Design-Build Contracts

...

Due to this lack of detail, the Design-Builder has the convenience of presenting and performing work that they are comfortable with: work they have done before, work that minimizes non-recurring engineering, and work that uses suppliers they have strong relationships with. However, since there is such little detail, there is the potential that the Owner will have ideas in mind that are not conveyed in the Project Criteria and will reject the work or add a Change Order once the Design Builder has started the project. One example of this include the Owner realizing they want dual showerheads in each bathroom after the DB designs and orders single showerheads.

3.2. Responsibilities of the Design-Builder

This section analyzes and compares roles and responsibilities of Design-Builders of two contracts by identifying similarities, differences and assessing the Design-Builders’ share of risks.

- Programming Services: The Design-Builder (DB) for project Hollywood East is required to perform extensive programming services that includes review and evaluation of existing site conditions, identification and prioritization of Owner’s and user’s goals and objectives, site walkthroughs, several meetings to set performance and design criteria based on investigations and value engineering practices. The DB is also required to submit to Owner a proposal to increase GMP to perform preconstruction and design services, however, the DB is not required to perform above services.

- Design Services: For Hollywood East project, Design-Builder is responsible for preparation of all stages of design documents and getting them approved from Owner, submission of cost estimates at 90% completion of each of the design phases (Schematic Design, Design Document & Construction Document), undertaking surveys, environmental assessment and hazardous waste planning, developing Economic Participation Plan, meeting Owner’s Workforce Training & Hiring Program compliance, and meeting with Owner at least twice a month to review design progress.

Olsson Associates is responsible for preparing and submitting preliminary and final designs and specifications based on data from inspections, surveys and records as provided and is not required to conduct engineering surveys, geotechnical investigations, or other services. Design review meeting includes one conference to be conducted at least 10 days prior to first Application for Payment.

- Construction Services: In both contracts, Design-Builder is solely responsible for direction, supervision and inspection of Work, use of all means, methods and equipment and their safety, providing and paying for all labor, material, equipment, utilities, transportation, temporary facilities etc., ensuring that Work conforms with contract documents and local laws. DB shall also be responsible for work of all subcontractors and suppliers. Olsson Associates (OA) is required to appoint a superintendent on site to act on its behalf. In safety matters, OA is responsible to assign a qualified and experienced safety representative at site and to share hazardous material data with employees on site. OA is also required to pay to the workers ascertained interest on their wages as a part of Unemployment Compensation Fund, required by the state of Nebraska.

- Permits, fees and notices: In Hollywood East project, it is not the Design-Builder’s responsibility to secure and pay for building and other permits and governmental fees, licenses and inspections except for those trade permits required to be secured by DB or DB’s contractors/subcontractors whereas Olsson Associates is responsible to obtain and pay for all necessary permits, licenses, approvals of govt. authorities, govt. charges and inspection fees, and charges of utility Owners for connections. Design-Builder is responsible to give notices required by laws, ordinances, rules, regulations.

- Work Schedule: DB of Hollywood East project is required to prepare and submit MS Project compatible construction schedules with their updates every month. Olsson Associates is required to share (preliminary) progress schedule with Owner within first ten days of contract agreement which may be subject to approved changes in future.

- Documents and submittals: Both DBs are required to provide one copy of all drawings and specifications on site for Owner including revised submittals such as product data, shop drawings and samples. It is the responsibility of DB to ensure that submittals adhere to specifications and contract requirements.

- Taxes: It is Design-Builder’s responsibility to pay sales, consumer, use and other required taxes for both projects (GC 6.10 and A.3.6.1).

- Royalties, Patents and Copyrights: In both contracts, design-builder is responsible to pay all royalties and license fees and is also responsible for infringement of copyrights except in the cases where copyright violations are contained in drawings/specifications provided by the Owner. However, in the Contract document of Hollywood East, if DB is aware of violation and hasn’t informed Owner, then DB is responsible.

- Use of Site: Both DBs are responsible to confine on-site operations and material storage and handling within boundaries permitted by law, permits and contract document. It is also their responsibility to protect partially or fully completed Work or adjacent property from damage. Cutting, patching, removal of debris and site clean-up is their responsibility.

3.3. Responsibilities of the Owner’s and the Owner’s Representative

3.3.1. Overview of Responsibilities of the Owner

The Owner’s responsibilities are well defined in both contracts. In terms of similarities, both contracts recognize the position of the Owner’s Representative. The AIA contract for the HFATP states that the Owner’s Designated Representative “shall be designated in writing and shall have express authority to bind the Owner” (Exhibit H Art. 7.4.1 and Exhibit A Art. A.2.1.1.). In the EJCDC contract for the PMS, two different figures are named in different parts of the Contract. The first one is the “Owner’s Representative” who is the person designated by the Owner with complete authority to act on behalf of him (General Conditions Art. 8.01A.1) and the second one is the “Owner’s Consultant” which is defined as an individual or entity with whom the Owner may contract to furnish services to Owner with respect to the Project (GC Art. 1.01.A.29). His duties, responsibilities, and limitations of authority shall be determined after negotiation with the Owner according to Form of Agreement