements of the Contract Documents and mutually establishing a conformed set of Contract

Documents compatible with the requirements of the Work. County’s review, comment and/or approval of any interim or final design submission (including but not limited to the Released for

Construction Plans) shall not be deemed to transfer any liability from Design- Builder to County.

2.4.5 To the extent not prohibited by the Contract Documents or Legal Requirements, Design-

Builder may, with the prior agreement of County, prepare design submittals and Released for

Construction Plans for a portion of the Work to permit procurement and construction to proceed on that portion of the Work prior to completion of the Released for Construction Plans for the entire Work, provided Design-Builder has obtained permits required to perform the Work.

2.5 Legal Requirements

2.5.1 Design-Builder shall keep fully informed of and perform the Work in accordance with all

Legal Requirements. Design-Builder shall provide all notices, and execute and file the documents, statements and/or affidavits applicable to the Work as required by the Legal Requirements.

Design-Builder shall permit County’s examination of any records made subject to such examination by any applicable Legal Requirements.

2.5.2 Design-Builder may request, by submission of a Change Order request, that the Contract

Price and/or Contract Time(s) shall be adjusted to compensate Design-Builder for the effects of any changes in the Legal Requirements enacted after the Agreement Date, affecting the performance of the Work. Such effects may include, without limitation, revisions Design- Builder is required to make to the Released for Construction Plans because of changes in Legal

Requirements. Notwithstanding anything to the contrary, the relief afforded by this Section 2.5 shall not apply to changes in any tax laws, with Design-Builder bearing the risk of such changes.

2.6 Governmental Approvals

2.6.1 Except as identified in the RFP, Design-Builder shall obtain and pay for all necessary

Governmental Approvals and permits required for the prosecution of the Work by any

Governmental Unit. If any such Governmental Approval is required to be formally issued in the name of County, Design-Builder shall undertake all efforts to obtain such Governmental Approvals subject to County’s reasonable cooperation with Design-Builder, including execution and delivery of appropriate applications and other documentation in forms approved by County. Design-

Builder shall deliver to County, promptly after Design-Builder’s receipt, a copy of each such

Governmental Approval, with a listing of the status of all such Governmental Approvals included in the monthly reports required by the Agreement.

2.6.2 Design-Builder shall provide reasonable assistance to County in obtaining those

Governmental Approvals that are County’s responsibility, and no construction activity will commence until: (i) all Governmental Approvals required for the relevant construction activity

(including any activity that may disturb the Site) have been obtained; (ii) County has been notified that such Governmental Approvals have been obtained; and (iii) County has, after reviewing the validity and scope of the Governmental Approval, authorized Design-Builder to proceed.

2.6.3 Design-Builder shall ensure that the Work conforms to the requirements and stipulations of all Governmental Approvals. Any violations of or noncompliance with any Governmental

Approval, including but not limited to suspensions caused by Design-Builder violating or not being in compliance with a Governmental Approval, shall be at the sole risk of Design-Builder, and shall not be a basis for adjusting the Contract Price and/or Contract Time(s).

2.7 Design-Builder’s Construction Phase Services

2.7.1 Unless otherwise provided in the Contract Documents to be the responsibility of County or a Separate Contractor, Design-Builder shall provide through itself or Subcontractors the necessary supervision, labor, inspection, testing, start-up, material, equipment, machinery, temporary utilities and other temporary facilities to permit Design-Builder to complete construction of the Project consistent with the Contract Documents.

2.7.2 Design-Builder shall perform all construction activities efficiently and with the requisite expertise, skill and competence to satisfy the requirements of the Contract Documents and shall maintain or cause to be maintained all licenses required of Design-Builder or its employees in connection with the Work. Design-Builder shall at all times exercise complete and exclusive control over the means, methods, sequences and techniques of construction.

2.7.3 Design-Builder shall employ only Subcontractors who are duly licensed and qualified to perform the Work lawfully in the Commonwealth of Virginia and consistent with the Contract

Documents. Design-Builder shall not use any Subcontractor to whom County has a reasonable objection and shall obtain County’s written consent before making any substitutions or additions to Subcontractors previously identified to County as being members of Design-Builder’s

Project team, including those who may have been identified in the Proposal.

2.7.4 Design-Builder assumes responsibility to County for the proper performance of the Work of Subcontractors and any acts and omissions in connection with such performance. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between County and any Subcontractor or Sub-Subcontractor, including but not limited to any third-party beneficiary rights.

2.7.5 Design-Builder shall coordinate the activities of all Subcontractors. If County performs other work on the Project or at the Site with Separate Contractors under County’s control, Design-

Builder agrees to reasonably cooperate and coordinate its activities with those of such Separate

Contractors so that the Project can be completed in an orderly and coordinated manner without unreasonable disruption.

2.7.6 Design-Builder shall keep the Site reasonably free from debris, trash and construction wastes to permit Design-Builder to perform its construction services efficiently, safely and without interfering with the use of adjacent land areas. Upon Final Acceptance of the Work, or a portion of the Work, Design-Builder shall remove all debris, trash, construction wastes, materials, equipment, machinery and tools arising from the Work or applicable portions thereof to permit

County to occupy the Project or a portion of the Project for its intended use.

2.7.7 Design-Builder shall be responsible for the security of the Site until Final Acceptance of the Work, or a portion of the Work.

2.8 Design-Builder’s Responsibility for Project Safety

2.8.1 Design-Builder recognizes the importance of performing the Work in a safe manner so as to prevent damage, injury or loss to: (i) all individuals at the Site, whether working or visiting;

(ii) the Work, including materials and equipment incorporated into the Work or stored on-Site or off-Site; and (iii) all other property at the Site or adjacent thereto. Design-Builder assumes responsibility for implementing and monitoring all safety precautions and programs related to the performance of the Work. Design-Builder shall, prior to commencing construction, designate a

Safety Representative with the necessary qualifications and experience to supervise the implementation and monitoring of all safety precautions and programs related to the Work.

Unless otherwise required by the Contract Documents, Design-Builder’s Safety Representative shall be an individual assigned to the Project who may have responsibilities on the Project in addition to safety. Design-Builder shall provide minutes of each safety meeting to County.

2.8.2 If required by the Contract Documents the Design-Builder shall provide, for County’s review, comment and acceptance, a Health, Safety and Welfare (HS&W) plan on or before the earlier of fifteen (15) days of Design- Builder’s receipt of County’s Notice to Proceed, or twenty-one (21) days before Design-Builder intends to commence any construction-related activities at the

Site. Design-Builder shall not perform any construction-related activity (including any activity that disturbs the Site) until an acceptable HS&W plan is in place.

2.8.3 Design-Builder and Subcontractors shall comply with: (i) all Legal Requirements relating to safety; (ii) Design-Builder’s HS&W plan; and (iii) any County-specific safety requirements set forth in the Contract Documents, provided that such County-specific requirements do not violate any applicable Legal Requirement. Design-Builder will immediately report in writing any safety-related injury, loss, damage or accident arising from the Work to County’s Representative and, to the extent mandated by Legal Requirements, to all Governmental Units having jurisdiction over safety-related matters involving the Project or the Work.

2.8.4 County shall have the right to immediately suspend any or all Work if Design-Builder fails to comply with its obligations hereunder.

2.8.5 Design-Builder’s responsibility for safety under this Section 2.8 is not intended in any way to relieve Subcontractors and Sub-Subcontractors of their own contractual and legal obligations and responsibility for: (i) complying with all Legal Requirements, including those related to health and safety matters; and (ii) taking all necessary measures to implement and monitor all safety precautions and programs to guard against injury, losses, damages or accidents resulting from their performance of the Work.

2.9 Design-Builder’s Warranty

2.9.1 Design-Builder warrants to County that the construction, including all materials and equipment furnished as part of the construction, shall be new unless otherwise specified in the

Contract Documents, of good quality, in conformance with the Contract Documents and free of defects in materials and workmanship. Design-Builder’s warranty obligation excludes defects caused by abuse, damage, alterations, or failure to maintain the Work by persons other than

Design-Builder or anyone for whose acts Design-Builder may be liable. Nothing in this warranty is intended to limit any manufacturer’s warranty which provides County with greater warranty rights than set forth in this Section 2.9 or the Contract Documents. Design- Builder will provide County with all manufacturers’ warranties upon Final Acceptance.

2.10 Correction of Defective Work

2.10.1 Design-Builder agrees to correct any Work that is found to not be in conformance with the Contract Documents, including that part of the Work subject to Section 2.9 hereof, within a period of one (1) year from the date of Final Acceptance of the Work or any portion of the Work, or within such longer period to the extent required by the Contract Documents.

2.10.2 Design-Builder shall, within seven (7) days of receipt of written notice from County or the QA Manager that the Work is not in conformance with the Contract Documents, take meaningful steps to commence correction of such nonconforming Work, including the correction, removal or replacement of the nonconforming Work and any damage caused to other parts of the Work affected by the nonconforming Work. If Design-Builder fails to commence the necessary steps within such seven (7) day period, County, in addition to any other remedies provided under the Contract Documents, may provide Design-Builder with written notice that

County will commence correction of such nonconforming Work with its own forces. If County does perform such corrective Work, Design-Builder shall be responsible for all reasonable costs incurred by County in performing such correction. If the nonconforming Work creates an emergency requiring an immediate response, the seven (7) day periods identified herein shall be deemed inapplicable.

2.10.3 The one (1) year period referenced in Section 2.10.1 above applies only to Design-

Builder’s obligation to correct nonconforming Work and is not intended to constitute a period of limitations for any other rights or remedies County may have regarding Design-Builder’s other obligations under the Contract Documents.

2.11 County’s Rights to Direct Design-Builder

2.11.1 When any act, omission, or other action of Design-Builder occurs that violates the requirements, conditions, or terms of the Contract Documents; or affects the health, safety, or welfare of the public or natural resources, County will have the right, but not the obligation, to direct Design-Builder to take prompt action to repair, replace, or restore the damage or injury within a time frame established by County. If Design-Builder fails to make such repair, replacement, or restoration within the established time frame, County will have the damage or injury repaired, replaced, or restored and will deduct the cost of such repair, replacement, or restoration (plus deductions for supervisory and administrative personnel costs) from monies due

Design-Builder.

Article 3

County’s Services and Responsibilities

3.1 Duty to Cooperate

3.1.1 County shall, throughout the performance of the Work, cooperate with Design-

Builder and perform its responsibilities, obligations and services in a timely manner to facilitate

Design-Builder’s timely and efficient performance of the Work and so as not to delay or interfere with Design-Builder’s performance of its obligations under the Contract Documents.

3.1.2 County shall provide timely reviews and (where required) approvals of submittals, interim design submissions and Released for Construction Plans consistent with the turnaround times set forth in Design-Builder’s schedule, provided, however that, unless stated otherwise in the

Contract Documents. This Section 3.1.2 shall not be construed to apply to the acquisition of

Governmental Approvals by either Design-Builder or County.

3.1.3 County’s Representative will participate in monthly progress meetings for the duration of the Project.

3.2 Furnishing of Services and Information

3.2.1 County has provided RFP Information Documents in the RFP for Design- Builder to consider in developing the Proposal and for executing the Work. Design-Builder shall thoroughly review and compare all such documents during the Scope Validation Period and, to the extent that any Scope Issues arise, County shall consider such issues in accordance with Section 2.2 above.

3.3 Financial Information

3.3.1 At Design-Builder’s request, County shall promptly furnish reasonable evidence satisfactory to Design-Builder that County has adequate funds available and committed to fulfill all of

County’s contractual obligations under the Contract Documents. If County fails to furnish such financial information in a timely manner, Design-Builder may stop Work under Section 11.3 hereof or exercise any other right permitted under the Contract Documents.

3.3.2 Design-Builder shall cooperate with the reasonable requirements of County’s lenders or other financial sources. Notwithstanding the preceding sentence, after the Agreement Date, Design-Builder shall have no obligation to execute for County or County’s lenders or other financial sources any documents or agreements that require Design-Builder to assume obligations or responsibilities greater than those existing obligations Design-Builder has under the Contract

Documents.

3.4 County’s Representative

3.4.1 County’s Representative shall be responsible for providing County-supplied information and approvals in a timely manner to permit Design-Builder to fulfill its obligations under the Contract Documents. County’s Representative shall also provide Design-Builder with prompt notice if it observes any failure on the part of Design-Builder to fulfill its contractual obligations, including any errors, omissions or defects in the performance of the Work.

3.5 Governmental Approvals

3.5.1 County shall obtain and pay for all necessary Governmental Approvals set forth in the RFP.

3.5.2 County shall provide reasonable assistance to Design-Builder in obtaining those

Governmental Approvals that are Design-Builder’s responsibility.

3.6 County’s Separate Contractors

3.6.1 County may at any time contract or approve concurrent contracts for performance of other work on, near, or within the same geographical area of the work specified in an existing contract.

Design-Builder shall not impede or limit access to such work by others.

3.6.2 When separate contracts are awarded within the limits of one project, contractors shall not hinder the work being performed by other contractors. Design-Builder and Separate

Contractor(s) working on the same project shall cooperate with each other. In case of dispute, County’s Representative will be the referee, and his decision will be binding on all parties.

3.6.3 When contracts are awarded to Separate Contractor(s) for known concurrent construction in a common area, Design-Builder and Separate Contractor(s), in conference with County’s

Representative, shall establish a written joint schedule of operations. The schedule shall be based on the limitations of the individual contracts and the joining of the work of one contract with the others. The schedule shall set forth the approximate dates and sequences for the several items of work to be performed and shall ensure completion within the contract time limit. The schedule shall be submitted to County’s Representative for review and approval no later than twenty-one (21) days after the award date of the later contract and prior to the first monthly progress meeting. The schedule shall be agreeable to, signed by, and binding on each Design- Builder(s) and/or Separate Contractor(s). County’s Representative may allow modifications of the schedule when benefit to Design-Builder and/or Separate Contractor(s) and County will result.

3.6.4 Any modification of the schedule shall be in writing, mutually agreed to and signed by

Design-Builder and Separate Contractor(s) and shall be binding on Design-Builder and Separate

Contractor(s) in the same manner as the original agreement.

3.6.5 If Design-Builder and Separate Contractor(s) fail to agree on a joint schedule of operations, they shall submit their individual schedules to County’s Representative, who will prepare a schedule that will be binding on Design-Builder and Separate Contractor(s).

3.6.6 The joint schedule and any modification thereof shall become a part of each contract involved. The failure of Design-Builder and Separate Contractor(s) to abide by the terms of the joint schedule will be justification for declaring Design-Builder and/or Separate Contractor(s) in default of his contract.

3.6.7 Design-Builder and each Separate Contractor shall assume all liability, financial or otherwise, in connection with his contract and shall protect and save harmless the

Commonwealth from any and all damages and claims that may arise because of any inconvenience, delay, or loss he experiences as a result of the presence and operations of other Separate Contractors working in or near the work covered by his contract. Design-Builder shall also assume all responsibility for any of his work not completed because of the presence or operation of other

Separate Contractors.

3.6.8 When the failure to gain access to a project site is not due to any fault or negligence of

Design-Builder or Separate Contractor, an extension of the contract time limit will be allowed on the basis of the amount of time delayed.

3.6.9 County will not assume any responsibility for acts, failures, or omissions of Design-

Builder or Separate Contractor that delay the work of another except as provided herein.

Article 4

Hazardous Environmental Conditions and Differing Site Conditions

4.1 Hazardous Environmental Conditions

4.1.1 General Obligations

.1 Unless specifically stated to the contrary in the RFP, Design-Builder will be responsible for the management, treatment, handling, storage, monitoring, remediation, removal, transport and/or disposal of any Hazardous Environmental Conditions that are encountered on, in or under the Site and that are identified as Pre-Existing Hazardous Materials in the RFP and specified to be the Design-Builders responsibility in the RFP.

.2 Design-Builder shall notify County prior to implementing any Remedial

Actions contained in Design-Builder’s Environmental Management Plan for Known Pre-Existing

Hazardous Materials.

.3 If Design-Builder encounters any Unknown Pre-Existing Hazardous Materials the presence of which constitutes a Hazardous Environmental Condition, then Design-Builder will promptly notify County and, in consultation with County, will develop a Remedial Action Plan setting out the scope of the Remedial Actions that Design-Builder proposes to take in relation to the relevant Hazardous Environmental Condition, such actions to include, but not be limited to:

(i) conducting such further investigations as may be necessary or appropriate to determine the nature and extent of the Hazardous Materials and submitting copies of such data and reports to

County for its review and approval, (ii) taking reasonable steps, including in the case of excavation, construction, reconstruction or rehabilitation, modifications and/or construction techniques, to avoid or minimize excavation or dewatering in areas with Hazardous Materials, (iii) preparing and obtaining Governmental Approvals for remedial action plans, including County approval, (iv) carrying out the Remedial Action Plan, including, as necessary, disposal of the Hazardous

Materials and (v) timely informing County of all such actions.

.4 Before any Remedial Actions for Unknown Pre-Existing Hazardous Materials are taken that would inhibit County’s ability to ascertain the nature and extent of the Hazardous

Environmental Condition, Design-Builder will afford County the opportunity to inspect areas and locations that require Remedial Actions; provided, that in the case of a sudden release of any

Unknown Pre-Existing Hazardous Materials, Design-Builder may take all reasonable actions necessary to stabilize and contain the release without prior notice or inspection but will promptly notify County of the sudden release and its location.

.5 Design-Builder will obtain all Governmental Approvals relating to all Remedial

Actions specified in the RFP to be the responsibility of the Design-Builder. Design-Builder will be solely responsible for compliance with such Governmental Approvals and applicable Legal

Requirements concerning or relating to the identified Hazardous Materials. In carrying out

Remedial Actions that are compensable by County pursuant to Section 4.1.2 below, Design-

Builder will not take any steps or actions which impair County’s potential claims for indemnity and contribution, statutory or otherwise.

.6 Except as provided in Section 4.1.2 below, Design-Builder will bear all costs and expenses of preparing and complying with any Remedial Action Plan, of complying with Legal

Requirements and obtaining and complying with Governmental Approvals pertaining to Hazardous

Materials, and otherwise of carrying out Remedial Actions.

4.1.2 Unknown Pre-Existing Hazardous Materials

.1 County will reimburse, to the extent permitted by the Legal Requirements, Design-

Builder for Design-Builder’s costs for Remedial Actions with respect to any Unknown Pre-

Existing Hazardous Materials, the presence of which constitutes a Hazardous Environmental

Condition.

.2 County will assume, to the extent permitted by the Legal Requirements, responsibility for third-party claims against Design-Builder for personal injury, damages or harm to property or business due to any…